Datasets:

glnmario

/

ECHR

like 0

dev

001-90171

ENG

MDA

CHAMBER

CASE OF TUDOR-AUTO S.R.L. AND TRIPLU-TUDOR S.R.L. v. MOLDOVA

Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

6. The applicants, Triplu-Tudor S.R.L. and Tudor-Auto S.R.L., are two companies incorporated under Moldovan law. 7. On 18 November 1993 the State Service for the Supervision of Insurance by the Ministry of Finance of the Republic of Moldova (“the Service”) (Serviciul de Stat pentru supravegherea asigurărilor pe lângă Ministerul Finanţelor al Republicii Moldova) registered the insurance company Tudor and Co. S.R.L., founded by three private parties T.N., V.N. and L.R. (“the founders”). On an unspecified date the founders lodged with the Service a request to register two other insurance companies, which on 3 November 1995 were registered as Triplu-Tudor S.R.L. and TripluTudorAuto S.R.L. They also sought the registration of changes in the companies’ founders, namely the replacement of T.N. and V.N. with other founders, and in one of the company’s names from Triplu-Tudor-Auto S.R.L. into Tudor-Auto S.R.L. On 25 and 27 December 1995 and on 11 January 1996 the Service granted their requests. 8. On 10 June 1997 the Government adopted Decision no. 533 “on certain regulatory measures of insurance activity” (see paragraph 31 below), according to which insurance companies had to fulfil certain formalities and to obtain new registration certificates before 1 August 1997. 9. On 31 July 1997 Triplu-Tudor S.R.L. and Tudor-Auto S.R.L. submitted to the Service the required documents together with the evidence of increase in their statutory capital up to 300,000 Moldovan lei (MDL), (65,197 euros (EUR) at the time), as provided for by section 1 of decision no. 533, and requested to register the changes in the constitutional documents and to be issued with new registration certificates for insurance activity (“the certificates“). Since the Service refused to comply with their requests, on an unspecified date each of the applicant companies brought actions against the Service, seeking to order it to register the requested changes and to issue new registration certificates. 10. On 15 January 1998, during the proceedings before the first-instance court, the Service only registered the changes in the companies’ statutory capital. 11. On 31 March 1998 the Chişinău Economic Court ruled in favour of the applicant companies and ordered the Service to issue them with new registration certificates. On 15 April 1998 the applicant companies were issued with enforcement warrants which stated “for immediate enforcement”. The Service appealed. 12. On 24 June 1998 the Appellate Chamber of the Chişinău Economic Court rejected the appeals of the Service in both cases. No further appeals were lodged and the judgments became final and enforceable. 13. The Service took a number of steps designed to either annul the final judgments or to prevent their enforcement. On 21 July 1998 and 1 June 1999 the Service annulled its decisions of 25 and 27 December 1995 and of 11 January 1996. 14. On 1 December 1998 the Service requested a stay of the enforcement proceedings, which was dismissed by the Chişinău Economic Court on 12 February 1999. 15. On an unspecified date it asked for a revision of the judgments of 31 March 1998. On 15 July 1999 the Chişinău Economic Court dismissed the request as unfounded. 16. On 8 February 2000 the Service lodged a new request for a revision of the judgments of 31 March 1998. By a final decision of 6 September 2000 the Supreme Court of Justice dismissed the request. 17. In a separate set of proceedings, on 28 September 1999 the Rîşcani District Court fined the Director of the Service for failure to comply with the judgments in favour of the applicant companies. Following an appeal lodged by the Director, on 4 July 2000 the Supreme Court of Justice quashed the judgment of 28 September 1999 and discontinued the proceedings against him as statute-barred. Nevertheless, in a separate decision of the same date the Supreme Court of Justice specifically addressed the Ministry of Finance about the need to enforce the final judgments in order to avoid subsequent damage to State interests. 18. On 24 January 2001 the Service issued each of the applicant companies with certificates, but the Minister of Finance did not sign them so that they had no legal force. In February 2001 the applicant companies requested a bailiff to fully enforce the judgments and to obtain the signature of the Minister of Finance on the certificates. 19. On 18 May and 4 June 2001 the State Registration Chamber requested the applicant companies to submit certain documents in order to re-register the companies, as provided for by a new law on State registration of enterprises. Since the requests specifically stated that the applicant companies should have submitted the originals of their registration certificates, the latter failed to comply with the requests. 20. The judgments of 31 March 1998 have not been enforced to date. 21. On 19 April 2000 T.P. (it appears from the case file that the founder T.N., see paragraph 7 above, had changed his name) lodged a request to join the proceedings which ended with the final judgment of 31 March 1998 as a third party. He claimed that he was the owner of a 50% share in the applicant company and that the changes to the applicant company’s statutory documents, introduced on 11 January 1996, had been adopted without his knowledge. 22. By a final decision of 20 September 2000 the Appellate Chamber of the Economic Court dismissed T.P.’s request as unsubstantiated. 23. On 6 October 2003 T.P. lodged with the Economic Court of Appeal a request for a revision of the judgment of 31 March 1998, relying mainly on the same grounds as in his request of 19 April 2000. On 8 December 2004 the Economic Court of Appeal dismissed the request as unsubstantiated and statute-barred, since it had been lodged more than three months after the date on which T.P. had found out about “new relevant circumstances”. T.P. lodged an appeal on points of law. 24. On 31 March 2005 the Supreme Court of Justice upheld his appeal on points of law and quashed the judgment of 31 March 1998. It ordered a full re-examination of the case. The Supreme Court did not deal with the issue of the three-month time-limit for lodging the revision request. 25. The outcome of the reopened proceedings is unknown. 26. The relevant domestic law concerning non-enforcement of a final judgment is set out in Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004III (extracts). 27. The relevant domestic law concerning the revision of a final judgment is set out in Popov v. Moldova (no. 2), no. 19960/04, §§ 26-29, 6 December 2005. 28. The relevant provisions of the Law no. 1508-XII of 15 June 1993 “on insurance”, in force between 15 June 1993 and 21 December 2006, read as follows: “Section 48. Funds and reserves of the insurer (1) The guarantee of the financial stability of the insurer consists in disposing of a statutory capital tantamount to the volume of its insurance obligations. The minimum statutory capital of the insurer shall constitute 300,000 lei, in monetary deposits. Section 49. The guarantee of the insurer’s solvency (...) (2) The solvability reserve for life and pension insurances shall be composed of the statutory capital, the reserve fund and the long-term premiums’ reserve and shall constitute not less than 8% of the insured amounts. (3) The solvability reserve for other types of insurance shall be composed of the statutory capital, the reserve fund, the reserve fund for other types of insurance, and shall constitute not less than 1% of the insured amounts (...)” “Section 54. The scope and the main duties of the State Service for the Supervision of Insurance: (1) The State Service for the Supervision of Insurance (...) has the duty to supervise insurance activity, to guarantee the protection of rights of the insured and insurers (...) (2) The main duties of the Service (...) are: a) to examine the constitutional documents of insurance companies submitted for registration (...); b) to hold a record of the insurers; c) to issue licences for insurance activities (...);” 29. Amendments to Law no. 1508-XII of 15 June 1993 “on insurance” of 25 March 2003, read as follows: “[Section 48] the text “300,000 lei” is replaced by the text “2 million lei”” 30. The relevant provisions of Law no. 407 of 21 December 2006 “on insurance”, read as follows: “Section 22. Statutory capital of the insurer (re-insurer) (1) The minimum statutory capital of the insurer (re-insurer) shall be 15 million lei (...). (...) (2) At the moment of registration, the statutory capital of the insurer (re-insurer) should be entirely deposited by its founders. (3) Contributions to the minimum statutory capital shall be entirely deposited in money both at the moment of creation [of the company] as well during increase [of the statutory capital]. (4) The means obtained by the potential shareholders of the insurer (re-insurer) from loans, bank credits, mortgage or other investments, including investments of other participants of the insurance market (...) cannot serve as a source of formation or increase of the insurer’s statutory capital.” “Section 57. (1) Insurers, who hold of licences (..) at the moment of entering into force of the present law, are authorised to continue their activity for the next twelve months, during which period they shall comply with the provisions of the present law, except for the cases provided in paragraphs (4)-(7). (2) Licences for insurance activity which had been issued prior to the entering into force of the present law and which are valid for a period longer than the one provided for in paragraph (1), shall be valid until the expiry of the period for which they had been issued. (4) Insurers who hold of licences at the moment of entering into force of the present law, shall: (...) (b) have of a minimum statutory capital in the amount of: 4 million lei – after one year from the moment of entering into force of the present law; 6 million lei – after two years from the moment of entering into force of the present law; 9 million lei – after three years from the moment of entering into force of the present law; 12 million lei – after four years from the moment of entering into force of the present law; 15 million lei – after five years from the moment of entering into force of the present law.” 31. The relevant provisions of Government Decision no. 533 of 10 June 1997 “on certain regulatory measures of the insurance activity”, in force between 10 June 1997and 8 November 2005, read as follows: “1. Insurance organisations, (...) shall increase their statutory capital up to 300,000 lei before 1 August 1997. 2. The Service (...) shall issue new registration certificates to the organisations which comply with the requirements provided for by paragraph 1 of the present Decision. 3. In order to be issued with new certificates, the insurance organisations shall: - pay the Service a fee in the amount of one minimum salary (...); - submit the original of the documents which confirm the address, the existence of the [required] statutory capital, the real value of its actives accumulated from its own resources, the certificate issued by the fiscal authorities concerning payments to the Social Fund and the certificate of State registration of the organisation. 4. The old-type registration certificates of the insurance organisations shall become void as of 1 August 1997.”

dev

001-100370

ENG

EST

ADMISSIBILITY

KAASIK v. ESTONIA

Inadmissible

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant, Mr Edgar Kaasik, is an Estonian national who was born in 1988. He is currently serving a prison sentence. and as they appear from the documents on file, may be summarised as follows. On 3 December 2008 the Viru County Court convicted the applicant of manslaughter, attempted murder and violent and threatening behaviour. He was sentenced to fifteen years' imprisonment to which an unserved sentence of seven months from an earlier judgment was added. According to the text of the judgment – which was drawn up in Russian – an interpreter participated in the hearing; the applicant was assisted by a lawyer. It would appear that the proceedings in the County Court were conducted mainly in Russian since the applicant and several other participants in the proceedings were Russian-speakers. On 15 May 2009 the Tartu Court of Appeal heard the applicant's appeal. The applicant was assisted by a lawyer; an interpreter also participated in the hearing. According to the documents submitted by the applicant, the Court of Appeal informed the participants in the hearing that its judgment would be available on 20 May 2009 at the court's office and explained that any notice of appeal against its judgment had to be submitted to the court's office within seven days of 21 May 2009. The participants in the proceedings confirmed that they had understood the appeal procedure. By a judgment of 20 May 2009 the Court of Appeal dismissed the applicant's appeal. It appears that the operative part of the judgment was available at the court's office on 20 May 2009. A translation into Russian of the operative part of the judgment was served on the applicant, who was in detention in Viru Prison, on 26 May 2009. According to the applicant, he had been informed after the examination of his appeal in the Court of Appeal that the court had to be notified of any intention to appeal within seven days and that only a lawyer had the right to lodge an appeal in cassation with the Supreme Court. His lawyer had not come to the prison to discuss further action despite his promise to do so. On an unspecified date he had called his lawyer, who had told him to inform the court of his intention to appeal and to lodge an appeal in cassation. On 3 June and 4 June 2009 the applicant handed over to the prison authorities applications addressed to the County Court and the Court of Appeal informing them of his intention to appeal. On 8 June 2009 the Court of Appeal refused to accept the applicant's notification of appeal, finding that the time-limit for submission of any such notification had expired on 2 June 2009, that is, seven days after the applicant had received the translation into Russian of the operative part of the judgment, whereas the applicant's letters had been handed over to the prison authorities too late, on 3 June and 4 June 2009. The Court of Appeal noted that the applicant had not requested that the court restore the time-limit and had not provided any explanation why he had failed to comply with it. In the meantime, on 4 June 2009, the applicant requested the Supreme Court to restore the time-limit for appeal. By a decision of 29 June 2009 the Supreme Court rejected the application. It noted that pursuant to Article 344 § 3 of the Code of Criminal Procedure both an appeal in cassation and a request for restoration of the time-limit for appeal had to be drawn up by a lawyer. The Supreme Court's decision was sent to the applicant on 20 July 2009. On 21 June 2009 the applicant lodged a procedural appeal with the Supreme Court against the Court of Appeal's decision of 8 June 2009. On 22 July 2009 the Supreme Court rejected the appeal because it too should have been drawn up by a lawyer. The Supreme Court's decision was sent to the applicant on 21 August 2009. Article 315 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) concerns the pronouncement of a first-instance court's judgment. Pursuant to Article 343 (see below) it also applies, mutatis mutandis, to appellate court judgments. It reads as follows: “(1) A judge or ... the presiding judge shall pronounce a judgment at the time announced pursuant to Article 304 of this Code. (2) If the accused is not proficient in the language of the criminal proceedings, the judgment shall be interpreted or translated for him or her after its pronouncement. (3) The judge shall ask whether the person acquitted or convicted understands the judgment and explain its content to him or her if necessary. (4) A court may decide to pronounce only the operative part of the judgment, in which case it shall explain the main reasons for the judgment orally upon its pronouncement. (5) After the pronouncement of a judgment or its operative part the judge or presiding judge shall: 1) upon the pronouncement of the operative part of the judgment, give notification of the date on which the judgment will be available in court for examination by the parties to the court proceedings and shall make a corresponding notation in the record of the court hearing; 2) give notification of the term for appeal against the judgment and explain the procedure for appeal provided for in Section 318 of this Code and the possibility to waive the right of appeal; 3) explain that the county court must be notified in writing of the intention to exercise the right of appeal within seven days of the pronouncement of the judgment or its operative part. (6) Waiver of the right of appeal shall be recorded in the record of the court hearing. A lawyer may waive the right of appeal only with the written consent of the defendant. (7) If all parties to the court proceedings waive the right of appeal or if during the term provided for in paragraph 5(2) of this Article none of the parties to the court proceedings gives notification of their intention to exercise the right of appeal, only the [introductory part and operative provisions] shall be set out in the judgment. (8) If the parties to the court proceedings do not waive the right of appeal, the full judgment shall be prepared within fifteen days of the date on which the county court is notified of an intention to exercise the right of appeal.” Article 317 provides that a court must send a copy of a judgment to a party who was not present at its pronouncement (§ 1). Where the defendant is under arrest, a copy of the judgment must be sent to him or her immediately after its pronouncement or immediately after it is made available at the court's office (§ 2). Article 342 § 3 (2) provides that if a court of appeal dismisses an appeal and upholds the judgment of the first-instance court, it can limit its judgment to the introduction and operative part and make reference to the provisions of procedural law pursuant to which the judgment was made. Article 343 provides that after the parties' closing statements a court of appeal must announce the date when its judgment will be available for the parties to the proceedings at the court of appeal's office (§ 1). If the court of appeal pronounces its judgment or the operative part of the judgment immediately after deliberations, the provisions of Articles 315 and 316 apply (§ 2). Paragraph 3 provides that copies of a judgment of the court of appeal must be served in accordance with Article 317. In Article 344 § 3 the persons entitled to lodge an appeal in cassation with the Supreme Court are listed. That list includes the Prosecutor's Office, a defence lawyer (advokaat) and other parties' lawyers. Article 345 lays down the rules concerning the time-limit for an appeal in cassation. It provides that a court of appeal must be notified in writing of any intention to appeal in cassation within seven days after its judgment or the operative part of its judgment has been pronounced or made available through the court's office (§ 1). An appeal in cassation must be lodged in writing with the court of appeal within thirty days of the date when the party to the court proceedings has the opportunity to examine the judgment of the court of appeal (§ 2).

dev

001-77778

ENG

SVN

CHAMBER

CASE OF MATKO v. SLOVENIA

Preliminary objections allowed (Article 35-1 - Six month period);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

David Thór Björgvinsson;John Hedigan

9. The applicant was born in 1961 and lives in Slovenj Gradec. 10. On 4 and 5 April 1995 a Special Unit (Specialna enota), which was under the direct control of the Ministry of Internal Affairs (“the MIA”) in cooperation with officers from the Slovenj Gradec Internal Affairs Administration (Uprava za notranje zadeve – hereinafter referred as the “Slovenj Gradec Police”) undertook a large-scale operation against the activities of a criminal organisation presumed to be operating on the territory of the town of Slovenj Gradec. 11. On 4 April 1995 the officers twice entered a coffee bar in Slovenj Gradec, called “Pik Bar”, searching for members of the above-mentioned criminal organisation. In parallel to the investigation of the Pik Bar, the police carried out an extensive operation in the town and its surroundings. 12. On 5 April 1995 at about 8.30 p.m. the applicant, driving a car, was arrested in Slovenj Gradec by officers of the Special Unit and the Slovenj Gradec Police. He was brought to the Slovenj Gradec Police Station for having allegedly failed to comply with the police orders. He was questioned by the police and released on 6 April 1995 at approximately half past midnight. 13. There are two conflicting versions of what occurred during the police procedure and the transport to the police station. 14. According to his submissions before the Court and the statements he gave in the relevant domestic proceedings, the applicant was driving through the centre of Slovenj Gradec on the evening of 5 April 1995 when at least two cars overtook him and forced him to stop. Approximately fifteen armed officers, wearing black jackets, arrived at the scene, some of whom approached the applicant. They were shouting and the applicant, still sitting in the car but attempting to step out, put his hands up. At that moment, the officers dragged him out of the car. They pushed him to the ground, tied him up, took off his shoes, dragged him by his legs approximately 25-30 meters along the road into a dark area where they beat and kicked him for some 15 minutes. After someone had said “he’s had enough, he’s had enough”, the applicant was placed in an off-road vehicle and taken to the police station. On the way there, a journey which lasted approximately 30 minutes, two officers, sitting in the front of the car, threatened to kill him and one of them electro-prodded him several times with a stun gun. At the police station, he was put in the room for provisional detention (prostor za pridržanje) where one of the officers untied him at his request. The applicant was questioned and told that he had failed to comply with the police order to stop his vehicle. He was then released. In the meantime, the police also searched the applicant’s car. 15. About thirty people were arrested and injured during the two-day operation. 16. According to the version of events given by the Government, the police noticed a car moving at high speed. Since the conduct of the driver looked suspicious, the police decided to stop the car, to identify the driver and to perform a preventative search. For this reason, they drove after the car. The driver accelerated, prompting the police to force him to stop. 17. When the driver, who was later identified as the applicant, stopped the car, an unspecified number of the Special Unit’s officers confronted him and informed him that this was a police procedure. The applicant jumped towards one of the officers and attempted to hit him. The officer managed to block his blow and then with the other officers forced the applicant to lean against his car in order to search him. The applicant struggled free and escaped. 18. When the officers caught him, the applicant again tried to resist and they responded by using truncheons and gripped his elbow to handcuff him, knocking him down in the process. Since the applicant continued to resist, the officers tied his wrists with a plastic cord. They subsequently took him to the police station on suspicion of committing the criminal offence of “obstructing an official in the course of his duties” (preprečitev uradnega dejanja uradni osebi). The applicant was released after questioning. 19. The officers were authorised to use force on the basis of section 54 of the Internal Affairs Act. During the operation, they wore vests with the visible sign “Police” (“Policija”). In their later submissions, they stated that only two officers had used force against the applicant. 20. During the police procedure, the applicant did not request medical aid and the police only afterwards learned that he had sustained injuries. In addition, he did not complain about the conduct of the officers during the procedure. 21. The judgment of 12 February 2001 issued in the proceedings instituted against the applicant (see paragraph 48), established that three officers of the Slovenj Gradec Police, D.P., J.K. and M.F., who were in the car which stopped the applicant, received information about the location of a “white Golf”, believed to be being driven by the applicant, and an order to stop it. 22. Officer J.K. testified in the criminal investigation instituted against the applicant, that they had received information that the “white Golf” had left “the place”, which meant that it had left Pik Bar. He was not able to comment on the speed of the applicant’s car. In addition, he stated that by the time a minute had gone by after the applicant was stopped, there were already four or five vehicles of the Slovenj Gradec Police and the Special Unit at the scene and that three or four officers arrived in each vehicle. 23. Officer M.F. stated in the same criminal investigation: “We had information about individuals who were suspected members of that [criminal] organisation, and one of them was Aleksander Matko, whom I did not know since I am from Maribor, but I knew him from photographs. (...) We were on one of the streets of Slovenj Gradec when we received information that the car of Aleksander Matko had been seen and that our colleagues had tried to stop him, but he would not stop despite warnings.” 24. Officer D.P. explained in his testimony in the above mentioned criminal investigation: “At the critical time, we were conducting, in the territory of Slovenj Gradec Police, an operation to investigate organised crime. (...) In front of the Hotel Pohorje, a group of people was noticed which included M.A. and Aleksander Matko. One of the police patrols noticed that M.A. left with the motorcycle and they also saw when Aleksander Matko drove away. In fact, everything happened very quickly (...). We placed vehicles at different locations (...). Our official vehicle, which I was driving, received a message that a white Golf was being driven by a person believed to be Aleksander Matko (...). We decided to stop him in order to search the car since there was a suspicion that he was armed.” 25. Another officer from the Slovenj Gradec Police, I.G., who had arrived at the scene with the officers of the Special Unit and was also questioned in the criminal investigation, stated that there were 20 officers of the Special Unit and Slovenj Gradec Police at the scene, and that five of them had had direct contact with the applicant. 26. On 6 April 1995, soon after his release, the applicant was admitted to the Slovenj Gradec General Hospital where he stayed until 7 p.m. The medical report, written by a doctor in that hospital, stated that the applicant had bruises on his head, but did not include any details of the injuries. The applicant was advised to rest for a few days. 27. Next day, 7 April 1995, the applicant sought medical aid in the Maribor General Hospital. There, he also explained to a doctor that on 5 April 1995 he had been beaten by unknown armed persons. The medical report of 7 April 1995 indicates several lesions, including: - bruises on the right eye and a small amount of suffusion in the surrounding area; - a haematoma on the left side of the forehead - a painful nose; - a 6 cm by 4 cm haematoma on the left shoulder; - two 4-5 cm linear skin abrasions on the left side of the thorax; - a child’s-hand-sized moderate oedema behind the right ear; - an extensive haematoma on the left thigh. The doctors had also suspected a fracture of the right temporal bone. The report of an x-ray examination on 19 April 1995 indicated that there was a hairline fracture (fissura). 28. On 7 April 1995 the applicant went to the Slovenj Gradec Police and made an oral complaint against the officers of the Special Unit concerning the events of 5 April 1995. A written statement was prepared by the officer in charge and signed by the applicant. In his statement, the applicant alleged that about eight to ten officers had dragged him to the metallic fence of the construction site behind the Slovenj Gradec Health Centre where they had beaten him, shouted at him and threatened to kill him. He further stated that while being driven to the police station he had been beaten again, and given electric shocks with the special truncheons. He had not known where the police were driving since his head was pointing downwards the whole way. He also described the injuries he had sustained during the police procedure. 29. On 15 May 1995 the applicant lodged, through his lawyer, a written criminal complaint (kazenska ovadba) with the Slovenj Gradec Police against unidentified police officers for causing minor bodily harm (lahka telesna poškodba) and an unlawful deprivation of liberty (protipraven odvzem prostosti). The complaint mentions the names of two officers, D.P. and J.K., who were present at the scene but not involved in the alleged ill-treatment. The applicant proposed that the names of the officers who had allegedly ill-treated him be obtained from those officers and that criminal proceedings be introduced. 30. On 15 June 1995 the Slovenj Gradec District Public Prosecutor’s Office (Okrožno državno tožilstvo) asked the applicant’s lawyer to add his client’s deposition to the file, which he did on 20 June 1995. On 21 October 1996 and 6 January 1997 the applicant’s lawyer sought information from the Public Prosecutor’s Office about the state of progress in the proceedings. 31. In the meantime, on 14 July 1995, the Slovenj Gradec District Public Prosecutor (the “Public Prosecutor”) requested the Slovenj Gradec Police to identify the officers who had participated in the procedure against the applicant and to conduct an interview with them. Subsequently, two reports concerning the relevant police operation were submitted to the Public Prosecutor: one by the MIA on 15 November 1995 and one by the Slovenj Gradec Police on 5 February 1996. They are each approximately one page and a half long and their content corresponds to the facts as submitted by the Government. 32. It transpires from the MIA’s report that, on 20 April 1995, the MIA had appointed a “working group” (delovna skupina) consisting of officers from the Slovenj Gradec Police and the MIA to assess the lawfulness of the procedures carried out by the Special Unit and the Slovenj Gradec Police. The Court has not received any documents produced or obtained by this working group, except the above-mentioned MIA report. The latter, which under the “subject” (zadeva) refers solely to the criminal offence allegedly committed by the applicant, reads as follows: “Further to the analysis of procedures and activities which had taken place on 4 and 5 April 1995, the working group established that all the measures and procedures were lawful and in accordance with legal powers and professional rules. (...) The procedure against Aleksander Matko was carried out by criminal investigators D.P., J.K., M.F, T.G, I.G. and officers of the MIA’s Special Unit, who were headed by M.J (...). On 5 April 1995, at 20.30, Aleksander Matko actively resisted the lawful procedure against him with the intention of preventing criminal police investigators from performing their official duties. Since their official duty could not be carried out otherwise, physical force and handcuffs were used against Matko in accordance with police powers. From the facts described above and from the contents of the criminal complaint [lodged against the applicant] it is evident that there exists a reasonable suspicion [utemeljeni sum] that Matko Aleksander on 5 April at 20.30 committed the criminal offence of obstructing an official in the course of his duties within the meaning of section 302/II of the Criminal Code of the Republic of Slovenia. (...) The criminal complaint of the Slovenj Gradec Police states that Aleksander Matko sustained injuries as a result of the use of force. (...) On the basis of the facts, stated in the Slovenj Gradec Police’s criminal complaint, there are no grounds for suspicion that the officers of the special working group of the Criminal Police Directorate [the officers of the Slovenj Gradec Police and the Special Unit] committed the alleged criminal offences (...)” 33. The Slovenj Gradec Police report finds, inter alia, that D.P. and J.K. stopped the applicant’s car and that the Special Unit’s officers were under the command of M.J. It explains that the Head of the Special Unit was authorised to give statements concerning the procedure of the Special Unit. 34. On 17 January 1997 the Public Prosecutor issued a decision dismissing the applicant’s criminal complaint. It was served on the applicant’s lawyer on 22 January 1997. 35. In the decision the Public Prosecutor identified D.P., J.K. and M. J. as the officers accused in the applicant’s complaint. After giving a summary of the applicant’s allegations, the Public Prosecutor concluded: “In the course of the proceedings, the additional information concerning the above-mentioned criminal complaint by the Slovenj Gradec Police and the MIA – Office of the Minister – were obtained. This enabled it to be established that the above-mentioned officers, all employees of the MIA, had participated in the procedure against the applicant. It would appear from the already mentioned report of the MIA – Office of the Minister – that the employees of the MIA acted in accordance with their powers. In addition, on 17 January 1997, a request for an investigation against Matko Aleksander was lodged with the investigating judge in the Slovenj Gradec District Court, for, among other matters, obstructing an official in the course of his duties (...). In view of the above considerations, the accused D.P., J.K. and M.J. acted in the framework of their duties and powers, which they have as employees of the MIA, and therefore there is no reasonable suspicion (utemeljeni sum) that they committed the alleged criminal offences (...). For those reasons, the criminal complaint must be dismissed.” 36. The decision drew the applicant’s attention to his right to initiate a criminal prosecution as a subsidiary prosecutor (see paragraphs 55 and 58 below) within 8 days. He did not avail himself of this opportunity. 37. On 12 April 1995 the Slovenj Gradec Police lodged a criminal complaint against the applicant for the criminal offence of “obstructing an official in the course of his duties” under section 302, paragraph 4-1 of the Slovenian Criminal Code, which referred to the same incident as the applicant’s criminal complaint. 38. On 17 January 1997 the Public Prosecutor requested the Slovenj Gradec District Court to open a criminal investigation against the applicant. It appears that her request was based on the above-mentioned reports of the MIA and the Slovenj Gradec Police (see paragraphs 31-33). 39. On 8 April 1997 the investigating judge questioned the applicant. The applicant denied having committed any offence and complained that he had been beaten and ill-treated by the police. He pointed out that he had medical reports proving his injuries. The reports were included in the file. 40. On 8 May 1997, further to a proposal of the investigating judge, the Slovenj Gradec District Court decided not to open a criminal investigation against the applicant. The court pointed out, inter alia, that the officers who were allegedly attacked by the applicant had not been identified and that the Ministry’s report, stating that a special operation for the investigation of serious crimes was in progress at that time, and the Public Prosecutor’s request for the investigation, which stated that the applicant was arrested because of his excessive speed, were contradictory. 41. On 12 May 1997 the Public Prosecutor appealed against this decision. On 4 December 1997 the Maribor Higher Court upheld her appeal finding that, despite the shortcomings mentioned in the first-instance decision, there were sufficient grounds for suspicion that the applicant had committed the alleged offence. Accordingly, it changed the first-instance court’s decision and opened a criminal investigation against the applicant. 42. Between 19 February 1998 and 10 March 1998 the investigating judge interviewed five officers from the Slovenj Gradec Police who had participated in the operation, the officer M.J., who had been responsible for the officers of the Special Unit, and A.K., who had allegedly witnessed the incident. When asked to comment on the applicant’s allegations, the officers either denied the alleged ill-treatment or stated that they could not have seen the events well enough. A.K. testified in favour of the applicant, saying that he had not resisted but had been seriously beaten by the officers. 43. On 17 March 1998 the criminal investigation was concluded with the investigating judge’s decision ordering the exclusion of certain documents from the case-file in accordance with section 83, paragraph 3, of the Criminal Procedure Act. It is not known when that decision was served on the applicant. 44. On 28 December 1998 the Public Prosecutor filed an indictment against the applicant for “attempting to obstruct an official in the course of his duties” (poskus kaznivega dejanja preprečitve uradnega dejanja uradni osebi). 45. On 27 January 1999 the applicant filed an objection to the indictment. He pointed out that he had been ill-treated and referred to the statements he had previously given in the proceedings. He also mentioned that he had lodged an application with the Court. His objection was rejected by the Slovenj Gradec District Court on 16 February 1999. 46. On 13 September 1999 and 22 November 1999 the Slovenj Gradec District Court held hearings. The court heard the applicant, and all the officers who had been questioned in the investigation and A.K. By a judgment of 22 November 1999 the court acquitted the applicant. The court, acknowledging that the applicant had sustained injuries on the relevant day, concluded that there had been “physical contact” between the applicant and the officers. The court, however, found that it had not been proven that the applicant had physically resisted the officers as described in the indictment since none of the Special Unit’s officers who had had physical contact with the applicant had been identified and there were no documents describing the conduct of the applicant after he had been stopped. 47. On 5 January 2000 the Public Prosecutor appealed against the judgment and on 27 September 2000 the Maribor Higher Court quashed the judgment and remitted the case to a new panel for retrial. 48. During the retrial, hearings were held on 15 December and 12 February 2001. At the second hearing the court heard a new witness, D.Č., at the applicant’s request. By a judgment of 12 February 2001, the Slovenj Gradec District Court convicted the applicant as charged and sentenced him to 3 months’ imprisonment, suspended for 3 years. The court found: “Although it was not known which officers of the Special Unit were involved in the procedure after the applicant’s car had been stopped, the officers questioned sufficiently described the acts and the order of events as observers. They could also not have been influenced by anything and therefore they could be entirely trusted. On the contrary, it was impossible to trust either of the witnesses A.K. and D.Č., since it clearly transpires from their testimony that they knew the applicant well; they also confirmed that they knew him. Although the first witness was able to describe the events immediately after the operation, D.Č.’s testimony was unclear and biased in favour of the accused since he said that the officers had beaten the accused with truncheons all over his body and shouted, while it transpired from the medical documentation that he sustained injuries only on the upper part of the body, which is usual for this sort of measure. The conduct of the accused (...) undoubtedly shows (...) all the elements of the criminal offence (...) since his conduct undoubtedly represented an active form of resistance against the police officers and force was also directed against the officers, though the latter in the interest of protecting the data concerning employees of the Special Unit were not questioned. In any event, given the sufficiently convincing testimony of witnesses questioned in the proceedings – police officers – questioning of the employees of the Special Unit was not necessary (...). ” The court also found that the applicant had not injured any of the officers involved. 49. On 12 March 2001 the Public Prosecutor appealed against this judgment and applied for a heavier sentence. The applicant also appealed. On 9 May 2001 the Maribor Higher Court upheld the conviction but amended the judgment with respect to the costs of the proceedings. The applicant did not appeal to the Supreme Court. 50. Lastly, on 11 October 2001 the Slovenj Gradec District Court ordered the applicant to pay an additional sum to cover the costs of one of the witnesses heard during the proceedings. On that day, the proceedings were “finally concluded” (pravnomočno končan postopek). 51. At the material time, conditions for the use of force by the police were regulated by the Law on Internal Affairs (Zakon o notranjih zadevah, SRS Official Gazette, no. 28/1980 with amendments, in force until 17 July 1998; hereinafter referred as the “LIA”). Section 54 of the LIA stipulated, inter alia, that a police officer could use force (fizična sila) in the performance of his duties to overcome the resistance of a person who refused to comply with the legal orders of the police. The Guidelines for the Use of Coercive Measures, issued by the then Secretary of the Interior (Navodilo o uporabi prisilnih sredstev, SRS Official Gazette, no. 25/1981, in force until 24 June 2000), further specified that a police officer could in the cases referred to in section 54 of the LIA exceptionally use truncheons, punches, and means of restraint, when he encountered active resistance or an attempt to evade arrest. 52. In general, acts of ill-treatment resulting in physical harm are punishable under various provisions of the Criminal Code of the Republic of Slovenia (Kazenski zakonik Republike Slovenije, Official Gazette no. 63/94) prosecution being mandatory. In the case of the offence of inflicting “minor bodily harm” prosecution is triggered by the aggrieved party’s official complaint lodged with the police or the public prosecutor. However, when minor bodily harm is caused by a public official, e.g. a police officer, this will constitute a delictum proprium, i.e. the offence of “violation of human dignity by abuse of office or official duties”, for which prosecution is mandatory: notwithstanding the absence of a complaint by the aggrieved party (oškodovanec). 53. Among the offences defined by the Criminal Code, the following are relevant for the present case: Minor bodily harm, section 133 “(1) Whoever inflicts bodily harm on another person resulting in the temporary weakness or impairment of an organ or part of his body, his temporary inability to work, the impairment of his appearance or temporary damage to his health shall be punished by a fine or by imprisonment for not more than one year. ... (4) Prosecution of the offence defined in the first paragraph shall be initiated upon a complaint.” Violation of human dignity by abuse of office or official duties, section 270 “An official exercising his office who, by abuse of his office or official duties, treats another person badly, insults him, inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity, shall be sentenced to imprisonment for not more than three years.” Unlawful deprivation of liberty, section 143 “(1) Whoever unlawfully incarcerates another person or keeps him incarcerated or otherwise deprives him of the freedom of movement shall be sentenced to imprisonment for not more than one year. (2) If the offence under the preceding paragraph is committed by an official through the abuse of office or of official authority, such an official shall be sentenced to imprisonment for not more than three years. ...” Obstructing an official in the course of his duties, section 302 “(1) Whoever, by force or threat of imminent use of force, prevents an official from performing an official act, which he intended to perform within the scope of his official duties, or whoever in the same manner compels an official to perform an official act, shall be sentenced to imprisonment for not more than two years. ... (4) Whoever commits the offence under the first or third paragraphs of the present section against an official exercising a task of national or public security, pursuing the perpetrator of a criminal offence or guarding a detained person, shall be sentenced to imprisonment for not more than five years.” 54. Criminal proceedings in Slovenia are regulated by the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94; hereinafter referred to as the “CPA”) and based on the principles of legality and officialness; the prosecution is mandatory when reasonable suspicion (utemeljeni sum) exist that a criminal offence, subject to mandatory prosecution, has been committed. Section 20 of the CPA provides: “The public prosecutor shall be obliged to institute criminal proceedings if there is a reasonable suspicion that a criminal offence subject to mandatory prosecution has been committed, unless provided otherwise by the present Act.” 55. Public prosecutions are conducted by the public prosecutor’s office, an autonomous body within the justice system (Article 135 of the Constitution of the Republic of Slovenia, Ustava Republike Slovenije, Official Gazette no. 33/91). However, when the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the proceedings, the aggrieved party has the right to take over the proceedings in the capacity of a subsidiary prosecutor (subsidiarni tožilec); that is as an aggrieved party acting as a prosecutor (CPA, section 19/3). A subsidiary prosecutor has, in principle, the same procedural rights as the public prosecutor, except those vested with the public prosecutor as an official authority (CPA, section 63/1). If the subsidiary prosecutor takes over the proceedings, the public prosecutor is entitled at any time pending the conclusion of the main hearing, to resume management of the prosecution (CPA, section 63/2). In reality, however, the 2002 statistics show that out of approximately five hundred cases initiated by subsidiary prosecutors at a number of first-instance courts between 1997 and 2002 most were either still pending or had ended in favour of the accused; in eleven cases the accused was convicted and in seven cases the proceedings were handed over to the public prosecutor (see paragraph 72 below). 56. Slovenian criminal proceedings are divided into three stages – preliminary proceedings (predkazenski postopek), conducted by the police and the public prosecutor; criminal investigation (preiskava), conducted by the investigating judge of the district court, and trial (glavna obravnava), conducted before mixed panels of professional judges and lay-judges at district court level or a single professional judge of the local court. Proceedings falling under the jurisdiction of local courts (offences punishable by a fine or imprisonment of not more than three years) are summary proceedings (skrajšani postopek), which do not include the stage of a criminal investigation. 57. Preliminary proceedings are initiated either upon a criminal complaint lodged by any person with the police or the public prosecutor (CPA, section 147) or upon the police or the public prosecutor being informed by any means whatsoever of a situation that gives rise to “reasons for suspicion” (razlogi za sum), i.e. less than reasonable suspicion, that an offence which is subject to mandatory prosecution has been committed. In this respect, paragraph 1 of section 148 of the CPA provides: “If there are reasons for suspicion that a criminal offence subject to mandatory prosecution has been committed, the police shall be obliged to take steps necessary for pursuing the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or flee, discovering and securing traces of crime or objects of value as evidence, and collecting all information that may be useful for the successful management of criminal proceedings.” In addition, paragraph 2 of section 161 of the CPA reads as follows: “If the public prosecutor is unable to infer from the criminal complaint whether the allegations contained in it are probable, or if information in the criminal complaint does not provide sufficient basis to request investigation, or if the public prosecutor has only been informed about a criminal offence and, in particular, if the perpetrator is not known, the public prosecutor may request the police to collect the necessary information which he cannot collect himself or through other agencies and to take other measures in order to discover the criminal offence and the perpetrator (sections 148 and 149). The public prosecutor shall be entitled to ask the police at any time to notify him of what they have undertaken and they shall be under an obligation to reply without delay.” In the preliminary proceedings, most of the activities are carried out by the police, who, like the public prosecutor, do not have discretion as to whether to act (CPA, section 148), i.e. they must pursue the investigation ex-officio. However, it is the public prosecutor’s statutory right and duty to ensure that the facts are sufficiently investigated in order to decide whether or not there should be a prosecution (CPA, sections 20, 45 and 161/2). 58. If the evidence from the criminal complaint is inconclusive or if the perpetrator is not identified, the public prosecutor may request the police to collect further necessary information and report back to him or her on the results (CPA, section 161/2, above). When, even after such additional measures were taken, the public prosecutor concludes that there is no reasonable suspicion (utemeljeni sum) that a specific person committed a criminal offence or the perpetrator cannot be identified, the criminal complaint must be dismissed (CPA, section 161/4). Following the dismissal of the criminal complaint, the public prosecutor must within eight days notify the aggrieved party of the dismissal (CPA, section 161/1). 59. Conversely, when the standard of reasonable suspicion is satisfied, the investigating judge, upon the request of the public prosecutor or subsidiary prosecutor, opens a criminal investigation into the alleged criminal offence (CPA, sections 167 and 186). The prosecutor’s request for investigation must specify, inter alia, the person against whom an investigation is requested (CPA, section 168). The investigation is conducted only for the criminal offence and only against the accused specified in the investigating judge’s decision opening the investigation. However, if during the investigation a suspicion is raised of another criminal offence or of another suspect, the investigating judge must notify the public prosecutor thereof. Paragraph 2 of section 175 of the CPA provides as follows: “If, in the course of investigation, it appears that the proceedings should be expanded to cover another criminal offence or an offence against another person the investigating judge shall notify the public prosecutor accordingly. In this case investigative acts that call for urgent attention may be performed and the public prosecutor should be informed of everything that has been done.” 60. The investigating judge may at any time during the investigation terminate the proceedings if he determines that the act under investigation is not a criminal offence or if there is not enough evidence that the accused has committed a criminal offence (CPA, section 181). 61. At the end of investigation, when the investigating judge decides that a case has been investigated to the extent that an indictment can be made out, he must send the case-file to the public prosecutor (CPA, section 184). Before doing that he must eliminate from the case-file all contaminated evidence (exclusionary rule). He must also eliminate from the file all information obtained by the police directly from the accused and from certain other persons in the preliminary proceedings: such information is denied the status of legitimate evidence and cannot constitute the basis of the indictment or the judgment (CPA, section 83). 62. In summary proceedings before a local court, the criminal proceedings start with the bill of indictment (obtožni predlog, CPA, section 430) submitted by the prosecutor. The bill of indictment has to include the name and surname of the defendant, with his personal data if known, and a description of the criminal offence (CPA, section 434). Before lodging the bill of indictment, the public prosecutor or subsidiary prosecutor can request the judge to perform individual investigative measures (CPA, section 431). 63. Article 26 of the Slovenian Constitution provides: “Everyone has the right to compensation for damage caused through unlawful actions in connection with the performance of any function or other activity by a person or body performing such function or activity under state authority, local community authority or as a bearer of public authority. Any person having sustained damage also has the right, in accordance with the law, to demand compensation directly from the person or body that has caused the damage.” 64. The compensation claim may be pursued in civil litigation. In these proceedings, the courts are bound by the final criminal court’s judgment of conviction but only in so far as the existence of the criminal offence and criminal liability are concerned (section 12 of the Civil Procedure Act, Zakon o pravdnem postopku, SFRJ Official Gazette no. 4-37/77 with amendments, valid until 14 July 1999). In addition, the aggrieved party may lodge his compensation claim within the on-going criminal proceedings against the perpetrator (premoženjsko-pravni zahtevek, sections 100-111 of the CPA). 65. The statistical overview provided by the Government in their observations of 2 April 2002 shows that out of all registered civil claims submitted by aggrieved persons who had been injured during police procedures prior to 2002, forty-nine civil claims had been settled or withdrawn and sixty-seven civil claims were still pending. As to the first group of cases, the statistics are inconclusive; sixteen cases were transferred to the State Attorney Office (državno pravobranilstvo) and fifteen were settled during the preliminary proceedings. However, no information is provided as to their outcome. As to the remainder of the first group of cases, one case was settled out of court, two discontinued, five cases were decided against the plaintiff and five claims were wholly or partly upheld. In five cases no information as to the stage of proceedings or their outcome has been provided. 66. On 6 July 2006 the Constitutional Court (Ustavno sodišče) delivered a decision in a case concerning a person who had died during a planned police operation and alleged interference with several constitutional rights of the deceased and his wife. The Constitutional Court found a violation of the right to the effective protection of human rights, as provided by Article 15 of the Slovenian Constitution, taken together with Article 13 of the Convention, on account of a failure by the authorities to conduct an independent investigation into the incident. The Constitutional Court established (paragraph 33 of the decision): “Article 15 paragraph 4 of the Slovenian Constitution should be interpreted so as to include also a right to independent investigation of the circumstances of an incident where a person was allegedly subject to torture or inhuman or degrading treatment by the police (državni represivni organi) or where he or she lost his or her life during a police operation. The aforementioned right includes also the effective access of aggrieved parties to such investigation. Despite the fact that Article 15 paragraph 4 of the Constitution secures the right to judicial protection of human rights, it suffices in the situations concerned, according to the (aforementioned) jurisprudence of the European Court of Human Rights in respect of Article 13 of the Convention, that the investigation is conducted outside of judicial proceedings under the condition that it is independent and provides for the effective access of aggrieved parties.”

dev

001-107110

ENG

BGR

CHAMBER

CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN - PIRIN AND OTHERS v. BULGARIA (No. 2)

No violation of Art. 11;No violation of Art. 14

George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

7. The applicant party, based in south-west Bulgaria (in an area known as the Pirin region or the geographic region of Pirin Macedonia), was initially founded in 1998. It was declared unconstitutional by the Constitutional Court on 29 February 2000 and, as a result, dissolved. 8. The relevant developments up to February 2000 are described in detail in paragraphs 828 of the Court’s judgment in the case of United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 59489/00, 20 October 2005). In that judgment the Court found that the applicant party’s dissolution had been in breach of Article 11 of the Convention (ibid., §§ 5063). 9. After the Court’s judgment in the case of United Macedonian Organisation Ilinden – PIRIN and Others (cited above) became final, on 20 January 2006, the applicant party’s followers decided to apply for reregistration of the party, considering that this would be the best way of expunging the consequences of the violation of Article 11 (since under Bulgarian law there is no possibility of reopening proceedings before the Constitutional Court). 10. On 9 June 2006, in line with the procedure envisaged in the 2005 Political Parties Act (see paragraph 43 below), the party’s founding committee published a founding declaration in Dnevnik, a national newspaper, announcing that the party’s founding meeting would be held on 25 June 2006. 11. The meeting took place as planned. 12. On 20 September 2006 the applicant party’s founders applied to the Sofia City Court (“Софийски градски съд”) for registration. They enclosed with the application the original of the founding declaration and its published copy, a certificate attesting to the uniqueness of the party’s name, minutes of the founding meeting, signed by the meeting’s chairman and minutetaker, a copy of the party’s constitution, notarised signature samples of the members of the party’s representative body, notarised declarations vouching for the authenticity of the lists of the party’s founders and members and of its constitution, a sample of the party’s seal, a list of the founders having signed membership declarations and copies of those declarations, and a list of the party’s members (5,778 individuals). 13. After the application was filed, a copy of the list of the party’s founding members was apparently made available to the police and the prosecuting authorities in Gotse Delchev, Blagoevgrad, Sandanski, Petrich and some other localities in the Pirin region. The police started systematically checking the names, the identities and the personal data of the individuals concerned. They also summoned a large number of those individuals, questioned them about their involvement with the party, and obtained from some of them declarations denying any connection with the applicant party. Following this operation, the police drew up a detailed report pointing to a number of alleged irregularities in the party’s formation, such as failures to indicate the full names, full and correct addresses and personal identity numbers of the founders in some membership declarations, as well as the facts that some founders were living abroad, were members of other parties, or were minors or mentally ill. It also contained allegations, based on interviews with the individuals concerned and other inquiries by the police, that they had been put on the list without their knowledge or against the payment of money. 14. The police additionally commissioned a graphology expert to check the texts of the membership declarations and the signatures featuring on them. On 17 October 2006 the expert drew up a detailed report which said that the texts of a number of declarations had been filled in by the same people, but that the signatures were those of separate people (all of whom he identified by name and citizen identification number). He also said that the signatures of thirteen individuals on the membership declarations differed from the corresponding signatures on the list of members. 15. The Sofia City Court examined the application at a hearing held on 18 October 2006. A prosecutor of the Sofia City Prosecutor’s Office, who participated in the proceedings ex officio, produced the abovementioned reports, orders by the prosecuting authorities in Sandanski and Gotse Delchev for the carrying out of preliminary inquiries, and sixtysix declarations obtained during the earlier police operation and purportedly establishing that the individuals who had made them had no links with the applicant party. 16. Some of the declarations contained the following statements: “I am not and have never been a member of UMO Ilinden – PIRIN; I made the decision to sign [the membership declaration] off the top of my head, I have not received anything in return, and I was not coerced into doing it”; “I declare I have nothing to do with the antiBulgarian organisation UMO Ilinden – PIRIN. In no way do I support their separatist ideas. The fact that I signed the petition does not in any way mean that I support their ideas”; “I declare that I have never been a member and am not a member of the illegal UMO Ilinden”. 17. Counsel for the party’s founders requested an adjournment to acquaint himself with the newly presented evidence. The court turned the request down, allowing counsel to peruse the documents during a half-hour recess. When the hearing resumed, counsel for the party’s founders objected to the admission of the two reports in evidence and sought leave to present additional evidence: the membership applications of the persons whose names featured in the declarations presented by the prosecutor, and the missing personal identity numbers and addresses of the founders. The court denied leave, saying that the evidence sought to be adduced was not required under the 2005 Political Parties Act (see paragraphs 4246 below). It also said that it would rule on the admissibility of the prosecutor’s evidence in its judgment. 18. In a memorial filed after the hearing the prosecutor argued that the registration request should be rejected as, firstly, most of the founders had not personally filled in, but merely signed, their membership declarations, as shown by the expert report. Secondly, some of the members of the party’s governing bodies featured in the minutes of the founding meeting with two names only, which made it difficult to identify them. Thirdly, there was no indication that a properly constituted ballot committee had duly checked the number of participants in the founding meeting. All of this showed that the founding meeting had been irregular and its resolutions void. Moreover, the sixtysix declarations showed that a number of the purported founders of the party were in fact no such thing. There were also a number of technical irregularities in the founding instruments. Lastly, there were indications that a number of purported founders had agreed to become members without really wanting to or understanding the implications. The party had therefore been founded in breach of, among other provisions, Article 11 of the Convention, which enshrined negative freedom of association. 19. In a countermemorial counsel for the party’s founders submitted, inter alia, that the facts the prosecutor sought to prove through the evidence he had adduced could be established only within the framework of separate contentious proceedings. Noncontentious registration proceedings were not a suitable forum for resolving such issues. Even if one were to admit that there were certain irregularities in the membership declarations or the lists, this was not reason enough to hold that the number of founders had not in fact been attained. The sixtysix declarations presented by the prosecutor had to be discounted, inter alia because their sincerity was highly doubtful as they appeared to have been made under pressure from the police. That could be seen from the content of some of the declarations. Most of the irregularities noted in the police report were trivial or irrelevant and, in view of the limited number of individuals concerned – fiftyeight – did not cast doubt on the fact that the party had more than five thousand members, as required by law. Lastly, there was no indication that the party’s formation had been in breach of Article 11 of the Convention or Articles 11 and 44 of the Constitution (see paragraph 41 below); on the contrary, it was consonant with the Court’s judgment in the case of United Macedonian Organisation Ilinden – PIRIN and Others (cited above). 20. In a judgment of 30 October 2006 the Sofia City Court refused to enter the applicant party in the register of political parties. It held as follows: “... In an application ... of 20 September 2006 the applicants Ivan Iliev Singartiyski, Stoyko Ivanov Stoykov, Angel Ivanov Bezev and Botyo Vangelov Tikov asked [this court] to enter in the register of political parties the newly founded party UMO Ilinden – PIRIN. ... The certificate attesting to the uniqueness of the name, [issued by the registry of the Sofia City Court], shows that it was issued for a political party named UNITED MACEDONIAN ORGANISATION ILINDEN – PARTY FOR ECONOMIC DEVELOPMENT AND INTEGRATION OF THE POPULATION. A founding declaration has been produced, as required under section 10(2) of [the 2005 Political Parties Act]. However, it cannot be individualised, as there is no information in the file about the ‘initiative committee’ of ‘at least 50 enfranchised Bulgarian citizens’ who have adopted it, as required under subsection 1 of this section. The declaration says that they are ‘a group’ but the evidence does not allow the court to ascertain their number. The declarations under section 11(3) of [the same Act] do not contain information about the membership of the initiative committee, i.e. such declarations are lacking. It can be seen from the enclosed minutes of 25 June 2006 that on that date a founding meeting of the ‘political party UMO Ilinden – PIRIN’ was held. At the beginning of the meeting a ballot committee was elected, whose membership cannot be ascertained, as the individuals mentioned feature with their first and family names only and there is no further information about them. In addition, there is no report by this committee relating its findings which are mentioned only in the minutes. The individualisation of persons with two names only also affects the procedures for electing a Leadership, a Central Council and an Audit Committee. The [citizen identification numbers] of the members are not set out either. An uncertified copy of the [party’s] constitution has been produced. It is not clear whether this is the constitution that was adopted at the founding meeting or the constitution mentioned in the notarised declaration vouching for its authenticity. No graphic depictions of the symbols of the party have been submitted. They have merely been described in clause 3 of the constitution: ‘the party’s flag is red, with a golden sun and a golden inscription ‘UMO Ilinden – PIRIN’, and the party’s sign, comprising two Pirin mountain peaks with a sun rising between them, yellow with a blue background, with a white edelweiss at the foot of the hills. Lists and declarations of the founding members, said by the applicants to be 530 in number, have been presented, as required under section 15(3)(4) and (3)(5) in conjunction with section 11 [of the 2005 Political Parties Act]. The expert report presented by the [Sofia City Prosecutor’s Office] shows that 116 of the declarations were filled in by the same 25 persons, so that it is logical to conclude that 91 founding members did not personally fill in their declarations, as required by law. The report was contested by counsel for the applicants. The court gives credence to this piece of evidence, as handwriting [recognition] demands special skills and, although it is clear to the naked eye that the declarations in volume 2, pages 1 to 9 [of the case file] have been filled in with the same handwriting, the court itself would not be able to make legally binding findings on this point, because this requires special qualifications and skills, which are in the experts’ province. The court also gives credence to the expert report because it was made by the Ministry of Internal Affairs’ Institute of Forensic Science and Criminology, bears the Institute’s seal and the signature of Dr [S.B.] – head of the ‘Documentary offences, photography and phonoscopy’ department, and is thus an official document. The court does not take into account the 66 individual declarations presented by [the Sofia City Prosecutor’s Office], although they tend to show that the procedure for the formation of the party was not especially perfect. As correctly argued by counsel for the applicants in his brief, their number could not influence the number of the [party’s] members required under section 15(3)(7) of [the 2005 Political Parties Act]. The presented list of the party’s members is inaccurate and incorrect: for instance, in volume one of the evidence – pages 27, 28, 29, 40 and 41 – the names of 100 persons are listed, but without saying for what purpose their names and personal data are listed; pages 30 to 39, listing 141 persons, are presented as an uncertified copy and do not make it clear for what purpose the names and personal data are given; pages 45 to 59 and 71 to 77, concerning 308 people, are presented in an uncertified copy, on page 310 there are two persons with incomplete addresses, page 359 features one person identified by his first name only, without a [citizen identification number] and address, the same on pages 361 and 367, and so on. On the basis of these findings of fact the court makes the following findings of law: The application was made under Article 489 of [the 1952 Code of Civil Procedure] in conjunction with section 15 of [the 2005 Political Parties Act] and has given rise to noncontentious proceedings. In such proceedings the registering court must check whether the application is formally valid and whether it is wellfounded. Article 489 of [the Code] governs the registration of all types of legal persons which by law are required to be registered by a court. According to section 15 [of the Act], a political party is registered in the special register kept by the Sofia City Court on the basis of a special application by its representative body. To determine whether the application is wellfounded, the registering court has to check whether the facts sought to be registered are indeed subject to registration and whether they have validly taken place. The application is admissible, as it was filed by the members of the leadership of the political party UMO Ilinden – PIRIN, who, according to clause 41(4) of its constitution, represent it and are therefore the proper applicants. The application is unfounded for the following reasons: Section 11 of [the 2005 Political Parties Act] provides that each enfranchised Bulgarian citizen may join the subscription, up until the founding meeting, by personally filling in and signing an individual membership declaration, based on a model adopted by the initiative committee. Through this declaration the citizens express their personal wish to be members of the political party, and declare that they accept its main principles and goals, as set out in its founding declaration, and that they are not members of another political party. The [members of] the initiative committee must also fill in such a declaration... For a valid membership to arise, there must be ‘an initiative of at least 50 enfranchised Bulgarian citizens who form an initiative committee’, which adopts the founding declaration to be signed by the founders. A founding declaration has been produced, but the available evidence does not show that the initiative committee consists of at least 50 Bulgarian citizens. The expression ‘group of citizens’, used in the declaration (page 6 of the case file) does not establish the characteristics of these individuals (enfranchised Bulgarian citizens) and thus the quorum required under section 10(1) of [the 2005 Political Parties Act]; moreover, section 11(3) [of the same Act] expressly requires the initiative committee to fill in the declaration as well. This court does not find it established that this formality, which is a necessary prerequisite for membership, has been completed. Even assuming that the founding declaration is in compliance with the law, the model declaration adopted by the initiative committee should still be filled in and signed personally – section 11(1) of [the 2005 Political Parties Act]. At least 91 of the submitted 530 declarations have not been filled in personally, i.e. one of the two cumulative prerequisites, mandatory under the law, has not been complied with. The court would not comment on the authenticity of the signatures, about which there are doubts. The expert report says that there are differences between the signatures of the same persons in the declarations and in the lists featuring their names. This logically leads to the conclusion that there are only 441 proper founding declarations, in breach of the requirements of section 15, subsections (3)(4) and (3)(5), of [the 2005 Political Parties Act]. The above shows that the founding meeting was attended by far fewer than 500 founders and that there has been no valid adoption of the [party’s] constitution, as required under section 13(1) of the [abovementioned] Act. A quorum is established on the basis of these very founding declarations, as there is no legal requirement for each founder to personally fill in his name and personal data in the lists. It can be seen from the founding meeting’s minutes that a ballot committee was elected, but it did not draw up a report; the minutes feature only the first and the family names of its members and for this reason they cannot be identified, nor their responsibility engaged. This is why the court cannot find that the statement in the minutes that a quorum was attained does not need to be proven. A quorum establishes lawful representation; it is a prerequisite for a collective body validly to adopt resolutions. Each of the members is bound to all the others who have agreed to the [party’s] constitution. This instrument binds the members of a legal person to act in a certain way, in pursuit of common goals. A legal person’s resolutions are legal acts emanating from its bodies and entailing legal consequences for all members of a given community. A necessary prerequisite for the adoption of resolutions by collective bodies (in the instant case, a political party) is the quorum – the mandatory number of persons corresponding to the requirements of [the 2005 Political Parties Act] – of Bulgarian citizens who have capacity to act, who are not disenfranchised, and who have to be present to adopt a valid resolution. To be legitimate, resolutions of collective bodies have to comprise a certain number of identical acts by persons having capacity to act. The lack of the legally required quorum leads to resolutions which have not been adopted by consensus. From a legal point of view, the entire procedure for duly forming a legal person has been vitiated. The presence of this defect is in itself sufficient to deny the political party registration; moreover, it cannot be made good without calling and holding a new founding meeting. To achieve precision and give full reasons for its ruling, this court considers that the remaining circumstances required for the lawful formation of a legal person must be analysed as well. It is questionable whether the applicants have adduced in evidence a constitution. The enclosed copy of a constitution is not certified and there is no indication that it is indeed the authentic constitution of the party, as claimed in the notarised declaration of its Central Council. Section 14 of the [2005] Political Parties Act enumerates the minimum contents of each party’s constitution: the name, the symbols, the seat, the goals, the rules governing its organisation and activities, the manner of becoming a member and ceasing to be one, the rights and the obligations of the members, and the manner in which the party is to be wound up. The party’s name or acronym cannot match those of another party. Nor is it possible to supplement these with words, letters, figures, numbers or other signs. Section 5 bars parties from using in their symbols the coat of arms or the flag of the Republic of Bulgaria or another State, or religious signs and images. In this connection, [the court must] verify compliance with both the [2005] Political Parties Act and, mutatis mutandis, the applicable provisions of the [2000] NonProfit Legal Persons Act (as stated in paragraph 2 of the concluding provisions of the [2005] Political Parties Act). Concerning the name. A certificate attesting to the uniqueness of the name UNITED MACEDONIAN ORGANISATION ILINDEN – PARTY FOR ECONOMIC DEVELOPMENT AND INTEGRATION OF THE POPULATION has been presented. This name has been written this way only in the founding declaration published in the newspaper Dnevnik and in clause 1 of the constitution. Everywhere else, in all evidence, the name features as UMO Ilinden – PIRIN. Counsel for the applicants ... says on page 3 of his brief that ‘there is a separate organisation UMO Ilinden, which, although having similar ideas to those of UMO Ilinden – PIRIN, is a separate organisation’. It can be seen from clause 3 of the constitution that the abbreviated version of the name will be written on the party’s symbol – its flag – and will also appear on the party’s seal. However, this name is contrary to section 7, subsections (1) and (2), of the [2000] NonProfit Legal Persons Act, which provides that ‘the name must clearly show the legal person’s type’ and that it ‘must not be misleading’. There is a discrepancy between the unique name featuring on the Sofia City Court’s certificate and the name used in the evidence. The shortened name could confuse third parties, firstly because it concerns ‘a separate organisation UMO Ilinden’, secondly because the acronym PIRIN could be wrongly deciphered, and [finally because] a clear indication of the legal person’s type is missing. Concerning the symbols. The failure to produce the graphic depictions of the symbols described in clause 3 of the constitution precludes a categorical conclusion about their conformity with the law. The seal, however, shows that the ‘sun’ mentioned in clause 3 is in fact the sixteenray stylised star known as the Star of Vergina or the Star of Kutlesh. It was discovered during archaeological excavations in the vicinity of the village of Vergina (formerly Kutlesh) in Northern Greece and was depicted on the golden larnax found in 1977 by Professor Manolis Andronikos in a royal tomb dating from the time of Ancient Macedonia. Professor Andronikos described the symbol as a ‘star’, a ‘starburst’ or a ‘sunburst’. Following the discovery of the larnax (box), the Star of Vergina was widely adopted by Greeks as a symbol of continuity between ancient Macedonian culture and modern Greece. Nowadays the symbol is popular in Greece. The Star of Vergina on a blue background is commonly used as an official emblem of the three peripheries, the prefectures and the municipalities of the region of Macedonia. Thus, the blue flag with the Star of Vergina appeared in the 1980s. The symbol was also adopted by the large Macedonian diaspora, and later, after the disintegration of Yugoslavia, the independent Republic of Macedonia displayed the Star of Vergina on its new flag. The Star of Vergina became a source of controversies both within the Republic of Macedonia and in its relations with neighbouring Greece. The flag – a red rectangle with the star in the middle – became a major issue and the subject of extensive political discussions between the two sides. Greek objections led to the flag being banned from use in a variety of international organisations, including the United Nations, the Olympic Games and the representations of the Republic of Macedonia in the United States of America and Australia. In February 1993 the Greek Parliament adopted a declaration designating the Star of Vergina as an official Greek national symbol. In July 1995 Greece lodged a request with the World Intellectual Property Organization (WIPO) for exclusive intellectual property rights to the Star of Vergina. From a legal standpoint, the symbols described in clause 3 of the [party’s] constitution are contrary to section 5 of the [2005] Political Parties Act. Concerning the rules governing the organisation and the activities of the political party – the [2005 Political Parties Act] does not lay down detailed regulations for this type of legal person. This calls for subsidiary application of the [2000 NonProfit Legal Persons Act]. Political parties are subject to all rules in chapters I and II, concerning the types of legal persons, and, more specifically, part one, concerning associations, as well as in chapter III, concerning associations acting in the public interest. In assessing the rules governing the [party’s] organisation and activities, the court must equally take into account the provisions of the Constitution, which lay down guiding principles which are relevant for the specific areas of legal regulation or for the activities of those subject to the law. Each corporate legal person has internal rules and they are one of its essential characteristics. The enclosed constitution sets out the main structures of the party and their manner of operation. The supreme body is the National Conference, consisting of delegates (clause 34), elected by the local sections (clause 34(4)). The calling of the meetings of this body is entrusted to the Central Council, which is in turn summoned by the Leadership or on the motion of half of its members. The founders intentionally avoided a clear exposition of the manner in which the National Conference may be called, with a view to [preventing] disputes on this point. The question of delegates is not well regulated in terms of what the delegate quota is, or [what part of] the membership, nor which delegates have been duly elected. Nor is it clear on the basis of what principle the Central Council fixes the territory of each section – clause 21(1) of the constitution. This in practice prevents the court from exercising the judicial scrutiny, required by section 25(4) and (6) of the [2000 NonProfit Legal Persons Act], of the lawfulness of the supreme body’s resolutions and their conformity with the [party’s] constitution, pursuant to applications made under section 25(6) of the [same Act] by the party’s members and bodies, or by the public prosecutor. In such proceedings, the court must of necessity review the procedure for calling [a meeting of the party’s bodies] and must determine its lawfulness. The [2000] NonProfit Legal Persons Act provides that there must be a possibility of calling [a meeting of] the governing body on the direct initiative of one-third of the association’s members. Where such a meeting has not been called, the Act lays down a judicial procedure for calling [a meeting of this body] pursuant to a written request by the members. The applicant party’s constitution does not provide for such a possibility. In his memorial counsel for the applicants says that ‘the registration of the party UMO Ilinden – PIRIN would be in execution of a judgment of 20 October 2005 of the European Court of Human Rights, which became final on 20 January 2006 and in which the European Court analysed in detail all aspects of UMO Ilinden – PIRIN’s activities prior to its dissolution and held that the party’s dissolution had been unlawful as it was contrary to the essential principles of freedom of association’. In their memorial the Sofia City Prosecutor’s Office submit that the breaches of Articles 11 § 3 and 44 of the [Constitution] have been unequivocally established; those provisions lay down the principle that parties facilitate the formation and the expression of the political will of the citizens, who have the right to freely associate. The prosecuting authorities argue that the evidence shows the applicant party is not based on the free will of the citizens, but that some have been made members against their will or without being aware for what purpose they had filled in declarations – i.e. without information, and in this sense ‘the party in issue is not based on the free will of the citizens, nor does it form or express their political will’. In the Prosecutor’s Office’s view, the facts point to a breach of Article 11 of the [Convention] which, when providing that everyone has the right to freedom of association, ‘undoubtedly intends this to depend on the free will of the individual, not on the decisions of others to include him in a specific association, in this case a political party’. Article 231 § 1 (h) of [the 1952 Code of Civil Procedure] provides that the judgments of the European Court of Human Rights may constitute grounds for reopening domestic proceedings which have ended in a final judgment. However, it is clear that the situation in the case at hand does not fall within the ambit of that provision. A fortiori, the violations found by the [European Court of Human Rights] should not be allowed to occur in pending proceedings. Because the possibility that the final decision (which is the ultimate goal) of a set of proceedings will be set aside would render these proceedings meaningless. The [Convention] has precedence over domestic (national) legislation that contravenes it – Article 5 § 4 of [the Constitution]. It should however not run counter to the present wording of [the Constitution]. This is because Article 85 § 4 (until 2005, § 3) of [the Constitution] provides that the concluding of international treaties requiring amendments to [the Constitution] has to be preceded by such amendments. This follows from the reasons given by the Constitutional Court in its decision no. 7 of 2 July 1992. The European Court is not competent to give instructions to the States to take specific measures to comply with their obligations under [the Convention] – [see] the judgments in the cases of Corigliano [v. Italy, 10 December 1982, Series A no. 57], Castells [v. Spain, 23 April 1992, Series A no. 236], Bozano [v. France, 18 December 1986, Series A no. 111], etc. The [European Court’s] judgments analyse a specific case (whether specific facts amount to a violation of [the Convention]). For this reason, the court does not consider that those judgments may directly determine the outcome of a future case. The instant judgment is based on new facts and evidence, gathered in line with the requirements of [the 1952 Code of Civil Procedure] in the present proceedings. In other words, only the principles emerging from the [European Court’s] judgments are binding and the applicants cannot request automatic registration merely because their fundamental rights have been restricted in the past, for which they have been awarded just satisfaction. In conclusion, freedom of association is guaranteed by [the Constitution], but only if the legal requirements for association in its various forms – [under the 1991] Companies Act, [the 2000] NonProfit Legal Persons Act, [and the 2005] Political Parties Act – have been complied with. In view of the foregoing, the court finds that the political party has not been duly formed and for this reason its application for registration is to be denied as unfounded.” 21. On 13 November 2006 the applicants appealed to the Supreme Court of Cassation (“Върховен касационен съд”). They argued, inter alia, that the admission of the expert report in evidence had been a serious breach of the rules of procedure, as any doubts about the authenticity or the probative value of the documents submitted in support of the registration request should have been resolved in separate contentious proceedings. The Sofia City Court’s denial of leave to the applicants to adduce further evidence had also been in breach of the rules of procedure, had rendered the proceedings unfair, and had prevented them from proving they had complied with the requirements of the 2005 Political Parties Act. These procedural errors had had a material impact on the Sofia City Court’s findings of fact. Furthermore, that court’s ruling that membership declarations must be filled in by the member in person was too rigid and unduly restrictive of the freedom of association of the party’s founders. 22. After hearing the appeal on 8 February 2007, in a final judgment of 14 February 2007 (реш. № 87 от 14 февруари 2007 г. по т. д. № 726/ 2006 г., ВКС, I т. о.) the Supreme Court of Cassation upheld the Sofia City Court’s judgment in the following terms: “... [This court] considers ... that the Sofia City Court erred by admitting in evidence the expert report contested by the applicants. This report is in fact a private expert report and not an official document, as wrongly held by the [Sofia City Court]. This entailed a breach of the rules of evidence. ... However, that breach was not material, as it was not the only ground which led to the [Sofia City Court’s] refusal to register [the party]. That court found that the produced founding declaration – the first element of the complex of events leading to a political party’s formation ... – was vitiated. The founding declaration cannot be individualised, as it does not emanate from at least fifty enfranchised Bulgarian citizens, as required by the law (section 10 [of the 2005 Political Parties Act]), but from a ‘group of citizens’, and that ‘group of citizens’ cannot be individualised, nor their number ascertained. There is no information in declarations under section 11(3) of [the same Act] about the size and the membership of the initiative committee, because such declarations are lacking. Therefore, [the Sofia City Court’s] decisive conclusion that the [applicant party] was not validly formed was based on lapses in the founding declaration presented, which fails to meet the imperative requirements of the law – sections 10(1) and 11(1)(3) [of the 2005 Political Parties Act]. The incompleteness of the lists, noted by the [Sofia City Court], was an additional and not a decisive ground for the refusal, and for this reason its being based on a breach of the rules of procedure is not material and does not vitiate the impugned judgment. By the same token, [this court] finds unavailing the arguments in the appeal about the rigid application of the rule in section 11 [of the Act] in relation to the handwritten declarations, which allegedly led to a restriction of the exercise of basic political rights. Section 11’s requirement for a personally filled in and signed declaration does not restrict or discriminate against illiterate or blind individuals, as the law deals with such eventualities in Article 151 [of the 1952 Code of Civil Procedure], which is also applicable in the instant proceedings... If the law requires personally filled in and signed declarations under section 11 [of the 2005 Political Parties Act], the court is bound to apply it correctly and uniformly – Article 4 § 2 [of the above Code]. [The Sofia City Court] did precisely that; therefore, the complaints that it erred in the application of section 11 [of the Act] are unfounded. The complaints that [the Sofia City Court] breached the rules of procedure by refusing the applicants leave to adduce further evidence rectifying the irregularities in the initially submitted documents, such as wrong or incomplete addresses, [citizen identification numbers], [and] proof of the truth of circumstances required by law to be declared, are unfounded. It is true that the proceedings are noncontentious, and that the court has to check of its own motion whether the prerequisites for issuing the decision sought are in place. It is also true that the court may of its own motion gather evidence, and instruct the applicants to produce evidence in corroboration of their claims (Article 427 [of the 1952 Code of Civil Procedure]). However, the instant case concerns omissions of the founders, which may not be rectified subsequently. The complaints that the impugned judgment was wrong on the merits are likewise unfounded. As already noted, the requirement of section 11 [of the 2005 Political Parties Act] that the declarations be personally filled in and signed is a requirement of the law, and the court is bound to apply the law as it is, correctly and uniformly – Article 4 § 2 [of the abovementioned Code]. Regardless of what has been said above, [this court] reiterates that the decisive ground for refusing registration stems from the vitiated declaration of the founding committee, found defective partly because of the lack of declarations personally made by [the party’s] members. The lack of such declarations and the vitiated lists and the ensuing lack of proof that the meeting had a quorum are thus not, in themselves, independent grounds for a refusal. The lack of graphic symbols and of a report of the ballot committee are not independent grounds for the refusal [either] – they were noted by [the Sofia City Court] in addition to its decisive conclusion about the lack of a founding declaration. It is a separate issue that [the Sofia City Court] found further omissions in the [party’s] formation which were not mentioned or commented upon in the appeal. In view of the foregoing and having dealt with all grounds of appeal [raised by the applicants], [this court] finds that [the Sofia City Court’s] conclusions that [the applicant party] was not validly formed and that its registration request was unfounded are correct. For this reason, the impugned judgment is to be upheld...” 23. On 3 November 2006, a few days after the Sofia City Court gave its judgment, there was a meeting in Sofia between the Macedonian and Bulgarian Ministers of Foreign Affairs. The news agencies reported that during the meeting Bulgaria’s then Foreign Minister, Mr Ivaylo Kalfin, said: “[T]he judgment of the European Court of Human Rights in Strasbourg does not entail the registration of a party. Bulgaria was ordered to pay a fine; it paid it and there are no further legal consequences. I believe that Bulgaria has fully executed the prescriptions of the Human Rights Court and there are no outstanding matters”. 24. In November 2006 the group of the Greens/European Free Alliance in the European Parliament proposed an amendment to the report on Bulgaria’s accession to the European Union, suggesting that it should include text calling on the Bulgarian authorities “to prevent any further obstruction to the registration of the political party of the ethnic Macedonians and to put an end to all forms of discrimination and harassment visàvis that minority”. A number of Bulgarian observer members of the European Parliament objected to that amendment. The political party Attack (“Атака”) proposed a draft declaration, to be adopted by Bulgaria’s National Assembly and saying that the proposal of the Group of the Greens was a gross provocation and amounted to meddling in the country’s internal affairs. Attack’s leader, Mr Volen Siderov, was reported by the press to have said on 1 November 2006 that he saw a problem in the fact that UMO Ilinden – PIRIN’s registration request had been turned down by the courts on technical grounds. In his view, “UMO Ilinden ha[d] to be rejected because of their separatism and anticonstitutional activities, not because of formalities”. 25. In a statement published on 14 November 2006 a member of Bulgaria’s Parliament for Blagoevgrad said that “[t]he Bulgarian court showed that no Macedonian parties may be registered in Bulgaria. And in a country ruled by law judicial decisions have to be complied with.” 26. In early July 2007 the second applicant, Mr Singartiyski, and another member of the applicant party approached in turn the mayors of the towns of Gotse Delchev and Sandanski with requests to rent a municipal hall in which to hold the party’s founding meeting. After initially showing willingness to accommodate their request, in a letter of 9 July 2007 the mayor of Gotse Delchev turned it down, saying that the hall in question did not meet the safety requirements set by the local fire department. The mayor of Sandanski did not reply to the request. 27. The applicant party’s founders then decided to hold the founding meeting outdoors. It took place on 15 July 2007 in the area Popovi livadi, located in the territory of the municipality of Gotse Delchev. According to the applicants, it was attended by six hundred and eightyfive people, all of whom filled in declarations stating that they wished to join UMO Ilinden – PIRIN. 28. On 27 July 2007 the applicant party applied for registration to the Sofia City Court. It presented the founding declaration, the minutes of the founding meeting, the party’s constitution, membership declarations signed by six hundred and eighty-five founding members, a list of those founding members, the list of 5,778 members compiled in 2006 (see paragraph 12 above), and a notarised declaration of the members of the party’s management body to the effect that those lists were authentic. It also produced a copy of a letter of 11 July 2007 from the Committee of Ministers’ Secretariat to the permanent representative of Bulgaria to the Council of Europe. 29. The Sofia City Court examined the application at a hearing held on 21 August 2007. The prosecutor who was present ex officio argued that the application should be refused because the party’s goals were not those of a political party, but rather those of an ordinary association. He also said that the list of members was not authentic, as it was the same as the one presented in the previous reregistration proceedings, and that the minutes of the founding meeting had not been signed by all six hundred and eightyfive persons present. 30. In a judgment of 23 August 2007 the Sofia City Court refused the application in the following terms: “... In the course of the proceedings the court noted that the applicants have not complied with the requirements of [the 2005 Political Parties Act, whose] section 10 provides that [a political party] can be founded on the initiative of at least fifty enfranchised Bulgarian citizens, who have to form an initiative committee. This [committee] has to adopt a written founding declaration. The founding declaration of 1 July 2007 presented was signed by seventysix people, who did not however personally fill in and sign declarations under section 11 [of the above Act]. Moreover, according to section 11(1) [of this Act], the declaration has to be drawn up by the initiative committee. Since evidence to that effect has not been produced, the court cannot be certain that this initiative committee has indeed held meetings and that such resolutions have in fact been adopted. The minutes of the founding meeting of 15 July 2007 say that [it] was attended by 685 adult Bulgarian citizens who had personally filled in and signed declarations under section 11(1) [of the above Act]. The court fails to see how it was possible to obtain 685 declarations by adult enfranchised Bulgarian citizens in less than fifteen days (that is, from the committee’s declaration of 1 July 2007 to 15 July 2007), so as to allow the holding of the founding meeting on 15 July 2007. It is true that section 12(1) of [the Act] provides that a political party is formed at a founding meeting held in the territory of Bulgaria not later than three months after the date on which the founding declaration has been adopted. However, in the instant case the court cannot accept that 685 people who had personally filled in their declarations under section 11(1) [of the Act] were able to get together to hold a [founding meeting] in such a short time. Moreover, the minutes are signed by the president of the meeting and the minutetaker, whereas they should have been personally signed by all founders. As noted above, there is no evidence, under section 11(1) [of the Act], that [the initiative committee] has adopted a model declaration whereby each enfranchised Bulgarian citizen may, by personally filling it in and signing it, join the party. This declaration has to be ready before the holding of the founding meeting. It should contain the information required under section 11(2) [of the Act]. The presented lists of three names, [citizen identification numbers] and addresses do not demonstrate to the court that the persons who feature thereon are members of the party, as the lists are not accompanied by personally filled in and signed declarations (see the presented list of party founders). This court does not know whether these persons are aware that they are members of this party, or whether this is simply a list intending to prove before the court that the requirements of section 15(3)(7) [of the Act] have been complied with. It must here be noted that [the court] received from [the Ministry of Justice] a letter informing it that [the Ministry] had received a letter from the head of the department for the execution of the judgments of the European Court of Human Rights, [Ms M.], in which she asked whether it was possible for the court to accept, when examining the application for the [applicant party’s] registration, the list of 5,000 members presented in [the previous registration proceedings] in which the court, whose judgment was upheld by [the Supreme Court of Cassation], refused to register the party. This letter leads the court to conclude that the list produced in the instant proceedings is the same as the one presented [in the previous registration proceedings]. The use of the same list is in breach of Articles 11 § 3 and 44 of the [Constitution, which provide that] parties facilitate the formation and expression of the political will of citizens, who may freely associate. Each application for inclusion in the register of political parties means, first, sharing the ideas of a group of enfranchised citizens who use democratic ways and means for attaining their political goals, set out in [the political party’s] platform, and, second, that the [party’s] formation, resolutions [and] activity should be in conformity with the law. The use of the same evidence in separate cases cannot therefore be accepted by the court. The evidence presented in [the previous registration proceedings] cannot be used in the instant proceedings. The presented constitution [of the party] does not make clear its political goals and tasks. The ones mentioned in clauses 4 and 5 of the constitution do not characterise the organisation as a political party within the meaning of [the 2005 Political Parties Act] and the [Constitution]. Political parties are citizens’ organisations through which they take part in the political life of the Republic of Bulgaria. The thing which sets them apart from other citizens’ associations is, according to Article 12 § 2 of the [Constitution], that only they may pursue political goals or carry out political activities. These activities are defined by Article 11 § 3 of the [Constitution] and section 1 [of the 2005 Political Parties Act] as ones facilitating the formation of the citizens’ political will, which is the citizens’ will to participate in government. The carrying out of political activities is the main criterion for distinguishing [political parties] from other citizens’ associations. In this connection, it should be observed that in their constitutions political parties must clearly declare their goals and tasks and the ways of attaining them. The goals and tasks outlined in the [applicant party’s] constitution are limited, have an optional character and do not comply with the abovementioned requirements. For the court, the goals set out in clause 4 of the constitution are rather those of a nonprofit association ..., not of a political party... It should [also] be noted that a political party bearing the same name and having the same goals was registered by the Sofia City Court in a judgment of 12 February 1999... After that [, in 2000, the Constitutional Court] declared that party unconstitutional and it was struck out of the register. The [Constitutional Court’s] judgment shows that not only the name and the political goals of this party are identical to those stated by the applicants in the instant proceedings, but that the [party’s] leadership consists of the same individuals. The court cannot therefore be sure that, having the same political goals and leaders, the party will not meet the same fate, that is, be faced with an application [for its banning] to [the Constitutional Court]. The court observes that the constitutionality of a political party must be judged on the basis of its activities. The political goals set out in clause 4 of the constitution show that this is a party which is active in a specific part of the territory of the Republic of Bulgaria, which runs counter to both the [2005 Political Parties Act] and the [Constitution] (see clause 4, points 7 and 8 of the [party’s] constitution). Moreover, clause 4, point 6 of the political goals of the party mentions good neighbourly relations in the Balkans, in Europe and in all countries inhabited by ethnic Macedonians. There is no distinct Macedonian ethnos in the Republic of Bulgaria. The same goes for the party’s name. To enter a party in the register this court requires precise and clear political goals, as well as ways and means of attaining them. Moreover, [a party] must produce in evidence at least 5,000 personally filled in and signed declarations under section 11(2) [of the 2005 Political Parties Act] fully to convince the court that these citizens are truly aware that they are members of a specific political party, that they share its political goals, express their personal will to be its members and declare that they accept the party’s main principles and goals, as set out in its founding declaration, and that they are not members of another political party. These requirements apply without exception to all political parties. For these reasons, the [applicant party’s] application must be rejected and the court refuses to enter it in the special register.” 31. On 30 August 2007 the applicant party appealed to the Supreme Court of Cassation. In a brief filed on 16 September 2007 it argued, inter alia, that its registration would be consonant with the Court’s judgment in the case of United Macedonian Organisation Ilinden – PIRIN and Others (cited above). In that connection, it made reference to the relevant decisions of the Council of Europe’s Committee of Ministers. 32. After hearing the appeal on 5 October 2007, in a final judgment of 11 October 2007 (реш. № 762 от 11 октомври 2007 г. по т. д. № 753/2007 г., ВКС, IІ т. о.) the Supreme Court of Cassation upheld the Sofia City Court’s judgment in the following terms: “...The impugned judgment is correct and is to be upheld. Having reviewed the evidence in the case, [this court] finds that the refusal to register [the applicant party] was lawful. Section 15 [of the 2005 Political Parties Act] contains an exhaustive list of the documents which need to be filed with the court for the registration of an association of Bulgarian citizens founded for the purpose of forming and expressing the people’s political will through elections or through other democratic means – section 2 [of the Act]. [This court] finds that by presenting a list of 5,000 members which was compiled during a previous founding meeting of [the applicant party] and was produced in [the previous proceedings for its registration], the applicants in the instant case failed to comply with the requirements of section 15(3)(7) of [the Act]. ... [T]he reason why the law requires a minimum number of documents to be produced for the registration of a political party is to allow the registering court to check whether the procedure for its formation has been followed and whether it has the minimum number of members to guarantee that [it can be] a real player on the political scene, whose goals, as endorsed by its members, have public significance and warrant its existence on the country’s political scene. [The case file of the previous registration proceedings] has not been enclosed with the present case file, but the possible similarity or even match between the goals and the principles adopted at that previous founding meeting and those laid down in the party’s constitution produced in the instant proceedings cannot warrant the conclusion that the list produced in the course of [the previous registration proceedings] shows that the requisite number of members of the party seeking registration has really been attained. The underlying idea of the abovecited provision is doubtlessly to ensure that the required number of members who have declared their wish to join the effort to attain the goals set out in the party’s constitution, adopted at the same founding meeting, has really been attained. From this vantage point, the list of members compiled during a previous founding of the party does not serve the law’s purpose. The membership of an organisation, including a political one, is a dynamic value, which may increase but also decrease, due to changes in political views – something characteristic of every individual. This dynamic, which doubtlessly also reflects natural biological processes, requires [the founders] to establish before the registering court the requisite number of members at the time of the party’s founding, or at the time when the application for its registration is lodged. It is obvious that in the instant case those requirements of section 15(3)(7) have not been complied with owing to the lack of information about the number of persons who have expressed their wish to become members of [the applicant party and work] for the attainment of its goals, as agreed at the founding meeting held on 15 July 2007 and laid down in the constitution adopted by the founders. The rule in section 15 of [the 2005 Political Parties Act] is imperative. Failure to comply with even one of its requirements constitutes sufficient grounds to refuse registration, as the impugned judgment did. Since this court shares the final conclusions at which [that judgment] arrived, it considers that it should be upheld.” 33. On 19 October 2008 UMO Ilinden – PIRIN held a national conference. On the same day the second, third, fourth, fifth and sixth applicants lodged with the Sofia City Court a request for amendments in the party’s registration. The request was based on the premise that, since this Court had found the dissolution of the party in 2000 to be in breach of Article 11 of the Convention, the party had never ceased to exist. 34. The Sofia City Court held a hearing on 9 December 2008. On 19 December 2008, apparently treating the request as a normal registration request, it turned it down. It found that the party’s founders had not enclosed all the necessary documents (such as a founding declaration, individual membership declarations personally signed by the founders, and notarised samples of the signatures of the party’s representatives) showing that the party had been duly formed. It went on to say that this Court’s judgment in the case of United Macedonian Organisation Ilinden – PIRIN and Others (cited above) had no bearing on the registration proceedings and could not serve as grounds for finding that the party had never ceased to exist. 35. The second applicant, Mr Singartiyski, appealed on points of law. He argued that the Sofia City Court had erred by not giving UMO Ilinden – PIRIN the opportunity to produce all the elements missing from its founding process. The court’s failure to do so, coupled with its ensuing refusal to register the party, had been in breach of Bulgaria’s obligation to abide by this Court’s judgment in United Macedonian Organisation Ilinden – PIRIN and Others (cited above) and to heed the instructions given in that connection by the Council of Europe’s Committee of Ministers. 36. After hearing the appeal on 18 May 2009, in a final judgment of 19 May 2009 (реш. № 66 от 19 май 2009 г. по гр. д. № 193/2009 г., ВКС, I т. о.) the Supreme Court of Cassation upheld the Sofia City Court’s judgment in the following terms: “The subjective registration right is the legally guaranteed possibility to request facts which are subject to registration (and the changes in such facts) to be entered in the relevant register. Concrete rights and duties in that respect can arise and evolve only in the manner envisaged by the special statutes governing such matters. In the case at hand, the [2005] Political Parties Act lays down certain requirements which need to be met before an application to register a political party can succeed. One of those requirements is the obligation under section 15 [of the Act] for the applicants to enclose certain documents with their application. Those documents must be produced in order to allow the registering court to ascertain whether the application is admissible and wellfounded. It is the applicants’ duty to produce them, and they directly relate to the ascertaining of a series of legal acts leading to the formation of a political party. Therefore, the making of an irregular application – such irregularity stemming from a failure to produce the enclosures required by law – is tantamount to a failure to comply with the duty to make a proper application. Moreover, some of the irregularities cannot be rectified in the manner and timelimits envisaged by Article 129 [of the 2007 Code of Civil Procedure], because they are indicative of such failures of the [party’s] founders as make the application for its registration illfounded. Although noncontentious proceedings follow the general rules of civil procedure, their specificity requires the court to assess whether the irregularities [in the application] can be rectified, and thus make the application successful, because the law requires all prerequisites for the registration of a political party to be in place. The lack of even one such prerequisite makes the application illfounded. In the case at hand, the [lower] court found that the imperative requirements of the law had not been complied with (there is no founding declaration; that declaration has not been published in a daily newspaper[, as required by] section 10 the [2005] Political Parties Act; the mandatory requirements of sections 11 and 12 [of that Act] have not been complied with). Although in their appeal the applicants said that they were ready to adduce fresh evidence, the above defects cannot be rectified in the manner and within the timelimit envisaged by Article 129 [of the 2007 Code of Civil Procedure], because they presuppose the occurring of concrete facts at the time when the party was being founded. They thus relate to the application’s wellfoundedness, not to its admissibility. Besides, [Mr] Tikov’s assertion at the hearing on 9 December 2008 that the applicants do not have any documents other than those already produced leads directly to the conclusion that the appeal is illfounded, because it conflicts with the applicants’ position before the [lower] court, where they had to make the requisite procedural steps. Therefore, the [lower] court has not breached the rules of procedure and has correctly assessed the application’s wellfoundedness based on the enclosures submitted by the applicants. The appellants argued that the above-mentioned breach of the rules of procedure was directly related to the Bulgarian authorities’ obligation, in cooperation with the Council of Europe’s Committee of Ministers, to determine appropriate ways of ‘registering’ the political party ‘UMO Ilinden – PIRIN’. They maintained that the Bulgarian Government was bound to execute the European Court of Human Rights judgment of 29 October 2005. As that judgment had still not been executed, it was necessary to take individual measures allowing the political party to be registered. The applicants’ position was that the Sofia City Court’s refusal [to register the party] was in breach of the European Court of Human Rights judgment and the mandatory instructions of the Council of Europe’s Committee of Ministers. The complaint is illfounded. The European Court of Human Rights’ judgment of 29 October 2005 related, as correctly pointed out by the [Sofia City Court], to a breach of Article 11 of the European Convention on Human Rights flowing from the Constitutional Court’s finding in its judgment of 29 February 2000 that the political party UMO Ilinden – PIRIN was unconstitutional. That has no bearing on the case at hand, because the refusal to register [the party] was based on its failure to comply with the formal requirements of the [2005] Political Parties Act. Those requirements apply to all, not only to the appellant. Therefore, the [lower] court was right to conclude that the European Court of Human Rights’ judgment is irrelevant to the registration request in the case at hand. One of the main principles of the law of registration, flowing directly from Article 4 of the Constitution, is the principle of lawfulness. It requires the authorities examining registration requests to comply strictly with their duties, and requires those who lodge registration requests to comply strictly with theirs. The application of that principle is guaranteed by the strict rules governing the facts which need to be registered, the manner of their registration, the possibility of appealing against the rulings of the registering authorities and the sanctions for failures to comply with registration obligations. Therefore, the ones responsible for complying with registration obligations are the applicants, regardless of their identity, and not other persons, and their failure to do so leads to a refusal to register the requested fact.” 37. During its 997th meeting, on 5 and 6 June 2007, the Committee of Ministers noted the continuing problems with the registration of the party and invited its Secretariat to “examine, in cooperation with the Bulgarian authorities and the applicants, the avenues at the applicants’ disposal with a view to obtaining [the party’s] registration” (CM/Del/Dec(2007)997). 38. During its 1007th meeting, held on 17 October 2007, the Committee of Ministers “took note of the complaints of the applicants in the case of UMO Ilinden – PIRIN concerning the outcome of the new proceedings concerning the registration of the political party”, “noted the different problems still raised by the issue of the individual measures in the latter case” and “invited the Bulgarian authorities in cooperation with the Secretariat to examine possible solutions to these problems within the framework of the Bulgarian legal order” (CM/Del/Dec(2007)1007). 39. The Committee of Ministers concluded the examination of application no. 59489/00 (United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria) during its 1072nd meeting, on 3 December 2009, by adopting Resolution CM/ResDH(2009)120, the relevant parts of which read: “...Recalling that the violation of the Convention found by the Court in this case concerns an infringement of the freedom of association of an organisation which aims to achieve ‘the recognition of the Macedonian minority in Bulgaria’ due to the dissolution in 2000 of its political party, based on considerations of national security (alleged separatist ideas) when the applicants had not hinted at any intention to use violence or other undemocratic means to achieve their aims (violation of Article 11) (see details in Appendix); Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate: – of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and – of general measures preventing similar violations; Recalling that the obligation of the respondent state regarding the individual measures in this case, implies allowing the applicants to ask for a new registration of their political party in the framework of proceedings which are in accordance with the requirements of the Convention and in particular of Article 11 (for further details see the information document CM/Inf/DH(2007)8); Recalling that following the Court’s judgment, the applicants requested on three occasions before the domestic courts the registration of their political party and that the Committee of Ministers followed the proceedings in question up to their outcome; Recalling that it has expressed concerns more particularly as regard the fact that the decision of the firstinstance court on the second request for registration of the applicants’ political party reiterated grounds incriminated by the Court; Stressing in this respect that the judicial decisions relating to the applicants’ third request for registration do not reiterate such grounds and are exclusively based on the noncompliance with the law of the material acts for the constitution of the party and of the related documents to be submitted; Having noted with satisfaction the declaration of the government according to which it ‘sees no obstacle to the applicants’ obtaining the registration of their organisation as a political party on the condition that the requirements of the Constitution of the state and the formal requirements of the Political Parties Act are met, without any grounds such as those incriminated by the European Court being opposed to the applicants’; Underlining in this context that the [2005] Political Parties Act, as modified in January 2009, reduced from 5,000 to 2,500 the level of members required to form a political party and that this new level seems, in addition, likely to resolve the problems encountered by the applicants in forming their party in conformity of the requirement of the 2005 Political Parties Act; Having considered that in view of the above considerations, it seems that the applicants can at present apply for the registration of their party in proceedings which are in conformity with Article 11 of the Convention; Having examined also the general measures and in particular the awarenessraising measures taken by the Bulgarian authorities to ensure that applicable domestic law is interpreted in conformity with the Convention and thus to prevent violations similar to that found by the European Court (see details in Appendix); Noting that the government undertook to continue to organise awarenessraising activities in the field of application of Article 11 of the Convention, including visits to the Council of Europe of judges in particular from the competent courts; Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix), DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46 § 2 of the Convention in this case and DECIDES to close the examination of this case.” 40. In an appendix to the Resolution the Committee described the developments set out in paragraphs 3336 above, the amendment to the 2005 Political Parties Act reducing the membership requirement for a party from five to two and a half thousand members (see paragraph 47 below), and the Government’s declaration cited in the Resolution. The appendix also contained a description of the general measures taken by the Government. Those consisted in the publication and the dissemination of the Court’s judgment and of a manual describing the Court’s case-law in the area of freedom of association, and in the organising of several training sessions for judges and prosecutors on that topic. 41. The relevant provisions of the 1991 Constitution read as follows: “The Republic of Bulgaria is a State governed by the rule of law. It shall be governed in accordance with the Constitution and the laws of the country.” “International treaties which have been ratified in accordance with the constitutionally established procedure and promulgated, and have entered into force with respect to the Republic of Bulgaria, are part of the country’s domestic law. They shall have precedence over any provisions of domestic legislation which contravene them.” “3. Parties shall facilitate the formation of the citizens’ political will. The manner of forming and dissolving political parties, as well as the conditions pertaining to their activity, shall be established by law. 4. No political parties shall be formed on an ethnic, racial, or religious basis, nor parties which seek to accede to power by force.” “1. Citizens’ associations shall serve to further and safeguard their interests. 2. Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.” “No one may be persecuted or restricted in his rights because of his views, nor detained or forced to provide information about his or another’s convictions.” “1. Citizens may freely associate. 2. Organisations whose activities are directed against the country’s sovereignty or territorial integrity or against the nation’s unity, or which aim at stirring up racial, national, ethnic or religious hatred, or at violating the rights and freedoms of others, as well as organisations creating secret or paramilitary structures, or which seek to attain their goals through violence, shall be prohibited. 3. The law shall specify which organisations are subject to registration, the manner of their dissolution, as well as their relations with the State.” 42. The 2005 Political Parties Act (“Закон за политическите партии”), which came into force on 1 April 2005 and superseded the 2001 Political Parties Act, which had in turn superseded the 1990 Political Parties Act, regulates the formation, registration, organisation, activities and dissolution of political parties (section 1). 43. The procedure for the formation of a party is laid down in sections 1019 of the Act. A party is formed on the initiative of at least fifty enfranchised Bulgarian citizens (section 10(1)). They must set up an initiative committee, which adopts a written founding declaration setting out the party’s main goals and principles (section 10(2) and (3)). The committee then publishes this declaration in at least one national daily newspaper and opens a subscription for founding members (section 10(4)). Every enfranchised Bulgarian citizen may join the subscription by personally filling in and signing an individual membership declaration whose model must be approved by the initiative committee (section 11(1)). In these membership declarations (not to be confused with the founding declaration) prospective members express their wish to become members of the party and declare that they accept its main goals and principles, as set out in the founding declaration (section 11(2)). They must also declare that they are not members of another party (ibid.), as an individual cannot participate in the formation of a party if he or she is already a member of another party (section 8(1) and (2)). The initiative committee’s members must also fill in and sign such membership declarations (section 11(3)). After the subscription is closed, the party is founded at a founding meeting, which must be held in the territory of Bulgaria not later than three months after the adoption of the founding declaration (section 12(1)). The meeting must be attended by at least five hundred Bulgarian citizens who have signed a membership declaration (section 12(2)). The founding meeting adopts the party’s constitution and elects its managing and controlling bodies (section 13(1) and (2)). 44. The party’s constitution must set out, along with other matters, its name and symbols; its goals and the ways of attaining them; its managing and controlling bodies, the manner of calling meetings of these bodies; their appointment, removal and powers; the way to become a member and cease to be one; and the members’ rights and obligations (section 14(1)). The party’s name and symbols cannot be identical to those of another party, even if words, letters, figures, numbers or other signs have been added to them (section 14(2)). Also, the parties’ symbols cannot contain or resemble the coat of arms or the flag of the Republic of Bulgaria or of another State, or religious signs or representations (section 5(1)). 45. Not later than three months after the founding meeting the party has to apply to be entered in a special register kept by the Sofia City Court. The application must be made by the party’s managing and representative body (section 15(1) and (2)). With the application must be enclosed (a) the founding declaration; (b) the minutes of the founding meeting; (c) the party’s constitution; (d) a list containing the three names, citizen identification numbers, permanent addresses and handwritten signatures of at least five hundred founding members; (e) the individual membership declarations; (f) notarised samples of the signatures of the party’s representatives; (g) a list containing the three names, citizen identification numbers and permanent addresses of at least five thousand members; (h) a notarised declaration by the party’s leadership to the effect that the constitution and the two lists are authentic; and (i) a certificate of uniqueness of the party’s name, to be obtained form the Sofia City Court’s registry (section 15(3) and (4)). 46. The Sofia City Court has to examine the application not later than one month after it has been lodged, at a public hearing attended by the applicants and a public prosecutor. It must then rule within fourteen days, by means of a judgment (section 16). This judgment is subject to appeal before the Supreme Court of Cassation (section 18(1)), which has to dispose of the appeal within fourteen days, by means of a final judgment (section 18(2)). The party is entered in the register seven days after the judgment allowing its registration has become final (section 18(3)). At that point it becomes a legal person (section 18(4)). The judgment allowing registration is published in the State Gazette (section 19). 47. In January 2009 an amendment to section 15(1) reduced to two and a half thousand the number of people who have to feature on the list of members that needs to be enclosed with the application for registration (see paragraph 45 (g) above). 48. Paragraph 28 of the amendment’s transitional and concluding provisions provided that until 31 March 2009 the prosecuting authorities had to conduct inquiries and seek the dissolution of any political party which did not meet the requirements of section 40(1)(1)(4) of the Act. Under that section, a political party has to be dissolved if (a) its activities systematically breach the Act’s requirements, (b) its activities are contrary to the Constitution, (c) for more than five years after its latest registration it has not taken part in parliamentary, presidential or local elections, or (d) if it has failed, for two consecutive years, to submit the requisite financial reports to the Court of Auditors. 49. The 2000 NonProfit Legal Persons Act (“Закон за юридическите лица с нестопанска цел”), which entered into force on 1 January 2001 and superseded parts of the 1949 Persons and Family Act (“Закон за лицата и семейството”), and whose provisions govern all matters not covered by the 2005 Political Parties Act (paragraph 2 of the transitional and concluding provisions of this Act), regulates the formation, registration, organisation, activities and winding up of nonprofit legal persons, such as associations and foundations (section 1). Its Chapter I lays down certain general rules and principles applying to all types of nonprofit legal persons, its Chapter II prescribes more detailed rules for associations, and its Chapter III deals with nonprofit legal persons acting in the public interest. 50. According to section 7(1) and (2), a legal person’s name has to clearly designate its type, and must not be misleading or contrary to good morals. 51. Section 26(1) provides that an association’s general meeting may be called at the request of onethird of the members, if need be through an application to the competent court. 52. The general meeting’s resolutions are subject to judicial review for lawfulness and conformity with the association’s rules (section 25(4)). Applications for judicial review may be lodged by any member or body of the association, or by the public prosecutor (section 25(6)). 53. At the relevant time the 1952 Code of Civil Procedure, along with some statutes, regulated the procedure for entering legal persons, such as companies, associations, foundations and political parties, in special registers kept by the regional courts and the Sofia City Court. Such registration was made after noncontentious proceedings instituted on the application of the representatives of the legal person concerned (Articles 489 and 494). In the course of such proceedings the court could gather evidence of its own motion and take into account facts not mentioned by the applicant (Articles 427 and 429). On 1 March 2008 the Code was superseded by the 2007 Code of Civil Procedure. 54. The European Commission for Democracy through Law (“the Venice Commission”) made the following recommendations in its Guidelines and explanatory report on legislation on political parties: some specific issues (CDL-AD(2004)007rev, 15 April 2004): “B. Registration as a necessary step for recognition of an association as a political party, for a party’s participation in general elections or for public financing of a party does not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. Any requirements in relation to registration, however, must be such as are ‘necessary in a democratic society’ and proportionate to the objective sought to be achieved by the measures in question. Countries applying registration procedures to political parties should refrain from imposing excessive requirements for territorial representation of political parties as well as for minimum membership. ... ... a. Registration of political parties 10. ... many countries view registration as a necessary step for recognition of an association as a political party, for participation in general elections or for public financing. This practice – as the Venice Commission has stated before in its Guidelines on Prohibition and Dissolution of Political Parties – even if it were regarded as a restriction of the right to freedom of association and freedom of expression, would not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. The requirements for registration, however, differ from one country to another. Registration may be considered as a measure to inform the authorities about the establishment of the party as well as about its intention to participate in elections and, as a consequence, benefit from advantages given to political parties as a specific type of association. Farreaching requirements, however, can raise the threshold for registration to an unreasonable level, which may be inconsistent with the Convention. Any provisions in relation to registration must be such as are necessary in a democratic society and proportionate to the object sought to be achieved by the measures in question.” 55. A report adopted by the Venice Commission on 16 February 2004 on the establishment, organisation and activities of political parties on the basis of the replies to a questionnaire (CDL-AD(2004)004) reads, in so far as relevant: “23. Some countries impose on political parties an obligation to go through a registration process. Almost all countries mentioned in the first group in paragraph 2.1 have to go through a registration process or at least through deposition of their articles of association with the competent authorities of their country. This process is justified by the need of formal recognition of an association as a political party. Some of these additional requirements can differ from one country to another: a) convocation of the assembly on the establishment of the party (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina and Romania); b) establishing articles of association/charter (Albania, Armenia, Austria, Azerbaijan, Bosnia and Herzegovina, Croatia, Cyprus, Czech Republic, Estonia, Lithuania and Romania); c) drafting of a programme (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Czech Republic, Estonia, Germany, Latvia, Lithuania, Romania and Slovakia); d) minimum membership (Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Czech Republic, Estonia, Georgia, Germany, Greece, Kyrgyzstan, Latvia, Lithuania, Russian Federation, Slovakia and Turkey); e) election of the board/presidency/permanent committee (Albania, Armenia, Croatia, Cyprus, Romania and United Kingdom); f) permanent address of its offices/leaders (Armenia, Azerbaijan, Canada, Croatia, Cyprus, Romania, Russian Federation and United Kingdom); g) principles of internal organisation (Czech Republic, Germany, Lithuania, Poland, Romania, Russian Federation, Spain and Turkey); h) payment of the registration fee (Armenia and Azerbaijan); i) signatures attesting certain territorial representation (Moldova, Russian Federation, Turkey and Ukraine); and j) publication of information on the establishment of the party in mass media (Austria). 24. After these requirements are met, a competent body (Ministry of Justice, for example) proceeds with official registration. In the case of such countries as, for example, Austria and Spain, the Charter (articles of association) are just submitted to the competent authority in order to be added to a special State register. ... 28. Most countries consider registration as a necessary step for recognition of an association as a political formation. However, some countries, as it has been already mentioned, consider that State registration is a pure formality. For example, in Austria, the Ministry of the Interior cannot refuse the deposition or a registration of the Charter of a party. 29. There is another criteria of distinction as to the status given to a party. In some countries registration of such associations is required in order to give a full legal personality to such association. If such registration is not carried out, a party cannot have bank accounts, receive founding from public funds or hold property (Azerbaijan, Croatia, Georgia and Ukraine). 30. Certain States have a stricter rule as to the registration process. For example, in Moldova, current legislation on political parties imposes a duty on political parties to provide the Ministry of Justice with its membership lists every year for having its registration reeffected.” 56. The explanatory report to Protocol No. 14 (CETS No. 194) reads, in so far as relevant: “98. Rapid and full execution of the Court’s judgments is vital. It is even more important in cases concerning structural problems, so as to ensure that the Court is not swamped with repetitive applications. For this reason, ever since the Rome ministerial conference of 3 and 4 November 2000 (Resolution I), it has been considered essential to strengthen the means given in this context to the Committee of Ministers. The Parties to the Convention have a collective duty to preserve the Court’s authority – and thus the Convention system’s credibility and effectiveness – whenever the Committee of Ministers considers that one of the High Contracting Parties refuses, expressly or through its conduct, to comply with the Court’s final judgment in a case to which it is party. 99. Paragraphs 4 and 5 of Article 46 accordingly empower the Committee of Ministers to bring infringement proceedings in the Court (which shall sit as a Grand Chamber – see new Article 31, paragraph b), having first served the state concerned with notice to comply. The Committee of Ministers’ decision to do so requires a qualified majority of two thirds of the representatives entitled to sit on the Committee. This infringement procedure does not aim to reopen the question of violation, already decided in the Court’s first judgment. Nor does it provide for payment of a financial penalty by a High Contracting Party found in violation of Article 46, paragraph 1. It is felt that the political pressure exerted by proceedings for noncompliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned. 100. The Committee of Ministers should bring infringement proceedings only in exceptional circumstances. None the less, it appeared necessary to give the Committee of Ministers, as the competent organ for supervising execution of the Court’s judgments, a wider range of means of pressure to secure execution of judgments. Currently the ultimate measure available to the Committee of Ministers is recourse to Article 8 of the Council of Europe’s Statute (suspension of voting rights in the Committee of Ministers, or even expulsion from the Organisation). This is an extreme measure, which would prove counterproductive in most cases; indeed the High Contracting Party which finds itself in the situation foreseen in paragraph 4 of Article 46 continues to need, far more than others, the discipline of the Council of Europe. The new Article 46 therefore adds further possibilities of bringing pressure to bear to the existing ones. The procedure’s mere existence, and the threat of using it, should act as an effective new incentive to execute the Court’s judgments. It is foreseen that the outcome of infringement proceedings would be expressed in a judgment of the Court.”

dev

001-22308

ENG

MKD

ADMISSIBILITY

TRAJKOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Inadmissible

Georg Ress

The applicant, Mr Strezo Trajkovski, is a national of the Former Yugoslav Republic of Macedonia, who was born in 1926 and lives in Skopje. He was represented before the Court by Mr Saško Dukoski, a lawyer practising in Skopje. The facts of the case, as submitted by the parties, may be summarised as follows. Under the relevant legislation of the Socialist Federal Republic of Yugoslavia (SFRY) at the material time the banks were under a duty to deposit foreign currency funds in the SFRY National Bank. The applicant had savings in foreign currency in a State owned bank - Komercijalna Banka-Skopje before the dissolution of the SFRY. In 1989 Komercijalna Banka paid an average monthly interest of 2.2 for savings in Deutschmarks (DEM). The same year it paid an average monthly interest of 6.9 for savings in United States dollars (US$). In 1991 the SFRY Council of Ministers passed a decision to the effect that the withdrawal of funds from foreign currency savings accounts was possible only in instalments (see relevant domestic law). The decision was repealed in 1992. On 8 September 1991 the Former Yugoslav Republic of Macedonia declared its independence. On 17 November 1991 the Former Yugoslav Republic of Macedonia adopted its Constitution and the Constitutional Law for the Implementation of the Constitution under which the laws from the SFRY remained in force except for the laws regulating the organisation and the competence of the SFRY institutions. On an unspecified date in 1991 the applicant’s bank refused his request to allow him to withdraw his savings in foreign currency on the basis of the aforementioned decisions of the SFRY Government. On 26 February 1992 the applicant’s funds were transferred to a new account in the same bank which was also frozen. The applicant had DEM 5,593.49 and US$ 499.91 in his new bank account; and 646 French Francs (FRF) and small amount of Swiss Francs (CHF), pounds sterling (GBP) and Austrian Schillings (ATS) in his old bank account. Both bank accounts bore the same number. On 24 April 1992 the Former Yugoslav Republic of Macedonia introduced its own currency. The State reserves in foreign currency were US $ 3.000.000. There were 1, 284,616 frozen bank accounts. The debt towards the holders of the accounts amounted to DEM 1.6 billion. On 26 April 1992 the Parliament of the Former Yugoslav Republic of Macedonia adopted the Act on Undertaking the Citizens’ Foreign Currency Deposits (hereinafter referred to as the 1992 Act) concerning the personal funds put on foreign currency bank accounts which had been deposited in the SFRY National Bank. Under the Act the Government undertook the obligation to pay back the respective funds provided that they had been put in savings accounts in the banks with headquarters on its territory. The citizens were entitled to draw a limited amount out of their savings accounts. Government bonds were to be issued for the remaining sum. On 27 July 1992 the applicant lodged a civil claim with the Skopje Municipal Court against the bank claiming back his money with the penalty interest. On 24 February 1993 his civil claim was dismissed on the grounds that under the relevant SFRY regulation the banks were obliged to deposit the natural persons’ funds in foreign currency in the Federal National Bank, and that the withdrawal of the funds from the savings accounts was possible only for the purchase of apartments, or business premises. On 20 May 1993 the Macedonian Parliament adopted the Act on the Guarantee by the Republic of Macedonia of Foreign Currency Savings and on the Funds and Means of Repayment of Foreign Currency Savings Deposited in 1993 and 1994 (hereinafter referred to as the 1993 Act) which repealed the 1992 Act. The 1993 Act provided that the withdrawal of funds from the frozen foreign currency savings accounts was only possible for the purposes set forth in law (see relevant domestic law). On 2 November 1993 the applicant appealed to the Appellate Court. He complained, inter alia, that funds put on frozen savings account should have borne the same interest, as thought they were put on a notice account, i.e., deposited on a contractual basis without the right to withdraw for a certain period of time. On 13 January 1994 the Skopje Appellate Court quashed the Skopje Municipal Court’s judgment, as it found, inter alia, that the court had not based its decision on the legislation adopted by the Former Yugoslav Republic of Macedonia and had not replied to the applicant’s arguments in respect of the payable interest rate. The applicant’s case was remitted for examination to the Skopje Municipal Court. On 20 December 1995 the Skopje Municipal Court found that all savings accounts in foreign currency had been frozen by the relevant decisions of the SFRY Council of Ministers. The claims of the holders of the frozen savings accounts had been regulated by the 1993 Act of the Former Yugoslav Republic of Macedonia because the country was facing a difficult economic situation. The court rejected the applicant’s claim on the ground that he had not wished to withdraw funds from his savings account in order to purchase an apartment, business premises, or for other purposes set out by law. As regards the interest rate, the court held that since the applicant had not concluded a contract with the bank for putting funds in a notice account he could not have received the same interest payable to the holders of such accounts. On 6 March 1997 the Appellate Court dismissed the applicant’s appeal. It held, inter alia, that the applicant’s allegations that the bank should have paid penalty interest were ill-founded, as the accounts had been frozen by virtue of law. On 18 March 1999 the Supreme Court upheld the lower courts’ decisions. It held that the applicable law in the applicant’s case had been the 1993 Act with its amendments. Finally, it concluded that the lower courts had rightly rejected the applicant’s action since his request to withdraw money was not made for one of the purposes provided by the Act. In 2000 the State reserves in foreign currency had been US $ 714,000,000, whereas the debt towards the account holders had decreased by DEM 508,100,000. On 21 April 2000 the Parliament adopted the Act on the Manner of the Re-payment of the Citizens’ Foreign Currency Deposits for which the [Former Yugoslav] Republic of Macedonia is Guarantor (hereinafter referred to as the 2000 Act) (see relevant domestic law) which repealed the 1993 Act. Under the 2000 Act the applicant’s funds on his account were converted into euros. Their amount was 4,168.10 euros. On 8 August 2000 the applicant withdrew 125.25 euros from his account. He was given Government bonds for the remaining sum. Following the Government’s decision of 12 December 2000 on the early buy out of the bonds which were mature in 2002, the applicant received 256.21 euros. Section 1035 provided as follows: “1. A contract on a monetary deposit is concluded when the bank obliges itself to accept and the depositor obliges himself or herself to deposit in the bank a certain amount of money. 2. By this contract the bank has the right to dispose of the deposited money and the obligation to return it in accordance with conditions determined in the contract.” Section 1038, as far as relevant, provided as follows: “Unless otherwise agreed, ... the depositor has the right to dispose of the whole or a part of the balance of the deposit at any moment.” Section 14, as far as relevant, provided as follows: “1. Domestic natural and legal persons may keep foreign currency on a foreign currency savings account or foreign currency savings deposit at an authorised bank and use it for making payments abroad, in accordance with the provisions of this Law. ... 3. The foreign currency on foreign currency savings accounts or foreign currency savings deposits are guaranteed for by the SFRY.” Section 71, as far as relevant, provided as follows: “1. Domestic natural persons may sell convertible currencies to an authorised bank or other authorised exchange office or they may deposit them in a foreign currency savings account or foreign currency savings deposit with an authorised bank. 2. Foreign currency kept in a foreign currency savings account or a foreign currency savings deposit may be used by domestic natural persons for payment of imported goods or services for his or her personal needs and the needs of close family members in accordance with the federal law governing foreign trade operations. ... 4. Foreign currency referred to in paragraph 2 of this Article may be used by domestic natural persons for the purchase of convertible bonds, for endowments for scientific and humanitarian purposes in Yugoslavia and for payment of a life insurance with an insurance company in Yugoslavia. 5. The National Bank of Yugoslavia shall regulate the operation of foreign currency savings accounts and foreign currency savings deposits of domestic and foreign natural persons.” Section 103, as far as relevant, provided as follows: “1. The National Bank of Yugoslavia is obliged, following a request of an authorised bank, to receive into deposit foreign currency funds which has effectively been deposited by domestic and foreign natural persons in foreign currency savings accounts or foreign currency savings deposits after the entry into force of this Law. 2. The methods and conditions for the deposition and withdrawal of foreign currency at the deposit of the National Bank of Yugoslavia shall be regulated by the Federal Executive Council on the proposal of the National Bank of Yugoslavia.” “1. On the basis of the deposited foreign currency ... the national banks shall authorise credits to banks in dinars in an amount equal to the deposited foreign currency, which shall be established on the basis of the average daily exchange rate applicable at the end of the respective month when the foreign currency is deposited. 2. When withdrawing foreign currency from the deposit, the bank is obliged to repay the national bank the used dinar credit in an amount equal to the amount of foreign currency withdrawn from the deposit, which shall be established on the basis of the exchange rate as applied when the same foreign currency was deposited.” Paragraph 8 of the Decision confirmed the purposes for which foreign currency could be used, as prescribed in the amended Article 71. Paragraph 10 stated as follows: “Domestic natural persons may withdraw from their accounts foreign money, cheques and letters of credit for travelling to a foreign country in accordance with applicable regulations.” The 1991 Decision was amended on 25 April and 16 May 1991 (OG SFRY nos. 30/91 and 36/91) by the addition of certain provisions, of which paragraph 17c established the following rules on advance announcement of withdrawals: “Authorised banks shall execute orders to pay to domestic natural persons foreign currency deposited in their foreign currency accounts ... if such persons previously announced to the authorised banks, within the following time-limits, that they will use foreign currency in the following amounts: an amount not exceeding DEM 500: within 15 days for the first withdrawal ... and within 30 days for any subsequent withdrawal...; an amount not exceeding DEM 1,000: within 30 days for the first withdrawal ... and within 45 days for any subsequent withdrawal ...; an amount not exceeding DEM 3,000: within 90 days; and an amount not exceeding DEM 8,000: within 180 days.” Section 1, as far as relevant, provided as follows: “A bank is an independent self-governing financial institution, which administers deposits, credits and other banking business in accordance with the law.” Section 2 stated as follows: “1. A bank conducts its activities independently with a view to making profit based on the principles of liquidity, security and profitability. 2. Banks and other financial institutions are holders of all rights, obligations and responsibilities in legal payment operations with respect to both social and other funds at their disposal which they use in accordance with the nature and purpose of financial funds. 3. Banks and other financial institutions decide independently on the manner and form of organisation and association as well as on their activities in accordance with market conditions and profit-making, pursuant to the provisions of this and other laws.” Section 61, as far as relevant, provided as follows: “The liability of banks shall be settled out of the bankruptcy estate in the following order: claims of individuals; claims of the National Bank of Yugoslavia, the SFRY and other creditors who are not the founders of the bank; claims of the founders of the bank.” Article 30, as far as relevant, provides as follows: “... 3. No person may be deprived of his property or property rights, save [for the protection of] public interest as determined by law. 4. If property is expropriated, or the property rights are restricted a just compensation not lower than the property’s market value is guaranteed...” Article 52 § 4 provides as follows: “... Laws and other regulations may not have a retroactive effect, save if they are more favourable to the citizens.” Article 5 §§ 1 and 4 provides that the existing federal laws of the former Yugoslavia shall be in force in the Former Yugoslav Republic of Macedonia with the exception of laws regulating the organisation and competence of the Yugoslav federal organs. Article 6 provides that all federal laws which are inconsistent with the Macedonian Constitution shall be amended accordingly within one year from the day the Constitution has been promulgated. Under section 1 the Former Yugoslav Republic of Macedonia was the guarantor for the payment of domestic and foreign currency bank savings and was under a duty to provide funds. Under section 2 the Former Yugoslav Republic of Macedonia was guarantor for the payment of funds put on foreign currency savings accounts on its territory which had been transferred to the National Bank of the SFRY by 27 April 1992. Under section 3 the banks were not allowed to convert funds from the frozen savings accounts in another currency. The funds yielded the interest, as determined by the National Bank. Under section 4 in order to insure the liquidity of the State funds all foreign currency savings accounts were frozen and the funds could be withdrawn, or spent only for the purposes set out by law. Under sections 5 and 6 the State was to provide funds for the re-payment of the debt. Under section 7 the account holders were allowed to withdraw the equivalent in domestic currency of DEM 100 per month from their frozen savings accounts provided that they had not had sufficient funds to meet their monthly needs. Under section 8 account holders were allowed to withdraw some funds from their savings accounts in foreign currency to meet medical, wedding, funerary and school expenses, or to re-pay long-term bank credits, to pay taxes, custom duties, taxes concerning the transfer of shares, to purchase State-owned agricultural land, machines for agriculture and for other purposes set out by law. Under section 10 account holders were allowed to withdraw some funds from the frozen savings accounts in order to meet their medical and school expenses overseas, or purchase plane tickets. Under section 11 in accordance with the Government’s decision the State would advance a credit of 50% of the amount paid by the banks to the holders of the frozen accounts. In 1997 and 1998 the payable interest rate for the frozen savings in DEM was 1.50, and in 1999 and 2000 it was 1.90. In 1997 the payable interest rate for the frozen savings in US$ was 3.90; in 1998 it was 4.30; in 1999 it was 3.60 and in 2000 it was 4.30. Section 8 provides, inter alia, that the communal apartments may be purchased by denars received from the buy out of the funds from the frozen savings accounts. It was possible to sell funds from the frozen savings accounts to persons who wished to purchase communal apartments or business premises. Their price (not lower than 50%) was determined in accordance with the market demand. Section 13 provides that the state-owned shares in companies, banks and other state-owned securities may be purchased with funds drawn from the frozen foreign currency savings accounts. Section 1 provides that the law shall set out the manner and the procedure for the payment of funds put on foreign currency savings accounts which were frozen and for which the guarantor is the State. Under section 3 the banks shall convert funds from the frozen foreign currency savings accounts into euros in accordance with the National Bank’s exchange rate. Under section 4 the holders of the foreign currency savings accounts may withdraw 3% of funds from each of their savings accounts as from 1 July 2000 provided that the amount of their funds exceeds 50 euros. Under section 10 the bonds are negotiable and their value is expressed in euros. Under sections 11, 12 and 13 the bonds shall be bought out in national currency twice a year within a ten year period of time, as from 1 April 2002. The interest shall be paid off twice a year, as from 1 April 2001. The applicable exchange rate shall be the average exchange rate of the National Bank’s exchange list published on the day of payment, or within thirty days from the day the bond becomes mature. Under section 17 the bonds may be used to pay off securities and concessions, to obtain shares in State-owned companies, to pay long-term rents, to purchase communal apartments, agricultural and construction land and to obtain shares in accordance with the Reconstruction of the Banks’ Act. Under section 21 the State may buy out the bonds at any time in accordance with the Government’s decision.

dev

001-117124

ENG

RUS

CHAMBER

CASE OF OLEYNIKOV v. RUSSIA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

5. The applicant was born in 1946 and lives in Khabarovsk. 6. On 19 May 1997 the applicant lent the Khabarovsk Office of the Trade Counsellor of the Embassy of the Democratic People’s Republic of Korea (“the DPRK Trade Counsellor”) 1,500 United States dollars (USD). The money was to be repaid by 29 May 1997. A receipt of 19 May 1997 on the letterhead of the DPRK Trade Counsellor signed by Mr Chkhe Gym Cher reads as follows: “[This] receipt is given to the President of the private company Lord BV Oleynikov to the effect that the Khabarovsk Office of the Trade Counsellor of the DPRK Embassy has borrowed 1,500 (one thousand five hundred) US dollars converted into roubles. We undertake to repay the debt not later than 29 May [and] we pledge the Toyota Camry car, registration plate no. KhBB 1799 (ХББ 1799), engine no. 0073653, chassis no. 0062459, [together] with a complete set of documents for the car. In case of a failure to repay [the debt] within the indicated term, we shall pay 1% for each day of the delay.” 7. After the DPRK Trade Counsellor failed to repay the debt, in 19992000 the applicant sent several letters of claim which went unanswered. The applicant’s counsel also sent a letter of claim to the DPRK Trade Counsellor on 13 April 2001 and to the DPRK Embassy on 27 April 2001, which also went unanswered. 8. On 11 September 2001 the applicant’s counsel wrote to the Russian Ministry of External Affairs asking for assistance in settling the matter. 9. On 29 January 2002 the Ministry of External Affairs replied to the applicant that the DPRK Trade Counsellor was a constituent unit of the DPRK Embassy and, therefore, an organ of the DPRK which acted on its behalf. The DPRK Trade Counsellor thus enjoyed immunity from suit and immunity from attachment or execution in accordance with Article 435 of the 1964 Code of Civil Procedure. The Ministry of External Affairs advised the applicant that, should he decide to lodge a claim with a court, he would have to obtain consent to the examination of the case from a competent North Korean authority. 10. On 8 July 2002 the applicant wrote to the DPRK Embassy and asked for its consent to the examination of his claim against the DPRK Trade Counsellor by the domestic courts. The letter was received by the Embassy on 19 July 2002. It appears that the applicant received no reply. 11. On an unspecified date the applicant lodged a claim with the Supreme Court of Russia. On 21 February 2003 the Supreme Court returned the claim without examination on the grounds that it should have been lodged before a district court. 12. On 9 February 2004 the applicant lodged a claim against the DPRK with the Khabarovsk Industrialniy District Court. He sought repayment of the debt with interest. He claimed, furthermore, that Russia was responsible for the actions of foreign diplomats within its territory. 13. On 12 February 2004 the District Court returned the claim without consideration on the grounds that under Article 401 of the 2002 Code of Civil Procedure a claim against a foreign State could only be brought upon the consent of its competent authorities. The applicant appealed. 14. On 16 March 2004 the Khabarovsk Regional Court upheld the decision on appeal. The court held: “[The DPRK Trade Counsellor] is a subdivision of the trade representation of the DPRK in Russia the legal status of which is governed by the Annex to the Treaty on Trade and Navigation between the USSR and the DPRK of 22 June 1960. According to Article 2 of the Annex, the trade representation is an organ of the State (the DPRK) acting in its name. Therefore, taking into account the equality of States as a principle of international law, the trade representation as an organ of public authority of a sovereign State is entitled to judicial immunity as well as to immunity from measures of securing a suit and execution. The said immunities are based on State sovereignty, which does not allow a State to be subject to coercive measures of any kind. The principle of judicial immunity of a foreign state is enshrined in Article 401 § 1 of the Code of Civil Procedure, according to which lodging a claim in a court of the Russian Federation against a foreign State, the involvement thereof in court proceedings in the capacity of a defendant or of a third party, the seizure of property belonging to a foreign State and situated within the territory of the Russian Federation, taking other measures for securing of a suit, and levying execution upon such property by means of enforcement of judicial decisions, are allowed only upon the consent of the competent agencies of the State in question, unless otherwise provided by an international treaty of the Russian Federation or by a federal law. Therefore, [a] person may only lodge a claim against a foreign State upon the prior consent of the State. If [a] claim against a foreign State is not supported by ... documents confirming its consent to the examination of the case in court, [court] proceedings will not be instituted. As [Mr] V.B. Oleynikov failed to furnish [documents confirming] the consent of the [DPRK] to the examination of the dispute in court together with [his claim], the judge could not accept the claim because of the bar to [lodging such a claim before] a court. As the said bar is [not absolute], the judge returned the claim to [Mr] V.B. Oleynikov on valid grounds, having indicated how the circumstances that prevented the institution of the proceedings could be remedied. [Mr] V.B. Oleynikov’s arguments that the DPRK Embassy does not wish to reply to his and his counsel’s requests [and] is evading payment of the debt, on the basis of which [he submits that] it is for the court or the judge to request the DPRK’s consent to the examination of the case, may not be considered as grounds for setting aside the [decision of the District Court], as they contravene the provisions of the international treaty between the USSR and the DPRK of 22 June 1960 and Article 401 § 1 of the Code of Civil Procedure.” 15. Article 127 of the Civil Code refers to the Law on State Immunity, which has not been adopted to date. The question is thus resolved by the courts on the basis of the relevant Codes of Procedure, with reference to the provisions of various bilateral and multilateral treaties. 16. Article 435 of the 1964 Code of Civil Procedure in force until 1 February 2003, based on absolute immunity, provided, in so far as relevant: “[F]iling a suit against a foreign State, securing of a suit or levying execution upon the property of a foreign State situated in the USSR may only be allowed upon the consent of the competent agencies of the respective State.” 17. Article 401 § 1 of the 2002 Code of Civil Procedure in force from 1 February 2003, reinstated absolute immunity of a foreign State. It reads as follows: “Filing a suit against a foreign State in a court of the Russian Federation, the involvement thereof in court proceedings in the capacity of a defendant or of a third party, the seizure of property belonging to a foreign State and situated within the territory of the Russian Federation, taking other property measures for securing of a suit, and levying execution upon such property by means of enforcement of judicial decisions, shall only be allowed upon the consent of the competent agencies of the State in question, unless otherwise provided by an international treaty of the Russian Federation or by a federal law.” 18. Article 213(1) of the 1995 Code of Commercial Procedure in force until 1 September 2002, provided for absolute immunity: “Filing a suit in a commercial court against a foreign State, the involvement thereof in court proceedings in the capacity of a third party, the seizure of property belonging to a foreign State and situated within the territory of the Russian Federation, and taking against it other measures for securing a suit, and levying execution upon such property by means of enforcement of a decision of a commercial court, shall only be permitted with the consent of the competent agencies of the respective State, unless otherwise provided by federal laws or by international treaties of the Russian Federation.” 19. Article 251 of the 2002 Code of Commercial Procedure in force from 1 September 2002, endorsed restrictive immunity. It reads as follows: “1. A foreign State, acting in the capacity of a bearer of authority [emphasis added], shall enjoy judicial immunity with respect to a suit filed against it with a commercial court in the Russian Federation, its involvement in court proceedings in the capacity of a third party, the seizure of property belonging to a foreign State and situated on the territory of the Russian Federation, and the taking against it by the court of other measures of securing a suit and property interests. Levying execution upon such property by means of enforcement of a judicial act of a commercial court shall only be permitted with the consent of competent agencies of the respective State, unless otherwise provided by international treaty of the Russian Federation or by a federal law. 2. The judicial immunity of international organisations shall be determined by international treaty of the Russian Federation and by federal law. 3. A waiver of judicial immunity shall be effected according to the procedure provided for by the law of the foreign State or by the rules of the international organisation. In this instance, the commercial court shall consider the case according to the procedure established by the present Code”. 20. Article 15 of the Constitution provides, insofar as relevant: “4. The generally recognised principles and norms of international law and the international treaties of the Russian Federation shall be an integral part of its legal system. If an international treaty of the Russian Federation establishes other rules than those provided for by the law, the rules of the international treaty shall apply.” 21. Article 435 of the 1964 Code of Civil Procedure was examined by the Constitutional Court in its ruling of 2 November 2000. The claimant, Ms Kalashnikova, a former employee of the information service of the United States Embassy in Russia, was dismissed under Article 33 section 1(2) of the 1971 Labour Code of the Russian Federation (non-conformity of the employee with the post held due to insufficient qualification or state of health, preventing further fulfilment of the work). Following her dismissal she instituted court proceedings seeking reinstatement and damages. In a ruling of 27 March 2000 the court of first instance rejected the claim, having applied Article 435(1) of the 1964 Code of Civil Procedure, as the claimant had failed to present any evidence of the United States’ consent to submit to the jurisdiction of the court. The Moscow City Court upheld the ruling on appeal. In her complaint to the Constitutional Court, Ms Kalashnikova argued that Article 435 of the 1964 Code of Civil Procedure had violated her constitutional right to judicial defence. 22. The Constitutional Court noted that the right to engage in individual labour disputes was provided in Article 37(4) of the Constitution and the procedure for the examination of claims for reinstatement was governed by Chapter XIV of the Labour Code, while application of the provisions of the 1964 Code of Civil Procedure was of subsidiary nature, intended to fill in gaps in the procedural rules of labour legislation. It further observed that the purpose of Article 435(1) was to ensure State immunity in accordance with generally recognised principles and norms of international law and international treaties of the Russian Federation. 23. The Constitutional Court found that “when considering the case of [Ms] Kalashnikova, the courts of general jurisdiction did not pay attention to the fact that the employer – the Embassy of the United States as an agency of the accrediting State – applied the legislation of the Russian Federation ..., and without requesting necessary documents refrained from investigating the issue of whether such an application could be regarded as the United States’ waiver of jurisdictional immunity in this particular case”. On these grounds it reached the conclusion that: “the formalistic application of Article 435(1) of the 1964 Code of Civil Procedure by the courts of general jurisdiction, which refused to accept the claim of [Ms] Kalashnikova on the basis of this article, led to an inadmissible limitation of the claimant’s rights with regard to an individual labour dispute ... and thus to a violation of the right to judicial defence provided for in Article 46(1) of the Constitution of the Russian Federation”. 24. However, the Constitutional Court did not examine Ms Kalashnikova’s complaint on the merits. It found that her rights had not been violated by Article 435(1) of the 1964 Code of Civil Procedure, but rather by its application by the domestic courts, which fell outside its competence. At the same time, the Constitutional Court stated that the Article was to be applied henceforth “taking into account the legal position set forth by the Constitutional Court in the present ruling”. 25. The application of the State immunity rule in commercial proceedings was addressed by the Presidium of the Supreme Commercial Court in an Information Letter of 18 January 2001. By way of information letters the Supreme Commercial Court provides lower courts with instructions on the interpretation and application of domestic law. 26. The Information Letter firstly referred to a case where a Russian construction company had filed a claim against a foreign embassy for recovery of a debt arising under a contract concerning the construction of a hotel attached to the embassy in Moscow. The commercial court had granted the claim. However, the Supreme Commercial Court had set aside the decision and remitted the case for fresh consideration. The commercial court was instructed to review the issue of State immunity, taking into account that construction of the hotel was for the public, and non-commercial, activity of the foreign State in Russia, and was therefore instructed to consider termination of the proceedings under Article 213(1) of the 1995 Code of Commercial Procedure. 27. On the basis of its findings in the above case, the Presidium of the Supreme Commercial Court made the following general recommendation: “A commercial court shall terminate proceedings in a case concerning an investment dispute, the defendant in which is a foreign State acting in the capacity of a sovereign”. 28. The second case referred to in the Information Letter also concerned a foreign embassy and a Russian construction company involved in a dispute arising out of a construction contract. However, in this case the proceedings had been initiated by the embassy and the construction company had filed a counter-claim. The Court of Cassation had held that bringing a claim constituted an implied waiver of immunity and therefore that the embassy of a foreign State was not immune with respect to a counter-claim. 29. The recommendation of the Presidium of the Supreme Commercial Court based on the above case reads as follows: “A commercial court shall accept a claim in a commercial dispute, the defendant in which is a person entitled to international immunity”. 30. State immunity was touched upon in the Opinion on the Draft Federal Law on the Administration of State Foreign Financial Assets Inherited by the Russian Federation, sent by the President of the Russian Federation, B N Yeltsin, to the Chairman of the State Duma, G N Seleznev, and published in the Rossiyskaya Gazeta on 13 May 1998 (“the Opinion”). 31. With regard to certain provisions relating to State immunity which were included in the Draft Federal Law under discussion, the Opinion states that “foreign State property enjoys functional immunity”. The statement is further detailed as follows: “If a State uses its ownership for the purposes of ensuring its sovereignty or fulfilling State political functions, that is, as a subject of international law, for example, for the maintenance of diplomatic and consular representations, this property always enjoys immunity against the jurisdiction of the State of its location. However, if the State (through specially empowered agencies) takes part in property turnover or in commercial activity, then it is regarded as a foreign private person and its State ownership does not enjoy immunity. The turnover of such property is regulated by norms of international private law and by legislation of the country where the property is located, the foreign State with respect to the country of location of the property acting on the basis of equal rights with other participants of these relations – with foreign juridical and natural persons. This approach has been consolidated in the European Convention on State Immunity, 16 May 1972, which, in accordance with generally recognised international practice, the Russian Federation may regard as a codified digest of customary norms of international law.” 32. State immunity was also referred to in letter no. Pr-795 of 23 June 1999 sent by the President of the Russian Federation, B N Yeltsin, to the Chairman of the Federal Assembly, E S Stroev (“the Letter”). The Letter substantiates the rejection by the President of the Federal Law on the Administration of the Russian Federation’s Property Located Abroad. Paragraph 6 of the Letter states: “The Civil Code of the Russian Federation (Article 127) provides that the specific responsibilities of the Russian Federation and the subjects of the Russian Federation in relations regulated by civil legislation with the participation of foreign juridical persons, citizens and States are to be determined by the Law on the Immunity of the State and of its Property. Therefore, it is hardly legitimate to include Article 8 on the immunity of the Russian Federation’s property located abroad in the Federal Law. Moreover, it should be noted that the concept of absolute immunity of a foreign State and of its property was reflected in Article 8 of the Federal Law. This concept does not find recognition in either the legislation of the Russian Federation (Article 213, 1995 Code of Commercial Procedure of the Russian Federation, Articles 22 and 23, Federal Law on Production Sharing Agreements), or in international treaties of the Russian Federation (treaties on the encouragement and mutual protection of capital investments). It should be taken into consideration that in modern circumstances absolute immunity may not be realised in practice and its adoption in the legislation of the Russian Federation will only impede the development of civil law relations with State participation.” 33. Following the establishment of the foreign trade monopoly in the Soviet Union by the Decree on Nationalisation of Foreign Trade of 22 April 1918, the State, through the USSR Ministry of Foreign Trade and its predecessors, carried out and controlled foreign trade. It established the types of entities entitled to participate in foreign trade and set limits on their participation, such as the nature of transactions they could enter into, the goods they could trade and import and export volumes. Trade with foreign States was to be carried out by Trade Representations, which constituted agencies of the Ministry of Foreign Trade. 34. In the exercise of the foreign trade monopoly, the Soviet Union entered into numerous treaties on the legal status of Soviet Trade Representations in other States. Treaties concluded by the USSR with socialist States provided for the mutual establishment of Trade Representations, such as the following treaty concluded with the DPRK. 35. According to Article 13 of the Treaty on Trade and Navigation between the USSR and the DPRK of 22 June 1960, either party can open a trade representation in the capital of the other party. The legal status of the representation is governed by the Annex to the Treaty. 36. The Annex on the Legal Status of the USSR Trade Representation in the DPRK and the DPRK Trade Representation in the USSR contains four Articles. Article 1 provides that the Trade Representations would contribute to the development of trade between the two States. According to Article 2 the Trade Representation is a constituent part of the Embassy of its State. The trade representative and his/her deputies enjoy full diplomatic immunities and the premises of the Trade Representation enjoy extraterritoriality. The Trade Representation may open branches upon the parties’ agreement. 37. The Annex further provides: “The Trade Representation acts on behalf of its Government. The Government is only responsible for the foreign trade transactions concluded or guaranteed by the Trade Representation in the State of sojourn and signed by a competent person. Names of persons competent to perform legal acts on behalf of the Trade Representation, as well as the scope of the competence of each such person, shall be published in an official organ of the State of sojourn.” “The Trade Representation shall enjoy all immunities belonging to a sovereign State which relate to foreign trade, with the following exceptions agreed upon by the parties: (a) disputes arising out of foreign trade transactions concluded or guaranteed by the Trade Representation in accordance with Article 3 within the territory of the State of sojourn, in the absence of an arbitration agreement or an agreement [to submit to] a different jurisdiction, are subject to the jurisdiction of the courts of that State. At the same time, the courts cannot apply preliminary attachment measures; (b) enforcement of final judgments that have entered into force against the Trade Representation with regard to such disputes is only allowed in respect of goods and claims outstanding to the credit of the Trade Representation.” 38. The Treaty and the Annex remain in force for the Russian Federation. 39. The relevant provisions of the 1972 European Convention on State Immunity (“the Basle Convention”) read as follows: “1. Subject to the provisions of Article 5, a Contracting State cannot claim immunity from the jurisdiction of the courts of another Contracting State if the proceedings relate to an obligation of the State, which, by virtue of a contract, falls to be discharged in the territory of the State of the forum. 2. Paragraph 1 shall not apply: in the case of a contract concluded between States; if the parties to the contract have otherwise agreed in writing; if the State is party to a contract concluded on its territory and the obligation of the State is governed by its administrative law.” 40. Russia is not a party to the Basle Convention. 41. In 1979 the United Nations International Law Commission was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property. In 1991 the International Law Commission adopted the Draft Articles on Jurisdictional Immunities of States and Their Property based on restrictive immunity, that is a distinction between acts of sovereign authority (acte jure imperii) and acts of a private law nature (acte jure gestionis). The Draft Articles that were used as the basis for the text adopted in 2004 dated back to 1991. The relevant part of the text then read as follows: “1. ... (c) “commercial transaction” means: (i) any commercial contract or transaction for the sale of goods or supply of services; (ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction; (iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons. 2. In determining whether a contract or transaction is a “commercial transaction” under paragraph 1 (c), reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if, in the practice of the State which is a party to it, that purpose is relevant to determining the non-commercial character of the contract or transaction. ...” “1. If a State engages in a commercial transaction with a foreign natural or juridical person and, by virtue of the applicable rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court of another State, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction. 2. Paragraph 1 does not apply: (a) in the case of a commercial transaction between States; or (b) if the parties to the commercial transaction have expressly agreed otherwise. 3. The immunity from jurisdiction enjoyed by a State shall not be affected with regard to a proceeding which relates to a commercial transaction engaged in by a State enterprise or other entity established by the State which has an independent legal personality and is capable of: (a) suing or being sued; and (b) acquiring, owning or possessing and disposing of property, including property which the State has authorized it to operate or manage.” 42. In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. It was opened for signature on 17 January 2005. The final versions of Article 2 § 1(c) and 2 and Article 10, as set out in the Convention, read as follows: “1. ... (c) “commercial transaction” means: (i) any commercial contract or transaction for the sale of goods or supply of services; (ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction; (iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons. 2. In determining whether a contract or transaction is a “commercial transaction” under paragraph 1 (c), reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.” “1. If a State engages in a commercial transaction with a foreign natural or juridical person and, by virtue of the applicable rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court of another State, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction. 2. Paragraph 1 does not apply: (a) in the case of a commercial transaction between States; or (b) if the parties to the commercial transaction have expressly agreed otherwise. 3. Where a State enterprise or other entity established by a State which has an independent legal personality and is capable of: (a) suing or being sued; and (b) acquiring, owning or possessing and disposing of property, including property which that State has authorized it to operate or manage, is involved in a proceeding which relates to a commercial transaction in which that entity is engaged, the immunity from jurisdiction enjoyed by that State shall not be affected.” 43. Russia signed the Convention on 1 December 2006. However, it has not ratified it yet.

dev

001-104700

ENG

BGR

CHAMBER

CASE OF DIMITROV AND HAMANOV v. BULGARIA

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - award

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

6. The applicants were born in 1977 and 1963 respectively and live in Plovdiv. 7. On 21 September 1995 Mr Dimitrov was arrested by the police while trying to break into a car with two other individuals, M.M. and S.D. He was taken to a police station, where he made a written confession. M.M., who was apparently also taken into custody, made a confession as well and turned over to the police two radio cassette players stolen from two cars which he had broken into earlier. On the same day a police officer drew up a report on the incident. 8. On 1 November 1995 a police investigator interviewed S.D. who confessed that he had committed the offence in concert with Mr Dimitrov and M.M. 9. On an unspecified date in 1995 the case was given the number 1074/95. 10. On 19 February 2002 the investigator in charge of the case interviewed one of the police officers who had arrested Mr Dimitrov. On 21 February 2002 he interviewed the owner of one of the cars, and on the same day ordered an expert report on the value of the stolen goods. The report was ready the same day. On 1 March 2002 the investigator interviewed the owner of another car. 11. On 4 March 2002 Mr Dimitrov was formally charged with attempted theft committed in concert with M.M. and S.D. He was interviewed in the presence of his counsel and pleaded guilty. On the same day the investigator interviewed S.D. as a witness. It seems that neither M.M. nor S.D. were charged. 12. On 22 May 2002 the Plovdiv District Prosecutor’s Office, noting that in January 2000 M.M. had left Bulgaria and was in Spain, that it was impossible to establish the facts without interviewing him, and it was necessary to charge him as well, decided to stay the proceedings pending his return. On 11 April 2005, noting that on 28 March 2005 M.M. had come back from Spain, the same Public Prosecutor’s Office decided to resume the proceedings. 13. On 18 April 2005 M.M. was interviewed as a witness. He was interviewed again on 15 June 2005 in the presence of a judge. S.D. was also interviewed as a witness in the presence of the judge. It seems that neither M.M. nor S.D. were charged. 14. On 11 July 2005 Mr Dimitrov was allowed to acquaint himself with the case file. On 19 July 2005 the investigator recommended that he be brought for trial, and on 25 August 2005 the Plovdiv District Prosecutor’s Office indicted him. 15. The Plovdiv District Court (Пловдивски районен съд) heard the case on 18 May 2006. The prosecution and Mr Dimitrov stated that they had entered into a plea bargain. The court approved the bargain, sentenced the applicant to five months’ imprisonment, suspended, and terminated the proceedings. 16. On 11 March 1996 a criminal investigation was opened against Mr Hamanov, a bank branch manager, and several other individuals in connection with a number of financial transactions. After March 1996 the case went through a preliminary investigation, trial and appeal. Following a remittal to the preliminary investigation stage in June 2000, in April 2003 it was again pending before the prosecuting authorities. The detailed course of the proceedings up to April 2003 has been set out in paragraphs 1132 of the Court’s judgment in the case of Hamanov v. Bulgaria (no. 44062/98, 8 April 2004). 17. In September 2003 one of Mr Hamanov’s coaccused made a request under the new Article 239a of the 1974 Code of Criminal Procedure (see paragraphs 3840 below). On 31 October 2003 the Plovdiv District Court requested the Plovdiv District Prosecutor’s Office to send it the case file. On 6 November 2003 that Office forwarded the request to the Plovdiv Regional Prosecutor’s Office, which was dealing with the case. 18. Apparently as a result of the above, on 10 November 2003 the Plovdiv Regional Prosecutor’s Office submitted to the Plovdiv Regional Court (Пловдивски окръжен съд) an indictment against Mr Hamanov and seven other accused. Mr Hamanov was accused of breaching his duties as bank branch manager by making thirtyfive unauthorised bank transfers, in breach of the applicable financial regulations, and by guaranteeing nine promissory notes, in breach of a resolution of the bank’s management board prohibiting branch managers from issuing such guarantees, and thereby causing the bank a pecuniary loss. The offences were characterised by the prosecution as abuse of office under Article 282 of the Criminal Code. Mr Hamanov was additionally charged with unlawfully acquiring and possessing ammunition. 19. On 30 January 2004 the court set the case down for trial. 20. Two hearings, listed for 26 April and 15 June 2004, were adjourned, the first because the State had not been properly summoned as a civil party, and the second because Mr Hamanov was ill and could not attend. 21. A hearing was held from 25 to 28 October 2004. On the lastmentioned date the court adjourned the case, finding that this was necessary in order to obtain the testimony of certain witnesses and experts who had failed to show up, and to hear additional witnesses called by the prosecution and the defence. 22. Three hearings, fixed for 23 February, 14 April and 13 June 2005, failed to take place, the first because Mr Hamanov’s counsel was absent, the second because another accused’s counsel had to be replaced, and the third because another accused was ill and could not attend. 23. A hearing was held from 26 to 30 September 2005. On the lastmentioned date the court adjourned the case, finding that this was necessary in order to obtain the testimony of certain witnesses and experts who had failed to show up, to hear additional witnesses called by the prosecution and the defence, and to obtain certain documents. 24. Two hearings, listed for 19 December 2005 and 23 February 2006, were adjourned because other accused and their counsel were ill and could not attend. 25. Two hearings were held from 25 to 28 April and from 26 to 28 June 2006. 26. The Plovdiv Regional Court gave its judgment on 29 June 2006, and handed down the reasons for it in March 2007. It convicted Mr Hamanov of guaranteeing the promissory notes, holding that this had amounted to wilful mismanagement contrary to Article 219 of the Criminal Code (see paragraph 51 below), not abuse of office contrary to Article 282 of the Code. It acquitted him of the charge relating to the making of the thirtyfive bank transfers. In addition, it found Mr Hamanov guilty of possession of ammunition, but not guilty of acquiring it. In connection with the mismanagement, the court sentenced Mr Hamanov to four years and four months’ imprisonment and barred him from acting as a director of a commercial bank for four years and six months. In connection with the possession of ammunition, it sentenced him to a fine of ten Bulgarian levs. In determining the quantum of the punishment to be imposed in relation to the mismanagement, the court noted the following: “Bearing in mind the legal characterisation of the [offence] committed by [Mr Hamanov] ..., [his] dangerousness, [his] personality, the long period during which [he] was criminally prosecuted, and the need to attain the aims of the punishment ..., the court considers that [he] should be sentenced in line with Article 54 of the [1968 Criminal Code – see paragraph 50 below], under predominantly mitigating circumstances. The court finds that those circumstances were [the applicant’s] clean criminal record, his good character, the fact that [he] is in employment at the time of delivery of this judgment, [his] stable family and social situation, [and] the partial confession that he made during the trial. The aggravating circumstances [consist in] the perseverance, determination and coordination displayed by [Mr Hamanov] in carrying out [his] criminal acts. ... In view of the established caselaw that, when accompanying a sentence of imprisonment, [occupational debarment] cannot be shorter than that imprisonment, and bearing in mind the significant amount of time which has elapsed since the commission of the offence ... the court considers that is must bar [Mr Hamanov] from acting as a director of a commercial bank for a period of four years and six months...” 27. Between 10 and 13 July 2006 Mr Hamanov and the other accused, as well as the prosecution, appealed against the judgment. 28. On 17 May 2007 the Plovdiv Court of Appeal (Пловдивски апелативен съд) set the appeals down for hearing on 28 June 2007. However, the hearing failed to take place on that date because another accused did not have legal representation. It was held on 27 September 2007. 29. The Plovdiv Court of Appeal gave its judgment on 23 October 2007, fully upholding the lower court’s judgment. 30. Mr Hamanov and the other accused appealed on points of law. 31. The hearing before the Supreme Court of Cassation (Върховен касационен съд) was fixed for 4 April 2008, but was adjourned because the civil party had not been properly summoned and because another accused who wished to be present was prevented from attending. It took place on 9 May 2008. 32. The Supreme Court of Cassation gave its judgment on 9 July 2008, upholding the part of the lower court’s judgment concerning Mr Hamanov in its entirety. 33. Article 31 § 1 of the 1991 Constitution provides as follows: “Anyone charged with an offence shall be brought before a court within the time established by law.” 34. Under Article 130 of the Constitution, the Supreme Judicial Council is the principal body concerned with the administration of the judiciary (which, in Bulgaria, comprises the courts, the prosecutor’s offices and the investigation services). It has the power to, inter alia, appoint, promote, demote and dismiss judges, prosecutors and investigators (Article 129 § 1 and Article 130 § 6 (1)) and impose the harshest disciplinary punishments (Article 130 § 6 (2)). 35. A 2007 amendment to the Constitution added a new Article 132a, which envisaged the creation of an Inspectorate attached to the Supreme Judicial Council. The Inspectorate, which consists of a chief inspector and ten inspectors, is tasked with checking the work of the judiciary without infringing the independence of judges, prosecutors or investigators (Article 132a § 6). It can act either of its own motion or pursuant to reports by private individuals, legal persons or State authorities (Article 132a § 7). It has the power to refer matters to the appropriate authorities, or make suggestions or reports to them (Article 132a § 9). 36. Section 7(1) of the 2007 Judiciary Act provides that “[e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal”. 37. Sections 4060 of the Act govern the structure, powers and operations of the Inspectorate attached to the Supreme Judicial Council (see paragraph 35 above). One of the Inspectorate’s tasks is to check the processing of cases and their completion within the prescribed time-limits (section 54(1)(2)). It carries out planned annual checks or unplanned checks prompted by reports (section 56(1)). After carrying out a check of the work of an individual judge, prosecutor or investigator, the Inspectorate draws up a report containing its findings and recommendations, if any (section 58(2)). That report is presented to the judge, prosecutor or investigator concerned and to his or her hierarchical superior (section 58(3)). The hierarchical superior must then, within the time set in the report, inform the chief inspector about the implementation of the recommendations (section 58(4)). 38. An amendment to the 1974 Code of Criminal Procedure that came into force in June 2003 introduced the possibility for accused persons to request that their case be brought for trial if the investigation had not been completed within two years in cases concerning serious offences and one year in all other cases (new Article 239a). Paragraph 140 of the amendment’s transitional provisions provided that that possibility applied with immediate effect in respect of investigations opened before June 2003. 39. The procedure under that Article was as follows. The accused person had to submit a request to the relevant court, which then had seven days to examine the file and rule on the request. It could refer the case back to the prosecuting authorities, giving them two months to submit an indictment against the accused or, alternatively, to drop the charges against him or her. If the prosecuting authorities failed to do so, the court was bound to discontinue the criminal proceedings against the person who had made the request. If the prosecuting authorities did submit an indictment, but the court found that the pretrial investigation had been tainted by serious breaches of the rules of procedure, the court had to refer the case back to the prosecuting authorities, which then had one month to rectify those breaches and resubmit the indictment. If they failed to re-submit the indictment or to rectify the breaches highlighted by the court, or committed fresh breaches of the rules of procedure, the court had to discontinue the criminal proceedings. 40. The 2003 amendment was put before Parliament with the reasoning that it was necessary in order to secure observance of the right to a hearing within a reasonable time guaranteed by the Convention. 41. In a judgment of 1 July 2010 (реш. № 340 от 1 юли 2010 г. по к. н. д. № 271/2010 г. ВКС, I н. о.), the Supreme Court of Cassation analysed in detail the manner in which Article 239a was to be applied and held that a failure to finalise the procedure under that provision did not automatically put in jeopardy the fairness of the ensuing trial. It was precisely during that trial – as opposed to the pretrial phase of the proceedings – that the accused would be able to obtain a determination of the criminal charges against him or her in fully adversarial proceedings conducted in line with the requirements of, inter alia, the Convention. 42. The 2005 Code of Criminal Procedure came into force on 29 April 2006, superseding the 1974 Code. Its Article 22 provides as follows: “1. The court shall examine and decide cases within a reasonable time. 2. The prosecutor and the investigating authorities must ensure that the pretrial proceedings are conducted within the timelimits laid down in this Code. 3. Cases in which the accused is remanded in custody shall be investigated, examined and disposed of as a matter of priority.” 43. Articles 368 and 369 of the 2005 Code, which superseded Article 239a of the 1974 Code, provided as follows: “1. If, in pretrial proceedings, more than two years have passed since a person has been charged with a serious offence, or one year in the case of other offences, the accused may request that his or her case be examined by the court. 2. In the cases envisaged in subparagraph 1 the accused shall file a request with the relevant firstinstance court, which shall request the case file immediately.” “1. The court, consisting of a single judge, shall rule on the request within seven days. If it finds that the requirements of Article 368 § 1 are in place, it shall return the case to the prosecutor and give him or her two months within which he or she must submit an indictment, a proposal for the imposition of an administrative punishment, or a plea agreement, or discontinue the criminal proceedings and inform the court accordingly. 2. If, within the abovementioned period of two months, the prosecutor does not carry out any of the measures referred to in subparagraph 1 or if the court does not approve the proposed plea bargain, the court, sitting as a single judge and in private, shall request the case file and shall discontinue the criminal proceedings by means of a decision. After the delivery of the decision the criminal proceedings shall continue with regard to the other accused as well as with regard to the other offences with which the accused has been charged. 3. If the prosecutor carries out [one of] the steps referred to in subparagraph 1, but the pre-trial proceedings have been tainted by substantive breaches of the rules of procedure, the court, sitting as a single judge and in private, shall discontinue the judicial proceedings and refer the case back to the prosecutor for rectification of the breaches and resubmission of the case to the court within one month. 4. If within the timelimit referred to in subparagraph 3 the prosecutor does not submit the case to the court or the substantive breaches of the rules of procedure have not been made good, or further ones have been committed, the court, sitting as a single judge and in private, shall discontinue the criminal proceedings by means of a decision. 5. The decisions referred to in subparagraphs 2 and 4 shall be final.” 44. On 25 March 2010 Parliament repealed Articles 368 and 369 with effect from 28 May 2010. 45. On 29 April 2010 the President of the Republic challenged the repeal, along with certain other amendments to the 2005 Code of Criminal Procedure, before the Constitutional Court. In a decision of 28 September 2010 (реш. № 10 от 28 септември 2010 г., по к. д. № 10/2010 г., обн., ДВ, бр. бр. 80 от 12 октомври 2010 г.) that court examined the repeal by reference to, inter alia, Article 13 of the Convention. It noted that, unlike Article 6 § 1 of the Convention, the Bulgarian Constitution did not explicitly lay down as a basic right the right of those charged with criminal offences to have the charges against them examined and to have the criminal proceedings against them finalised within a reasonable time. However, it analysed in detail the terms of Article 31 § 1 of the Constitution (see paragraph 33 above) and held that that provision was to be construed as containing a procedural obligation to comply with the statutory timelimits for conducting and finalising the pre-trial phase of criminal proceedings, with a view to bringing those charged with criminal offences to trial. It thus served the same purpose as Article 6 § 1 of the Convention, albeit only in relation to the first phase of criminal proceedings. The court continued: “As noted above, the [abolished remedy] was intended to serve as an effective remedy within the meaning of Article 13 of the Convention in order to ensure the right to have a criminal case examined within a ‘reasonable time’ during the pretrial phase of the proceedings. The Constitutional Court finds that the repeal of that remedy is not unconstitutional, because it does not remove the disciplining procedural timelimits envisaged under Article 31 § 1 of the Constitution. Statutory limitations on the duration of the two parts of the pretrial phase of criminal proceedings – ‘investigation’ and ‘steps to be taken by the prosecutor after the investigation has been completed’ – still exist and continue to be applied. ... The repealed ... Articles 368 and 369 of the Code contained the implicit assessment of the legislature that, in view of the need to complete criminal proceedings within a reasonable time, it was unacceptable for a person to remain charged in pretrial proceedings for more than two years in cases of serious offences and for more than one year in cases of lesser offences. In most cases those timelimits would be longer than the sum of the timelimits under Article 234 §§ 15 and Article 242 § 3 of the Code. An exception could occur only if the duration of the investigation was extended, exceptionally, to more than six months by the head of a regional or higher prosecutor’s office or a person designated by him or her (Article 234 § 3 of the Code). Only then would the repeal lead to a restriction of a procedural right and raise the question whether, in the light of Article 31 § 4 of the Constitution and Article 18 of the Convention, that restriction did not exceed what was required for the administration of justice. The Constitutional Court does not accept the argument that the legislative change destroys the right of the accused to have their cases examined within a ‘reasonable time’, as required under Article 6 § 1 of the Convention. The [2005] Code of Criminal Procedure laid down the basic principle that cases are to be examined and decided within a reasonable time, requiring the authorities in charge of pretrial investigations to comply with procedural timelimits (Article 22 of the Code). The constitutional amendments in 2006 and the new [Judiciary Act], adopted in 2007, put in place additional safeguards for the faster examination of cases and for avoiding their undue protraction. The repeal of [Articles 368 and 369 of the Code] does not affect that system of rules. Its aim was to improve the law in order to ensure good justice, which is [a legitimate aim]. The main weakness of the repealed procedure was that it used a formal, purely quantitative criterion to measure ‘reasonable time’ during the pretrial phase of the proceedings. It is true that in most cases such an approach would lead to a correct assessment – something fully logical in view of the fact that under the rules of procedure a person can be charged only if there already exists ‘enough evidence’ that he or she is guilty. However, in some complex cases that criterion might, contrary to the public interest that all offenders be brought to justice, give the accused an undue advantage – for instance in cases in which it proves to be genuinely difficult to trace and charge accomplices, cases in which the need arises to gather additional evidence, including through letters rogatory, cases in which the accused has slowed down the proceedings, etc. It is no wonder that the caselaw of the European Court of Human Rights under Article 6 § 1 of the Convention is quite flexible. That Court uses three criteria to assess the relevant period: the factual and legal complexity of the case, the conduct of any authorities involved and the conduct of the person concerned [(see Eckle v. Germany, 15 July 1982, Series A no. 51; Zimmermann and Steiner v. Switzerland, 13 July 1983, Series A no. 66; Kreps v. Poland, no. 34097/96, 26 July 2001; and S.H.K. v. Bulgaria, no. 37355/97, 23 October 2003)]. It is equally possible to exceed a reasonable time while formally complying with the applicable timelimits and to comply with the ‘reasonable time’ requirement while exceeding the applicable timelimits. The European Court of Human Rights finds breaches of the ‘reasonable time’ requirement only on the basis of delays attributable to the authorities. In view of that, the Constitutional Court considers that by repealing [Articles 368 and 369] of the [2005] Code of Criminal Procedure the legislature sought to achieve a constitutionally legitimate aim – to ensure the interests of justice while taking into account the right to ‘a hearing within a reasonable time’, as construed by the European Court of Human Rights. In so far as in exceptional cases the new legal framework could restrict the rights of the accused, one should take into account that there exists a balancing mechanism, namely the requirement under Article 234 §§ 8 and 9 of the [Code] for all preventive measures [such as pretrial detention or house arrest] to be set aside after the expiry of timelimits that are identical to those under the repealed provisions. It is also important to examine whether the repeal of the possibility for accused persons to request that their case be brought for trial does not create a lacuna in the law, in breach of the requirement of Article 13 of the Convention for effective remedies in respect of the rights and freedoms enshrined in the Convention and in particular the right of those charged with criminal offences to have their cases examined within a reasonable time. In its caselaw the European Court of Human Rights has held that remedies are effective if they can prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred [(see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000XI)]. In a number of judgments, that Court has noted that before the introduction of Article 239a of the [1974] Code of Criminal Procedure our State did not make available a remedy complying with the requirements of Article 13, read in conjunction with Article 6 § 1 of the Convention and capable of ensuring that the pretrial phase of criminal proceedings does not exceed a reasonable time [(see Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, 23 September 2004; Mitev v. Bulgaria, no. 40063/98, 22 December 2004; and Sidjimov v. Bulgaria, no. 55057/00, 27 January 2005)]. In those circumstances, the answer to the above question depends on whether, from the creation of that remedy in 2003 until its abolition in 2010, the State has created alternative mechanisms ensuring the availability of effective remedies in respect of the right to have charges examined within a reasonable time during the pretrial phase of criminal proceedings. In [our] view, that has been done, as far as rules are concerned. An amendment to the Constitution [which came into force in February 2007] created a new independent body, the Inspectorate attached to the Supreme Judicial Council, which may act pursuant to requests by the persons concerned, a category which includes those charged with a criminal offence. That Inspectorate checks the work of the judicial authorities and has the power to report and make proposals to all State authorities, including the competent judicial authorities (Article 132a §§ 6 and 9 of the Constitution). The Inspectorate’s powers have been laid down in more detail in the new [Judiciary Act]. It may now check ‘the way in which judicial, prosecutorial and investigation case files are being opened and processed, as well as their completion within the prescribed timelimits’ (section 54(1)(2) of the Act). Under section 58(3) of the Act, the results of such checks have to be made available not only to the judge, prosecutor or investigator concerned, but also to the head of the relevant department of the judiciary. That head must then inform the chief inspector whether any recommendations given have been complied with within the timelimit set in the Inspectorate’s report (section 58(4) of the Act). If it is necessary to prevent or overcome an undue delay during the pretrial phase of criminal proceedings, the authority in charge of ensuring compliance with the Inspectorate’s directions is the head of the relevant department of the prosecuting authorities. He or she has the power to take various measures: organisational (under section 136(4) of the Act), disciplinary (to impose certain light sanctions under section 311(1) of the Act or to initiate disciplinary proceedings before the Supreme Judicial Council) and procedural (to set aside or vary the decisions of the lower prosecutors, to give mandatory directions or personally to take the necessary procedural steps, as possible under Article 46 § 3 of the [2005] Code of Criminal Procedure, [or] to exercise control over the activities of the investigating authorities in line with Articles 196 and 197 of the [same Code]). It can therefore be accepted that the repeal of [Articles 368 and 369 of the Code] does not lead to a legal vacuum incompatible with Article 13 of the Convention. Naturally, the mere existence of rules does not preclude the risk of future judgments in which the European Court of Human Rights will find violations in respect of Bulgaria. All State authorities must take into account the general statement made in Kudła, cited above, namely that the remedy required by Article 13 must be effective in practice as well as in law.” 46. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the 1988 Act”), as in force since July 2006, provides as follows: “The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.” 47. Section 2(1)(2) of the Act provides as follows: “The State shall be liable for damage caused to individuals by organs of [the investigation], the prosecution and the courts through unlawful: ... 2. bringing of criminal charges, if the person concerned has been acquitted or if the criminal proceedings are discontinued because the offence was not committed by the person concerned, or [that person’s] act does not constitute a criminal offence...” 48. Individuals who have been acquitted or had the proceedings against them discontinued on one of the grounds set forth in section 2(1)(2) – which, according to an interpretative decision of the Supreme Court of Cassation (тълк. реш. № 3 от 22 април 2005 г. по тълк. гр. д. № 3/2004 г., ОСГК на ВКС), include discontinuance because the charges have not been made out – can obtain compensation for the mere fact that criminal proceedings have been instituted against them. According to the same decision, compensation is due in respect of the proceedings themselves and in respect of any incidental measures, such as pretrial detention. The decision also says that compensation is due in cases of partial acquittal, where there is an established causal link between the charges in respect of which a person has been acquitted and the damage sustained. 49. In several judgments given between 2005 and 2008 the Supreme Court of Cassation, when fixing the amount of damages it awarded pursuant to such claims, had regard to, among other factors, the length of the proceedings (реш. № 1599 от 22 юни 2005 г. по гр. д. № 876/2004 г., ВКС, IV г. о.; реш. № 1017 от 15 декември 2005 г. по гр. д. № 524/2004 г., ВКС, IV г. о.; реш. № 2851 от 23 януари 2006 г. по гр. д. № 2252/2004 г., ВКС, IV г. о.; реш. № 429 от 30 март 2006 г. на гр. д. № 3163/2004 г., ВКС, IV г. о.; реш. № 156 от 10 май 2006 г. по гр. д. № 2633/2004 г., ВКС, IV г. о.; реш. № 1557 от 27 декември 2006 г. по гр. д. № 2800/2005 г., ВКС, IV г. о.; реш. № 1323 от 27 ноември 2007 г. по гр. д. № 1400/2006 г., ВКС, I г. о.; реш. № 148 от 11 февруари 2008 г. по гр. д. № 1518/2007 г., ВКС, V г. о.; реш. № 692 от 12 май 2008 г. по гр. д. № 2394/2007 г., ВКС, IV г. о.). The examination of those claims lasted between three and seven years in total. 50. Under Article 54 § 1 of the 1968 Criminal Code, when sentencing a convicted offender the court has to fix the punishment within the limits set by law, by reference to the Code’s general rules and taking into account the dangerousness of the offence and of the offender, the motives, as well as all other aggravating and mitigating circumstances. 51. Article 219 § 1 of the Code makes it an offence for officials or managers to fail to take due care in managing or keeping secure the assets entrusted to them, where such failure results in substantial losses, destruction or dissipation of such assets, or other substantial damage to the undertaking or the economy. The punishment can be up to three years’ imprisonment. Article 219 § 3 provides that if the offence has been committed wilfully, it is punishable by up to eight years’ imprisonment. Article 219 § 4 provides that if the offence is particularly serious, the punishment ranges between one and five years if the offence has been committed negligently, and one and ten years if it has been committed wilfully. 52. On 2 December 2010, during its 1100th meeting, the Committee of Ministers of the Council of Europe adopted an Interim Resolution on the execution of the judgments of the European Court of Human Rights concerning the excessive length of judicial proceedings in eightyfour cases against Bulgaria (CM/ResDH(2010)223). The resolution reads: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”), Having regard to the number of judgments of the European Court of Human Rights (“the Court”) finding Bulgaria in violation of Article 6, paragraph 1 and Article 13 of the Convention on account of the excessive length of judicial proceedings and the absence of an effective remedy in this regard (see Appendix III to this resolution); Recalling that excessive delays in the administration of justice constitute a serious danger, in particular to respect for the rule of law and access to justice; Recalling also its Recommendation Rec(2010)3 to member states on the need to improve the effectiveness of domestic remedies for excessive length of proceedings, and emphasising the importance of this question where judgments reveal structural problems likely to give rise to a large number of further similar violations of the Convention; Having examined the information supplied by the Bulgarian authorities concerning the measures taken or envisaged in response to those judgments (see Appendix I), including the statistical data on the length of judicial procedures (see Appendix II); Assessment of the Committee of Ministers I. Individual measures Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found (restitutio in integrum), in particular the acceleration, as far as possible, of proceedings which were still pending after the findings of violations by the Court; Noting however with concern that the domestic proceedings in seven cases are still pending before the domestic courts and that the authorities have been unable to provide information about two other cases (see Appendix I); CALLED UPON the Bulgarian authorities to provide for acceleration as much as possible of the proceedings pending in these cases, in order to bring them to an end as soon as possible, and to inform it of the progress of proceedings in the two afore-mentioned cases; II. General measures 1) Measures aimed at reducing the length of judicial proceedings Noting the numerous violations found by the Court on account of the excessive length of civil and criminal proceedings in Bulgaria, revealing certain structural problems in the administration of justice at the time of the relevant facts; Welcoming the numerous legislative reforms adopted by the authorities in order to remedy these structural problems and in particular the adoption of the new codes of criminal and civil procedure (see Appendix I); Welcoming likewise the other measures taken by the authorities to increase the efficiency of the judicial system, and in particular the establishment of assessment and monitoring mechanisms, including the collection and analysis of statistical data; Noting that the 2009 statistics show a reduction in the backlog in the Bulgarian courts as a whole, and an increase in the number of cases dealt with in the space of 3 months (see Appendix II); Noting however that, according to the statistics, the backlog in the district courts located in regional centres has increased slightly by reason of the substantial rise in the number of cases registered, and that those courts were responsible for examining half the cases pending in the country in 2009 (see Appendix II); Noting also that the legislative reforms introduced between 2006 and 2010 have not yet produced their full impact on the length of proceedings and that a longer period of time is needed before the effectiveness of all the measures taken can be fully and completely assessed; ENCOURAGED the Bulgarian authorities to pursue their efforts in following up the reforms introduced, in order to consolidate their positive effects, in particular as regards the situation in the district courts located in regional centres; CALLED ON the authorities to continue to monitor the effects of these reforms as it proceeds, with a view to adopting, if appropriate, any further measure necessary to ensure its effectiveness, and to keep the Committee informed of the developments in this regard; 2) Measures relating to the effectiveness of remedies Recalling that the Court has found numerous violations of the right to an effective remedy in contesting the excessive length of proceedings in Bulgaria, revealing certain structural problems in this field; Recalling its Recommendation Rec(2010)3 encouraging states to introduce remedies making it possible both to expedite proceedings and to grant compensation to interested parties for damage suffered; Noting with interest that Articles 25557 of the Code of Civil Procedure provide that, if a court does not take a procedural step in due time, the parties may at any time apply to the superior court for a time-limit to be set for the taking of the procedural step in question, thus affording a remedy designed to speed up the civil proceedings (see Appendix I); Noting also that there exist in criminal law certain forms of nonpecuniary redress, such as the possibility of reducing the sanction, where there is a finding of excessive length of proceedings; Noting however that at the present time no domestic remedy is available for expediting excessively lengthy criminal proceedings or obtaining pecuniary compensation if appropriate (see Appendix I); Welcoming in this context the reform undertaken by the authorities aimed at introducing into Bulgarian law a compensatory remedy where excessive length of judicial proceedings is alleged (see Appendix I); INVITED the Bulgarian authorities to complete as soon as possible the reform undertaken in order to introduce a remedy whereby compensation may be granted for prejudice caused by excessive length of judicial proceedings, and to keep the Committee informed of its progress and of any other measure that may be envisaged in this field; Having regard to the foregoing, the Committee of Ministers DECIDED to resume its examination of progress made at the latest: – by the end of 2011, with regard to the question of effective remedy; – by mid2012, with regard to the question of the excessive length of judicial proceedings.” 53. An appendix to the resolution summarised the information provided by the Bulgarian Government on the measures taken by the Bulgarian authorities in that domain. It reads: “I. Individual measures The proceedings which were still pending before the domestic courts at the time when the Court gave its judgments have been terminated in most of the cases. At the present time, the proceedings have not yet been terminated in the Belchev, Hamanov, Nedyalkov, Valkov, Kamburov, Kavalovi and Merdzhanov cases. Information is still awaited also on the state of progress in the proceedings in the Kolev and Sidjimov cases. II. General measures 1) Measures aimed at reducing the length of proceedings – Legislative measures ... A new Code of Criminal Procedure (“CCrP”), adopted in 2005, came into force on 29 April 2006. Like the new CCvP, it aims in particular to speed up criminal proceedings. For example, it prescribes short time-limits for the examination of a case and for postponement of its examination (Articles 252, 271 and 345) and the more widespread use of simplified procedures (Articles 356361, 362367 and 370374). According to the 2009 report of the president of the Supreme Court of Cassation on the work of the courts, the simplified judicial procedures most often used in 2009 in the field of criminal justice related to summary judicial investigation and plea bargaining between the accused and the prosecution (an agreement enabling the prosecution to be terminated provided the court approves). The other important provisions of the CCrP provide for: – the obligation on the courts and bodies responsible for the preliminary investigation to examine criminal cases within a reasonable time; in addition, cases in which the accused is held in detention must be given priority over other cases by the courts examining and judging them (Article 22); – time-limits for termination of the preliminary investigation and prohibition on the use in court of any evidence obtained outside the time-limit (Article 234); – the introduction of summary judicial investigation in courts of first instance; this procedure makes it possible for the accused to obtain a reduction of sentence if he admits the offence and relinquishes the production of evidence, provided he is assisted by counsel (where necessary appointed by the court); – broader applicability of the simplified procedure whereby the accused may be absolved of his criminal responsibility and an administrative penalty imposed instead. Furthermore, the 2005 CCrP was amended in 2010 for the purpose, in particular, of avoiding (a) unjustified referrals at the preliminary investigation stage (Article 249 § 3) and (b) postponement of the hearing where the representative of the accused fails to appear without good reason (Article 94). In addition, it is to be noted that now the possibility for the prosecution to bring further charges during the judicial investigation has been widened, even if those charges relate to different facts or an offence carrying a more severe penalty (Article 287 § 1). Some other changes are aimed at reducing the excessive formalism of criminal procedure in Bulgaria (for example, the abrogation of the requirement that the investigator draws up a formal document setting out his conclusions – Articles 231235). – Administrative measures designed to improve the organisation and management of the courts Among other reforms designed to improve the efficiency of the Bulgarian judicial system, should be mentioned the creation in 2007 of an electronic commercial register managed by an administrative agency (see the commercial register law in force since 1 July 2007). Thus the regional courts which were responsible for registering commercial companies in the past have been absolved of that responsibility. Furthermore, following the adoption of the new Code of Administrative Procedure in 2006, 28 administrative courts were set up in 2007. These new administrative courts have powers previously exercised by the regional courts. In addition, as an ad hoc measure aimed at lightening the workload of the Supreme Court of Cassation, labour disputes pending before it when the 2007 CCvP came into force have been transferred to the appeal courts. It should also be pointed out that the judicial authorities now have access to the national database containing the population register, which should overcome certain delays arising from requests for information needed to take judicial proceedings forward. Finally, Bulgaria has achieved a high level of computerisation designed to assist both judges and other personnel (for further details, see the 2010 report of the European Commission for the Efficiency of Justice – CEPEJ). Moreover, the courts are continuing their efforts to improve their IT equipment in order to communicate with parties. Those efforts were recently rewarded by the award of the 2010 “Crystal Scales of Justice” prize to the Yambol administrative court for the work it has done to improve users’ understanding of judicial procedure. – Mechanisms for periodic assessment and monitoring of the work of the courts Two bodies – the Supreme Judicial Council Inspectorate and the Ministry of Justice Inspectorate – have the main responsibility for monitoring and assessing the work of the courts, prosecution services and investigating magistrates. The Supreme Judicial Council Inspectorate, established in 2007, comprises an inspectorgeneral and ten inspectors elected by Parliament for terms of five and four years respectively (Article 132a of the Constitution). It oversees the administrative organisation of the courts, prosecution services and bodies in charge of preliminary investigations, together with the proper organisation of preliminary investigations and cases pending before prosecutors and courts. In particular, the inspectorate oversees compliance with the time-limits laid down by law for dealing with cases. It carries out its tasks (a) through planned regional inspections and (b) through inspections focussing on particular questions. It may also conduct inspections in response to reported irregularities ([sections] 54 and 56 of the [2007 Judiciary Act]). Following inspections, it makes recommendations, particularly concerning compliance with the timelimits laid down by law for dealing with cases. Implementation of its recommendations is monitored in the course of followup inspections. The inspectorate may also make proposals to courts’ administrative authorities and to the Judicial Service Commission for the imposition of disciplinary penalties on judges, prosecutors and investigating magistrates (see “Disciplinary measures” below). The work of the inspectorate is covered in the progress report of the Supreme Judicial Council. The Ministry of Justice Inspectorate oversees, among other things, the manner in which case registration and handling are managed, as well as closure of cases within the legal time-limits. This inspectorate organises thematic controls in accordance with a programme approved by the Ministry of Justice. It may make recommendations and supervises their implementation in the course of subsequent inspections. The Ministry of Justice Inspectorate is also responsible for overseeing application of the new CCvP and CCrP. During inspections already carried out, it has observed some of the causes of procedural delays and made recommendations in this regard. Furthermore, the presidents of the Supreme Court of Cassation and the Supreme Administrative Court are required to present annual reports on the functioning of trial and appeal courts, in addition to annual reports on their own activities ([sections 114(1) and (2) and 122(1) and (2)] of the [2007 Judiciary Act]). Lastly, each year the Supreme Judicial Council centralises and analyses the statistics on the work of all the country’s courts (cf. Appendix II). – Disciplinary measures Under the [2007 Judiciary Act], systematic failure to comply with the time-limits laid down in procedural laws, and action or inaction such as to delay proceedings in an unjustified manner, are disciplinary offences ([section] 307 § 4). The Judicial Service Commission has the power to impose disciplinary penalties (other than comment and reprimand, which are imposed by the hierarchical superior) on judges, prosecutors and investigating judges. The public bodies responsible for enforcing judicial decisions and the bodies responsible for entries in the land registry may be sanctioned by the Ministry of Justice ([section] 311). The authorities have stated that during the period 20072009 the number of disciplinary proceedings before the Supreme Judicial Council rose steadily (13 in 2007, 28 in 2008 and 83 in 2009). By way of example, in 2009 seven judges and one head of administration were sanctioned, mainly for systematic failure to comply with the time-limits laid down by law. Among them, three judges were dismissed and three others had their salaries reduced by 10 to 25% for periods of up to a year. – Longterm strategies The Bulgarian authorities have adopted several strategies on judicial reforms. For example, a criminal policy strategy for the period 20102014 has been adopted, the principal objective being to further reduce the excessive formalism of criminal procedure. It should be noted that the amendments to the 2010 CCrP were decided on the basis of this strategy (see above). Further, in 2009 the government adopted a plan to eradicate the causes of violations of the Convention found by the European Court in its judgments concerning Bulgaria. That plan was drawn up by a working party which included representatives of the Ministry of Justice as well as human rights activists. Among the tangible results obtained on the basis of this plan, should be mentioned the working party set up to introduce an application for compensation in cases of excessive length of judicial proceedings (see below). In June 2010 the government adopted the strategy on continued judicial reforms in Bulgaria following its accession to the European Union. 2) Measures relating to the effectiveness of remedies ... – Remedy concerning speeding up of criminal proceedings The provisions of Articles 368 and 369 of the new CCrP, which incorporated Article 239a of the 1974 CCrP, envisaged the possibility for the accused to request referral of his case to the competent court once a period of 1 to 2 years, depending on the gravity of the charges, had elapsed since the start of the preliminary inquiry. The court to which that request was submitted could order the prosecuting authority to complete the preliminary inquiry within a period of two months or else bring the criminal proceedings to an end. In the Ganchev judgment (No. 57855, §§ 26-34, 12 July 2007), the European Court declared the complaint based on Article 6 § 1 inadmissible for failure to exhaust the domestic remedies, because the applicant had not availed himself of the remedy provided for in Article 239a of the 1974 CCrP. However, it should be noted that in another case examined by the European Court (Shishkovi against Bulgaria, No. 17322/04, 25 March 2010), the application of Article 239a of the 1974 CCrP was the cause of the closure of a criminal inquiry into illtreatment. In that case the European Court found a violation of Article 3 of the Convention. Articles 368 and 369 were abrogated as from 28 May 2010. The authorities indicated in this connection that the abrogated provisions had mainly served as a reason for terminating the criminal proceedings, without guaranteeing a full inquiry. They consider that new provisions relating to the possibility of imposing disciplinary penalties for systematic failure to comply with timelimits or for unjustified delays could be seen as a guarantee of expeditious criminal proceedings (for more details, see the Government’s reply to one NGO’s observations on this point on the Committee of Ministers website: DHDD(2010)335). – Compensatory remedy The European Court has consistently pointed to the absence in Bulgarian law of a remedy enabling compensation to be obtained for excessive length of judicial proceedings (see, for example, the Mincheva against Bulgaria judgment cited above, § 107). In this connection the Government has indicated that, in the context of implementing a plan to eradicate the causes of the violations found by the European Court in judgments concerning Bulgaria, it has set up a working party to prepare a bill amending the law on the responsibility of the state and municipalities for prejudice caused to individuals. This bill envisages, in particular, the introduction of an application for compensation in cases of unjustified delay in the proceedings. This working party has drafted a bill providing that the state may be held responsible, in addition to the cases already settled, where unjustified delay in civil, criminal and administrative proceedings are attributable to the judicial authorities. As regards criminal proceedings, it should also be noted that certain forms of nonpecuniary redress exist in cases of excessive length of proceedings, such as the possibility of reducing the penalties. This form of redress has been recognised by the European Court as an effective remedy in certain circumstances (Bochev against Bulgaria judgment of 13 November 2008, § 83).” 54. A second appendix to the resolution contained statistical data on the processing of cases in the Bulgarian courts. It reads (footnotes omitted): “I. Statistics on length of judicial proceedings before the Bulgarian courts 1) Data for Bulgarian courts as a whole The general trend which emerges from the data available shows that, despite a resurgence in the number of cases registered, the number of cases terminated for all courts is on the increase (in 2009 it was 4.59% higher than in 2007, and 15.46% higher than in 2008). Similarly, the backlog facing the courts as a whole decreased for the second year running. Thus the decrease in the number of cases pending at the end of 2009 is of 10.26% as compared with 2007 and of 2.35% as compared with 2008. The number of judges, taking all courts together, was 2,162 in 2009, 1.45% more than in 2007 and 1.74% more than in 2008. 2) Supreme Court of Cassation – Criminal bench One consequence of the entry into force of the 2005 CCrP was a fall in the number of cases registered, since judgments delivered on appeal upholding the judgments delivered at first instance are now not subject to review by the Supreme Court of Cassation. Thus, while the criminal bench had examined 3,950 cases at public hearings in 2006, the corresponding figures for 2008 and 2009 were 2,081 and 1,955 cases respectively. In 2009 the criminal bench registered 131 cases more than in 2008, and its backlog also increased (from 279 cases at the end of 2008 to 383 cases at the end of 2009). However, that increase in the backlog had no major effect on the length of proceedings before the criminal bench. Indeed, in 2009, the proceedings following appeals in cassation and applications for reopening of procedures took between 3 and 4 months, as in 2008. ... 4) Appeal courts The backlog in the appeal courts is constantly decreasing. The number of cases pending at the end of 2009 (1,713) decreased by 45.89% as compared with 2007 and by 22.28% as compared with 2008. 5) Military [courts] The same trend is observed in military [courts]. In 2009, the backlog decreased by 52.07% as compared with 2007 and by 35.20% as compared with 2008. 6) Regional courts and the Sofia City [C]ourt The creation in 2007 of 28 administrative courts, as well as an agency responsible for entries in the commercial register, led to a significant decrease in the number of cases registered by regional courts in 2009 (42.73% fewer than in 2007 and 2.64% fewer than in 2008). Cases pending at the end of 2009 numbered 23,392, a figure 31.76% lower than in 2007 and 15.99% lower than in 2008. 7) District courts located in regional centres The backlog in these courts at the end of 2009 had grown by 1.05% as compared with 2007 and by 7.03% as compared with 2008. This increase is due to the rise in the number of cases they had to deal with in 2009 (23.05% more than in 2007 and 18.29% more than in 2008), and despite a larger number of cases terminated during that year (28.36% more than in 2007 and 20.70% more than in 2008). In 2009 the district courts located in regional centres registered 285,547 cases; 94,317 cases were registered by the Sofia district court, i.e. 33% of all cases newly registered with the courts in this category. 8) District courts located outside regional centres The backlog in these courts at the end of 2009 had fallen (by 12.64% as compared with 2007 and by 7.54% as compared with 2008) notwithstanding an increase in the number of cases they had to deal with (11.30% more than in 2007 and 15% more than in 2008). This trend was due to the increase in the number of cases terminated in 2009 (16.47% more than in 2007 and 19.72% more than in 2008). It is also to be noted that in 2009, 92,541 cases were concluded within three months, a figure 22.88% higher than for 2007 and 25.71% higher than for 2008. ... II. Statistics for the length of preliminary investigations In 2009, cases in which the preliminary investigation was under way numbered 213,151, a figure 4% higher than for 2008. Investigations started during 2009 numbered 139,894, 6% more than for 2008. Investigations initiated during the year represented 66% of investigations under way in 2009. The backlog at the start of 2009 consisted of 73,257 cases being investigated. The backlog at the end of 2009 consisted of 52,511 cases being investigated (as against 59,048 in 2007). As regards cases in which the investigation was suspended, their number fell from 961,713 in January 2007 to 654,334 at the end of 2009. In 98% of these cases, the reason for suspension is the impossibility of identifying the perpetrator of the criminal offence.” 55. In Resolution 1787 (2011) on the implementation of the Court’s judgments, adopted on 26 January 2011, the Parliamentary Assembly of the Council of Europe noted “with grave concern” the continuing existence of “major systemic deficiencies which cause large numbers of repetitive findings of violations of the Convention and which seriously undermine the rule of law” in some Member States of the Council of Europe. One of those was the “excessive length of judicial proceedings” (paragraph 5.1). The Assembly, in particular, urged Bulgaria to, inter alia, “pursue its efforts to solve the problem of excessive length of court proceedings” (paragraph 7.1 in fine).

dev

001-82877

ENG

MDA

CHAMBER

CASE OF COLIBABA v. MOLDOVA

Violation of Art. 3 (ill treatment while in detention and failure to conduct an effective investigation);Not necessary to examine Art. 13;Reminder inadmissible;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses - partial award (Convention proceedings)

Nicolas Bratza

5. The applicant, Mr Vitalie Colibaba, is a Moldovan national who was born in 1978 and lives in Chişinău. 6. On 21 April 2006 the applicant was arrested on charges of assaulting a police officer. 7. On 25 and 27 April 2006 the applicant was allegedly tortured by police officer I.M. and two other police officers in order to extract a confession from him. According to the applicant, his hands and feet were tied together behind his back and a metal bar from a coat hanger was passed under his arms. The metal bar was placed on two chairs and his body was suspended for more than forty minutes. His hands had been covered with cloth so that no traces of rope would remain on them. Loud music was played so that his cries would not be heard. While being suspended in this manner, his head was covered with a coat and he was beaten with a chair on the back of his head. These acts of brutality were accompanied by verbal and psychological aggression. The Government contested the allegations of ill-treatment. 8. The same day, after being taken to his cell, the applicant attempted to commit suicide by cutting his veins. However, his attempt was not successful and he was taken to hospital. 9. On 27 April 2006 the applicant was allowed for the first time to have contact with his lawyer, but only in the presence of police officers. The applicant complained to the lawyer that he had been tortured. 10. According to the applicant, as a retaliatory measure for his complaint to the lawyer, the same evening he was again tortured. He was hit on the head with a two-litre plastic bottle full of water and also punched and kicked. The Government disputed these allegations. 11. On 28 April 2006 the applicant's lawyer lodged with the Buiucani prosecutor's office a criminal complaint concerning the alleged ill-treatment of the applicant. 12. On 29 April 2006 the applicant was taken by the police officers who had allegedly ill-treated him to the Centre of Forensic Medicine, where he underwent a medical check-up in their presence. His lawyer was not present and, according to the applicant, the medical examination only lasted several minutes and was superficial. 13. The medical report issued by the Centre of Forensic Medicine was dated 28 April 2006 and concluded that besides the injury caused by his attempted suicide, the applicant did not have any other signs of violence on his body. 14. On 30 April 2006 the Buiucani prosecutor's office ordered that police officer I.M. be removed from the applicant's case on account of the latter's complaint alleging ill-treatment. The police officer was prohibited even from accompanying the applicant to and from the detention centre. The removal was justified by the need to ensure the objectivity of the investigation into the applicant's complaints. 15. On 2 May 2006 the applicant's lawyer requested the prosecutor of the Buiucani District to authorise the applicant to undergo, inter alia, neurological, ophthalmological, psychiatric and other medical examinations. He requested that the medical examinations be carried out by independent doctors in the presence of the applicant's relatives. This request was refused. 16. On 3 May 2006, following complaints by the applicant's lawyer, Amnesty International organised action in support of the applicant by publishing on their Russian 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 and carrying out an effective investigation into his complaints of torture, and allowing the applicant to meet his lawyer in conditions of confidentiality. 17. Following Amnesty International's action, the Moldovan authorities received twenty-seven letters from different countries and the applicant's case was widely reported in the mass media. 18. On 16 May 2006 the applicant was released from detention. On the same day he sought medical assistance 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 file” (“Extras din Fişa Medicală”), dated 16 June 2006, issued by the Centre, it was stated, inter alia, that the applicant had suffered the consequences of cranial trauma, post-traumatic otitis and mixed deafness on the right side and hypoacusis (slightly diminished auditory sensitivity, with hearing threshold levels above normal) on the left side. 19. On 18 May 2006 the applicant underwent a medical check-up at the Institute of Neurology and Neurosurgery of the Ministry of Health. It appears that he was directed there by doctors from the “Memoria” Rehabilitation Centre for Torture Victims who had diagnosed cranial trauma. He was seen by a neurosurgeon, who confirmed that the applicant had suffered cranial trauma and concussion with permanent vegetative disorder and intracranial hypertension. Moreover, the doctor found that the applicant was experiencing loss of consciousness, post-traumatic otitis and sleep disorder. The medical report of the Institute of Neurology and Neurosurgery was not issued to the applicant until 12 June 2006. 20. On 24 May 2006 the prosecutor G.B. from the Buiucani prosecutor's office dismissed the applicant's torture complaint. In his decision he stated, inter alia, that the three policemen allegedly involved in acts of torture had been questioned and had denied all the accusations; that according to the medical report dated 28 April 2006, the applicant did not have any signs of torture on his body; and that in the office where he had allegedly been tortured no coat hanger had been found. As to his attempted suicide, the prosecutor considered that it had been simulated so as to avoid criminal responsibility. 21. On 30 May 2006 the applicant appealed to the Buiucani District Court against the decision of 24 May 2006. He argued, inter alia, that the prosecutor had refused to allow him to undergo a complete medical examination, as requested by him on 2 May 2006, and that this was contrary to the authorities' positive obligations under Article 3 of the Convention. He also informed the court that immediately after his release from detention he had undergone a medical examination which established that he had been tortured during his detention. 22. On 15 June 2006 the Buiucani District Court held a hearing in the case concerning the applicant's complaint of torture. The applicant's lawyer requested that the medical report of the Institute of Neurology and Neurosurgery dated 18 May 2006 be included in the case file. Judge M.D. admitted the report in evidence. However, in a decision of the same date he dismissed the appeal as unfounded without giving an assessment of any of the above evidence. He simply repeated the reasons given by the prosecutor G.B. in his decision of 24 May 2006 dismissing the complaint of torture. 23. On 24 June 2006, after the medical report from the “Memoria” Rehabilitation Centre for Torture Victims had become available to him, the applicant wrote to the Buiucani prosecutor's office asking it to re-examine his ill-treatment complaint in the light of the medical report. However, on 5 July 2006 he was informed that there were no grounds for reopening the investigation. 24. In the meantime, on 22 June 2006, the applicant had lodged an application with the Court in which he complained under Article 3 of the Convention that he had been tortured and that there had been no effective investigation into his allegations of torture. 25. 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 avoiding the criminal responsibility of suspected persons. Examples of such incidents are the case of G., triggered by the lawyer A.U., and the case of Vitalie Colibaba, triggered by the lawyer R. Zadoinov. The international mediatisation of these cases prompted active action by the representatives of Amnesty International with a view to safeguarding the rights of the above lawyers' clients. After having examined sufficiently thoroughly 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 A.U. and R. 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.” 26. 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 this was an attempt to intimidate lawyers so that they would not complain to the Court any more. At the same time Amnesty International organised action in support of the lawyers mentioned in the Prosecutor General's letter and issued a statement in which it declared, inter alia, the following: “[Amnesty International] is concerned that the letter to the Bar Association of Moldova is a deliberate attempt to intimidate A.U. and Roman Zadoinov, and to prevent lawyers in Moldova from making public information about human rights violations. It is a violation of the right to freedom of expression, and if the lawyers were to be imprisoned for this offence Amnesty International would consider them prisoners of conscience.” 27. The relevant provisions of the Criminal Code read as follows: “Article 335. Abuse of official duties 1. Intentional use by a person... of his or her official duties for personal gain or for other personal interests... shall be punishable by a fine of ... or by imprisonment for up to three years. 2. The same offence committed by a notary, auditor or lawyer shall be punishable by a fine of MDL 10,000 to 16,000, or by imprisonment for 2 to 5 years...”

dev

001-57870

ENG

ITA

CHAMBER

CASE OF RAIMONDO v. ITALY

Violation of P1-1;Violation of P4-2;No violation of P1-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

C. Russo

7. Mr Giuseppe Raimondo, a building entrepreneur, lived in Davoli (Catanzaro) until his death on 11 July 1992. Criminal proceedings were brought against him as he was suspected of belonging to a mafia-type organisation operating in the Soverato region. At the same time various preventive measures were taken concerning him. 8. On 24 July 1984 the Catanzaro Public Prosecutor issued a warrant for the arrest of seventeen persons including the applicant. After initially evading arrest under this warrant, the applicant gave himself up to the authorities on 7 November 1984 and was immediately remanded in custody. 9. The investigation was closed on 24 July 1985 and Mr Raimondo was committed for trial in the Catanzaro District Court with fourteen co-defendants. His detention on remand was replaced by house arrest (arresti domiciliari). 10. On 8 October 1985, at the first hearing, the District Court ordered the joinder of the case with two others and directed that certain documents be included in the file. It then adjourned the proceedings to 16 January 1986. On 30 January 1986 the District Court acquitted Mr Raimondo on the ground of insufficient evidence (assoluzione per insufficienza di prove) and revoked the order placing him under house arrest. 11. Giving judgment on 16 January 1987 on the appeals of the public prosecutor and Mr Raimondo, the Catanzaro Court of Appeal acquitted the latter on the ground that the material facts of the offence had not been established (perchè il fatto non sussiste). No appeal was filed in the Court of Cassation. 12. On 16 January 1985 the Catanzaro Public Prosecutor applied to the District Court for an order placing Mr Raimondo under special police supervision and for the preventive seizure of a number of assets with a view to their possible confiscation (Act no. 1423 of 27 December 1956 and Act no. 575 of 31 May 1965, as amended by Act no. 646 of 13 September 1982 - see paragraphs 16-18 below). He based his application on a report by the Soverato carabinieri dated 27 December 1984. 13. On 13 May 1985 the District Court ordered the seizure of sixteen items of real property (ten plots of land and six buildings) and of six vehicles, all of which appeared to be at the applicant’s disposal. The measure was entered in the relevant public registers on 15 May 1985. On 16 October the District Court revoked the seizure of certain property belonging to third parties; on the other hand, it ordered the confiscation of some of the buildings seized of which the applicant and his wife were the owners and four vehicles, on the ground that it had not been proved that the assets in question had been "lawfully acquired". The confiscation was recorded in the register on 9 November 1985. By the same decision Mr Raimondo was placed under special police supervision, which however did not become effective until 30 January 1986, the day on which he was acquitted by the District Court (see paragraph 10 above); he was also required to lodge a security of 2,000,000 lire as a guarantee to ensure that he complied with the constraints attaching to this measure, namely a prohibition on leaving his home without informing the police; an obligation to report to the police on the days indicated to that effect; an obligation to return to his house by 9 p.m. and not to leave it before 7 a.m. unless he had valid reasons for doing so and had first informed the relevant authorities of his intention. 14. On an appeal by the applicant, the Catanzaro Court of Appeal gave judgment at a private hearing on 4 July 1986. It annulled the special supervision measure and ordered the restitution of the security and the property seized and confiscated. Its decision (decreto) referred to the "disconcertingly casual way in which the contested preventive measures concerning the person and property of Mr Raimondo had been adopted thereby effectively decreeing his civil and economic death". The decision was filed with the registry on 2 December 1986 and signed by the relevant official of the prosecuting authority on 10 December. Again on 2 December the Court of Appeal registry notified it to the competent police authorities (questura) who, on 5 December, advised the local carabinieri of the decision. The latter informed the applicant on 20 December. The decision became final on 31 December 1986. 15. The revocation of the seizure of the real property and of the confiscation of the vehicles was entered in the relevant registers on 2 February (real property), 10 February (two cars and a van) and 10 July 1987 (a lorry). The security was returned to the applicant on 24 April 1987. As regards the real property that had been confiscated, the applications for the entry in the register of the revocation of the measure are dated 9 August 1991. 16. Act no. 1423 of 27 December 1956 ("the 1956 Act") provides for various preventive measures in respect of "persons presenting a danger for security and public morality". The relevant provisions are summarised in the Guzzardi v. Italy judgment of 6 November 1980 (Series A no. 39, pp. 17-19, §§ 46-49): "46. Under section 1, the Act applies to, amongst others, ... individuals who, by reason of their behaviour and style of life (tenore di vita), must be considered as habitually living, even in part, on the proceeds of crime or on the rewards of complicity therein (con il favoreggiamento), or whose outward conduct gives good reason to believe that they have criminal tendencies (che, per le manifestazioni cui abbiano dato luogo, diano fondato motivo di ritenere che siano proclivi a delinquere). The Chief of Police [(questore)] may send such persons a warning (diffida) ... ... 47. ... 48. ... [such a person] may, under section 3, be placed under special police supervision (sorveglianza speciale della pubblica sicurezza); if need be, this may be combined either with a prohibition on residence in one or more given districts or provinces or, in the case of a particularly dangerous person (particolare pericolosità), with an order for compulsory residence in a specified district (obbligo del soggiorno in un determinato comune). Only the District Court of the chief town of the province has power to order these measures; it will do so on the basis of a reasoned application by the [questore] to its president (section 4, first paragraph). The District Court must give a reasoned decision (provvedimento) in chambers within thirty days. It will first hear the Public Prosecutor’s department and the person concerned, the latter being entitled to submit written pleadings and to be assisted by a lawyer (section 4, second paragraph). The prosecuting authorities and the person concerned may, within ten days, lodge an appeal which does not have suspensive effect; the Court of Appeal has to give a reasoned decision (decreto) in chambers within thirty days (section 4, fifth and sixth paragraphs). That decision may in turn and on the same conditions be the subject of a further appeal to the Court of Cassation, which must give its ruling in chambers within thirty days (section 4, seventh paragraph). 49. When adopting one of the measures listed in section 3, the District Court will specify for how long it is to remain in force - not less than one and not more than five years (section 4, fourth paragraph) - and will give directives with which the person in question must comply (section 5, first paragraph). ..." 17. Act no. 575 of 31 May 1965 ("the 1965 Act") supplements the 1956 Act by adding clauses directed against the Mafia (disposizioni contro la mafia). Section 1 states that it is applicable to persons - such as Mr Raimondo - against whom there is evidence showing that they belong to "mafia-type" groups (indiziati di appartenere ad associazioni mafiose). 18. The above legislation was strengthened by Act no. 646 of 13 September 1982 ("the 1982 Act") which inserted, inter alia, a section 2 ter in the 1965 Act. It makes provision for various measures to be used in the course of proceedings relating to the application of the preventive measures available under the 1956 Act in respect of a person suspected of belonging to such an organisation: "... the District Court may issue a reasoned decision, even of its own motion, ordering the seizure of property at the direct or indirect disposal of the person against whom the proceedings have been instituted, when there is sufficientcircumstantial evidence, such as a considerable discrepancy between his lifestyle and his apparent or declared income, to show that the property concerned forms the proceeds from unlawful activities or their reinvestment. Together with the implementation of the preventive measure the District Court shall order the confiscation of any of the goods seized in respect of which it has not been shown that they were lawfully acquired. Where the inquiries are complex, this measure may also be taken at a later date, but not more than one year after the date of the seizure. The District Court shall revoke the seizure order when the application for preventive measures is dismissed or when it has been shown that the property in question was lawfully acquired." 19. In its report (paragraph 43), the Commission sets out a summary of the case-law in this area: " ... The existence of preventive measures is not in itself contrary to the Italian Constitution. The Constitutional Court has ruled that the basis for these measures is the need to guarantee the orderly and peaceful course of social relations, not only through a body of legislation penalising unlawful acts, but also through provisions intended to prevent the commission of such acts (Constitutional Court, judgment no. 27 of 1959 and judgment no. 23 of 1964). Because of their particular object, preventive measures do not relate to the commission of a specific unlawful act but to a pattern of behaviour defined by law as conduct indicating the existence of danger to society (Constitutional Court, judgment no. 23 of 1964). Consequently, in the Italian legal system, there is a fundamental difference between criminal penalties and preventive measures. The former constitute the response to an unlawful act and the consequences of that act; the latter are a means of preventing the commission of such an act. In other words, a criminal penalty relates to an offence already committed, whereas a preventive measure is intended to reduce the risk of future offences (see, mutatis mutandis, Constitutional Court, judgment no. 53 of 1968, concerning security measures). ... Because criminal penalties and preventive measures are essentially different, not all the constitutional principles which should underpin the former necessarily apply to the latter. For example, the presumption of innocence enunciated in Article 27 of the Constitution does not concern preventive measures, which are not based on the criminal liability or guilt of the person concerned (Constitutional Court, judgment no. 23 of 1964). Similarly, such measures do not fall within the scope of Article 25 para. 2 of the Constitution, which prohibits the retroactive application of criminal provisions. The violation of this principle has been alleged on a number of occasions in the Court of Cassation with regard to confiscation orders under section 2 ter of the 1965 Act. The Court of Cassation has ruled, firstly, that the above principle is not applicable to preventive measures (see, for example, Court of Cassation, Piraino judgment of 30 January 1985). Secondly, the Court of Cassation has pointed out that the impugned provision is not in fact retroactive, as it relates to the property in the possession of the person concerned at the time when confiscation is ordered (Court of Cassation, Oliveri judgment of 12 May 1986) and to the unlawful use of that property after its entry into force (Court of Cassation, Pipitone judgment of 4 January 1985). In spite of these limitations, preventive measures remain open to thorough scrutiny of their compatibility with the Constitution. As far back as 1956 the Constitutional Court ruled that in no case could the right to liberty be restricted except where such restriction was prescribed by law, where lawful proceedings had been instituted to that end and where the reasons therefor had been set out in a judicial decision (Constitutional Court, judgment no. 11 of 1956). It subsequently ruled that preventive measures could not be adopted on the basis of mere suspicion and are justified only when based on the objective establishment and assessment of facts which reveal the behaviour and lifestyle of the person concerned (Constitutional Court, judgment no. 23 of 1964). More recently it confirmed that the constitutionality of preventive measures still depends on respect of the rule of law and the possibility of applying to the courts for a remedy. Furthermore, the above two conditions are closely linked. Thus it is not enough for the law to indicate vague criteria for the assessment of danger; it must set them forth with sufficient precision to make the right of access to a court and adversarial proceedings a meaningful one (Constitutional Court, judgment no. 177 of 1980). The case-law of the Court of Cassation is in this respect entirely consistent with that of the Constitutional Court; it affirms quite clearly that proceedings for the application of preventive measures must be adversarial and conducted with respect for the rights of the defence, any violation of those rights entailing their nullity (see, for example, Court of Cassation, judgment no. 1255 of 29 June 1984 in the Santoro case). The Court of Cassation has dismissed a number of complaints alleging the unconstitutionality of the seizure and confiscation measures provided for in section 2 ter of the 1965 Act. In particular, it has ruled that the presumption concerning the unlawful origin of the property of persons suspected of belonging to organisations of the mafia type is not incompatible with Article 24 of the Constitution, which guarantees the rights of the defence, since confiscation can only take place when there is sufficient circumstantial evidence concerning the unlawful origin of the property in question and in the absence of a rebuttal (Court of Cassation, previously cited Pipitone judgment). ... With regard to the compatibility of seizure and confiscation measures with the right to free exercise of private economic activities and the right to peaceful enjoyment of private property (Articles 41 and 42 of the Constitution), the Court of Cassation has ruled that these rights are not absolute and may be limited in accordance with the general interest. This applies in connection with possessions of unlawful origin or their use (Court of Cassation, previously cited Oliveri and Pipitone judgments). ..." 20. In its opinion no. 1489/86 of 18 November 1986 the Consiglio di Stato stated that "although confiscation by definition enables the State to acquire the item of property in question ..., it does not in itself have the effect of transferring ownership to the public authorities ...". It will only have such effect if in addition the decision ordering it is irrevocable (Palermo District Court, order of 19 April 1989).

dev

001-78075

ENG

UKR

ADMISSIBILITY

KOROLKOV and KAMARDA v. UKRAINE

Inadmissible

Peer Lorenzen

Mr Aleksey Fedorovich Korolkov (“the first applicant”) was born in 1934 and died on 7 February 2005. His wife, Mrs Valentina Fedorovna Korolkova, expressed her wish to pursue the application of her late husband. Mrs Vera Nikolayevna Kamarda (“the second applicant”) was born in 1931 and lives in Dniprodzerzhynsk. Both applicants were represented by Mr P. Kukta. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska. The facts of the case, as submitted by the parties, may be summarised as follows. In August 2001 the applicants instituted two separate sets of proceedings in the Zavodskyy District Court of Dniprodzerzhynsk against the State of Ukraine and the President of Ukraine, seeking recovery of their indexed deposits with the State Savings Bank (“the Bank”) made before 2 January 1992, and compensation. By two judgments of 28 and 30 November 2001, the court ordered the Dnipropetrovsk Regional Department of the Bank to pay, respectively, the second applicant UAH 7,521.19 and the first applicant UAH 1,865.85, which corresponded to the amounts of their indexed deposits. The relevant parts of the judgement of 28 November 2001, in which the court gave reasons for its decision and stated the decision itself, read as follows: “... According to Article 41 of the Constitution of Ukraine, the right to use private property is inviolable. Pursuant to Article 22 of the Constitution of Ukraine, all the laws and normative acts adopted after the Constitution shall not diminish the content and scope of the rights and duties of the citizens, provided for in the Constitution of Ukraine. The provisions of the Constitution have the highest legal force... According to Article 2 of the Law of Ukraine on the State Guarantees of Repayment of Deposits of the Citizens of Ukraine, the State undertakes to maintain and update the real value of citizens’ bank deposits and guarantees compensation pursuant to the relevant rules. The payment of compensation [to Ukrainian citizens] for loss of value of money deposits shall be borne by the State Treasury of Ukraine. This provision of the Law is decisive for the merits of the [applicant’s] claims. In fact, the [State] Savings Bank [of Ukraine] pleads no defence. The provisions of Article 7 of the above Law on gradual repayment of the deposits to the citizens of Ukraine concerns the order of enforcement of a court decision on Repayment of an indexed deposit. Therefore, the claims of Mrs Kamarda for Repayment of the indexed deposit shall be allowed within the limits of the sums, as stated in the compensation accounts... Pursuant to ..., the court Decided: To order the Dnipropetrovsk Regional Department of the State Savings Bank of Ukraine to pay Mrs Kamarda the indexed deposit from the compensation accounts in the Dnipropetrovsk Regional Department nos. ... [in the amount of] UAH 193.79, UAH 1,503.60 and UAH 5,823.80, as well as to pay the State UAH 51 in respect of the court fees. To reject the remainder of the [applicant’s] claims and [her claim for] compensation for non-pecuniary damage, as well as [her] claims against the Ministry of Justice of Ukraine, the Dniprodzerzhynsk [Town Department of the] State Treasury, and the President of Ukraine.” The court used similar wording in its judgment of 30 November 2001. In December 2001 the applicants lodged with the Zavodskyy District Court their appeals against the judgments of 28 and 30 November 2001. In January 2002 they withdrew their appeals. On 21 January 2002 the Zavodskyy District Bailiffs’ Service of Dniprodzerzhynsk instituted enforcement proceedings. By two separate decisions of 8 April 2002, the Bailiffs’ Service discontinued the enforcement proceedings on the grounds that the Dnipropetrovsk Regional Department of the Bank was not a separate legal entity and that it was the Cabinet of Ministers of Ukraine which was competent to establish the order of repayment of the indexed deposits under the Law of Ukraine on the State Budget. The applicants did not challenge these decisions before the domestic courts. In 2002 the first applicant was paid UAH 50 in repayment of his indexed deposit pursuant to the resolution of the Cabinet of Ministers of Ukraine of 5 April 2002. According to the Government, the first applicant failed to claim UAH 50 to which he was entitled in 2003. In December 2002 and August 2003 the second applicant received a total of UAH 100 pursuant to the resolutions passed by the Cabinet of Ministers concerning repayment of indexed deposits to the citizens of Ukraine in 2002 and 2003. There is no information in the case file whether further payments were made in respect of the judgments of 28 and 30 November 2001. Article 124 of the Constitution provides as follows: “... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.” Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department for that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person responsible for the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation. Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts. Pursuant to Article 1 of the Law, the State undertakes to pay the citizens of Ukraine compensation for the loss of their money deposited before 2 January 1992 with, inter alia, the branches of the Savings Bank of the USSR, which carried out business on the territory of Ukraine. The Ukrainian citizens, who deposited their money with the Savings Bank and the State Insurance Company of Ukraine in 1992-1994, are entitled to compensation, provided that the money has remained in the accounts of the Savings Bank of Ukraine for at least one full year between 1992 and 1995. Article 7 of the Law provides that the money deposits shall be repaid gradually, taking into account the amount of the deposits, within the limits of funds, allocated for that purpose in the State Budget of Ukraine for a given year. The persons eligible for repayment of their deposits were defined in regulations approved each year by the Cabinet of Ministers for the forthcoming year. For instance, on 5 April 2002 the Cabinet passed a resolution concerning the repayment in 2002 of the value of deposits made by the Ukrainian citizens before 2 January 1992 in branches of the former Savings Bank of the USSR, which carried out business on the territory of Ukraine. By that resolution, the Government allocated UAH 500,000,000 from the national budget to enable individual deposits to be indexed. Of that amount, UAH 65,000,000 was allocated to the heirs of account holders who had died between 1997 and 2002, on condition that they had not yet received the grant available under Article 8 of the Law of 21 November 1996. The remaining UAH 435,000,000 was to be divided between the other account holders. The amount payable to each beneficiary was, in principle, limited to UAH 50. The Cabinet passed similar resolutions in respect of 2003-2005.

dev

001-112459

ENG

ESP

CHAMBER

CASE OF B.S. v. SPAIN

Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

6. The applicant, who is of Nigerian origin, was born in 1977 and has been lawfully resident in Spain since 2003. 7. On 15 July 2005 the applicant was on the public highway in the El Arenal district near Palma de Mallorca, where she worked as a prostitute, when two officers of the national police force asked to see her identity and then ordered her to leave the premises, which she did immediately. 8. The applicant alleged that later the same day, after returning to the same place, she had noticed the same police officers coming towards her and had attempted to flee. The police officers had caught up with her, struck her on the left thigh and on her wrists with a truncheon and again demanded to see her identity papers. She alleged that during the altercation, which had been witnessed by a number of people including two taxi drivers and the security guards of a nearby discotheque, one of the police officers had insulted her, saying things like “get out of here you black whore”. She was released after presenting her papers to the police officers. 9. Again according to the applicant, on 21 July 2005 the same police officers stopped her again and one of them hit her on the left hand with his truncheon. 10. That day the applicant lodged a formal verbal complaint with Palma de Mallorca investigating judge no. 8 and went to hospital to have her injuries treated. The doctors observed inflammation and mild bruising of the left hand. 11. The file was allocated to Palma de Mallorca investigating judge no. 9, who decided to open a judicial investigation and requested an incident report from the police headquarters. In his report of 11 October 2005 the chief of police of the Balearic Islands explained that police patrols were common in the district concerned on account of the numerous complaints of theft or physical attacks regularly received from the local residents and the resulting damage done to the district’s image. He added that foreign female citizens present in the area often attempted to escape from the police because the latter’s presence hindered them in their work. In the present case the applicant had attempted to avoid inspection by the police but had been stopped by the officers, who had asked her to show her papers without at any time making any humiliating remarks or using physical force. With regard to the identity of the officers, the head of police indicated that the ones who had stopped and questioned the applicant the first time were from the patrol formed by the police officers Rayo 98 and Rayo 93 (code names given to the officers). Contrary to the applicant’s assertions, those who had stopped her on 21 July 2005 belonged to a different patrol, called Luna 10. 12. In a decision of 17 October 2005 Palma de Mallorca investigating judge no. 9 issued a provisional discharge order and decided to discontinue the proceedings on the ground that there was insufficient evidence that an offence had been committed. 13. That decision was served on the applicant or her representative on 23 April 2007, at the latter’s request. 14. The applicant applied to Palma de Mallorca investigating judge no. 9 to have the decision reversed, and subsequently appealed. She complained of the discriminatory attitude of the police officers and requested that various evidence-gathering measures be taken, such as identification of the officers in question and taking witness statements from the persons who had been present during the incidents. In a decision of 10 June 2007, investigating judge no. 9 refused to reverse his decision on the grounds that the applicant’s allegations had not been corroborated by objective evidence in the file. The judge observed that “the medical report [provided by the applicant] contains no date and, in any event ... mentions only inflammation and bruising of the hand, with no mention of any injury to the thigh. [The facts submitted] merely show that the applicant repeatedly failed to obey police orders given in the course of their duties, designed to prevent the shameful spectacle of prostitution on the public highway.” 15. An appeal by the applicant was examined by the Balearic Islands Audiencia Provincial, which gave a decision on 16 October 2007 allowing the appeal in part, setting aside the discharge order and ordering proceedings for a minor criminal offence to be instituted before the investigating judge against the two police officers, who had been identified on the basis of the information contained in the report drawn up by the police headquarters. 16. In the context of those proceedings the applicant asked to be able to identify the officers through a two-way mirror. Her request was rejected on the grounds that this was an unreliable method of identification given the length of time that had already elapsed since the incidents and the fact that the officers in question had been wearing helmets throughout, as the applicant had acknowledged. No evidence against the accused was taken during the trial. 17. On 11 March 2008 investigating judge no. 9 gave judgment at the end of a public hearing during which evidence was heard from the police officers charged, who were not formally identified by the applicant. In his judgment the judge observed that during the judicial investigation an incident report had been requested from the police headquarters according to which the officers involved had stated that no incident had occurred when they had stopped and questioned the applicant. The judge drew attention to the fact that the medical report provided by the applicant did not specify the date on which it had been drawn up. Furthermore, the findings in the report were not conclusive as to the cause of the injuries. Lastly, the judge reproduced verbatim the grounds of the decision of 10 June 2007 relating to the applicant’s conduct and the purpose of the intervention by the police and concluded that her allegations were not objectively corroborated. In the light of those arguments, the judge acquitted the police officers. 18. The applicant appealed. She challenged the refusal to allow her to identify the perpetrators through a two-way mirror and criticised the fact that the only investigative measure taken by the investigating judge in response to her complaint had been to request a report from the police headquarters. 19. In a judgment of 6 April 2009, the Palma de Mallorca Audiencia Provincial dismissed her appeal and upheld the investigating judge’s judgment. It pointed out that the right to use a range of evidence-gathering measures did not include the right to have each and every proposed measure accepted by a court. In the instant case identification through a two-way mirror would not have added anything to the evidence on the file. 20. Relying on Articles 14 (prohibition of discrimination), 15 (protection of physical integrity) and 24 (right to a fair trial) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 22 December 2009, the Constitutional Court dismissed the appeal on grounds of a lack of constitutional basis for the complaints raised. 21. The applicant was stopped and questioned again on 23 July 2005. On the same day she went to the casualty department of a public medical centre, where the doctor observed abdominal pain and bruising on the hand and knee. 22. On 25 July 2005 she lodged a criminal complaint with Palma de Mallorca investigating judge no. 2, alleging that one of the police officers had struck her on the hand and knee with a truncheon and that the officers had singled her out on account of her racial origin and had not stopped and questioned other women carrying on the same activity. She also stated that she had subsequently been taken to the police station, where she had refused to sign a statement drawn up by the police saying that she admitted having resisted police orders. Referring to the incidents that had occurred during the first episode, the applicant requested the removal of the police officer who had assaulted her and that her complaint be joined to the one previously lodged with investigating judge no. 8. Neither of her requests was granted. 23. The case was allocated to Palma de Mallorca investigating judge no. 11, who decided to open a judicial investigation. The applicant requested certain evidence-gathering measures, including obtaining from the police the identification numbers of the officers who had been on duty on 15 and 23 July. In the alternative, should that information not permit identification of the police officers responsible, the applicant requested that all the police officers who had patrolled the area during those days be summoned so that they could be identified through a two-way mirror. Her request was rejected. 24. In the course of the judicial investigation, investigating judge no. 11 requested an incident report from the police headquarters. 25. A report by the Balearic Islands chief of police dated 28 December 2005 explained, firstly, that the applicant had admitted working as a prostitute in the area in question, which was an activity that had given rise to numerous complaints from local residents. In that connection he considered that the sole purpose of the applicant’s complaints (including the one of 15 July) had been to allow her to pursue her occupation unhindered by the police. With regard to the identity of the officers in question, the chief of police observed that the computer records had not registered any intervention on 23 July; only those of 15 and 21 July had been recorded in respect of that area. 26. On 22 February 2006 investigating judge no.11 issued a provisional discharge order and decided to discontinue the proceedings on the grounds that there was insufficient evidence that an offence had been committed. 27. The applicant sought to have that decision reversed by the judge and subsequently appealed. The judge dismissed her request by a decision of 31 July 2006. Subsequently, the Palma de Mallorca Audiencia Provincial dismissed her appeal on 7 March 2007. The Audiencia referred both to the report of the police headquarters in which there was no record of an intervention by the police on the alleged date and the statements in the report regarding the applicant’s true motives in lodging her complaints. It also considered that the medical report supplied by the applicant did not enable the cause of the injuries to be unequivocally established. 28. Relying on Articles 10 (right to dignity), 14 (prohibition of discrimination), 15 (right to physical and mental integrity) and 24 (right to a fair trial) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 14 April 2008, the Constitutional Court dismissed the appeal on grounds of a lack of constitutional basis for the complaints raised. ...

dev

001-82202

ENG

POL

CHAMBER

CASE OF SKRZYNSKI v. POLAND

Violation of P1-1;Non-pecuniary damage - financial award

Nicolas Bratza

5. The applicant was born in 1952 and lives in Milanówek. 6. Since 1991 the applicant has owned a plot of land located in the municipality of Milanówek, near Warsaw. It is listed in the local land register under entry no. 31737. 7. Under the local land development plan adopted in 1981, which was in force in 1991 when the applicant acquired the land concerned, it was situated in an area described as “the agricultural area without the right to construction, reserved for a future zone designated for recreational purposes”. The 1981 plan remained in force until 1993. 8. On 30 March 1993 the Municipal Council of Milanówek, in a public procedure provided for by relevant planning legislation, adopted a resolution by which the local land development plan was accepted. The applicant's land was included in an area in which a ring-road and a hospital were to be constructed in the future. 9. The applicant and his neighbours lodged a complaint against the Council's resolution with the Mazowsze Governor, arguing inter alia, that the plan breached their right to the peaceful enjoyment of their possessions. They submitted that the local land development plan had been prepared in a manner which failed to take into consideration and to reconcile various interests of the municipality and the local owners. As a result, the plan which had been adopted was unreasonable and did not comply with standards of good land administration. 10. They were informed that the Supreme Administrative Court was competent to examine their complaint. 11. By a judgment of 25 September 1995 the Supreme Administrative Court dismissed the complaint, finding that there were no indications that the municipal authorities had failed to take into consideration and properly weigh the various competing interests involved in the preparation of the local land development plan. It noted that restrictions on ownership imposed by the land development measures were not per se incompatible with the nature of ownership as guaranteed by the Civil Code. 12. On 8 February 1999 the applicant requested that an initial approval for a development project on his land be issued. 13. On 27 March 2000 the applicant submitted to the Mayor of Milanówek a request that his land either be acquired by the municipality or that he be given another plot of land. 14. In a letter of 12 April 2000 the Municipal Office informed the applicant that his request of 8 February 1999 had not been examined as he had failed to submit an appropriate plan with it. He was further informed that the validity of the 1993 plan had been prolonged by Parliament for two more years, until the end of 2001. 15. On 12 May 2000 the Marshal of the Mazowsze Region informed the applicant that the construction of the roadway was undoubtedly in the interests of the inhabitants of Milanówek, but that no funding would be provided for it in the financing scheme for the regional land development plan until at least 2010. 16. On 17 July 2000 the applicant renewed his request for an initial approval for a development project on his land. He wished to have a house built on it. 17. On 1 September 2000 the Mayor of Milanówek refused his request, finding that the project as submitted by the applicant was incompatible with the local land development plan. 18. The applicant appealed, submitting that there were no immediate plans to build the road, there was no financing earmarked for it in the relevant public budgets, and that his right to the peaceful enjoyment of his property had been breached by the continuing restrictions on the use of his land in view of its future expropriation at some undetermined point of time. 19. On 19 December 2000 the Local Government Board of Appeal dismissed the applicant's appeal on the ground that his construction project was incompatible with the land development plan for the municipality of Milanówek. 20. The applicant appealed to the Supreme Administrative Court, arguing that since the adoption of the 1993 plan he had been restricted in the use of his property; that the municipality had refused to acquire his land or to provide him with another plot; and that this amounted to a breach of his right to the peaceful enjoyment of his possessions as well as of various provisions of the Constitution. He stressed that under the applicable laws he did not have any right to compensation for the protracted restrictions on the exercise of his ownership. 21. In 2001 the applicant requested the municipality three times to either acquire his land or to grant him another plot. His requests were unsuccessful. 22. On 2 July 2002 the Supreme Administrative Court dismissed his appeal against the decision of 19 December 2000. The court observed that its jurisdiction was limited to the examination of the lawfulness of the impugned decision. It found that the decision was lawful as it was common ground between the parties that the applicant's construction project was incompatible with the local land development plan. It further noted that the applicant had complained that his situation could not be seen as being compatible with the Constitution, given that owners affected by plans adopted prior to the Constitution's entry into force could not benefit from compensation claims provided for by section 36 of the 1994 Local Planning Law. The court referred to the judgment of the Constitutional Court given in 1995 (see paragraph 54 below). The Constitutional Court had examined the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of the owners' right to compensation provided for in section 36 of that Act to land development plans adopted before 31 December 1994. It found that this provision was compatible with the Constitution. The Supreme Administrative Court observed that it was not its task to amend or to criticise existing laws and that it was bound by this provision. Otherwise there were no grounds on which to consider that the decision challenged by the applicant was unlawful. 23. On 31 December 2002 the validity of the 1993 land development plan expired. 24. On 25 August 2003 the applicant was granted an initial planning permission (decyzja o warunkach zabudowy) and on 25 November 2003 a final building permission (zezwolenie na budowę). 25. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984. 26. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995. 27. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994. 28. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act. 29. Under the Local Planning Act of 12 July 1984 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date. 30. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner's request, or provide compensation for the damage caused by the designation. 31. However, pursuant to Section 68 § 1 of the Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, i.e. to plans adopted by local municipalities after 1 January 1995. 32. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999. 33. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995. 34. Under section 87 of the 2003 Act (see paragraph 27 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 35. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 30 above), were in essence maintained by the 2003 Act. Pursuant to Section 36 of that Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts. It would appear that the operation of Section 36 is not retroactive, thus limiting the scope of any such claims to the period after the adoption of the 2003 Act. 36. Other relevant legislative provisions are extensively set out in the Court's judgment of 14 November 2006 in the case of Skibińscy v. Poland (no. 52589/99, §§ 28 - 53). 37. In its judgment of 5 December 1995 (K 6/95), the Constitutional Court examined the request submitted to it by the Ombudsman to determine the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994. The court referred to its established case-law to the effect that ownership could not be regarded as ius infinitivum. Consequently, its exercise was normally restrained by many legal and practical considerations, including the necessity of balancing the owners' interests against those of other persons. Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership. In particular, owners of properties “frozen” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans. This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership.

dev

001-104935

ENG

BIH

CHAMBER

CASE OF HADŽIĆ AND SULJIĆ v. BOSNIA AND HERZEGOVINA

Violation of Art. 5-1;Non-pecuniary damage - award

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

A. The facts concerning Mr Hadžić 5. The applicant was born in 1959. He is currently serving a prison sentence in Zenica Prison. 6. On 1 May 2002 the applicant killed three people. He was remanded in custody on the same day. 7. On 23 September 2002 the Tuzla Cantonal Court found the applicant guilty of manslaughter, as well as of possessing a firearm without a licence, and sentenced him to twenty-one years’ imprisonment. In view of the applicant’s diminished responsibility at the time the offences were committed, it imposed a concurrent hospital order, pursuant to Article 63 of the Criminal Code 1998 (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi). 8. On 21 February 2003 the applicant was placed in the Psychiatric Annex. 9. On 30 April 2003 the Supreme Court of the Federation of Bosnia and Herzegovina increased the prison sentence from twenty-one to twenty-four years and upheld the remainder of the first-instance judgment of 23 September 2002. 10. On 17 March 2004 the applicant lodged his first application with this Court, complaining, among other things, that his detention in the Psychiatric Annex was unlawful. On 11 October 2005 the Court struck it out of its list of cases following a friendly settlement between the parties (see Hadžić v. Bosnia and Herzegovina (dec.), no. 11123/04, 11 October 2005). The Government undertook as part of that settlement to move all patients held in the Psychiatric Annex (including the applicant) to an adequate facility by 31 December 2005 and to pay ex gratia 9,000 euros (EUR) to the applicant. The applicant, in return, waived any further claims against Bosnia and Herzegovina in respect of the matters giving rise to that application. On 27 February 2006 the Government paid the amount due, but the applicant continued to be detained in the Psychiatric Annex despite the Government’s undertaking mentioned above. 11. On 21 December 2006 the Constitutional Court of Bosnia and Herzegovina found a breach of Article 5 §§ 1 and 4 of the Convention in the applicant’s case. It held, among other things, that the Psychiatric Annex was not an appropriate institution for the detention of mental health patients. It ordered certain general measures, such as the establishment without further delay of an adequate health care institution. Furthermore, it held that those who complained that their detention in the Psychiatric Annex was unlawful did not have an effective remedy at their disposal after 1 August 2003 other than an appeal to the Constitutional Court itself. The applicant was not awarded any compensation. 12. On 20 August 2007 the applicant instituted civil proceedings seeking damages from the State for a breach of the right to liberty and security under the Civil Obligations Act 1978. He referred to the Constitutional Court decision of 21 December 2006 mentioned above. It would appear that the case is pending before the Tuzla Cantonal Court. On 21 August 2007 the applicant instituted similar proceedings against the Federation of Bosnia and Herzegovina. It would appear that the case is pending before the Sarajevo Cantonal Court. 13. Pursuant to a proposal of the Psychiatric Annex, on 31 March 2008 the Tuzla Cantonal Court established, on the basis of a report prepared by the Sarajevo Psychiatric Hospital, that the applicant’s mental condition no longer required his confinement in that Annex. It relied on Article 63 § 2 of the Criminal Code 1998 and Article 480 § 2 of the Code of Criminal Procedure 1998 (although they were no longer in force). The applicant failed to appeal in due time. On 13 August 2008 he was transferred from the Psychiatric Annex to the general section of Zenica Prison pursuant to that decision. B. The facts concerning Mr Suljić 14. The applicant was born in 1956. 15. On 23 November 2002 the applicant killed his girlfriend. He was remanded in custody on the same day. 16. On 20 January 2003 the Tuzla Cantonal Court found the applicant guilty of manslaughter and sentenced him to eight years’ imprisonment. In view of the applicant’s diminished responsibility at the time of committing the offence, it imposed a concurrent hospital order, pursuant to Article 63 of the Criminal Code 1998 (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi). 17. On 16 April 2003 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the first-instance judgment of 20 January 2003. 18. On 5 May 2003 the applicant was placed in the Psychiatric Annex. 19. At the request of the Psychiatric Annex, on 4 July 2008 the Tuzla Cantonal Court established, on the basis of a report prepared by the Sarajevo Psychiatric Hospital, that the applicant’s mental condition no longer required his confinement in that Annex. It relied on Article 63 § 2 of the Criminal Code 1998 and Article 480 § 2 of the Code of Criminal Procedure 1998 (although they were no longer in force). The applicant did not appeal. On 21 July 2008 he was transferred from the Psychiatric Annex to the general section of Zenica Prison in accordance with that decision. 20. On 28 April 2010 the Constitutional Court of Bosnia and Herzegovina found a breach of Article 5 §§ 1 and 4 of the Convention in the applicant’s case. It held, among other things, that the Psychiatric Annex was not an appropriate institution for the detention of mental health patients. The applicant was awarded compensation of 2,000 convertible marks (BAM, approximately EUR 1,000). 21. There are two legal regimes applicable to psychiatric detention. 22. First of all, the relevant civil court can order the compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and/or the public from serious harm (see sections 22(1), 29(1) and 31(1) of the Mental Health Act 2001, Zakon o zaštiti osoba sa duševnim smetnjama, published in the Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”) no. 37/01 of 15 August 2001, amendments published in OG FBH no. 40/02 of 21 August 2002). 23. Secondly, the relevant criminal court can impose a hospital order (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi) on an offender who, at the time of committing a criminal offence, was suffering from a mental disorder affecting his or her mental responsibility, if it is satisfied on the evidence of a psychiatrist that this is necessary in order to prevent the offender from committing another criminal offence. However, there is an important difference in this regard between the old and new criminal legislation (the latter entered into force on 1 August 2003). While a hospital order can still be imposed on those who have been found guilty although suffering from diminished responsibility (such as the present applicants), it can no longer be imposed against those who have been found not guilty by reason of insanity (see Article 74 § 1 of the Criminal Code 2003, Krivični zakon Federacije Bosne i Hercegovine, published in OG FBH no. 36/03 of 29 July 2003, amendments published in OG FBH nos. 37/03 of 31 July 2003, 21/04 of 17 April 2004, 69/04 of 7 December 2004, 18/05 of 23 March 2005 and 42/10 of 21 July 2010). If a hospital order has indeed been imposed on an offender with diminished responsibility, he or she can now apply once a year to have the application of the hospital order discontinued under Article 427 of the Code of Criminal Procedure 2003 (Zakon o krivičnom postupku Federacije Bosne i Hercegovine, published in OG FBH no. 35/03 of 28 July 2003, amendments published in OG FBH nos. 37/03 of 31 July 2003, 56/03 of 14 November 2003, 78/04 of 31 December 2004, 28/05 of 11 May 2005, 55/06 of 20 September 2006, 27/07 of 18 April 2007, 53/07 of 8 August 2007, 9/09 of 11 February 2009 and 12/10 of 15 March 2010). 24. The law of tort is regulated by the Civil Obligations Act 1978 (Zakon o obligacionim odnosima, published in Official Gazette of the Socialist Federal Republic of Yugoslavia (“OG SFRY”) no. 29/78, amendments published in OG SFRY nos. 39/85, 45/89 and 57/89, Official Gazette of the Republic of Bosnia and Herzegovina nos. 2/92 of 11 April 1992, 13/93 of 7 June 1993 and 13/94 of 9 June 1994, and OG FBH no. 29/03 of 30 June 2003). The main remedy for a tort is an action for damages, but in some cases permanent injunction can be obtained to prevent repetition of the injury (see sections 157, 199 and 200 of this Act). Section 172 of this Act prescribes, among other things, that a legal person should be liable for the torts committed vis-à-vis a third party by its organs in the course of, or in connection with, the exercise of their functions. 25. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides non-judicial preventive machinery for the protection of individuals deprived of their liberty. It is based on a system of visits by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”). The CPT periodically draws up reports on individual States, which are strictly confidential. Nevertheless, if a State fails to cooperate or refuses to improve the situation in the light of the CPT’s recommendations, the CPT may decide to make a public statement. The State itself may at any time request publication of the CPT’s report, together with its comments. 26. The relevant part of the report on the visit to Bosnia and Herzegovina carried out from 27 April to 9 May 2003 reads as follows: “84. Zenica Prison Forensic Psychiatric Annexe opened as a temporary accommodation for forensic psychiatric patients in 1996. It is the only closed forensic psychiatric unit on the territory of the Federation. With an official capacity of 64 beds, it is located on the first floor of Pavilion IV; at the time of the visit, it was accommodating 69 patients. All patients were admitted to the Annexe following a court order for ‘mandatory psychiatric treatment and placement in an institution of a closed type’ and had been diagnosed as suffering from chronic psychosis, acute psychotic episodes, alcohol psychoses, epilepsy or organic psycho-syndromes. Most of them had committed homicides/attempted homicides and would stay in the Annexe for 4 to 5 years (on average). 85. According to the Prison Director, himself a doctor and psychiatrist, the Forensic Psychiatric Annexe is ‘a huge problem which remains unsolved since 1996’. The Director explained that ‘this temporary facility offered conditions which are worse than the conditions for the ordinary prisoners in the other parts of the establishment’, a situation that he described as ‘absurd’. He stated that, ‘on principle, the Forensic Psychiatric Annexe should not be located within a high security prison’. ... 96. The delegation was informed that there was unanimous agreement within the psychiatric and prison system, as well as at a political level, that ‘this group of forensic psychiatric patients required hospital conditions and that the treatment and conditions in the Zenica Prison Forensic Psychiatric Annexe were not acceptable’. The delegation was further informed that the Ministry of Justice of the Federation had allocated 3,000,000 convertible marks in 2002 to allow relocation of the forensic psychiatric annexe and provision of proper facilities. However, this decision was not implemented, as no municipalities within the Federation were ready to accept such a facility on their territory. At the time of the visit, the situation was still unresolved. 97. At the final talks held in Sarajevo in May 2003, the delegation clearly indicated that ‘placing mentally disordered patients in 30-bed, overcrowded dormitories in an essentially custodial environment can no longer be tolerated’ and expressed its support for the initiative taken by the authorities in 2002 to finance the renovation and relocation programme aimed at remedying the situation, and involving the health authorities to a much greater extent. The delegation asked to receive within three months further information on this issue, including realistically achievable objectives to resolve this urgent matter. 98. On 1 October 2003, the authorities provided the following information to the CPT. After the CPT’s visit, an expert team was set up under the Ministry of Health, which carried out an inspection at Zenica Prison Forensic Psychiatric Annexe. Its findings fully confirm the observations of the CPT’s delegation (overcrowded dormitories and lack of space in general, lack of nursing staff, no adequate treatment for the patients, very poor hygiene and deficient heating, etc.). The expert team came to the conclusion that ‘conditions for patients [were] extremely inhuman and untenable’ and that measures had to be taken urgently to remedy the situation. In response to this report, the Ministry of Justice and the Ministry of Health of the Federation decided to implement the following urgent measures until a new place is found to relocate the forensic psychiatric institution: improvement of hygiene; reduction of the number of beds in the dormitories; drafting of specific house rules for the Annexe; setting up a register on cases of use of force/restraint; ‘self-defence’ training for staff. 99. The CPT welcomes the efforts made by the authorities to solve, on an urgent basis, some serious deficiencies observed during the visit of its delegation and would like to receive updated information on the progress made in this domain. However, as the authorities themselves acknowledge, this state of affairs cannot be prolonged further. The Committee therefore recommends that the authorities provide within three months a workable strategy to facilitate the relocation of the Forensic Psychiatric Annexe to a site which could offer the potential to remedy the numerous shortcomings observed by the CPT’s delegation. ...” 27. In preliminary observations on a visit to Bosnia and Herzegovina carried out from 19 to 30 March 2007, the CPT noted that although the Psychiatric Annex was less crowded than during previous visits, the physical conditions had continued to deteriorate and remained wholly unacceptable for a health care institution.

dev

001-85233

ENG

CZE

ADMISSIBILITY

TOMA, S. R. O. v. THE CZECH REPUBLIC

Inadmissible

Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant, Toma, s.r.o. is a private company registered in the Czech Republic. It was represented before the Court by Mr Petr Pisarovič, a lawyer practising in Břeclav. 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 27 May 1991 a certain D. brought a civil action against the Racio cooperative, the applicant’s predecessor. By a judgment of 27 August 1991 the Břeclav District Court (okresní soud) dismissed D.’s action. On 14 February 1992 the Brno Regional Court (krajský soud) upheld this judgment. On an unspecified date in 1992 the applicant company joined the proceedings as one of successors of the Racio cooperative. On 17 January 1994 the Prague High Court (Vrchní soud), upon D.’s appeal on points of law (dovolání) quashed the judgments of the lower courts and sent the case back to the District Court for further consideration. On 11 February 1997 the District Court suspended the proceedings on the ground that other proceedings were pending before the same court which could have had an impact on the present proceedings. On 16 March 1998 the Regional Court quashed this decision and sent the case back to the District Court which, on 6 September 2000, again decided to suspend the proceedings. On 31 August 2001 the Regional Court quashed this decision. By a judgment of 9 April 2003 the District Court delivered a judgment on the merits of Mr D.’s action. On 20 April 2005 the Regional Court decided on the applicant company’s appeal. 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).

dev

001-59126

ENG

ITA

CHAMBER

CASE OF N.C. v. ITALY

No violation of Art. 5-5

András Baka

7. The applicant was the technical director, technical and economic adviser and special representative and agent of company X. 8. On an unspecified date, preliminary investigations were opened against the applicant on suspicion of abuse of power and corruption committed in the course of his functions in 1991. 9. On 16 October 1993 the Public Prosecutor attached to the Brindisi District Court requested that the applicant be either remanded in custody, or placed under house arrest, or prevented from exercising his functions as director of company X, on the ground that there was a serious indication of his guilt resulting from the statements of five witnesses and from the result of an expert opinion carried out in the course of the preliminary investigations. The content of the statements and of the expert opinion had been corroborated by further documents. The applicant appeared to have commissioned Y, the head of urban planning of the Brindisi local authority, as chief engineer for the building of a road (“Strada dei Pittachi") and as co-director of works for the construction of the new district detention centre at Lecce. These appointments were alleged to be a “payment” from company X to Y for delivering false declarations in the approval procedure relating to the projects which company X had submitted for the road-works. The Public Prosecutor further explained that, given that the applicant maintained his functions in company X, there was a risk that he would commit further similar offences. 10. On 2 November 1993 the Judge for Preliminary Investigations of Brindisi issued a warrant of arrest against the applicant on the ground that the indications of guilt which existed against him, as indicated in the Public Prosecutor’s request of 16 October, were serious. As regards the grounds for precautionary measures, the judge recalled that, as indicated by the Public Prosecutor in his above request, the applicant had maintained his position as Technical Director of company X. The judge considered inter alia that, in order to decide what precautionary measure was more suitable in that case, he had to take into account the nature of the conduct under examination. The worst aspects of the applicant’s conduct were the failure to observe the rules of the administrative procedure and the waste of public funds, coupled with the breach of the rules on public tendering. This conduct had resulted in a project which showed no respect for the environment, which was very serious, given that “the chaotic and unliveable character of Southern Italian cities is not caused solely by the spreading of common crime but primarily stems from the urban growth pattern (general lack of any effective regulation and resultant lack of adequate public areas for parking, gardens and relief roads; this unease is tangibly felt in all parts of Brindisi). Abuses relating to management and spending of public funds like those committed in the Strada dei Pittachi project must be considered just as serious as possession of a firearm with its serial number removed or the conduct of a drug addict who robs a tobacconist of a few hundred thousand lire at gunpoint or with the help of accomplices, as often happens in Brindisi. Given the legislator's intention to counter the risk to society in such cases by the most stringent precautionary measure, i.e. detention in prison, this is even more justified in the far more serious case under investigation and is to be considered appropriate and necessary albeit not peremptorily stipulated by Article 275, third paragraph of the Code of Criminal Procedure (“C.P.P.”) among the circumstances where detention is mandatory. Otherwise the difference in treatment would be unjustifiable, and therefore unjust”. The judge concluded that he was thus firmly convinced that in cases like the one under consideration, “where each act (a) is aimed at the pursuit of reprehensible private interests and (b) is committed by persons who do or should bear a high reputation because of the powers and/or responsibilities which they exercise, the measure of prison detention must be applied (not the measure of house arrest which is very convenient - especially for someone like the accused who is used to living indoors - but not sufficiently deterrent).” 11. The applicant was arrested on 3 November 1993. 12. On the same day he filed with the Brindisi District Court an application for release from detention or, failing that, house arrest, arguing that there was no “serious indication of guilt” within the meaning of Article 273 of the Code of Criminal Procedure, and that there were no grounds whatsoever for precautionary measures. 13 14. Finally, the applicant inter alia drew the court’s attention to the established case-law to the effect that, when a precautionary measure is considered a significant period of time after the committal of the offence, account must be taken of the accused’s conduct after the committal of the offence. Insofar as he was concerned, in the two years that had elapsed after the offence of which he was accused, he had not been accused or charged with any similar or different offence. 15. Following a hearing on 11 November 1993, the court in a decision of 13 November 1993 held that there undoubtedly existed a “serious indication of guilt” against the applicant. It further held that “there undoubtedly was a danger of his committing further crimes within the meaning of Article 274 (c) C.P.P. considering how the accused succeeded in unlawfully attaining the economic ends identified”. It thus rejected his application for release. However, given that the applicant had a clean record, the court upheld his subsidiary request and placed him under house arrest. 16. On 23 November 1993 the applicant appealed on points of law against the refusal to release him, on the ground that his detention on remand was in breach of Articles 273 and 274 (c) C.P.P.. He stressed in particular that the Brindisi District Court had not given any reasons for the application of precautionary measures within the meaning of Article 274 (c) C.P.P. 17. On 30 November 1993 the applicant filed a request with the Brindisi Judge for the Preliminary Investigations to revoke the order for his being kept under house arrest, as he had resigned from his office of technical director of company X. 18. This application was rejected by the Judge for Preliminary Investigations on 3 December 1993 on the grounds of the short period of time elapsed since the application of the measure, which moreover had been changed into a more lenient one, and of the seriousness of the accusation. The judge explained that the applicant could have the possibility of using his experience and professional skills either on his own account or in the employment of another company. 19. On 6 December 1993, the applicant appealed to the Brindisi District Court against this decision. He underlined that the previous decisions had been based on the need for prevention of crime, and in particular on the circumstance that the applicant had maintained his position in company X. Accordingly, now that he had resigned, such need did not exist any more. 20. In a decision of 20 December 1993 the court pointed out that all previous decisions on the applicant’s detention were based on Article 274 (c). It held that, given that the applicant had resigned and in the light of the time already elapsed since the application of the measure and of the personality of the accused, there were no longer any grounds for his detention on remand. It accordingly ordered his immediate release. 21. On 28 February 1994 the applicant withdrew his appeal on points of law of 23 November 1993, which was acknowledged on 8 March 1994. 22. By a judgment of 15 April 1999, the Brindisi District Court acquitted the applicant on the ground that the facts had not occurred (“perché il fatto non sussiste”). This judgment became final on 14 October 1999. 23. Articles 273 and 280 of the Code of Criminal Procedure (“C.P.P.”) set out the conditions for precautionary measures (misure cautelari), namely the existence of serious evidence of guilt (“gravi indizi di colpevolezza”) in respect of a crime punishable with life imprisonment or detention for more than three years. 24. Article 274 C.P.P. provides in addition that precautionary measures can be ordered for the following reasons: prevention of interference with the course of justice (Article 274 (a)), danger of flight (274 (b)) and prevention of crime (274 (c)). 25. Article 274 (c) reads as follows: (precautionary measures are ordered) “where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused”. 26. Detention pending trial ordered or maintained in breach of Article 274 does not give rise to a right to compensation under Articles 314 and 315 C.P.P.. 27. Under Article 275 § 3 C.P.P., detention pending trial can only be ordered if all other precautionary measures appear to be inadequate. Where there is serious evidence that the offence of being a member of a mafia-type organisation has been committed, there is a rebuttable presumption that the necessity for detention pending trial exists. 28. Article 292 C.P.P. provides inter alia that the detention order must contain the explanation of the actual grounds for the precautionary measure and of the specific evidence of guilt, including the factual elements on which the evidence is based and the grounds for its pertinence, and must take into account also the time elapsed since the committal of the offence. 29. Article 314 § 1 C.P.P. provides that anyone who has been acquitted in a judgment that has become final – on the grounds that the case against him has not been proved, he has not committed the offence, no criminal offence has been committed or the facts alleged do not amount to an offence at law – is entitled to equitable reparation for any period he has spent in detention pending trial, provided that misrepresentations or fault on his part were not contributory factors in his being detained. 30. Under Article 314 § 2 C.P.P., a person whose detention pending trial has been found, in a final decision, to have been ordered or maintained in breach of Articles 273 and 280 C.P.P., is entitled to compensation. An application for reparation under Article 314 C.P.P. must be made within eighteen months after the judgment becomes final. The maximum award is 100,000,000 Italian lire (Article 315 C.P.P.).

dev

001-23097

ENG

GBR

ADMISSIBILITY

DENTON v. THE UNITED KINGDOM

Inadmissible

Matti Pellonpää;Nicolas Bratza

The applicant, Mr Delroy Denton, is a Jamaican national, who was born in 1960 and is curently detained in HM Prison Full Sutton. He is represented before the Court by Mr D. O’Connell, a lawyer practising in Godalming, Surrey. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a Jamaican national, who came to the United Kingdom in April 1993 using his brother’s passport and was granted permission to remain for six months. On 12 May 1994, the applicant was arrested in a public house in Brixton, on suspicion of drug dealing and possession of an offensive weapon. Upon arrest he gave the name Clive Lloyd Johnson. After being interviewed by the police, he was arrested and interviewed again by an Immigration Officer called Fotheringham as a suspected ‘overstayer’. Fotheringham knew the applicant’s true identity and in a report dated 13 May 1994, described the applicant as ‘extremely violent’ and indicated that he should be detained. However, over the following few days, Fotheringham, together with PC Barker from “SO11”, (a special operations unit of the Metropolitan police), recruited the applicant as a police informer. With the assistance of Fotheringham the applicant completed an application for political asylum and was released on temporary admission to the United Kingdom on 15 May 1994. The applicant was not charged with any drugs offences despite the fact that a substance later proved to be cocaine had been found on him when he was arrested in May 1994. In June 1994 he appeared before the Magistrates’ Court in respect of the offence of possession of an offensive weapon and was fined, having pleaded guilty in the name of Clive Lloyd Johnson. Immigration Officer Fotheringham was at court. The same month, the applicant had his first official meeting with his handlers and began to supply information about the activities of Jamaican ‘Yardie’ gangs operating in the United Kingdom. In December 1994 the applicant was arrested for an offence of rape and was detained in custody. Whilst detained he was visited by Fotheringham and another officer and on 9 January 1995 PC Barker and a DS Bayes attended the Magistrates’ Court in an attempt to persuade the prosecutor not to object to bail. On 1 February 1995 the rape proceedings were discontinued and, although they would later deny it, the applicant believed this was as a result of intervention by his ‘handlers’. Between September 1994 and February 1995 the applicant gave information to police about the alleged criminal activities of Shirley Graham, known as ‘Miss V’, involving drug dealing and false passports. On 23 March 1995, the applicant gave information to PC Barker about Miss V’s son, Wayne Graham. Graham was arrested the same day in possession of a handgun and ammunition and was subsequently sentenced to three years’ imprisonment. On or about 19 April 1995, a Wednesday, Marcia Lawes (known as ‘Zena’) was murdered. She had been stabbed some twenty times and the prosecution case was that she had been raped before being killed. Her body was not found until the evening of Friday, 21 April 1995. The door to her flat was unlocked and the telephone had been left off the hook. On 9 May 1995 the applicant was interviewed as a potential witness. His former girlfriend, Samantha Thompson, with whom he was still living, was a friend of Zena and his fingerprint had been found on a glass in the deceased’s flat. The applicant said he knew of her, but had not actually met her before the afternoon of 18 April 1995, when he went to her house with a mutual friend, Mark Williams, to buy cannabis. He did not disclose that he had had a sexual relationship with the deceased. In June 1995 the applicant’s DNA profile was matched with semen samples taken from the deceased’s vagina and he was arrested for her murder. When interviewed in June he said that he had been having a sexual relationship with the deceased for some time and had returned to her house on Tuesday, 18 April 1995 to have sex with her, but she had been alive when he left and she must have been murdered some time after he last saw her. The fact that the applicant was an informant became known to the officer in charge of the murder investigation, DCS Cook, who informed the Crown Prosecution Service (CPS) in July 1995. Cook was told by a colleague about a telephone call the applicant made from prison to PC Barker, in which he had asked if something could be ‘sorted out’. (He later confronted PC Barker about the call, who denied any knowledge of it). DCS Cook visited SO11 and looked at the applicant’s Informant file but did not see anything of relevance to the murder investigation and took no further action. Senior officers at SO11 gave instructions that there was to be no further contact with the applicant. In October 1995 the murder proceedings against the applicant were discontinued, counsel having advised that there was insufficient evidence to proceed, and he was released from custody. As far back as December 1994 the decision had been taken to refuse the applicant’s application for asylum, but the letter of refusal was not served on him and no steps were taken to deport him. At some point after the October 1995 decision to discontinue the murder proceedings, contact was resumed between the applicant and PC Barker. DCS Cook obtained authority to resume the murder investigation and on 24 November 1995 Dionne White made a witness statement in which she said that she had been with the applicant on an occasion in May 1995 when he appeared worried about police questions and asked her what ‘forensic’ meant. He had a bag in which she saw a pair of bloodstained trousers, which he then took to be dry cleaned. Dionne White was the niece of Wayne Graham and the granddaughter of Miss V. She had not made a statement to the police during the initial investigation. The police also then obtained further evidence from a mobile telephone company tending to show that the applicant was near or at Zena’s flat on Wednesday morning, when the prosecution believed her to have been murdered and when the applicant claimed to have been at home. The applicant was re-arrested on 23 December 1995. At the start of the trial, on 1 July 1996, the prosecution made an application for public interest immunity (PII) in respect of the fact that the applicant was an informant. The applicant had not told his own legal representatives and the defence team were not aware of his status as an informant. Prosecuting counsel told the trial judge that the applicant was an informant and that he had had involvement with the police and with Fotheringham. Counsel had not been told that the applicant had informed on the relatives of the prosecution witness Dionne White and both prosecuting counsel and the judge were unaware of any possible relevance to the trial of the fact that the applicant was an informant. Prosecuting counsel made it clear to the judge that he did not know whether the applicant had told his own solicitors or counsel that he was an informant. The judge ruled that there should be no order for disclosure. After the PII hearing, DCS Cook was approached by a journalist who said that he knew the applicant was an informant and asked if the officer knew anything about the discontinuance of the proceedings in October 1995 being as a result of an approach to the CPS by SO11. DCS Cook brought the conversation to the attention of prosecuting counsel. Counsel took the view that the conversation had no relevance to the trial and it was not brought to the attention of the judge. During the trial, the same journalist discussed his knowledge of the applicant’s informant activities with members of the deceased’s family and others in the public gallery, some of whom were friends of prosecution witnesses. One of the group told the journalist that he knew the applicant was an informant and he wanted him to be convicted of the murder. The deceased’s sister discussed the conversations with DCS Cook, who did not confirm or deny that the applicant was an informant. The prosecution evidence at trial included details of when, where and to whom the applicant had made telephone calls, revealing inconsistencies in his account, the telephone evidence that he was near to the flat on Wednesday morning, evidence from Samantha Thompson and Mark Williams about the applicant’s movements and the account of Dionne White. In addition, the clothing found on the deceased, stained with the applicant’s semen, was not the same as the clothing she had last been seen in by Samantha Thompson in the early hours of Wednesday, tending to suggest that the applicant had had sexual intercourse with her after, rather than as he said, before that time. In cross examination Dionne White’s credibility was to some extent damaged when she claimed that on 19 April 1995 the applicant told her the police were harassing him about a murder, that is, before the body had been discovered. The applicant disputed the alleged time of death and relied on the evidence of a pathologist to the effect that the murder was more likely to have taken place on Thursday, 20 April 1995. He maintained that he had not seen the deceased after they had consensual sexual intercourse on Tuesday, 18 April 1995. He called alibi evidence for the Thursday evening, including evidence from a Leon Lynn, (against whom it later transpired he had informed). On 19 July 1996 the applicant was convicted of the murder by a majority of ten to two. On the evening of the applicant’s conviction, a story on the television news referred to the applicant as a police informant. Subsequently, information about the applicant’s activities as an informant appeared in newspaper articles, a television programme and a book. In December 1995 the applicant was served with the letter written in December 1994, confirming that his application for asylum had been refused. Following a complaint by the deceased’s relatives, a police inquiry was held (the Hoddinott Inquiry). From about June 1997 a large volume of material was collated. Those who made statements in the course of the inquiry included Dionne White and Miss V. It was clear from the statements that they and many others had suspected or known before the murder that the applicant was an informer and that he had given information leading to the arrest and imprisonment of Wayne Graham. It was also suspected that he had informed on a relative of another prosecution witness (who had not in the event been called to give evidence at the trial). It was not clear whether they had said this to the police when they initially gave their statements in the murder investigation. DCS Cook gave evidence to the inquiry and confirmed that he was unaware of any connection between the information given by the applicant and the murder investigation until after the trial. The applicant lodged grounds of appeal in March 1997, and his application was referred directly to the Full Court of the Court of Appeal, who granted leave to appeal. The court ordered disclosure of statements and documents from the Hoddinott Inquiry and part of the applicant’s Informant file. It was only as a result of the disclosure that the applicant’s representatives became aware of the information the applicant had given about the relatives of Dionne White and others and of the discussion between the journalist and DCS Cook during the trial. They also became aware that a senior officer from SO11 had attempted to see the applicant in the cells during his trial to inform him that his status as an informant had become known, but that this was no fault of SO11. The CPS representative at court had refused the officer permission to visit the applicant. The applicant lodged more detailed grounds of appeal in May 2001 following the disclosure ordered by the court. In January 2002, the applicant argued before the Court of Appeal that, (a) the Crown should have disclosed to the applicant’s representatives the fact that he was an informer and the nature of the information he had given, (b) the Crown should have made the same disclosure to the trial judge, (c) the judge was wrong to make no order for disclosure on the PII hearing, (d) the restricted information given to the trial judge meant that he was unable properly to fulfil his functions and discretion as to disclosure, (e) the Crown should have disclosed to the applicant and/or his lawyers and the trial judge the fact that some prosecution witnesses knew he was an informant, (f) when it became known, the Crown should have disclosed to the judge, the applicant and/or his lawyers that press and members of the public knew of the applicant’s status, and (g) the reason the applicant had not told his lawyers of his informant status was because his handlers had put pressure on him not to. The Court of Appeal heard evidence from the applicant, his handlers and DCS Cook. The court noted that the information given by the applicant (in particular that relating to the relatives of Dionne White) was relevant to an issue in the case, but there was no duty on the Crown to disclose it as it was known to the applicant, who chose not to disclose it. The judge had been correct to make no order for disclosure. There were good public policy reasons why information given confidentially to the Crown by the applicant should not be disclosed to his lawyers without his permission. The court did not accept the applicant’s argument that pressure had been put on him by his handlers not to reveal his status to his lawyers. Having heard evidence from the applicant on the point the court found him to be untruthful. As to the submission that the applicant and/or his lawyers should have been told when it became apparent that the knowledge of his informant status had become public, Lord Justice Mantell said: “It is a matter of some concern that not even the judge was told of this development. Had it come to the knowledge of the appellant it may very well be that it would have worked a change of heart with regard to telling his counsel about his informant status.... There was no longer any good reason for keeping the information to himself and counsel would have been free to cross-examine Dionne White as to motive. We say ‘free to cross-examine’ advisedly. It would have been a matter requiring careful thought. After all ... cross-examination on the lines suggested could have had a serious down side, namely the loss of the alibi witness, Leon Lynn, against whom the appellant had informed and the introduction of the risk of character being put in issue.” The Court of Appeal considered that DCS Cook was an accurate and truthful witness and accepted that neither he nor prosecuting counsel had any reason to know the relevance of the applicant’s informant status to the issues in the trial. The court went on to conclude that the possible advantage to which the applicant could have put the information was not without risk, and in any event the Crown’s case did not depend on Dionne White’s evidence. Evidence of the applicant’s guilt was overwhelming. On 15 February 2002 the appeal was dismissed. The procedure to be applied when determining questions of disclosure was governed at the time by common law. At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Cr.App.R. 302 (“the Guidelines”)). According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive material” which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as including: “... (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger;...” According to paragraph 8, “...in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence.” The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that: “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed.” The Court of Appeal’s judgment in R. v. Davis, Johnson and Rowe ((1993) vol. 97 Cr.App.R. 110) set out the procedures to be followed if the prosecution wished to withhold unused material from disclosure on grounds of public interest immunity including, where appropriate, making an application to the court ex parte. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial. In R. v. Keane ([1994] vol. 1 Weekly Law Reports p. 746), the Lord Chief Justice, giving the judgment of the Court of Appeal, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “...on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”. Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. In that respect, the more full and specific the indications given of the issues the defence were likely to raise, the more accurately the prosecution and judge would be able to assess the value to the defence of the material. If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure. In R. v. Winston Brown ([1994] Cr.App.R. 191), the Court of Appeal referred to the duty of the trial judge to keep material under review and to the duty of prosecuting counsel to inform himself fully about the content of any “disputed material”, so that he was in a position to invite the judge to reassess the situation if appropriate. The court recognised that there was a limit to the scope of discovery required of the Crown however, and for example, there was no legal duty on the Crown to disclose material which was only relevant to the credibility of a defence witness. The House of Lords ([1998] A.C. 369), confirming the Court of Appeal decision, observed that: “...the common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the Crown.”

dev

001-6024

ENG

HRV

ADMISSIBILITY

HADZIC v. CROATIA

Inadmissible

Georg Ress

The applicant, Dragomir Hadžić, is a Croatian citizen, born in 1931 and living in Zagreb. He is represented before the Court by Mr Milorad Lukač, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant served as a dentist in the Yugoslav People’s Army (YPA) from 1959 to 1991. His post was in Zagreb, Croatia. By an order of the Commander of the Fifth Military Zone of the Socialist Federal Republic of Yugoslavia of 4 June 1991 it was decided that, due to his age, the applicant’s military service would end on 31 December 1991. Subsequently, by a decision of the Belgrade Military Social Security Fund (Zavod za socijalno osiguranje vojnih osiguranika) of 25 December 1991, the applicant’s right to an old-age pension was recognised as from 1 January 1992. The applicant’s pension was subsequently paid from the Yugoslav Federal Military Social Security Fund in Belgrade until 31 December 1993. According to the Government the payments stopped on that date at the applicant’s personal request, as he had decided to file an application for a pension in Croatia. According to the applicant on 4 January 1994 he obtained Croatian citizenship and, consequently, only then fulfilled the requirements to apply for a pension in Croatia. On 4 January 1994 the applicant filed an application for an old-age pension in Croatia. As a reason for this request the applicant submitted that he had previously fulfilled the conditions for an old-age pension and also obtained the Croatian citizenship. By a decision of 25 February 1994 the Croatian Social Security Fund - Zagreb Office (Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske - Područni ured Zagreb) rejected his request, stating that the applicant did not fulfil the requirements for a pension as he had failed to join the Croatian army prior to 31 December 1991. The applicant unsuccessfully appealed against that decision and after his appeal was rejected on 5 April 1994, he instituted proceedings before the Administrative Court (Upravni sud Republike Hrvatske). He maintained that the decision to reject his request for an old-age pension had not been adequately reasoned and had failed to state laws on which it had been based. He maintained also that the law requesting the former YPA officers to make themselves available for the service in the Croatian army prior to 31 December 1991 had been enacted on 24 July 1992, after he had already fulfilled the conditions for an old-age pension. Furthermore, as that law had been enacted only in 1992 he could not have known the above requirement prior to his retirement form service. On 22 December 1994 the Administrative Court rejected his claim. It noted that the applicant’s active military service in the YPA had come to an end on 31 December 1991 and that at that moment he fulfilled the requirements for the old-age pension according to the Yugoslav Federal law. It found furthermore that the applicant had failed to make himself available for service in the Croatian army prior to 31 December 1991, as prescribed by the 1993 Former Yugoslav People’s Army Officers’ Pensions Act. Therefore, he had failed to fulfil the requirements for recognition of his pension rights in Croatia, as prescribed by law. On 1 March 1995 the applicant lodged a constitutional complaint claiming that his right to property was violated by the Administrative Court’s decision in so far as his right to pension in Croatia was denied. He argued in particular that the 1993 Former Yugoslav People’s Army Officers’ Pensions Act had not required that he join the Croatian army. On 30 June 1998 the Constitutional Court (Ustavni sud Republike Hrvatske) rejected the applicant’s complaint. It followed the reasoning set out in the Administrative Court’s decision of 22 December 1994 and found that the applicant’s constitutional rights had not been violated. The relevant parts of the Former Yugoslav People’s Army Officers’ Pensions Act (1993 - Zakon o ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika bivše JNA, Official Gazette no. 96/1993) read as follows: “A person whose status as an active officer in the former YPA in the territory of the Republic of Croatia ended prior to 31 December 1991, and who had not until that date obtained rights from pension and invalidity insurance may obtain such rights if he fulfils the conditions required of army personnel in order to obtain rights concerning pension and invalidity insurance in accordance with the Military Personnel Pensions Act (Zakon o mirovinskom i invalidskom osiguranju vojnih osiguranika – Official Gazette no. 53/91, 73/91, 18/92 and 71/92) and if: ... – he had made himself available for the service in the Croatian army prior to 31 December 1991...” By its decision of 16 October 1991 the Croatian Government, inter alia, guranteed to the Yugoslav People’s Army officers and soldiers who voluntarily left the YPA troops based on Croatian territory prior to 10 November 1991 at midnight the following: personal safety, the same status as they had in the YPA and an organised and unhindered possibility to leave the territory of Croatia for those who wished to do so.

dev

001-107563

ENG

UKR

CHAMBER

CASE OF TSYGONIY v. UKRAINE

Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 13;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

5. The applicant was born in 1976 and lives in Yevpatoriya. 6. On 25 February 2004 the applicant was arrested by the police on suspicion of drug dealing. On the same date a sachet of poppy straw was seized from his pocket. 7. On the same date the applicant complained to the Yevpatoriya Prosecutors’ Office that he had been ill-treated during his arrest, in particular that he had been handcuffed, beaten and blinded with a dark knitted hat and that he had suffered abrasions on his hands, face and back as a result of having been ill-treated. 8. On 16 March 2004 the Prosecutors’ Office refused to institute criminal proceedings into the applicant’s complaints, having found no appearance of criminal conduct on the part of the police officers. 9. On 13 April 2004 the Prosecutors’ Office of the ARC revoked this decision and ordered a further inquiry. Having examined available evidence and questioned witnesses, on 15 May 2004 the Yevpatoriya Prosecutors’ Office again refused to institute criminal proceedings for want of evidence of any ill-treatment. Based on the available materials, the applicant did not appeal against this decision. 10. On an unspecified date the applicant also complained to the Yevpatoriya Court that his detention had been unlawful. On 24 March 2004 the Yevpatoriya Court dismissed this complaint, attaching weight to the fact that on 27 February 2004 the lawfulness of the applicant’s detention was verified by a judge within the statutory seventy-two-hour time-limit. On 18 May 2004 the Court of Appeal of the Crimea upheld this decision. 11. On 25 February 2004 criminal proceedings were instituted against the applicant on suspicion of drug dealing and following his arrest he was detained in a police station. 12. On 27 February 2004 the applicant was brought before the Yevpatoriya Court, which allowed the investigator’s request to continue his detention for ten days pending a determination of whether he should be charged. The court referred to the fact that the applicant was suspected of having committed a serious offence and that a sachet of poppy straw had been found on him. 13. On 3 March 2004 the applicant was indicted for drug dealing. 14. On 5 March 2004 the Yevpatoriya Court decided, in the applicant’s presence, that he should be remanded in custody for two months pending the outcome of the pre-trial investigation. By way of reasoning, the court cited Article 148 of the Code of Criminal Procedure and noted that the applicant might abscond, as he had been charged with a serious offence, and also that he might tamper with evidence. Moreover, the court noted that the applicant was alleged to have committed the offence while he had been subject to an undertaking not to abscond in connection with an investigation for another unspecified offence, which, at the material time, had been pending since 2001. 15. On the same date the applicant, represented by two lawyers, appealed. He maintained, in particular, that he was a former policeman with a clean record and that he had never previously been convicted. Furthermore, he stated that he lived permanently in Yevpatoriya, had a child, and suffered from chronic health conditions, in particular pyelonephritis. The applicant acknowledged that at the material time he had been subject to an undertaking not to abscond in connection with a different criminal investigation, but noted that he had never breached that undertaking since it had been put in place in 2001. On an unspecified date the Court of Appeal of the Crimea held a hearing and dismissed the applicant’s appeal. The applicant did not inform the Court whether he had been present at that hearing. 16. On 22 April 2004 the Yevpatoriya Court, having held a hearing in the applicant’s presence, allowed the investigator’s request to extend the applicant’s detention until 25 May 2004. By way of reasoning, the court noted that the prosecution objectively needed more time to complete the investigation. The court further rejected the applicant’s mother’s proposal to pledge her apartment as bail for the applicant’s release, referring to a risk that the applicant would reoffend given his previous conduct. Referring to a medical certificate, the court also dismissed the applicant’s allegations that his state of health was incompatible with his continued detention. 17. The applicant appealed, requesting that he be transported to the Court of Appeal for the hearing. He maintained that the case was not complex and that the failure of the investigative authorities to complete the investigation was only on account of a lack of diligence on their part. On 1 June 2004 the Court of Appeal of the Crimea considered the matter in the presence of the applicant’s advocate, but in the absence of the applicant himself, and upheld the previous decision. 18. In the meantime, on 24 May 2004 the Yevpatoriya Court, having held a hearing in the applicant’s presence, extended his detention until 15 June 2004 on essentially the same grounds as before. It additionally noted that the investigation had not been completed on account of the applicant’s own lack of cooperation. In particular, he had not agreed to confrontations taking place, his lawyer had been engaged in other activities on 14 May, and on 17 May he had also been examined by medical specialists. The applicant raised essentially the same arguments as stated above, and the court rejected them, referring to essentially the same reasons as it had previously. On 8 June 2004 the Court of Appeal of the Crimea upheld the decision of 24 May 2004. The applicant did not inform the Court whether he had been present at this hearing. 19. On 10 June 2004 the Yevpatoriya Court, having held a hearing concerning the extension of the applicant’s detention in his presence, authorised the extension until 25 June 2004 based on the necessity to carry out additional investigative activities, in particular to consider a request by the applicant’s lawyer to conduct another expert assessment. The applicant appealed, raising essentially the same arguments as before, and noting that since the investigation had almost been completed there was no risk that he would tamper with evidence or otherwise interfere with its effectiveness. On 6 July 2004 the Court of Appeal of the Crimea upheld the decision of 10 June 2004. The applicant did not inform the Court whether he had been present at this hearing. 20. In the meantime, on 17 June 2004 the Court of Appeal of the Crimea considered, as a court of first instance, the investigator’s request for an extension of the applicant’s detention and authorised the extension until 25 July 2004. It found that the situation remained unchanged from the time of the previous review, that the applicant’s detention was necessary to finish up the investigative activities, and that there was no reason to release the applicant. At the hearing the applicant himself was absent, but was represented by his advocate. 21. On 23 July 2004 the case was transferred to the Saky inter-regional prosecutor for approval of the indictment. By 28 July 2004 the case had been remitted to the Yevpatoriya Court for the commencement of trial proceedings. The applicant remained in custody, no new decision extending it having been taken. 22. On 31 August 2004 the Yevpatoriya Court held a preliminary hearing and found that the case was ready for trial. The court ordered that the applicant remain in detention, without specifying any reasons. 23. Between 1 September 2004 and 1 July 2005 the Yevpatoriya Court considered the applicant’s requests for his detention pending trial to be lifted on some fourteen occasions, in each case doing so on the same date as the request was lodged. The court dismissed all of these requests as unsubstantiated. 24. On 1 July 2005 the applicant was found guilty of drug dealing and abuse of office and sentenced to five years’ imprisonment. On 20 December 2005 and 17 March 2007 the Court of Appeal of the Crimea and the Supreme Court, respectively, dismissed the applicant’s appeals. The applicant did not present copies of the court decisions taken on the merits of his criminal case. 25. Between February and August 2004 the applicant was alternately held in the Yevpatoriya Temporary Detention Centre (the “IVS”) and two other facilities. 26. According to the applicant, the cell in which he was most often held in the Yevpatoriya IVS (cell no. 12) had measured about four square metres and had been shared by him with one to three other inmates. The cell had had no window. Sometimes a ventilator had been switched on, but the air it brought had come from other cells, including two cells where detainees who were sick with tuberculosis had been held. An electric light had been switched on all the time, interfering with detainees’ ability to sleep. On the other hand, this light had been so dim that it had not been possible to read. The cell had had no furniture. Detainees had taken turns to sleep on two bare mattresses and had put their food and personal belongings on the floor near them. The toilet had not been separated from the living area, and detainees had lacked privacy when using it. There had not been a sink and a tap had been situated some forty centimetres above the toilet. The water from the tap had been used for drinking, washing and flushing the toilet. The food had been very poor. Specifically, detainees had been given a piece of bread with tea for breakfast and dinner, and a bowl of soup and a plate of porridge for lunch. The cell had been infested with insects. Between 10 and 13 March 2004 the applicant had been detained in cell no. 3, where seven detainees had taken turns to sleep on two bunk beds. Detainees had not been taken out for exercise and had not been able to take a shower. On numerous occasions the applicant had asked to see a doctor, but his requests had been refused on account of a lack of funds. 27. The Government acknowledged that cell no. 12 had not had a window or beds. They noted, however, that it had had wooden planks on which the detainees could sleep, a toilet and ventilation. They further noted that cell no. 3 had been equipped with four bunk beds. The Government further submitted that the applicant had not been able to take a shower between 1 and 18 March 2004 and between 20 April and 21 May 2004 in view of his medical condition. For the same reason he had not always been taken outside for walks. The Government additionally noted that the applicant had been given sufficient access to medical services and that during the period at issue he had been visited by a doctor at least twelve times. 28. On 18 March 2004 the applicant was diagnosed with pneumonia and placed on in-patient treatment in the Simferopol SIZO hospital for a period of about one month. Upon his return to the IVS, on 15 and 17 May 2004 respectively the applicant was examined by doctors, diagnosed with chronic prostatitis and scabies and prescribed an unspecified treatment. 29. On 4 June 2004 the applicant was found to need in-patient treatment for scabies, as the previous doctors’ recommendations had not been followed. 30. On 8 June 2004 the applicant was hospitalised in the Saky hospital and was treated until 24 June 2004. According to the applicant, in the hospital he had stayed in a room with barred windows located on the fifth floor which had been guarded by two policemen, and he had been handcuffed to his bed at all times. He presented a photo of himself being handcuffed to a bed in support of his allegations. 31. On 17 June 2004 the Head of the Yevpatoriya Police Department conducted an internal investigation following the applicant’s complaints about the conditions of his detention. He noted, in particular, that as of the date of his placement in the Yevpatoriya IVS (25 February 2004), the IVS had been overpopulated by more than half of its capacity. He further noted that cell no. 12, in which the applicant had been held at that time, had not been equipped with beds but had had wooden planks and a shelf for personal belongings, that the detainees had been provided with mattresses and linen, that the cell had been well ventilated, and that it had offered sufficient artificial light. He further noted that during the period of his stay in the IVS the applicant had twice taken a shower. 32. According to the applicant, between February and July 2004 he lost forty kilograms in weight altogether. 33. On 1 June 2009 the applicant lodged a civil action with the Yevpatoriya Court complaining about the conditions of his detention in the Yevpatoriya IVS and seeking moral damages. 34. On 3 June 2009 the applicant was given a time-limit to rectify the procedural shortcomings of his submissions, in particular, to present evidence in support of his allegations, grounds for releasing him from the need to present such evidence, to specify, what were the unlawful actions or omissions of the State authorities causing him damage and to present his calculations for the amount of damage claimed. 35. On 11 June 2009 the court decided to leave the applicant’s claim without consideration on the basis that he had not rectified the procedural shortcomings of his submissions. 36. The relevant provisions of the Constitution of Ukraine can be found in the judgment in the case of Svershov v. Ukraine, no. 35231/02, § 39, 27 November 2008. 37. The relevant provisions of the Code of Criminal Procedure of Ukraine of 1960 can be found in the judgments in the cases of Molodorych v. Ukraine, no. 2161/02, § 57, 28 October 2010 (insofar as it refers to Articles 148, 149, 150 and 237); Khayredinov v. Ukraine, no. 38717/04, § 21, 14 October 2010 and Znaykin v. Ukraine, no. 37538/05 (Sect. 5) (Eng).

dev

001-81917

ENG

ROU

CHAMBER

CASE OF HIRSCHHORN v. ROMANIA

Violation of Art. 6-1 (access to court - independent and impartial tribunal);Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial reparation in the absence of restitution) - financial award;Pecuniary damage (loss of profits resulting from failure to comply with a final judgment) - claim dismissed;Pecuniary damage - financial award (reimbursement of taxes and duties paid) - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed

Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Lucius Caflisch

4. The applicant was born in 1925 in Bucharest and lives in Le Cannet (France). 5. In 1952, under Decree no. 92/1950 on nationalisation, the State took possession of a building located at 16 Negustori Street in Bucharest which belonged to the applicant's parents, Romanian citizens and members of the Jewish faith. 6. On 18 September 1998 the applicant lodged an action to recover possession of the property with the Bucharest District Court. The action was directed against Bucharest local council, the Rental Property Administration Department (Departamentul de administrare a fondului locativ) and the State company Titan, which managed such properties. He alleged that, under Decree no. 92/1950, property belonging to certain social categories had been exempt from nationalisation and that his parents had belonged to one such category. 7. In a judgment of 24 June 1999 the court allowed the action on the ground that the State had taken possession of the property without any valid title. It ordered the defendants to restore the building and the adjoining land to the applicant. 8. Following an appeal by the Bucharest mayor's office acting on behalf of the local council, the Bucharest County Court upheld the decision of the first-instance court in a judgment of 6 December 1999. 9. The mayor's office lodged a further appeal with the Bucharest Court of Appeal, which in a final judgment of 21 June 2000 declared the appeal inadmissible for failure to give reasons. 10. In a decision of 25 September 2000 the mayor of Bucharest ordered the return of the building to the applicant. 11. On 9 November 2000 the applicant, accompanied by a bailiff, went to the building with a view to taking possession and found that it was occupied by the United States Peace Corps under a lease concluded with the State company Locato, which managed the buildings placed at the disposal of diplomatic missions in Romania. 12. On 14 November 2001 the applicant brought an action against Locato and the United States Peace Corps seeking the setting-aside of the lease and an order requiring the Peace Corps to vacate the building. 13. In a judgment of 30 May 2001 the Bucharest District Court dismissed the action. It observed that in 1992, by a government decision, ownership of the building had been transferred from the Bucharest mayor's office to the company managing the buildings used by diplomatic missions in Romania. That company had been letting the building to the United States Peace Corps since 1993. The latest lease, which had been concluded on 12 January 1999 and set the rent at 4,907 United States dollars (USD) per month, was due to expire on 31 March 2002. Taking the view that Locato had proper authority to manage the building, the court held that the disputed lease was valid. 14. In a judgment of 5 November 2001 the Bucharest County Court, on an appeal by Mr Hirschhorn, set aside the impugned decision and allowed the applicant's action. The County Court observed that in its final judgment of 24 June 1999 the Bucharest District Court had held that the State had appropriated the building without any valid title. Taking the view that the State could not dispose of a property which did not belong to it, the court set aside the lease and ordered the eviction of the tenant organisation. Locato appealed on points of law. 15. On 21 December 2001 the bailiff was authorised by the Bucharest District Court to evict the tenant organisation under the decision of 5 November 2001. On 31 January 2002 he directed Locato to comply with the decision. 16. In a letter of 6 February 2002 Locato informed the bailiff that the building was the property of the State and that the tenant organisation had diplomatic immunity. That being so, it considered that enforcing the eviction order would be inappropriate and liable to damage Romania's image internationally. 17. On 11 and 20 February 2002 the bailiff went to the building but was refused entry by a representative of the United States Peace Corps on the ground that the Peace Corps was a United States governmental organisation which had diplomatic immunity and could not therefore be evicted. 18. On 25 February 2002 the bailiff wrote to the President of the Bucharest Court of Appeal informing him of the difficulties encountered in enforcing the judgment of 24 June 1999 and the decision of the mayor of Bucharest, as Locato and the United States Peace Corps were invoking diplomatic immunity. The letter included the following passage: “Given the applicability of certain international law conventions in situations such as this, we would be grateful if you could consider the possibility – and inform us accordingly – of taking specific enforcement measures, in view of the fact that the writ of execution is supposed to take effect and that the appeal by Locato against the Bucharest County Court judgment of 5 November 2001 is pending before your court and has been set down for hearing on 26 February 2002.” 19. On 4 March 2002 the President of the Bucharest Court of Appeal replied to the bailiff's letter and informed him that his concerns had been looked into by an inspecting judge, whose report he forwarded to the bailiff. The report indicated that under the Vienna Convention of 18 April 1961 the property of diplomatic missions was inviolable. As the immunity from jurisdiction extended to enforcement procedures, the inspecting judge concluded that the applicant could not regain possession of his building, and asked the bailiff to advise him to apply for compensation corresponding to the value of the building on the ground that it was not possible to have the judgment of 24 June 1999 enforced. 20. Meanwhile, on 20 February 2002, the applicant, who lives in France, sent a fax to the registry of the Court of Appeal stating that he was dispensing with the services of his lawyer and requesting an adjournment of the hearing scheduled for 26 February so that he could instruct a replacement. 21. At the hearing of 26 February the Court of Appeal refused the request for an adjournment, taking the view that the applicant had had sufficient time to appoint a new lawyer. However, it adjourned delivery of the judgment, first until 5 March and then until 12 March 2002, in order to allow the applicant to submit conclusions in writing. 22. In a final judgment of 12 March 2002 the Civil Division of the Bucharest Court of Appeal, sitting as a bench of three judges, allowed Locato's appeal on points of law and dismissed the applicant's action. It confirmed the validity of the lease, finding that it had been entered into in good faith since, although the company had not in fact been the owner of the building in question at the time of signature of the lease, it had appeared to be. 23. On 21 March 2002 the Bucharest District Court rejected a complaint by the applicant against the bailiff alleging that the latter had failed to take action to enforce the judgment of 24 June 1999. The court observed that the bailiff had gone to the building but had been informed that the United States Peace Corps enjoyed immunity from jurisdiction. Accordingly, the court held that the bailiff could not be said to have failed to enforce the judgment in question. 24. On 9 August 2001, on the basis of Law no. 10/2001 on the rules governing immovable property wrongfully nationalised by the State between 6 March 1945 and 22 December 1989 (“Law no. 10/2001”), the applicant requested that Locato return the property to him. His request was rejected by a decision of 9 October 2001. 25. The applicant appealed against that decision to the Bucharest County Court and requested that Locato be evicted from the building. He argued that the building belonged to him by virtue of the judgment of 24 June 1999. 26. In a judgment of 13 May 2002 the County Court allowed the claim for restitution of the building but rejected the eviction request on the ground that the Peace Corps was not a party to the proceedings. Locato appealed on points of law. 27. By a governmental decision (no. 533) of 30 May 2002, Locato became the State Diplomatic Property Management Agency (Regia autonoma Administratia patrimoniului protocolului de Stat – “the Agency”). The applicant's property continued to appear in the lists attached to that decision as State property managed by the Agency. 28. By judgment of 31 March 2004 the Bucharest Court of Appeal allowed the appeal and dismissed the applicant's claim on the ground that Mr Hirschhorn had not adduced evidence either that title to the building had passed to him as his parents' heir or that he had failed to be compensated contrary to the agreement concluded in 1959 between France and Romania concerning property formerly owned by French citizens and nationalised by the Romanian State. 29. An appeal on points of law by the applicant is currently pending before the High Court of Cassation and Justice. 30. In an action to recover possession lodged with the Bucharest County Court on 15 August 2002, the applicant requested that the Agency return the building, that the lease concluded with the Peace Corps be set aside and the latter evicted, and that the rent received by the Agency under the lease be paid to him. 31. By judgment of 17 February 2003 the County Court declared the action inadmissible on the ground that the applicant could not lodge an ordinary action to recover possession while the action based on Law no. 10/2001 was still pending. 32. The applicant appealed to the Bucharest Court of Appeal, which upheld the judgment on 29 October 2003. The applicant then lodged an appeal on points of law with the High Court of Cassation and Justice. The latter, in a judgment of 7 July 2005, allowed the appeal and remitted the case to the Bucharest Court of Appeal. The proceedings are still pending. 33. The Agency was reorganised by Government Decision no. 60 of 21 January 2005. The applicant's building is still on the list of State-owned properties managed by the Agency. 34. Although the lease concluded with the United States Peace Corps expired on 31 March 2002, that organisation continues to occupy the building. The Government have not provided any details as to the legal basis for the occupancy. 35. The documents supplied by the applicant show that he has paid all the taxes and duties due on the building. However, in 2004 and 2005 the Agency also paid taxes and duties into the local budget in respect of the building. 36. Under the Administration of Justice Act (Law no. 92/1992) in force at the material time, the president of the court of appeal performed mainly administrative, organisational and supervisory duties. The relevant provisions of the Act read as follows: “The president [of the court of appeal] and, where appropriate, the presidents of the divisions [of that court] shall decide on the composition of the benches...” “Where the president, the vice-president or the division president is a member of the bench, he or she shall preside. In all other cases the president or division president shall appoint the presiding judge of the bench.” “The Minister of Justice shall be responsible for the proper organisation and operation of the justice system as a public service. The inspecting judges of the courts of appeal shall keep the Minister of Justice informed of the functioning of the courts and of any irregularities liable to compromise the standard of judicial activity and the application of the laws and regulations coming within the jurisdiction of the courts of appeal. The presidents and vice-presidents of the courts shall monitor the organisation and quality of the service and compliance with the laws and regulations... The presidents of the courts of appeal may exercise this prerogative through the intermediary of the inspecting judges of the court of appeal. In no circumstances may the monitoring activities entail interference in the conduct of proceedings in progress or call into question a decision already given...” “Promotion for judges shall be on the basis of merit, as attested by the appraisals carried out by their superiors. Appraisals shall be conducted annually and shall reflect the performance of the persons concerned, their conduct in the workplace and in society, their professional qualities and their career prospects.” “Judges shall be prohibited from providing advice, orally or in writing, concerning ongoing cases, even if the case in question is being heard by a court other than the one in which they sit. They may not express opinions in public concerning ongoing cases.” “Judges' disciplinary liability shall be incurred in the event of irregularities in the performance of their duties or conduct liable to damage the interests of the service or the reputation of the justice system.” “Disciplinary proceedings ... shall be initiated by the Minister of Justice...” “In order to initiate disciplinary proceedings..., a preliminary investigation ordered by the Minister of Justice shall be compulsory. The investigation shall be carried out either by judges of at least the same ranking as the judge under investigation, by general inspectors or by other Ministry officials assimilated to judges.” “On receiving the findings of the investigation, the Minister may refer the matter to the Supreme Council of the Judiciary. The Supreme Council shall give a decision accompanied by a statement of reasons...” 37. The position of inspecting judge at the court of appeal was abolished by Law no. 247 of 19 July 2005. However, the possibility for the president or vice-presidents of the court of appeal to appoint judges to carry out inspections was maintained. Nevertheless, these inspections must respect judges' independence and comply with final court decisions. 38. Article 66 of Law no. 92/1992 was repealed by the Status of Judges Act (Law no. 303/2004), which stipulates that judges' performance shall be assessed every three years by a committee under the authority of the Supreme Council of the Judiciary. 39. The method for designating the judges to sit on the benches of the courts of appeal was amended by the Administration of Justice Act (Law no. 304/2004), which states that the composition of the benches shall be decided by a panel within each court of appeal, made up of the president and six members elected by the general assembly of judges. 40. Under Law no. 317/2004 on the Supreme Council of the Judiciary, disciplinary proceedings are a matter exclusively for a disciplinary committee within the Supreme Council, to which any interested party may apply. 41. The relevant international provisions are as follows: “For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: ... (i) The 'premises of the mission' are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.” “1.The functions of a diplomatic mission consist, inter alia, in: (a) Representing the sending State in the receiving State; (b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; (c) Negotiating with the Government of the receiving State; (d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; (e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. ...” “1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.” “A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to: a. its rights or interests in, or its use or possession of, immovable property; or b. its obligations arising out of its rights or interests in, or use or possession of, immovable property and the property is situated in the territory of the State of the forum.” “No measures of execution or preventive measures against the property of a Contracting State may be taken in the territory of another Contracting State except where and to the extent that the State has expressly consented thereto in writing in any particular case.” 42. The relevant provisions of this Convention read as follows: “1. For the purposes of the present Convention: ... (b) “State” means: (i) the State and its various organs of government; ... (iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State; ...” “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.” “1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected. 2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State: (a) is named as a party to that proceeding; or (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.” “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the determination of: (a) any right or interest of the State in, or its possession or use of, or any obligation of the State arising out of its interest in, or its possession or use of, immovable property situated in the State of the forum; (b) any right or interest of the State in movable or immovable property arising by way of succession, gift or bona vacantia; or (c) any right or interest of the State in the administration of property, such as trust property, the estate of a bankrupt or the property of a company in the event of its winding up.” “No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that: (a) the State has expressly consented to the taking of such measures as indicated: (i) by international agreement; (ii) by an arbitration agreement or in a written contract; or (iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or (b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or (c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum...” “The Peace Corps representative and his/her staff members will be granted the same treatment as personnel of comparable rank in the United States Embassy in Romania, except that they will not have diplomatic status and immunity.”

dev

001-77791

ENG

ESP

CHAMBER

CASE OF DACOSTA SILVA v. SPAIN

Violation of Art. 5-1-a;Not necessary to examine Art. 6-1 and 6-3

Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

8. The applicant, a member of the Civil Guard (Guardia Civil), was born in 1969 and lives in Valencia. At the material time he was stationed at the Gijón headquarters and had been on sick leave since 5 January 1998. 9. On 16 February 1998 he was informed that one of his close relatives had been taken seriously ill. After notifying the duty officers, he set out the same morning for his parents’ home in Tuy (Pontevedra), where he stayed until 24 February 1998. 10. On 18 February 1998 members of the Tuy Civil Guard called at his parents’ home to check that he was there. On the same day a sergeant from the same garrison rang the family home in a further check. On 24 February the applicant rejoined his unit in Gijón. 11. On 28 February 1998 the applicant was informed by a lieutenant-colonel in the Civil Guard that disciplinary proceedings had been brought against him for a minor breach of regulations, namely absence from his unit without prior leave. 12. On 20 March 1998 the applicant’s superior imposed a disciplinary penalty on him consisting of six days’ house arrest pursuant to sections 7(27) and 10 of Law no. 11/1991 of 17 June 1991. 13. Later that day the applicant applied for a writ of habeas corpus. His application was dismissed by León military judge no. 43 on 23 March 1998. However, the judge stated in his decision that, since the applicant was on sick leave, the restrictions should be relaxed to allow him to leave the house for medical reasons, to purchase necessities and to attend religious services should he wish to do so. 14. The applicant lodged two internal appeals with Gijón headquarters against the decision of 20 March 1998. These were dismissed in two decisions of 11 May and 15 June 1998. 15. Subsequently, on 1 July 1998, the applicant lodged an appeal with the Corunna Territorial Military Court in which he alleged that he had been wrongly deprived of his liberty and relied, inter alia, on Articles 17 (right to liberty) and 24 (right to a fair trial) of the Constitution. He argued that the decision to place him under house arrest had infringed his right to liberty (Article 17 § 1 of the Constitution) as in practice it entailed an actual deprivation of liberty. He also complained that the decision to deprive him of his liberty had failed to take into account the rule that penalties should not affect service and gave no indication as to how the sentence was to be served, adding that, as he was on sick leave, he had been forced to stay at home for the duration of the sentence. 16. In his observations, State Counsel asked for the appeal to be dismissed. 17. The prosecutor submitted in his observations that there had been a violation of the right to liberty (Article 17 § 1 of the Constitution) on account of the failure to determine the conditions of the applicant’s arrest. In particular, there had been no decision on how the sentence was to be served, how its execution was to be supervised or whether it was reasonable. He asked the Military Court to find in favour of the applicant. 18. In a judgment of 27 July 1999, the Corunna Territorial Military Court dismissed the appeal and upheld the decision of 20 March 1998 and those of 11 May and 15 June 1998. It ruled that it was unnecessary to include the words “without affecting service” in the administrative order depriving the applicant of his liberty as this was inherent in the nature of the penalty for what was only a minor breach of the regulations. 19. Pointing out that, in the light of the Constitutional Court’s case-law, house arrest constituted not merely a restriction but an actual deprivation of liberty, the Military Court noted that by virtue of Article 17 § 1 of the Constitution there could be no deprivation of liberty other than in the circumstances and manner prescribed by law and that the disciplinary regime applied in the applicant’s case was founded on a basic law (Law no. 11/1991 of 17 June 1991) which permitted custodial sentences and designated the authorities empowered to impose such sentences and the procedure to be followed. As the military judge had stated when dismissing the application for a writ of habeas corpus, the applicant had been sentenced by the competent authority within the bounds fixed by law to a penalty prescribed by law in accordance with the established procedure. As to the complaint under Article 24 of the Constitution, the applicant had received a fair trial attended by all the necessary safeguards. 20. The applicant appealed on points of law to the Military Division of the Supreme Court, which dismissed his appeal in a judgment of 30 May 2000. It accepted the applicant’s submission that the words “without affecting service” were required in all orders for house arrest for minor breaches of the regulations so as to avoid restrictions of liberty becoming deprivations of liberty. However, it considered that the additional words had not been necessary in the applicant’s case as he was on sick leave. The Supreme Court noted that the Constitutional Court had already considered the question of “house arrest” and ruled that it constituted an actual deprivation, not merely a restriction, of liberty, although that legal distinction had no bearing on the legitimacy of house arrest because, by virtue of Article 25 § 3 of the Constitution, military authorities, unlike their civilian counterparts, were empowered to impose penalties entailing deprivation of liberty. The Supreme Court consequently concluded that there had been no violation of Article 17 § 1 of the Constitution. With regard to the applicant’s complaint under Article 24 of the Constitution of a serious procedural defect due to a failure to give reasons for the decisions, the Supreme Court found that the impugned judicial decision contained sufficient reasons and was not arbitrary. 21. The applicant then lodged an amparo appeal with the Constitutional Court on the basis of Article 17 § 1 of the Constitution (right to liberty) and Article 5 § 1 of the Convention. In a decision of 30 October 2000, which was served on 16 November 2000, the Constitutional Court dismissed the appeal for want of a constitutional basis, finding that the impugned decisions contained sufficient reasons and were not arbitrary. It stated: “The appellant’s amparo complaints – that house arrest violated his right to liberty (Article 17 § 1 of the Constitution) as it is not a prescribed penalty for members of the Civil Guard such as the appellant who are members of the security, not the armed, forces and that the procedure for imposing such a deprivation of liberty was not complied with – are manifestly ill-founded. The penalty for minor breaches of the regulations is laid down in Basic Law no. 11/1991 and was imposed in accordance with the statutory procedure, which is different from the procedure applicable to confinement in a disciplinary institution. Accordingly, neither the decisions imposing the penalty nor the military courts, which found that the penalty was in accordance with the law, have been guilty of any constitutional violation of the ordinary law. The same applies to the allegations by the applicant of a violation of Article 5 § 1 of the Convention. He maintained that the Spanish State’s reservation in respect of that provision cannot be applied to him as a member of the security forces because Basic Law no. 11/1991 defines the disciplinary regime applicable to the Civil Guard as being that of an armed military establishment (section 1).” “Everyone shall have the right to liberty and security. No one may be deprived of his or her liberty other than in accordance with the provisions of this Article and in the circumstances and manner provided by law.” 22. By an instrument dated 26 September 1979, Spain ratified the Convention subject to a reservation under former Article 64 of the Convention with respect to Articles 5 § 1 and 6 § 1 to the extent to which they might be incompatible with the provisions concerning the disciplinary regime of the armed forces set out in Chapter XV of Part II and Chapter XXIV of Part III of the Code of Military Justice. 23. The Code of Military Justice was repealed and replaced by Basic Law no. 12/1985 of 27 November 1985 on the disciplinary regime of the armed forces, which came into force on 1 June 1986 and applies to both the Civil Guard and the armed forces. 24. When that change was made, the Permanent Representative of Spain at the Council of Europe declared on 28 May 1986: “At the time of deposit of the instrument of ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms, on 29 September 1979, Spain formulated a reservation to Articles 5 and 6 to the extent to which those Articles might be incompatible with the provisions of the Code of Military Justice – Chapter XV of Part II and Chapter XXIV of Part III – concerning the disciplinary regime of the armed forces. I have the honour to inform you, for communication to the Parties to the Convention, that these provisions have been replaced by Basic Law no. 12/1985 of 27 November – Chapter II of Part III and Chapters II, III and IV of Part IV – on the disciplinary regime of the armed forces, which will come into force on 1 June 1986. The new legislation amends the former provisions by reducing the duration of the sanctions imposing deprivation of liberty which can be applied without judicial intervention by increasing the guarantees of persons during the preliminary investigation. Spain confirms nevertheless its reservation to Articles 5 and 6 to the extent to which those Articles might be incompatible with the provisions of Basic Law no. 12/1985 of 27 November – Chapter II of Part III and Chapters II, III and IV of Part IV – on the disciplinary regime of the armed forces, which will come into force on 1 June 1986.” “Under the supreme command of the King, the armed forces, composed of the army, the navy and the air force ...” 25. Basic Law no. 12/1985, whose entry into force was notified to the Council of Europe (see Part B above), was expressly repealed by Basic Law no. 8/1998 of 2 December 1998 on the disciplinary regime of the armed forces. “The State security forces ... are composed of: (a) the police force, which is an armed civil institution ... (b) the Civil Guard, which is an armed military institution ...” “(1) By reason of its status as an armed military institution, the Civil Guard shall be subject to specific rules in disciplinary matters ...” “... the disciplinary rules currently [in 1989] applied to the Civil Guard are those applicable to the armed forces. However, this arrangement is only operative ‘until specific rules are issued’ and the legislation contemplated in section 15(1) of Basic Law no. 2/1986 and prior to that in section 38(2) of Basic Law no. 6/1983 cannot be left in abeyance indefinitely by allowing the transitional application of the military disciplinary regime to continue for an indefinite period ...” 26. Further to the Constitutional Court’s judgment no. 194/1989 of 16 November 1989 (see section D.2 above), Basic Law no. 11/1991 of 17 June 1991 on the disciplinary regime of the Civil Guard was passed “to fulfil the legislative commitments and constitutional requirements adequately and without delay in order to ensure the proper functioning of the Civil Guard in the service of society” (explanatory note). The explanatory note to Law no. 11/1991 also states: “... owing to the nature of the Civil Guard, an armed military institution, and therefore to the need for it to have its own disciplinary regime distinct from that of other State security forces, the application of the armed forces’ regime to the Civil Guard must, as the Constitutional Court indicated in its judgment of 16 November 1989, be regarded as a purely temporary arrangement. The Constitutional Court stated that this situation, which is permissible for a transitional period, cannot continue permanently with the Civil Guard being bound by the rules applicable to the armed forces until specific rules or arrangements are put in place. In the same judgment, the Constitutional Court indicated that the establishment of disciplinary rules specific to the Civil Guard must be a priority objective that cannot remain in abeyance indefinitely and that it is for the legislature ... to clarify the imprecision in the legislation concerning the disciplinary regime of the Civil Guard ...” The relevant provisions of Law no. 11/1991 read as follows: “Minor breaches of the regulations are: (27) All breaches not mentioned in previous legislation that constitute a minor breach of the duties imposed by the provisions governing the activities of the Civil Guard.” “The penalties which may be imposed for minor breaches are: – an administrative reprimand (administrative admonishment), – loss of between one and four days’ leave, – house arrest of between one and thirty days.” “House arrest of between one and thirty days consists of a restriction of liberty requiring the offender to live at home throughout the stipulated period. He or she may take part in the activities of his or her unit and shall remain at home for the rest of the time.” “Disciplinary penalties shall be enforceable immediately and the lodging of an internal or judicial appeal shall have no suspensive effect.” “... the Constitutional Court must point out that house arrest constitutes a genuine deprivation, not simply a restriction, of liberty, so that one day’s house arrest would constitute a violation of personal liberty contrary to Article 17 § 1 of the Constitution, which authorises deprivation of liberty only where prescribed by law.” “... In conclusion, the Assembly considers it advisable and even necessary that the number of reservations made in respect of Council of Europe conventions be considerably reduced. It accordingly recommends that the Committee of Ministers, A. with regard to Council of Europe conventions which have already been concluded: i. invite member States to make a careful review of their reservations, withdraw them as far as possible and make a reasoned report to the Secretary General if certain reservations are maintained; ...”

dev

001-68707

ENG

FIN

ADMISSIBILITY

JARVI-ERISTYS OY v. FINLAND

Inadmissible

Nicolas Bratza

The applicant, Järvi-Eristys Oy, is a Finnish limited liability company. Before the Court it was represented by Jouko Kauppila, a lawyer practising in Pori. The respondent Government were represented by their Agent, Arto Kosonen, Director in the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows. In October 1993 the applicant bought 38 tons of copper in Russia and paid for it in cash with US dollars. During the customs clearance the Finnish customs authorities found that the information noted in a bill of consignment was false insofar as the identity of the seller company and the buyer company were concerned. Furthermore, a certain other company was mentioned in the false documents as a forwarding company. The signature of M.M., operational manager of that company, had been forged in those documents. None of these companies had anything to do with the freight. It also appeared that the seller did not have a licence to sell the copper even though such a licence was obligatory when exporting copper from Russia. The Finnish customs issued a prohibition of transfer of the copper and reported the case to the police. It appears that in December 1993 the Russian authorities announced that the copper had been stolen in Russia. The owner of the applicant company was suspected of aggravated concealment of illegally obtained goods and of having forged the bill of consignment. On 7 June 1994 the Russian customs authorities informed the Finnish police that the Russian company which purported to sell the copper to the applicant did not exist. The Russian managing director who had supposedly signed the contract and the company from which the Russian seller had purported to buy the copper did not exist, either. As the copper had not been sold legally in Russia and as it had been illegally exported to Finland, the Russian authorities claimed that the Russian Federation was its legal owner and that it had to be returned to Russia. By a letter of 29 July 1994, Inspector K. from the Police District of Kotka informed the Finnish customs that according to the pre-trial investigation carried out into the matter, and on the basis of reports obtained from Russia concerning the identification of the copper, the Russian Federation was the legal owner of the copper. He stated that there were no obstacles on the part of the police to returning the copper to its legal owner. The applicant argued that the letter had the character of a decision. The Government argued that the purpose of the letter was to communicate information to the custom authorities. On 13 October 1994, after the pre-trial investigation had been completed, the matter was transferred to a public prosecutor for consideration of charges. On 30 January 1995 the public prosecutor decided not to prosecute the owner of the applicant company as there was no evidence supporting the allegations that the copper had been stolen or that he had known that the bill of consignment had been forged. Meanwhile, in May and October 1994 the applicant company instituted civil proceedings before the Kotka District Court (käräjäoikeus, tingsrätten) against the State of Finland and the Russian Federation, respectively, requesting that the prohibition of transfer be revoked and that the District Court confirm that the applicant company was the legal owner of the copper. In its decision of 20 October 1995 the District Court found that it was not competent to examine the request that the prohibition of transfer be revoked. As to the ownership issue the District Court considered, taking into account that no one had ever claimed that the State of Finland was the legal owner of the copper, that it could not be considered a party to the proceedings. Thus, the claims made against the State of Finland could not be examined. Insofar as the Russian Federation had claimed the ownership of the copper but had not made any submissions to the District Court, the court found that it had no competence to examine an issue concerning a foreign State's ownership rights, being prevented by the international principles concerning the foreign sovereign states' immunities. It appears that the applicant company appealed and that on 27 June 1996 the Kouvola Court of Appeal (hovioikeus, hovrätten) upheld the decision. Meanwhile on 23 October 1995, the applicant company requested that the customs authorities hand over the copper. The same day the forwarding agency informed the applicant company that the copper had been sold on to a Finnish company by the Russian Federation in co-operation with the Finnish customs. On 5 December 1995, the applicant company instituted civil proceedings for public-sector liability for damages under the Tort Liability Act (vahingonkorvauslaki; skadeståndslagen; 412/1974) against the State of Finland, claiming the amount of 463,000 Finnish marks (equivalent to EUR 77,871) as compensation for the lost copper. It argued that the State was liable for the damage as a police officer, K., when acting as public authority, had overstepped his powers in ordering that the copper be returned to Russia even though there was no proof that it had been stolen. On 24 May 1996 the Pori District Court rejected the applicant's claims, finding that the police officer in question had been entitled to agree with the findings of the Russian authorities that the copper had been stolen, having regard to the fact that the bill of consignment was forged, that the purchase price amounted to only about one fourth of the copper's real value and was paid in cash, that the company's representative did not know the identity of the seller's representatives, that the driver had been instructed to visit the customs authorities at a precise time and that the applicant company's representatives had not contacted the seller to sort things out following the prohibition of transfer. These circumstances warranted the conclusion that there was something shady and secret about the purchase. The wording of the police officer's communication to the customs indicating that there was no obstacle to returning the copper to Russia did not, however, decide the question of the ownership of the copper. As the copper had most probably been stolen in Russia, the applicant company had, in accordance with section 11 of the Decree Implementing the Penal Code (rikoslain voimaanpanemisesta annettu asetus, förordningen om införande av strafflagen), been obliged to return the copper to its legal owner without compensation. In accordance with the said provision, the applicant was entitled to seek compensation from the seller of the copper or from the person who had stolen it. Insofar as the State had argued that the applicant company, prior to commencing an action for compensation, should have appealed against the customs' decision with a view to minimising any possible damage, the District Court noted that the applicant had no interest in demanding a written decision as to the refusal to customs clear the copper delivery and to appeal against such a decision, as the company had considered that the customs' actions so far had been justified. On 4 February 1997 the Turku Court of Appeal upheld the District Court's judgment. On 5 September 1997 the Supreme Court refused the applicant leave to appeal. Section 11 (515/1948) of the Decree Implementing the Penal Code reads, in so far as relevant, as follows: “If a dispute arises concerning an item that has been stolen, ... from its previous holder, and if the one who has become the holder of the item proves that he received it in good faith, the holder of the item in dispute shall be obliged to hand it over without compensation and may seek compensation from the person he received the item from or from the person through whose offence he received it.” According to the amended section 48 (1165/1987; as in force at the relevant time) of the Customs Act (tullilaki, tullagen), a decision of the district customs office could be appealed against to the National Board of Customs. According to section 50 of the Customs Act, unless otherwise provided, a decision of the National Board of Customs may be appealed against to the Supreme Administrative Court in accordance with the provisions of the Act on Appeals in Administrative Matters (muutoksenhausta hallintoasioissa annettu laki, lagen om ändringssökande i förvaltningsärenden; 154/50), as in force at the relevant time. According to section 8 (f) of the Customs Act (573/1978), as in force at the time, a person had the right of possession of goods if he was their importer, exporter or owner or otherwise had possession or control over the goods. According to section 9 (2) of the Customs Decree (574/1978; tulliasetus, tullförordningen), as in force at the time, the customs authorities had to ensure, to the extent possible, that the goods were delivered to the person who has a lawful right of possession in respect of them. According to chapter 3, section 4 of the Tort Liability Act a person, who has suffered injury or damage owing to an erroneous decision by a state or municipal authority and without an acceptable reason has failed to appeal against the said decision, shall not be entitled to damages from the state or the municipality for injury or damage that could have been avoided by appealing.

dev

001-92969

ENG

CZE

ADMISSIBILITY

DES FOURS WALDERODE v. THE CZECH REPUBLIC

Inadmissible

The applicant, Mr Karel Des Fours Walderode, was a Czech and Austrian national. He was born in 1904 and died on 6 February 2000. On 25 February 2000 the applicant's widow, Mrs Johanna Kammerlander, took her late husband's place in the proceedings before the Court. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant's stepmother and his two stepbrothers, all German nationals, owned real estate in former Czechoslovakia. In 1945 the property was confiscated under Presidential Decrees nos. 12/1945 and 108/1945, which entered into force on 21 June and 25 October 1945 respectively. The applicant's stepmother died in 1955 leaving her real estate to the applicant, and conferring the succession rights of her deceased sons on the applicant. She had never acquired Czechoslovak citizenship. The applicant left Czechoslovakia in 1949, thereby forfeiting his Czechoslovak citizenship, and returned in 1991. He was granted Czech citizenship in August 1992. On 14 July 1992 the applicant lodged a claim for restitution of the property confiscated from his stepmother and stepbrothers under Presidential Decree no. 12/1945 and which had been sold by his father before the Second World War. He referred to the Land Ownership Act of 1991, claiming that he had inherited the property. On 6 February 1995 the Jablonec nad Nisou Land Office, referring to the documentary evidence, dismissed his claim on the ground that his stepmother and stepbrothers had not been loyal to the Czechoslovak State during the German occupation and had not acquired Czechoslovak citizenship after the Second World War. It found, with reference to section 2(1) of the Restitution Act 1992, that the applicant was not the owner of the property, as his stepmother and stepbrothers had not satisfied the requirements for restitution, and that the applicant's claim in respect of his father's former property fell outside the scope of the restitution legislation. On 16 April 1996 the Municipal Court, having assessed a substantial amount of documentary evidence and having heard the parties to the dispute, upheld the Land Office's decision. It stated, inter alia, that under Article 819 of the General Civil Code of 1811 an heir acquired an estate only upon its distribution; thus the dates of the acquisition of the estate and the death of a testator were different. In fact, from the death of a testator until the time of distribution of the estate, the property was to be regarded as hereditas iacens. According to the court, real estate could be lawfully confiscated in the period between the death of the testator and the time of acceptance of the estate by an heir. The court held that the property at issue had been confiscated ex lege by Presidential Decree no. 12/1945 from the applicant's stepbrothers, German nationals, after they had died but whilst they had still been the notional owners of the estate. As the original owners, including the applicant's stepmother, had not reacquired Czech citizenship as provided for in section 2(1) of the Restitution Act 1992, the applicant could not be considered to be entitled to restitution. On 5 June 1997 the Constitutional Court dismissed a constitutional appeal by the applicant as unsubstantiated, stating in particular that, under the Civil Code of 1811, which had been applicable at the relevant time, an heir acquired the estate upon its distribution. In the present case the time of acquisition of the estate and the death of the testator did not fall within the same period. In order to transfer the estate to an heir, special proceedings before the national courts had to be instituted of the court's own motion. If such proceedings were not instituted, the estate was hereditas iacens until delivery of a court judgment. Heirs who wished to acquire the estate had to submit an application within the framework of those proceedings. The estate was considered to remain in the possession of the testator until acquired by an heir. The court observed that, in the present case, the confiscation had taken place when the applicant's stepbrothers died. However, the estate had not yet been administered by the national authorities and, therefore, the applicant had not acquired the property at issue. Moreover, as the stepbrothers had not been entitled to claim restitution of the property under the Land Ownership Act, and since the applicant's stepmother had been of German origin and had never acquired Czechoslovak citizenship, the applicant himself was not entitled to claim restitution pursuant to this Act. (a) In 1995 the applicant instituted inheritance proceedings in Germany in respect of the property claimed in the above restitution proceedings. On 7 June 1995 two certificates of succession were issued to the effect that the applicant was the universal heir of his stepbrothers. (b) On 3 March 1995 the relevant German authority issued a document certifying that the applicant's stepbrothers had not served in the SS. (c) The applicant was the owner of real estate in Hrubý Rohožec. This was confiscated from him under Presidential Decree no. 12/1945. In August 1945 the former local authority acknowledged the confiscation and granted him leave to appeal to the Prague National Land Committee. (d) On 2 November 2001 the United Nations Human Rights Committee, considering the applicant's communication (no. 747/1997) concerning the Hrubý Rohožec real estate, held that Article 26 of the International Covenant on Civil and Political Rights, read in conjunction with Article 2 of the Covenant, had been violated by the Czech Republic.

dev

001-104096

ENG

LVA

ADMISSIBILITY

KOSTJUCENKOVS v. LATVIA

Inadmissible

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

1. The applicant, Mr Māris Kostjučenkovs, is a Latvian national who was born in 1979. At the time of submitting his complaint he was serving a prison sentence in Daugavpils prison. The Latvian Government (“the Government”) were represented by their Agent, Mrs Inga Reine. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 1 October 2003 the Saldus District Court found the applicant guilty of burglary and sentenced him to six years and six months’ imprisonment. On 6 February 2004 the judgment came into force. 4. According to the applicant, immediately after his arrival at Liepāja prison he met “enemies” who threatened to subject him to ill-treatment throughout his stay at the prison. Without providing further details in his letter sent on 20 August 2004 and received by the Court on 24 August 2004, the applicant alleged that the threats had been carried out on 11 October 2003 when, inter alia, he had refused to cooperate with police investigators. 5. It appears that on 29 December 2003 he complained to the Specialized Public Prosecutor’s Office (“the prosecutor’s office”) and asked to be transferred to special detention facilities in Matīsa prison. 6. The prosecutor’s office forwarded the aforementioned complaint to the Prison Administration, which on 21 January 2004 and 4 February 2004 informed the applicant that his transfer to another prison would be examined after the entry into force of a final judgment in his criminal case. It appears that on 9 February 2004 the applicant received this decision. 7. At a later date the applicant asked the Prison Administration to transfer him to Jelgava prison, and on 22 February 2004 the applicant was transferred there. 8. In response to the Court’s request to specify his complaint concerning ill-treatment in Liepāja prison, on 3 December 2004 the applicant informed the Court, without providing any further details, that in Liepāja prison he had been ill-treated in June 2003, but that he had not retained any documents relating to the matter. He asked the Court to examine only his complaints under Article 6 of the Convention. In a letter received by the Court on 7 March 2005 the applicant alleged, without substantiating his allegations, that he had been ill-treated in Liepāja temporary detention centre, and that on 14 February 2004 his complaint in that regard had been dismissed by the prosecutor’s office. 9. On an unspecified date in cell no. 103 of Jelgava prison the inmates had threatened to sexually assault the applicant because he had cooperated in the past with law-enforcement authorities. He had accordingly been moved to another cell. 10. On 31 August 2004 he had been transferred to a cell which his fellow inmates had refused to share with him. They had asked him to leave. Accordingly, the applicant had refused to stay in the cell, for which he had received a warning from the prison staff, and had been moved to another cell. 11. At a later stage, he had been put into yet another cell, where he had had a dispute with a prison guard. For that incident, he had been punished on 10 February 2005 with fifteen days of solitary confinement. 12. After being punished, the applicant had been moved to another cell which the inmates had refused to share with him. He had then been moved to another cell. 13. In March 2005 he had been transferred to a cell in another part of the prison (division 5). In that cell, another inmate, S., had beaten up the applicant. On 30 March 2005 S. had been punished for that with solitary confinement. The applicant alleged that after having finished his time in solitary confinement, S. had again been put in the same cell as him. 14. On 5 April 2005 the applicant had been on duty in the cell. Other inmates had refused to comply with legitimate requests made by the applicant and had made him leave the cell. The prison officers had refused to transfer him to another cell, even in the event that they had accepted that the other inmates had “attempted to subject him to psychological and physical ill-treatment”. On the same day, the applicant had been punished with solitary confinement for bullying a cellmate. 15. After having been punished in the manner noted above, the applicant had been transferred to cell no. 211 in division 7, where the inmates had allegedly humiliated him and had taken his jacket and shoes. 16. On 10 February 2005 in a complaint to the Office of the Prosecutor the applicant alleged that he had refused to cooperate with investigators, and that one of the officers, K., in Jelgava prison had placed him in cells where the other inmates had physically ill-treated and bullied him. 17. On an unspecified date the applicant complained to the Prison Administration of the fact that he had never been transferred to cells with a peaceful environment. He also complained that he had been continuously transferred from one cell to another without any explanation or justification. 18. In February 2005 a prosecutor visited the applicant and asked the director of the Jelgava Prison to comment on the matter. The director had stated that he had never threatened the applicant, who had himself created problems by attempting to sexually assault fellow inmates. On 17 February 2005 the prosecutor dismissed the applicant’s complaint, noting that the allegations had not been proved and that there had not been any threats to the applicant’s life and health. The decision was subject to appeal. The letter also informed the applicant that the Office of the Prosecutor was not empowered to decide on issues concerning the transfer of prisoners from one prison to another, and that that issue was within the competence of the Prison Administration. 19. On 11 April 2005, after having examined the applicant’s personal file, the director of the Jelgava prison established that the applicant had had conflicts with other inmates “due to illegal activities”, for which it had not been possible to place the applicant either in a cell or in common premises. Accordingly, he proposed that the Prison Administration to transfer the applicant to another prison for safety reasons. 20. On 21 April 2005 the applicant was transferred to Daugavpils prison to serve his prison sentence there. 21. On 27 June 2005, while serving his prison sentence in Daugavpils prison, the applicant complained to the Prison Administration about the warning he had been given by way of administrative punishment on 31 August 2004 in Jelgava prison (see paragraph 10 above). 22. On 5 July and 17 August 2005 the Prison Administration informed the applicant that the administration of Jelgava prison had not violated either any provisions of domestic law or the internal rules of the prison. As to the applicant’s complaint of stolen belongings, the Prison Administration had obtained information from Jelgava prison to the effect that in April 2005, after the applicant’s release from solitary confinement, his belongings had been returned to him, that this had been certified by his signature, and that the applicant had not raised any complaints in that regard. 23. During the applicant’s stay in Jelgava prison, he had violated prison rules five times and he had been punished for having damaged prison property, insulting a prison officer and bullying other prisoners. The applicant had been transferred to another cell seven times. 24. While in Daugavpils prison, the applicant had been transferred several times at the request of his cellmates from one cell to another, as he had been constantly creating conflicts by trying to dominate his cellmates. 25. In September and October 2006 the applicant asked the Prison Administration to transfer him to serve his prison sentence in either of Liepāja or Pārlielupe prisons, arguing that that would allow him to receive visits from his underage daughter more easily and to avoid physical and verbal ill-treatment from other inmates. 26. On 24 October 2006 the request was granted by the Prison Administration and the applicant was transferred to Pārlielupe prison. The decision to transfer referred to the applicant’s conflicts with other inmates and to the fact that he had not been able to receive visits from his relatives. 27. Since 1987 the applicant had been regularly assessed by a psychiatrist owing to minor learning difficulties (viegla garīga atpalicība). In 1995 a forensic medical expert determined that the applicant was legally responsible. He was also excluded from the register of persons suffering from mental diseases. It appears that in prison the applicant was assessed by a psychiatrist and, when necessary, received psychiatric treatment. 28. Per a medical report from Jelgava prison, it appears that on 10 February 2005, before being placed in solitary confinement, the applicant was examined by a doctor at the request of prison officers. The doctor did not observe any injuries to the applicant. The applicant did not require medical assistance whilst in Jelgava prison on any other occasions. 29. On 25 April 2005, after having arrived at Daugavpils prison, the applicant was examined by a prison doctor, who observed that the applicant presented no health complaints or bodily injuries. 30. On 23 September 2006 the applicant asked for medical assistance as he had sustained bodily injuries – namely, two hematomas, which did not in the end require medical treatment. The applicant did not request medical assistance whilst in Daugavpils prison on any other occasions. 31. In October and November 2006 the applicant requested medical assistance whilst in the Central and Pārlielupe prisons, as he had been beaten by other inmates and as a result had sustained facial bruises. 32. The report to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 5 to 12 May 2004 notes the following: “42. ... As was the case in 2002, a number of allegations were heard in both establishments [Daugavpils Prison and Rīga Central Prison] that prisoners had been threatened by members of the establishments’ Security Departments that they would be placed in cells with inmates prone to violence, if they refused to co-operate with the Security Department (i.e. to act as an informant or to confess to a criminal offence). In the CPT’s view, such practices can easily be described as psychological ill-treatment (see also paragraphs 48 to 50). No allegations of physical/psychological ill-treatment or verbal abuse by staff were heard at Jelgava Prison.” 33. The relevant provisions of the Code of Criminal Procedure (Latvijas Kriminālprocesa Kodekss), applicable at the material time (in force until 1 October 2005), Criminal Law (Krimināllikums) and Law on the Prosecutor’s Office (Prokuratūras likums) are found in Bazjaks v. Latvia (no. 71572/01, §§ 40-42, 19 October 2010).

dev

001-91650

ENG

UKR

ADMISSIBILITY

PANCHENKO v. UKRAINE

Inadmissible

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant, Mr Igor Vasylyovych Panchenko, is a Ukrainian national who was born in 1965 and lives in Kyiv. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Yuriy Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 December 1994 the applicant bought a flat belonging to a certain I. For the seller’s part, the contract was signed by a certain G. acting as I.’s agent. On March 1995 I. instituted proceedings in the Minskyy District Court of Kyiv (the “Minskyy court”) against the applicant seeking invalidation of the above contract of sale, alleging that it had been concluded without his knowledge and against his will. The applicant, in his turn, lodged a counter-claim for eviction of I. from the flat. In a judgment of 25 April 1996 the court found for I. On 24 July 1996 the Kyiv City Court (the “Kyiv court”) upheld that judgment. On 4 February 1997 the Deputy President of the Supreme Court, following the applicant’s request, lodged a protest with the Presidium of the Kyiv court, seeking initiation of supervisory review proceedings in the case. On 3 March 1997 the Presidium allowed the protest, quashed the decisions of 25 April and 24 July 1996, and remitted the case for fresh consideration. On 15 December 1998 the Minskyy court found for I. By a ruling of 29 January 1999 it rejected the applicant’s objections as to the accuracy of the minutes of the court hearings. On 25 October 1999 the Deputy Prosecutor of Kyiv, following the applicant’s request, lodged a protest with the Presidium of the Kyiv court, seeking initiation of supervisory review proceedings in the case. It remains unknown whether the Presidium considered the merits of the protest. On 24 November 1999 the Minskyy court quashed the ruling of 29 January 1999 in the light of unspecified newly discovered circumstances, and accepted the applicant’s objections to the minutes of the court hearings, which had previously been rejected. It also quashed the judgment of 15 December 1998. On 31 October 2000 the Minskyy court granted the applicant’s counterclaim and ordered I.’s eviction from the flat. On 22 November 2000 the court adopted a supplementary decision by which it rejected the applicant’s claim seeking to invalidate I.’s ownership certificate received in 1994. On the same date, the court referred the applicant’s criminal complaint against I. to the prosecution. On 27 December 2000 the Kyiv court upheld the judgment of 31 October 2000, but quashed the ruling of 22 November 2000 and partially amended the supplementary decision adopted on the same day. On 15 March 2001 I. was evicted from the disputed flat. On 19 April 2001 the Chairman of the Kyiv court lodged a supervisory review protest with the same court, seeking re-examination of the case. He submitted, inter alia, that the courts had failed to give due regard to I.’s references to the ongoing criminal investigations into the matter. On 24 April 2001 the applicant sold the flat to a certain M. On 28 May 2001 the Presidium of the Kyiv court allowed the above supervisory review protest and quashed the decisions of 31 October and 27 December 2000, remitting the case to the Minskyy court for further consideration. On 11 October 2001 a three-judge panel of the Supreme Court rejected the applicant’s appeal in cassation against the above ruling of the Presidium of the Kyiv court. On 8 February 2002 the applicant unsuccessfully requested the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”), which was examining the case in the first instance, to suspend the proceedings pending the outcome of the criminal investigation. In a judgment of 25 April 2002 the Kyiv Court of Appeal decided in the applicant’s favour. On 19 February 2003 the Supreme Court upheld the judgment. The relevant domestic law is stated in the Court’s partial decision in the present case adopted on 3 April 2006.

dev

001-75997

ENG

LVA

CHAMBER

CASE OF KAFTAILOVA v. LATVIA

Violation of Art. 8

Christos Rozakis

9. The applicant, who is of Georgian origin, was born in 1958 in Georgia and has lived in Riga (Latvia) since 1984. She was a Soviet national until 1991 and now has no nationality. 10. In 1982 the applicant, who was living in Russia at the time, married a Soviet civil servant employed by the USSR Ministry of the Interior. In 1984 the couple had a daughter, born in Russia. In the same year the applicant and her family settled in Latvian territory. 11. In 1987 the applicant’s husband was granted the right, in a professional capacity, to rent a room in a “duty residence” in Riga. In July 1988 he exchanged the accommodation he had previously been renting in Kazan (Russia) for the right to rent a State-owned flat in Riga. He and his family moved in straight away. 12. On 16 March 1990 the applicant cancelled her formal registration of residence (known at the time as пропucкa in Russian and pieraksts or dzīvesvietas reģistrācija in Latvian) in Volzhsk (Russia). On 16 April 1990 the applicant’s husband registered her, without her knowledge or consent, as resident at the family’s new address in Riga. In August 1990 he registered his own residence at that address. 13. In the meantime, in May 1990, the applicant lodged a complaint with the relevant local authority concerning her residence registration, arguing that her husband had registered her residence unlawfully without informing her. Consequently, on 15 June 1990, her name was removed from the register in question. Her minor daughter, however, continued to be registered at her father’s address until October 1994. In October 1990 the applicant and her husband divorced. 14. In August 1991 Latvia regained full independence. In December 1991 the Soviet Union, the State of which the applicant had hitherto been a national, broke up. The applicant therefore became stateless. 15. By a final judgment of 3 February 1993 the Riga City Vidzeme District Court granted the applicant the right to rent the room obtained by her former husband in a “duty residence” in 1987. Shortly afterwards, still in February 1993, the applicant requested the Interior Ministry’s Nationality and Immigration Department (Iekšlietu ministrijas Pilsonības un imigrācijas departaments – “the Department”) to enter her name in the register of residents (Iedzīvotāju reģistrs) as a permanent resident of Latvia. In her request, however, she gave the address at which her ex-husband had unlawfully registered her, rather than the address in Riga at which she then lived. The Government explained that this had been a case of mistaken interpretation of the law on the register of residents, one which had had farreaching consequences, having led to the loss of the applicant’s legal status in Latvia. 16. The Department granted the applicant’s request. In March 1993 her daughter obtained the same registration as her mother. However, by a decision of 21 July 1993, the Department cancelled the applicant’s registration on the ground that the stamp in her passport was false. The file was immediately forwarded to the Kurzeme district prosecutor who, in a decision of 17 January 1994, decided not to institute criminal proceedings against the applicant. The prosecutor found that the registration stamp was authentic, but had been placed in the passport by the authorities in breach of the relevant regulations. The prosecutor concluded that, although the applicant’s registration of residence was not valid, she could not be charged with forgery or use of forged documents. 17. On 15 February 1994 the Department removed the applicant’s name from the register of residents and cancelled her personal identification code (personas kods). On 21 September 1994 the same action was taken in respect of the applicant’s minor daughter. 18. On 30 November 1994 the Civil Division of the Supreme Court allowed a third-party appeal by the Prosecutor General’s Office and quashed the final judgment of 3 February 1993 concerning the applicant’s right to rent the room she was living in. The case was therefore referred back to the Riga City Vidzeme District Court, which, in an order of 29 December 1999, decided “not to examine the case”. 19. On 9 January 1995 the Department served a deportation order (izbraukšanas rīkojums) on the applicant, ordering her to leave Latvia with her daughter by 15 January 1995. The Department had discovered that, on 1 July 1992, the decisive date laid down by the Aliens and Stateless Persons (Entry and Residence) Act (“the Aliens Act”), the applicant had not had an officially registered permanent residence in Latvia. Under the terms of the first paragraph of the Supreme Council’s decision on the arrangements for entry into force and application of that Act (see paragraph 40 below), she ought therefore to have applied for a residence permit within one month of the date of entry into force, failing which she would be made the subject of a deportation order; the applicant, however, had omitted to do this. 20. Having lodged an administrative appeal with the head of the Department, without success, the applicant applied to the Riga City Vidzeme District Court seeking to have the order for her deportation set aside and to have her name re-entered in the register of residents. 21. By a judgment of 26 April 1995 the court of first instance rejected the application. The court found that, since the registration of the applicant’s residence in Riga had never been valid, she did not fall within the scope of the Act on the Status of Former USSR Citizens without Latvian or other Citizenship (“the Non-Citizens Act”); she was therefore illegally resident in Latvia. The applicant lodged an appeal on points of law against this judgment with the Supreme Court. The latter, in a final judgment of 19 May 1995, dismissed the appeal on the same grounds as the lower court. 22. In March 1997 the applicant made a fresh application for a residence permit to the Department; the application was rejected. 23. Following the entry into force on 25 September 1998 of amendments to section 1 of the Non-Citizens Act, the applicant requested the head of the Interior Ministry’s Nationality and Migration Directorate (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde – “the Directorate”), which had succeeded the Department, to regularise her stay in accordance with the Non-Citizens Act. When her request was refused, she lodged a fresh application with the Riga City Central District Court. In her memorial she stressed in particular that she had been living in Latvia for sixteen years and that she and her daughter had no other country to move to. 24. In a judgment of 8 September 1999 the district court rejected the application. It held that the applicant did not satisfy the conditions laid down in section 1(1) of the Non-Citizens Act since, on 1 July 1992, she had not had a valid registration of residence in Latvia. Furthermore, on that date, she had been resident in Latvian territory for only eight years rather than the required ten years. With specific regard to whether the registration of the applicant’s residence in Latvia was null and void, the court referred to the arguments and findings set out in the Supreme Court judgment of 19 May 1995, which had become final. 25. The applicant appealed against the judgment before the Riga Regional Court. In a judgment of 15 May 2000 following adversarial proceedings, the regional court also found against the applicant, endorsing in substance the reasoning of the court of first instance. The applicant then lodged an appeal on points of law with the Senate of the Supreme Court. In a final order of 10 July 2000 the Senate, in a preparatory sitting (rīcības sēde) held in private, declared the appeal inadmissible for lack of arguable legal grounds. 26. Meanwhile, on 6 July 2000, the applicant made a third application for regularisation to the Directorate, requesting it to grant her “the right to reside legally in Latvia”. Her application was rejected. 27. In a letter of 22 September 2000 to the Interior Ministry, the director of the National Human Rights Bureau (Valsts cilvēktiesību birojs) expressed support for the applicant’s cause and requested the Ministry to regularise her stay in Latvia. The letter received no reply. 28. In August 2001 the head of the Directorate decided to reopen the file concerning the applicant’s daughter, who was then seventeen. He noted in particular that, on 1 July 1992, she had been registered at her father’s address as a “permanently resident non-citizen” of Latvia, and that she therefore fulfilled the requirements of section 1 of the Non-Citizens Act. Accordingly, in October 2001, the Directorate issued the applicant’s daughter with a passport based on the status of “permanently resident noncitizen”, re-entered her name in the register of residents and gave her a new personal identification code. 29. By Decree no. 820 of the Cabinet of Ministers of 24 December 2003, the applicant’s daughter became a naturalised Latvian citizen (paragraph 1.105 of the Decree). 30. On 7 January 2005 the Directorate sent a letter to the applicant which read as follows: “ ... The Directorate ... has taken note of the final decision of the European Court of Human Rights (First Section) ... on the admissibility of the application in the case of Natella Kaftailova v. Latvia. The Directorate has explored the options currently available under Latvian legislation which might make it possible to regularise your stay in Latvia; it therefore invites you to take this opportunity to have your legal status in Latvia determined and to obtain a residence permit. On 9 January 1995 a deportation order was served on you under section 38 of the [Aliens] Act, requesting you to leave Latvian territory by 15 January 1995. The deportation order has not been enforced, nor have any measures been taken with a view to its enforcement. Section 360(4) of the Administrative Procedure Act ... currently in force stipulates that ‘an administrative act may not be enforced if more than three years have elapsed since it became enforceable’... In view of the fact that, under the previously existing rules, enforcement of the deportation order was not stayed, and that you did not comply with it, enforcement is no longer possible. The Status of Stateless Persons Act, in force prior to 2 March [2004], made no provision for granting stateless person status to persons illegally resident in Latvia. Accordingly, the Directorate did not invite you to submit the papers required to obtain that status. The Stateless Persons Act which entered into force on 2 March 2004 replaced the Status of Stateless Persons Act... The conditions for the granting of stateless person status laid down by the [new] Act differ from those contained in the [old] Act. Under Section 2(1) of the Stateless Persons Act, a person may be granted stateless person status ... if no other State has recognised him or her as a national in accordance with its own laws. Under section 3(1) of the Act, persons not covered by the Convention of 28 September 1954 relating to the Status of Stateless Persons cannot be recognised as stateless persons... In accordance with section 4(1) of the Stateless Persons Act, in order to be recognised as a stateless person, the individual concerned must submit to the Directorate: (1) a [written] application; (2) an identity document; (3) a document issued by a competent body in the foreign State, to be determined by the Directorate, certifying that the person concerned is not a national of that State and is not guaranteed nationality of that State, or a document certifying the impossibility of obtaining such a document. In view of the fact that you were born in Georgia and are of Georgian ethnic origin and the fact that, prior to your arrival in Latvia, you had been living in Russia..., it is essential ... to ascertain that you are not recognised as a national of the Republic of Georgia or of the Russian Federation or guaranteed the right to nationality of those countries in accordance with their laws. Accordingly, to enable us to take a decision granting you stateless person status, you must provide [us] with a document issued by the competent bodies in the Republic of Georgia and the Russian Federation to the effect that you are not a national of those countries and that you are not guaranteed the right to such nationality, or with a document certifying the impossibility of obtaining such a document. Under section 6(1) of the Stateless Persons Act, stateless persons must reside in Latvia in accordance with the rules laid down by the Immigration Act, that is to say, on the basis of a residence permit or, at least, a visa. Having considered the circumstances of your case, we are prepared, once we have determined your legal status and obtained the necessary documentation..., to address an opinion to the Minister of the Interior proposing that you be issued with a permanent residence permit, in accordance with section 24(2) of the Immigration Act...” 31. The Directorate then listed the documents to be submitted by the applicant to her local department and indicated the usual period of validity of each document. The letter went on as follows: “Once you have been recognised as a stateless person and been issued with a residence permit..., your personal data will be entered in the register of residents and you will receive a personal identification code. In the Directorate’s view, this is the only basis on which you can obtain a permanent residence permit, given the circumstances of your case... That being so, the Directorate, in addressing its opinion to the Minister of the Interior, will draw the Minister’s attention to the fact that issuing you with a permanent residence permit would be compatible with the aspects [sic] of a democratic society, while maintaining the fair balance to be struck between the restriction of individual rights and the benefits to society of that restriction. The aim is to ensure that you have the right to conduct your private and family life without hindrance. The Directorate would draw your attention to the fact that no one can be recognised as a stateless person or obtain a residence permit on a unilateral basis. You must therefore express a personal interest by making an application to that effect. In the view of the Directorate, ... the solution outlined above corresponds to your interests, would remove the threat of deportation in the future and would enable you to exercise your right to private and family life without any great restrictions; moreover, in accordance with the Nationality Act, you could aspire to Latvian citizenship by naturalisation. In view of the above, we invite you to contact the Directorate and submit the necessary documents to it, so that ... your legal status can be determined and ... the Minister of the Interior can take a decision on the issuing of a permanent residence permit. ...” At the end of the letter the Directorate gave the telephone numbers of the officials to whom the applicant should address any further queries concerning the regularisation of her status. 32. By Decree no. 75 of 2 February 2005, the Cabinet of Ministers instructed the Minister of the Interior to issue the applicant with a permanent residence permit “once the documents required to make such an application have been received” (Article 1). At the same time the Minister of Foreign Affairs was instructed to have the Court’s decision of 21 October 2004 on the admissibility of the present application translated into Latvian, and to have the translation published in the Official Gazette (Article 3). 33. It is clear from the applicant’s explanations that she did not take the steps indicated by the Directorate and that she continues to reside illegally in Latvia. 34. Latvian legislation on nationality and immigration distinguishes several categories of persons, each with a specific status. (a) Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act (Pilsonības likums); (b) “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the break-up of the USSR in 1991, but have not subsequently obtained any other nationality – who are governed by the NonCitizens Act (see paragraph 35 below); (c) asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums); (d) “stateless persons” (bezvalstnieki) in the narrow and specific sense of the term. Prior to 2 March 2004 their status was governed by the Status of Stateless Persons Act, read in conjunction with the Aliens Act (see paragraphs 36 and 39 below) and, after 1 May 2003, with the Immigration Act (see paragraph 41 below). Since 2 March 2004 their status has been governed by the new Stateless Persons Act (see paragraph 38 below), also read in conjunction with the Immigration Act; (e) “aliens” in the broad sense of the term (ārzemnieki), including foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens Act (before 1 May 2003), and the Immigration Act (after that date). 35. The relevant provisions of the Act of 12 April 1995 on the Status of Former USSR Citizens without Latvian or other Citizenship (Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības”) read as follows: [Version in force before 25 September 1998]: “This Act governs citizens of the former USSR resident in Latvia ..., who were resident within Latvian territory prior to 1 July 1992 and whose residence is registered there, regardless of the status of their housing, and who are not citizens of Latvia or any other State; it also governs the minor children of such persons who are not citizens of Latvia or any other State.” [Version in force since 25 September 1998]: “The persons governed by this Act – ‘non-citizens’ – shall be citizens of the former USSR who are resident in Latvia ..., and their children, who satisfy all the following criteria: (1) on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence on 1 July 1992 was in the Republic of Latvia; or a court has established that before the above-mentioned date they had been resident within Latvian territory for not less than ten years; (2) they do not have Latvian citizenship; (3) they are not and have not been citizens of any other State. ...” ... “... [N]on-citizens shall have the right: ... 36. The specific status of “stateless person” (bezvalstnieks) was established by the Status of Stateless Persons Act (Likums “Par bezvalstnieka statusu Latvijas Republikā”) of 18 February 1999. The Act remained in force until 2 March 2004, when it was replaced by the Stateless Persons Act (Bezvalstnieku likums) of 29 January 2004. 37. Section 2(1) of the 1999 Act read as follows: “The status of stateless person may be granted to persons whose status is not defined either by the Act on the Status of Former USSR Citizens without Latvian or other Citizenship or by the Asylum Act , provided they ... (2) are legally resident in Latvia.” 38. The relevant provisions of the new Stateless Persons Act read as follows: “In the Republic of Latvia, an individual may be recognised as a stateless person if no other State has recognised him or her as a national in accordance with its own laws.” “1. In the Republic of Latvia, an individual not falling within the scope of the Convention of 28 September 1954 relating to the Status of Stateless Persons may not be recognised as a stateless person. 2. An individual whose status is governed by the [Non-Citizens] Act may not be recognised as a stateless person.” “1. In order to be recognised as a stateless person, the individual concerned must submit to the [Directorate]: (1) a [written] application; (2) an identity document; (3) a document issued by a competent body in the foreign State, to be determined by the Directorate, certifying that the person concerned is not a national of that State and is not guaranteed nationality of that State, or a document certifying the impossibility of obtaining such a document. 2. Where the individual concerned is unable to produce one of the documents referred to in points 2 or 3 of the first paragraph, an official instructed by the head of the Directorate shall decide whether or not to grant him or her the status of stateless person. The decision shall be taken on the basis of information available to the Directorate supported by documentary evidence.” “... 3. The person [concerned] may appeal to the head of the Directorate against the decision [concerning the granting of stateless person status]. 4. The person [concerned] may lodge an application with the courts challenging the decision by the head of the Directorate.” “1. The stateless person shall reside in the Republic of Latvia in accordance with the provisions of the Immigration Act.” 39. The relevant provisions of the Aliens and Stateless Persons (Entry and Residence) Act of 9 June 1992 (Likums “Par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), in force prior to 1 May 2003, read as follows: “Any foreigner or stateless person shall be entitled to stay in the Republic of Latvia for more than three months [version in force since 25 May 1999: ‘more than ninety days in the course of one half of a calendar year’], provided that he or she has obtained a residence permit in accordance with the provisions of this Act. ...” “Aliens or stateless persons may be issued with... (1) a temporary residence permit; (2) a permanent residence permit. ...” “Permanent residence permits may be obtained by aliens who, on 1 July 1992, were officially registered as being resident for an indefinite period within the Republic of Latvia if, at the time of applying for a permanent residence permit, they are officially registered as being resident within the Republic of Latvia and are entered in the register of residents.” “No residence permit shall be issued to a person who ... (5) was deported from Latvia during the five years preceding the application; (6) has knowingly supplied false information in order to obtain such a permit; (7) is in possession of false or invalid identity or immigration documents; ...” “The head of the Directorate or of the regional office of the Directorate shall issue a deportation order... ... (2) if the alien or stateless person ... is in the country without a valid visa or residence permit; ...” “The individual concerned shall leave the territory of Latvia within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in accordance with this section. Persons in respect of whom a deportation order is issued may appeal against it within seven days to the head of the Directorate, who shall extend the residence permit pending consideration of the appeal. An appeal against the decision of the head of the Directorate shall lie to the court within whose territorial jurisdiction the Directorate’s headquarters are situated, within seven days after the decision has been served.” 40. The decision of the Supreme Council of the Republic of Latvia of 10 June 1992 on the arrangements for entry into force and application of the Aliens Act gave details of the scope of the Act. In particular, the first paragraph required foreign nationals and stateless persons resident in Latvia on the date of the Act’s entry into force, but with no permanent registration of residence, to apply for a residence permit within one month, failing which they would be served with a deportation order. 41. Since 1 May 2003 the Aliens Act cited above is no longer in force; it was repealed and replaced by the Immigration Act (Imigrācijas likums) of 31 October 2002. The relevant provisions of the new Act read as follows: “The present Act uses the following definitions: 1. an alien [ārzemnieks] – a person who is neither a Latvian citizen nor a “[permanently resident] non-citizen” of Latvia; ...” “In cases not covered by the present Act, a permanent residence permit shall be granted by the Minister of the Interior, where it accords with the interests of the State.” “... When the time-limit set down [for submitting an application for a residence permit] has passed, the head of the Directorate may authorise [the person concerned] to submit the [relevant] documents, where such authorisation accords with the interests of the Latvian State, or on grounds of force majeure or humanitarian grounds.” “1. Within ten days of establishment of the facts detailed in the first and second subparagraphs of the present paragraph, ... the [relevant] official of the Directorate shall take a forcible expulsion decision..., where: (1) the alien has not left the Republic of Latvia within seven days of receiving the deportation order..., and has not appealed against the order to the head of the Directorate..., or the head of the Directorate has dismissed the appeal; ... 2. In the cases referred to in the first subparagraph of paragraph 1 of this section, no appeal shall lie against the forcible expulsion decision... ... 4. In the event of a change of circumstances, the head of the Directorate may set aside a forcible expulsion decision.” 42. Section 360(4) of the Administrative Procedure Act (Administratīvā procesa likums), in force since 1 February 2004, provides: “An administrative act may not be enforced if more than three years have elapsed since it became enforceable. In calculating the limitation period, any period during which implementation of the administrative act was suspended shall be deducted.”

dev

001-75529

ENG

TUR

CHAMBER

CASE OF DOĞRUSÖZ AND ASLAN v. TURKEY

Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient

4. The applicants were born in 1931 and 1930 and live in Ankara and Hatay, respectively. 5. In 1965 the applicants bought a plot of land in Hatay from the Samandağ Municipality. 6. On 9 September 1976 the Ministry of Construction and Settlement conducted land consolidation proceedings and defined the coastline in the area where the applicants’ land was located. 7. On 27 April 1995 the Samandağ Municipality, acting on behalf of the Treasury, requested the Samandağ Court of First Instance in Civil Matters to determine whether the applicants’ plot of land was located within the coastline area. They claimed that, according to the Coastal Law, the land in question could not be owned by individuals and must only be used for public benefit purposes. 8. On 3 May 1995 a group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants’ land and concluded that it was located within the coastline area. 9. On 3 July 1995 the Samandağ Municipality filed an action before the Samandağ Court of First Instance in Civil Matters, on behalf of the Treasury, requesting the annulment of the record in the title deed registry of the applicants’ ownership. Furthermore, it requested the court to issue an injunction in order to prevent any transfer of that title until the end of the case. 10. On 19 September 1996 the applicants filed a petition with the court objecting to the expert report of 3 May 1995. They argued that, as the expert report failed to take into consideration the flora of their property as well as the features and age of the surrounding buildings, it could not be taken as a basis for the annulment of the record in the title deed register. Moreover, they maintained that the Municipality had not only disposed of the property as the original owner, but it had also encouraged the construction of buildings in the surrounding area, by implementing a development plan. 11. The court decided to obtain the opinion of another group of experts. On 28 October 1997, following a second inspection, the experts confirmed the first report. The summary of the report is as follows: “The first cadastral survey was carried out in the area on 29 March 1948. Thus, the title deed of the plot of land was registered before the coastal law came into force. The plot of land in question is covered by the development plan, approved by the Ministry of Public Works and Settlement. However, at the present time there is no construction on this plot. The inspection carried out in the surrounding area reveals that the land is situated on the beach which is considered as the prolongation of the sea. The soil has a sandy texture. There is no vegetation on the land, as the soil is not suitable for cultivation. The land is located within the coastline. Thus the plot of land in question has to be under the authority of the State. It cannot be the subject of private property.” 12. On 16 December 1999 the Samandağ First Instance Court upheld the request of the Treasury and decided to annul the record in the title deed register. It also ordered the applicants to reimburse the legal expenses of the plaintiff. The summary of the court’s reasoning in its final decision is as follows: “At the time when the coastline had been determined, Law no. 6785 on urbanism (9 July 1956) was in force. The definition of the coastline found in Article 105 of Law no. 6785 is similar to the description in the Coastal Law (Law no. 3621). Article 43 of the Constitution provides that the coasts are under the authority of the State. This assertion is also established by Article 641 of the Civil Code, Article 33 of the Land Registry Law and Article 16 of the Cadastral Law. Thus, coasts cannot be subject to private property rights. As it is stated by the Constitutional Court in its decisions dated 25 February 1986 and 18 September 1991, the construction of buildings on these lands and the use of these buildings in good faith cannot provide a derogation from this rule. In the light of the above, the court decides to annul the record in the title deed registry, which was in the name of the applicants. Furthermore it decides to prolong the interim measure, until the court’s decision becomes final.” 13. The applicants appealed against this decision, arguing that they had a vested interest on this property that had to be respected by the authorities. Furthermore, they maintained that, according to the cadastral survey which was carried out in 1938, the plot of land was designated as an unrestricted, public area. Since the cadastral planning of a location can only be carried out once, there cannot be any dispute concerning their property rights over the plot of land in question. Additionally, they claimed that the experts had erred in their establishment of the coastline. 14. On 3 October 2000, in view of the expert reports as well as the established case-law on this matter, the Court of Cassation upheld the decision of the Samandağ Court of First Instance. 15. On 30 April 2001 the Court of Cassation dismissed the applicants’ request for rectification of the decision as none of the conditions required by Article 440 of the Code on Civil Procedure were present in the case. The applicants were notified of the decision on 5 June 2001. 16. Article 43 of the Constitution provides: “The coasts are under the control and at the disposal of the State. Public interest has priority with regard to the exploitation of the sea coasts, lake shores or river banks and the coastal strip along the sea and lakes. Taking into consideration the purpose of their use, the width of coasts and coastal strips and the conditions in which individuals can make use of these locations shall be determined by law.”

dev

001-78062

ENG

LTU

CHAMBER

CASE OF VAIVADA v. LITHUANIA

Violation of Art. 5-1;Violation of Art. 5-4

David Thór Björgvinsson

6. The second applicant is the first applicant's uncle. 7. The second applicant, who then had a criminal record of two previous convictions, was arrested on 18 July 1997 and questioned in the context of criminal proceedings for theft. He was released on 21 July 1997. 8. The first applicant, then having a criminal record of four convictions, was arrested on 19 July 1997 and questioned in the context of another set of criminal proceedings for theft. He was released on 21 July 1997. 9. On 22 July 1997 the second applicant was arrested in the context of criminal proceedings for murder of VB, a third person. On the same date the Tauragė District Court ordered his detention on remand for two months on the ground that he might abscond from the investigation and commit fresh crimes. 10. On 31 July 1997 the second applicant was charged with murder. 11. On 2 August 1997 the first applicant was arrested in the context of criminal proceedings for attempted robbery. 12. On 4 August 1997 the Tauragė District Court ordered the first applicant's detention on remand for two months because of the danger of his absconding, committing fresh crimes and obstructing the investigation. 13. On 11 August 1997 the second applicant was also questioned in the attempted robbery case. 14. On 13 August 1997 a prosecutor charged the first applicant with attempted robbery. 15. On 15 August 1997 the Tauragė District Court ordered compulsory psychiatric examination of the second applicant. 16. On 19 August 1997 the Klaipėda Regional Court rejected the first applicant's appeal against the detention order. 17. On 21 August 1997 the two criminal cases for murder and attempted robbery were joined. 18. On 15 September 1997 the Tauragė District Court extended the term of the second applicant's remand in custody until 22 November 1997 on the same grounds. 19. On 2 October 1997 the Tauragė District Court extended the first applicant's remand in custody until 2 December 1997 on the same grounds. 20. On 21 October 1997 two more criminal cases, concerning unlawful possession of firearms and robbery, were joined to the criminal proceedings against the applicants. 21. On 19 November 1997 the Tauragė District Court extended the term of the second applicant's detention until 21 January 1998 on the ground that he may abscond from the investigation, commit fresh crimes and influence witnesses. 22. On 27 November 1997 the court prolonged the first applicant's remand in custody for two months on the same grounds. 23. On 20 January 1998 the Šiauliai Regional Court extended the term of both applicants' detention on remand until 1 March 1998 because of the danger of their absconding and influencing the investigation. 24. On 18, 24 and 25 February 1998 a number of new alleged episodes from other criminal cases, namely in relation to damaging property of another, assault, unlawful possession of weapons, causing bodily harm, aggravated murder, attempted robbery and theft were joined in the criminal proceedings against the applicants. 25. On 26 February 1998 the investigation was concluded, and the applicants and their defense counsel had access to the case-file. 26. On 27 February 1998 a prosecutor rejected the applicants' request to discontinue the proceedings. 27. On 2 March 1998 the bill of indictment was confirmed, and the case was sent to the Klaipėda Regional Court. 28. On 15 April 1998 the Klaipėda Regional Court committed the applicants for trial. It further stated in the decision that their remand measures should remain unchanged pending the adoption of a judgment in the case. 29. On 21 September 1998 the Klaipėda Regional Court returned the case to the prosecutors for further investigative measures to be carried out. Thereafter the courts extended the term applicant's detention on various occasions. 30. A new bill of indictment was confirmed on 29 December 1998. 31. On 11 May 1999 the case was transmitted to the Šiauliai Regional Court. 32. On 13 March 2000 the court returned the case for further investigation to be carried out in view of the prosecutors' request to bring a fresh charge against the first applicant. Subsequently, the charges against the applicants were again reformulated. 33. On 11 July 2000 a new bill of indictment was confirmed, and the case was sent to the Šiauliai Regional Court. 34. On 10 April 2001 the applicants were convicted: a) the first applicant on one count of attempted robbery; b) the second applicant on five counts of murder, attempted robbery, causing bodily harm, and unlawful possession of two types of weapons. 35. On 3 December 2001 the Court of Appeal amended the first applicant's conviction, but his sentence of imprisonment remained unchanged. The Court of Appeal also reclassified the second applicant's actions to aggravated murder, sentencing him to 13 years' imprisonment. 36. On 30 April 2002 the Supreme Court quashed the decision of the Court of Appeal insofar as it concerned the second applicant's conviction for aggravated murder, reinstating his sentence of 7 years and 6 months' imprisonment as it had been imposed by the first instance court. 37. On an unspecified date the second applicant completed the sentence, and was released from prison. 38. The provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas) applicable at the material time (repealed by entry into force of the new Code of Criminal Procedure on 1 May 2003): Article 104 (in force from 21 June 1996) reads: “Detention on remand shall be used only ... in cases where a statutory penalty of at least one year's imprisonment is envisaged. ... The grounds for detention on remand shall be the reasoned suspicion that the accused will: (1) abscond from the investigation and trial; (2) obstruct the determination of the truth in the case [influence other parties or destroy evidence]; (3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... [274] [cheating,] 275 [embezzlement] of the Criminal Code ...” Article 104-1 (in force from 21 June 1996 to 24 June 1998) reads: “... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. ... After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.” Pursuant to the amended Article 104-1 (in force from 24 June 1998 until 1 May 2003), the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also permits the court to extend the detention on remand before its expiry. Article 106 § 3 (in force from 21 June 1996 to 24 June 1998) reads: “For the purpose of extending the term of detention on remand [at the stage of pre-trail investigation a judge] must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.” The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings. Article 109-1 (in force from 21 June 1996 to 24 June 1998) reads: “An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing. The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal. A further appeal shall be determined when examining the extension of the term of the detention on remand.” Pursuant to the amended Article 109-1 (in force from 24 June 1998 to 1 May 2003), an appeal may be submitted to a higher court, which would hold a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel. Article 226 § 6 (in force until 24 June 1998) reads: “The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.” Since 24 June 1998 this period is no longer relevant for remand decisions. Article 372 § 4 (in force until 1 January 1999) reads: “Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of appeal ...” Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. Pursuant to the amended Article 104-3 § 3 (version in force from 21 December 1999 until 1 May 2003), all decisions of detention on remand become effective and are executed on the date when they are taken, regardless of the fact that an appeal is possible against any such decision under the amended Article 109-1 (as in force from 24 June 1998 to 1 May 2003, see above). Other relevant provisions of the Code of Criminal Procedure which was in force until 1 May 2003: Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.” Article 249 § 1 reads: “A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ... (11) whether the remand measure has been selected appropriately.” Article 250 § 1 reads: “After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ... (2) of the remand measure in respect of the accused ... .” Article 267 § 1 reads: “The defendant has the right to ... 3) submit requests; ... (11) appeal against the judgment and decisions of a court.” Article 277 reads: “In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”

dev

001-99119

ENG

LVA

ADMISSIBILITY

RUZA v. LATVIA

Inadmissible

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

1. The applicant, Mr Rihards Ruža, is a Latvian national who was born in 1973 and is being held in custody in Daugavpils prison. He was represented before the Court by Ms I. Znotiņa, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms I. Reine. 2. The facts of the case, as submitted by the parties, may be summarised as follows. Criminal proceedings against the applicant 3. On 26 October 2004 the applicant was arrested on suspicion of burglary. On 29 October 2004 he was remanded in custody. On 8 November 2004 a charge of burglary was brought against him. On 16 December 2004 the detention order was lifted and the applicant was released. 4. On 13 January 2005 the applicant was arrested on suspicion of burglary and the following day he was remanded in custody. The applicant was placed in Daugavpils prison, which, at the time, had recently been converted into a remand centre (see paragraph 23 below). On 18 January 2005 a charge of murder was brought against the applicant. 5. On 16 March 2005 charges of burglary and aggravated murder were brought against the applicant and, after the applicant had become acquainted with the case materials, a final bill of indictment was issued on 31 March 2005. 6. On 12 May 2005 the Latgale Regional Court found the applicant guilty as charged and sentenced him to sixteen years' imprisonment. The applicant appealed against that judgment. His appeal was admitted on 22 June 2005. 7. The proceedings are currently pending and the next hearing before the appellate court is scheduled for 15 June 2010. Applicant's state of health while at liberty 8. On 17 July 2003 the applicant was released from prison, where he had been serving a sentence following another set of criminal proceedings. Soon after his release, on 30 July 2003, he was admitted to Daugavpils Regional Hospital, where he was diagnosed with chronic pancreatitis and gastritis. He was treated in that hospital for two days after which doctors recommended a course of outpatient treatment and advised him not to consume alcohol. He was also treated in that hospital from 24 to 30 August 2003. Doctors recommended a diet and prescribed Pangrol, a non-prescription drug used for pancreatic enzyme replacement therapy, and advised him not to consume alcohol. 9. From 12 to 15 January 2004 he was treated for chronic pancreatitis at Daugavpils Regional Hospital. From 1 to 31 May 2004 he was again hospitalised. Among other illnesses, he was diagnosed with liver cirrhosis. He underwent several operations, including a laparotomy, and was prescribed antibiotics and anti-inflammatory drugs. Doctors recommended a course of outpatient treatment under the supervision of a general practitioner. Applicant's state of health while in custody 10. The applicant's medical records kept by the Prison Administration contain no reference to the applicant's state of health between 26 October 2004, when he was first arrested, and 8 November 2004, when it appears that he was first seen by a prison doctor in Daugavpils prison. On that date he was diagnosed with chronic pancreatitis. He also had his lungs scanned as a result of which bronchitis was discovered. He was also seen by prison doctors on 12 and 17 November 2004. 11. On 26 January 2005 a prison doctor diagnosed him with liver cirrhosis and chronic pancreatitis. He was prescribed Pangrol, which he had to pay for himself. 12. On 18 February 2005 a prison doctor gave him Pangrol and prescribed a further two days' treatment of several medicines including pancreatin and Pangrol, which he also had to pay for himself. On 23 February 2005 a prison doctor noted that a previous course of therapy should be followed, while nutrition plan 4B, which encourages the use of white bread, should be followed for one month. On 25 February 2005 the applicant's condition deteriorated and on 4 March 2005 he was sent to Prison Hospital in Central prison in Rīga. 13. From 4 to 23 March 2005 the applicant was kept in Prison Hospital and was treated in relation to chronic pancreatitis, liver cirrhosis and chronic gastritis. While there, he received several courses of medication including medication for enzyme replacement therapy. Recommendations from doctors included the use of hepatoprotectors (Carsil and Essentiale) for a duration of one to one and a half months, twice a year. Carsil is a product of plant origin with hepatoprotective and anti-oxidative qualities; it is a non-prescription drug for additional therapy for chronic liver diseases, including liver cirrhosis. It is used for preventive purposes as well. 14. Upon his return to Daugavpils prison, on 29 March 2005 a prison doctor prescribed Carsil to the applicant. Subsequently, the applicant was prescribed pancreatin and Carsil on several occasions. In addition, nutrition plan 4B was prescribed to the applicant for September and December 2005. On one occasion, the applicant was advised to buy pancreatin, which he had to pay for himself. Overall, the applicant was examined by a prison doctor on twenty occasions in 2005 and different drugs were prescribed, including Carsil on at least seven occasions, pancreatin on at least four occasions and Pangrol on at least one occasion. In addition, on several occasions in 2005, the applicant's mother sent him pancreatin and Pangrol. 15. In 2006 the applicant's state of health continued to be examined on a regular basis. Overall, he was examined on nineteen occasions. Among other things, the doctor prescribed several medicines and advised the applicant not to smoke. On one occasion the doctor advised the applicant to buy pancreatin and, on another, the applicant was advised to buy hepatoprotectors. On at least three occasions Carsil was prescribed and on at least two occasions he received white bread for a month. In addition, from 3 to 17 May 2006 the applicant was treated in Prison Hospital and received further medication. 16. In 2007 the applicant's state of health continued to be examined in Daugavpils prison where medication was prescribed on several occasions. On one occasion the applicant was prescribed to follow nutrition plan 4B and, on another, to receive white bread for a month. Review of complaints by the applicant 17. On 20 January 2006 a prosecutor from the Specialised Public Prosecutor's Office replied to the applicant that, pursuant to Cabinet Regulations no. 358 (1999), only primary medical assistance was provided free of charge to detainees; detained persons suffering from chronic illnesses had to pay for necessary medicine themselves. 18. On 6 April 2006 the applicant complained to the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) that the medical assistance in Daugavpils prison was inadequate. In particular, he complained that, as a person suffering from chronic pancreatitis and liver cirrhosis, he had not received adequate medical treatment or nutrition plan 4B. 19. Between 6 April and 9 May 2006 an expert examined the applicant's complaint in the course of administrative proceedings initiated by MADEKKI. She concluded as follows: (a) the applicant had been diagnosed with liver cirrhosis, chronic pancreatitis and chronic gastritis; (b) the applicant had been examined by prison doctors on a monthly basis in 2005, he had received adequate treatment in compliance with Cabinet Regulations no. 358 (1999); (c) he had been examined and treated in Prison Hospital in 2005; upon his release from hospital, it had been recommended that he use hepatoprotectors twice a year, which he had had to pay for himself; (d) there had been no grounds for prescribing nutrition plan 4B for the applicant in relation to his illnesses pursuant to Cabinet Regulations no. 155 (2002) even though a doctor had prescribed it to him on two occasions; (e) the applicant had also been placed in the Prison Hospital in May 2006 in order to carry out medical analyses and examinations necessary for confirming the diagnoses. 20. On 10 May 2006 MADEKKI decided to terminate the administrative proceedings on the basis of the expert's conclusions and concluded that no breaches in relation to the applicant's medical care had taken place. The applicant did not appeal against that decision. 21. On 22 September 2006 the Prison Administration replied to the applicant that he had received nutrition in accordance with applicable domestic rules contained in Cabinet Regulations no. 155 (2002) and in Cabinet Regulations no. 339 (2002). Those regulations had been drawn up in co-operation with the Latvian Nutrition Centre and ensure sufficient nutrition. 22. On 10 May 2005, following its second periodic visit to Latvia, which had taken place from 25 September to 4 October 2002, the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (“CPT”) published its report. The CPT had made a full visit to Daugavpils prison and noted the following: “66. Daugavpils Prison, which was built in 1861 in the city centre, is a closed prison for male prisoners (sentenced and on remand). Its official capacity had recently been increased from 543 to 800 inmates. At the time of the visit, the establishment was holding 762 prisoners, of whom 310 were sentenced and 443 on remand (including 24 juveniles). In addition, nine sentenced prisoners, held in a semi-open regime, were assigned to work in the establishment. ... 111. At Daugavpils Prison, the health care staff included three full-time doctors (general practitioner, narcologist and psychiatrist/narcologist) and three part-time doctors (general practitioner, dentist and surgeon), as well as two full-time feldshers and three nurses (including one part-time). However, the establishment did not have a psychologist. Health care staff were present on working days between 8h00 and 21h00, and on weekends between 9h00 and 17h00. Each shift comprised one doctor, one nurse and one feldsher. For the rest of the time, a prisoner, who was working as an auxiliary within the health care unit, made an initial medical assessment of fellow inmates and then called the ambulance, if needed. On occasion, the Head Doctor was also called in outside working hours. The CPT is seriously concerned about the absence of qualified health care staff at night in an establishment which accommodates almost 800 prisoners and which, in addition, has an infirmary with in-patients. Further, to entrust a prisoner with the medical examination of fellow inmates is totally unacceptable. ... 116. At Daugavpils Prison, medical screening of newly-arrived prisoners was always performed by a doctor within 24 hours of admission. Blood tests (in particular for HIV and syphilis) were carried out with the prisoner's consent, and a fluorogramme was organised. Medical record cards for each prisoner were well-kept. Medical records were sought from a prisoner's previous doctor, if requested. ... 119. At Daugavpils Prison, the delegation gained a generally favourable impression of the quality of health care provided to prisoners. ... 120. In both establishments visited, the delegation received a number of complaints from prisoners about access to medical treatment (especially regarding dental care). As in 1999, dental care was limited to emergency treatment and extractions (cf. paragraph 131 of the report on the 1999 visit). The CPT reiterates its recommendation that the Latvian authorities take steps to provide appropriate medical treatment - including conservative dental care - to all prisoners in Latvian prisons; this treatment should be free of charge for those prisoners who are not in a position to pay for it.” 23. On 13 March 2008, following its ad hoc visit to Latvia, which had taken place from 5 to 12 May 2004, that is to say seven months prior to the applicant being placed in Daugavpils prison, the CPT published its report. The CPT had visited Daugavpils prison and made the following remarks: “38. All establishments visited have already been described in paragraph 66 of the report on the 2002 visit. The general descriptions contained in that report still remain valid. Daugavpils Prison had recently been formally transformed into a remand institution, although it was still accommodating sentenced prisoners as well. Its official capacity had been reduced from 800 to 543 places (including 43 juveniles). At the time of the 2004 visit, the establishment was accommodating 426 inmates, of whom 101 were sentenced and 314 on remand (including 29 juveniles). ... 65. At Daugavpils Prison, the delegation observed some improvements to the health-care services provided. By way of example, there were now four well-equipped quarantine rooms and medical confidentiality was respected. However, the CPT noted with concern that not all newly-arrived prisoners were medically screened upon admission. The lack of psychologists and a psychiatrist also constituted a serious shortcoming. Further, there was still no qualified health-care staff present at night.” 24. The relevant provision of the Law on Medical Treatment (Ārstniecības likums), in force at the material time, reads: Section 10 “The quality of professional health care and work disability expert examinations in medical treatment institutions shall be controlled by the Inspectorate of Quality Control for Medical Care and Working Capability ....” 25. Cabinet Regulations no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows: “2. Convicted persons shall receive free of charge the minimum standard of health care in accordance with the amount established by the Cabinet of Ministers. In addition, the Prison Administration, within its budgetary means, shall provide to convicted persons: 2.1. primary, secondary and (in part) tertiary medical care; 2.2. emergency dental care; 2.3. medical examinations; 2.4. preventive and anti-epidemic measures; 2.5. medication and injections prescribed by a doctor of the institution; 2.6. medical accessories. 3. Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned in-patient treatment ... Detained persons shall be sent to receive in-patient treatment only when acute circumstances are present. 26. Cabinet Regulations No. 339 (2002), in force at the material time and effective until 20 June 2008, lay down nutrition guidelines for detainees held in pre-trial detention facilities. It provides that detainees who are ill shall receive nutrition plan 4A. More specifically, detainees diagnosed with certain conditions, for example those who are HIV-positive, shall receive nutrition plan 4B.

dev

001-21954

ENG

AUT

ADMISSIBILITY

UNTERGUGGENBERGER v. AUSTRIA

Inadmissible

Nicolas Bratza

The applicant, Mr Silvio Unterguggenberger, is an Austrian national, born in 1935 and living in Vienna. He is represented before the Court by Mr M. Graff, a lawyer practising in Vienna. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a member of the executive board of the V. Company and was responsible for the management of the company’s finances. On 7 March 1990 this company laid an information against the applicant inter alia on the suspicion that the applicant had caused financial damage by abusing his position as financial manager of the company. Point a) of the information concerns transactions with the K. Bank. It alleges that the K. Bank, chosen by the applicant to carry out the management of the V. Company’s investment portfolio, had charged the latter excessive fees. It alleges further that the applicant had requested a refund of about 12 million Austrian schillings (ATS) for entrusting the K. Bank with these financial transactions. On 2 April 1990 preliminary investigations were opened against the applicant. On 19 April 1990 the Economic Police (Wirtschaftspolizei) carried out searches at the applicant’s premises and at the premises of M.W., the former director of the K. Bank, who was at the same time a witness against the applicant. Three diaries and about a hundred pages of other documentary evidence (the so-called “green folder”) were seized at M.W.’s home. The documents which were considered relevant to the investigation were listed in a report of 21 May 1990. On 20 April 1990 the investigating judge at the Vienna Regional Criminal Court heard the applicant. According to the minutes, the questioning started at 9 a.m. The applicant was informed that preliminary investigations on the suspicion of a breach of trust (Untreue) under section 153 of the Criminal Code (Strafgesetzbuch) and on the suspicion of offences under the Company Act (Aktiengesetz) were pending against him. He was first heard as regards the alleged breach of the Company Act and then about the transactions with the K. Bank. In this respect, he was told that he was suspected of having received a refund from M.W. and indications as to the amount at issue and the date of receipt were also given. The applicant stated that he was aware of the allegations and handed over a written statement outlining his position. The questioning on the transactions with the K. Bank ended at about 10 a.m. whereas the further questioning, which lasted until 12 a.m., concerned facts which are not relevant in the present context. On 8 May 1990 the investigating judge decided that the defence was not entitled to inspect certain specified parts of the file. On 29 May 1990 the applicant lodged a complaint against this decision with the Review Chamber (Ratskammer) of the Regional Court which was unsuccessful. On 22 June 1990 the Economic Police submitted a report on the result of their investigations to the Regional Court. The latter confirmed in writing the receipt of the green folder, which was subsequently transmitted to an expert. On 24 April 1991 the V. Company filed a supplementary information against the applicant concerning transactions with the K. Bank. On 6 June 1991 the V. Company filed another supplementary information against the applicant concerning new facts. It alleged that he had introduced L. as a fictitious intermediary in order to carry out certain financial transactions of the I. Company, a subsidiary of the V. Company, and that the commission paid had caused financial damage to the V. Company. On 13 and 16 December 1991 the V. Company filed further documentary evidence and information. On 6 August 1993 the Regional Court received the applicant’s request to obtain the green folder from the expert in order to enable him to inspect it. He submitted that, according to the report of 21 May 1990 by the Economic Police, documents which were relevant to the proceedings had been seized at M.W.’s premises and had apparently been handed over to the expert who referred in his written opinion to one of those documents. The investigating judge at the Regional Court did not take any decision on this request. On 1 March 1994 the Public Prosecutor’s Office preferred the thirty-page indictment against the applicant and his co-accused, L., concerning charges of breach of trust under section 153 of the Criminal Code. The applicant was accused, inter alia, of having in 1985 and 1986 demanded and received a “refund” of about ATS 12 million for financial transactions carried out by the K. Bank, and for having introduced, between 1985 and mid-1987, L. as a fictitious intermediary in order to carry out certain financial transactions of the I. Company, thus, creating a fictitious claim for commission, causing damage of about ATS 9 million. Detailed information as to the underlying facts was given with regard to both charges. The indictment was served on the applicant on 22 March 1994. On 7 March 1994 the investigating judge, upon the request of the Public Prosecutor’s Office on 23 February 1994, discontinued the criminal proceedings against the applicant inter alia as regards point a) of the information concerning “excessive fees for transactions with the K. Bank” (see above, the information of 7 March 1990). On 12 April 1995 the applicant repeated his request that the green folder be made available to him. Again the Regional Court took no decision. On 27 April 1995 the applicant filed a motion for the hearing of two witnesses and for access to four related criminal court files. On 8 May 1995 the trial started before the Vienna Regional Criminal Court sitting as a court with lay assessors (Schöffengericht). When the co-accused, L., was heard, the presiding judge ruled that the applicant was not allowed to be present. Neither the applicant nor his counsel contested this measure. Defence counsel was present during the interrogation. The applicant was re-admitted to the court room as soon as the questioning of L. was finished and the presiding judge gave him a summary of L.’s statements. At that stage, neither the applicant nor his counsel asked for further information or complained that the summary of L.’s statements was insufficient. The former director of the K. Bank, M.W., was heard as a witness in the presence of the applicant and the defence questioned him in some detail. On 9, 10, 15, 16 and 17 May 1995 further hearings were held and numerous witnesses were heard. It is in dispute between the parties when the green folder was made available to the defence. The Government submit that it was available as of the first day of the trial, whereas the applicant submits that he only received copies of parts of it on 15 May 1995, i.e. on the fourth day of the trial. On 17 May 1995, the last hearing day, the applicant’s counsel filed a further application for the hearing of witnesses. According to the minutes, he also requested that documents from the green folder be read out and - in case it was disputed that M.W. was the author of those documents - to hear M.W. and to appoint a handwriting expert. At the close of the hearing the presiding judge dismissed all outstanding requests for the taking of further evidence. On 17 May 1995 the court gave judgment, convicting the applicant of a breach of trust within the meaning of section 153 of the Criminal Code, and sentencing him to six years’ imprisonment for having demanded and received a “refund” of about ATS 12 million for financial transactions carried out by the K. Bank. He was also convicted of having introduced L. as a fictitious intermediary in order to carry out certain financial transactions of the I. Company, thus creating a fictitious claim for commission and causing damage of about ATS 9 million. It found that, in both cases, he had not transferred the commission to the V. Company and that he had abused his position as the financial director of the V. Company, causing it financial damage. The court recalled that the case-law on the question of whether the acceptance of commission by trustees fell within the scope of section 153 of the Criminal Code had been contradictory for some time, but had been settled by the Supreme Court’s judgment of 17 May 1983 in another case. According to that judgment, section 153 was applicable to the applicant’s case. On 11 December 1995 the applicant filed a plea of nullity and an appeal (Nichtigkeitsbeschwerde und Berufung). He complained about the refusal to hear several witnesses he had called for, and the fact that he had not had access to the green folder before the trial hearings. Thus he had not been able to prepare his defence properly. He further noted that he had not been present when his co-accused had been heard. He alleged that he had been insufficiently informed about the statements made by the co-accused afterwards. Furthermore, he criticised the evaluation of evidence. As to the facts concerning the K. Bank, he alleged that his conviction violated the principle of ne bis in idem because the investigating judge had ordered the criminal proceedings to be discontinued in this respect on 7 March 1994. Finally, he complained that the court had erred in law when applying section 153 of the Criminal Code to his case. He argued that it was section 153a of the Criminal Code which was pertinent to the offence concerning the acceptance of advantages by trustees (Geschenkannahme durch Machthaber). As this section had entered into force after he had committed the acts in issue, he could not be punished at all. On 4 April 1996 the Attorney-General (Generalprokurator) filed thirty pages of observations (Croquis) on the applicant’s plea of nullity and his appeal. On 12 April 1996 the applicant was notified that the hearing before the Supreme Court would take place on 25 April 1996. On 15 April 1996 the applicant, who was at that stage still represented by the lawyer who had filed his plea of nullity and appeal, received the Attorney-General’s observations and was informed that he could comment on them within a delay of eight days. He sent his twelve-page reply by mail on 23 April 1996, which reached the Supreme Court the next day. He did not request an adjournment of the hearing. On 25 April 1996 the hearing took place and the Supreme Court confirmed the Regional Court’s judgment. As to the applicant’s complaint that he had not been adequately informed about the statement of his co-accused L., who had been heard in his absence, the Supreme Court noted that the presiding judge had given the necessary information by way of a summary of the statements. It would have been open to defence counsel to challenge the applicant’s exclusion from L.’s hearing and to complain about the alleged insufficiency of the summary of L’s evidence, in order to obtain an interim decision from the court in this respect. Further, the Supreme Court found that the court of first instance had justifiably refused to hear certain witnesses as it had in any case considered that the facts to be proved by those witnesses had already been established. Thus, the refusal did not cause any prejudice to the applicant. As to the green folder, it noted that the applicant could have applied for the further questioning of M.W. after having obtained the folder, but that he failed to make such an application and had therefore not fulfilled the conditions for a plea of nullity in this respect. The Supreme Court found that the applicant’s further submissions constituted an inadmissible attempt to challenge the Regional Court’s assessment of the evidence, which was duly reasoned and free from contradiction. As to section 153 of the Criminal Code, the Supreme Court confirmed that it was applicable to the applicant’s case. Finally, it found that the facts described in the investigating judge’s order of 7 March 1994, namely “excessive fees for transactions with the K. Bank” were not identical to those facts underlying the conviction, namely the receipt of refunds by the applicant. Therefore, the conviction did not violate the principle of ne bis in idem.

dev

001-57582

ENG

AUT

CHAMBER

CASE OF STÖGMÜLLER v. AUSTRIA

Violation of Art. 5-3;Just satisfaction reserved

1. The object of the Commission’s request and of the Government’s Application is to have the Stögmüller case referred to the Court so that the latter may decide whether the facts of the case reveal any violation by the Republic of Austria of its obligations under Article 5, paragraph (3) (art. 5-3), of the Convention. 2. The facts of the case as stated in the Commission’s Report, the Government’s memorial, the other documentary evidence produced and the oral statements by the representatives of the Commission and of the Government may be summarised s follows: 3. Mr. Ernst Stögmüller, an Austrian citizen, was born in Vienna on 19 June 1934. In 1955, Stögmüller was employed as an inspector for the "Heimat" Insurance Company in Vienna. While thus engaged, he began, both on his own account and for the company, to negotiate loans to the company’s clients and he finally became a full-time independent financial agent. On 10 January 1958, he founded with two other persons, Karl Hammerling and Franz Beyer, the private limited company of Stögmüller and Co. This company, whose registered office was in Linz, had an initial capital of 100,000 schillings. Its activities consisted of transactions relating to real property, including negotiating and advancing loans secured on real property or otherwise, the management of property for reward, the negotiation of settlements in and out of court, as well as an estate agency and commission business. The company also carried on the business of wholesale and retail trading goods of all kinds, including in particular import and export. All three members were directors. The company’s business could be transacted by any two of them, but in practice Stögmüller, who owned 80 per cent of the capital stock, managed the business alone. For the transaction of contracts for loans, Stögmüller advertised in the newspapers and sent circulars to solicitors and notaries. In his advertisements, he promised loans on particularly favourable terms which, however, he did not as a general rule observe. Moreover, he had one of his assistants follow the list of court notices in order to ascertain the identity of property-owners threatened with foreclosure, to whom he then offered credit. Although Article 2 of the Regulation on Usury (Verordnung der Bundesregierung vom 11.3.1933 gegen die Ausbeutung Kreditsuchender) only allows in such cases a rate of commission equal to or less than 2 per cent, Stögmüller usually obtained commission from 6 per cent to 7 per cent and sometimes even at 15 per cent. Furthermore, only one of the three members of the company, namely Karl Hammerling, held the business licence required by the law in these matters. 4. In connection with a civil action brought by the "Heimat" Insurance Co. before the District Court (Bezirksgericht) of Ferlach, the judge felt obliged, in view of the disclosure of certain of these business practices of the Applicant, to bring the facts of the case to the attention of the Public Prosecution. The consequent investigations resulted in the Public Prosecution at Klagenfurt charging the Applicant with aggravated fraud on five counts under Articles 197, 200, 201 (d), 203 and 199 of the Criminal Code. On 9 July 1959, these prosecutions were transferred, at Stögmüller’s request, to the Regional Criminal Court (Landesgericht für Strafsachen) of Vienna which acquitted him on 15 June 1960 (2b Vr 5328/59). In its decision of 31 January 1961 on a plea of nullity (Nichtigkeitsbeschwerde) lodged by the Public Prosecution, the Supreme Court (Oberster Gerichtshof) upheld the Regional Court’s judgment on two of the counts and referred the case back to the court for retrial on the other three. On 28 May 1963, the court sentenced the Applicant to five months’ imprisonment for perjury committed before the District Court of Vienna on 12 December 1957 in connection with a charge of aggravated fraud (Articles 197 and 199 sub-paragraph (a) of the Criminal Code). Stögmüller was acquitted on the other charges. By decision of 5 March 1964, the Supreme Court reduced that sentence to four months, as a result of an appeal entered by Stögmüller. However, the latter’s Application is not directed against those proceedings. 5. Suspected of having committed offences against the Usury Act (Wuchergesetz), Stögmüller was arrested on 3 March 1958 pursuant to a decision of the Linz District Court. On the following day, that court remanded him in custody (Verwahrungshaft) under Article 175, paragraph 1, sub-paragraphs 2 (danger of absconding) and 3 (danger of suppression of evidence - Verdunkelungsgefahr) of the Code of Criminal Procedure. When he was brought before the District Court at Linz on 5 March 1958, the Applicant stated that he had been informed of that decision against which he did not propose to appeal (beschwerdelos), but asked that the file be transmitted to the Investigating Judge at Wels. This transmission took place and, on 10 March 1958, a preliminary investigation (Voruntersuchung) was opened by the Wels Court against the Applicant who was suspected of having committed the crime of usury within the meaning of Section 3, sub-section 4, of the Usury Act and of Article 2 of the Regulation on Usury. At the same time, the court ordered the remand of the Applicant in custody (Untersuchungshaft) under Articles 175, paragraph 1, sub-paragraph 3 (danger of suppression of evidence - Verdunkelungsgefahr) and 180 of the Code of Criminal Procedure. When he appeared before the Investigating Judge of the Wels Court on the same day, Stögmüller stated that he had been notified of the two above-mentioned decisions of the Court, that he did not propose to appeal against them (beschwerdelos) and that he withdrew an application for his release which he had made earlier. He protested his innocence and noted that he would be interrogated in detail on the facts as soon as the charges were made against him. At the request of the Applicant (15 and 17 March 1958) the case was transferred to the Regional Court of Linz. On 21st April 1958, Stögmüller was released provisionally on parole: he gave a solemn undertaking (Gelöbnis), as provided for in Article 191 of the Code of Criminal Procedure, but was not required to provide any security. His detention while on remand has thus lasted, without interruption, for one month and eighteen days. According to the minute of that hearing, the Applicant made the following declaration: "I have been advised of the decision to release me on parole in pursuance of Article 191 of the Code of Criminal Procedure and I hereby give the prescribed solemn undertaking in full knowledge of the consequences of breaking that undertaking. I acknowledge that I must henceforth inform the Court immediately of any change of address. On my release I shall go to No. 255 Auhofgasse, Vienna XIII." 6. In June 1958, further information were laid with the Public Prosecutor’s Office in Linz, alleging fraud, misappropriation of funds and profiteering by the Applicant and also by a solicitor, Dr. S. Stögmüller was suspected, in particular, of having, from 1957 onwards, made a practice of demanding exorbitant security for loans from a large number of persons who were apparently in difficult financial circumstances and, further, of having, alone or together with other persons, obtained money from numerous other persons by fraudulent practices and of having misappropriated capital entrusted to him. The Investigating Judge at the Regional Court of Linz had just begun extensive enquiries (Untersuchungshandlungen) when the Applicant submitted a request, on 23 October 1958, for the case to be transferred to the Regional Criminal Court of Vienna. Since the persons charged with him agreed to this, the case was duly transferred. The file was numbered 26 d Vr 1105/59. 7. In accordance with the provisions of Austrian law (ständige Geschäftsverteilung), the conduct of the preliminary investigation was assigned automatically, on 13 February 1959, to Investigating Judge Leonhard, who was already dealing with other cases to which was added, on 17 August 1959, the case of Rafael, Neumeister and others (see the judgment of the Court in the Neumeister case, Publications of the Court, 1968, Series A, p. 7). 8. On 15 November 1960, the Regional Criminal Court of Vienna decided: - to continue the preliminary investigation in a series of charges relating to thirty or thirty-one cases of aggravated fraudulent conversion (Veruntreuung-Article 183 of the Criminal Code), twenty cases of aggravated fraud (Betrug-Articles 197, 200 and 203 of the Criminal Code), one other case of fraud (Articles 197, 199 sub-paragraph (d) and 5 of the Criminal Code) and twenty-one cases of the crime of usury (Sections 2 and 3, sub-section 4, of the Usury Act); - to extend the preliminary investigation to five charges relating to cases of aggravated fraudulent conversion (Article 183 of the Criminal Code), fraud (Articles 197 et seqq. of the Criminal Code) and embezzlement (Untreue-Article 205 (c) of the Criminal Code); - to suspend, in accordance with Article 109 of the Code of Criminal Procedure, the preliminary investigation in respect of eight or ten charges. Under Article 184 of the Criminal Code, embezzlement is punishable by five to ten years’ severe imprisonment (schwerer Kerker) if the amount involved exceeds 10,000 schillings. Fraud and fraudulent conversion become crimes if the amount of the loss caused or so intended exceeds 1,500 schillings (Articles 200 and 205 (c) of the Criminal Code). The penalty incurred is "severe imprisonment" from five to ten years where such amount exceeds 10,000 schillings, or, in cases of fraud, where the criminal has displayed "exceptional audacity or cunning" or where he is an habitual swindler (Articles 203 and 205 (c) of the Criminal Code). The amounts mentioned above have been altered since: they are fixed at present at 2,500 and 25,000 schillings respectively. Section 2 of the Usury Act lays down a sentence of from three months’ to one year’s strict detention (strenger Arrest); a criminal who has practised usury professionally is punished by one to five years’ imprisonment where several persons have suffered serious financial loss (Section 3, sub-section 4, of the Usury Act). On 10 February 1961, the Applicant, who was then at liberty, was notified of the facts which were being held against him; he stated that he did not propose to appeal against the prosecution and the extension of the preliminary investigation. The Investigating Judge then examined him in respect of an instance of aggravated fraud against Gertrude Kucik. 9. On his release in April 1958, Stögmüller had continued to manage his business. When the competent authorities refused to transfer the licence from Karl Hammerling to the company Stögmüller and Co., the two other members left the company and Stögmüller became the sole shareholder and director in August 1959. He then transferred the seat of the company to Vienna. Having decided to change his occupation, he began to take flying lessons in the summer of 1959; after having produced the documents required by law, he obtained his amateur pilot’s licence on 10 December 1959 and a restricted radio-telephonic certificate on 25 February 1960. In order to become a professional pilot, he made, by the summer of 1961, almost four hundred flights over a total distance of 40,000 miles with landings on fifty different airports including Vienna, Linz, Wels, Salzburg, Graz, Innsbruck, Klagenfurt, Munich, Würzburg, Pöcking, Fulda, Hanover, Copenhagen, Malmö, Norköpping, Lugano, Bologne, Florence, Rome, Naples, Palermo, Alghero (Sardinia), Brindisi, Corfù, Salonica, Athens, Héraclion (Crete), Cavalla, Belgrade and Zagreb. In July 1961, he piloted on two occasions a plane carrying tourists between Austria, Switzerland, Italy, Greece and Yugoslavia. On 14 August 1961, the Applicant sold his company and his name was removed from the commercial register. 10. At the request of the Public Prosecutor’s Office, the preliminary investigation was extended, on 2 August 1961, in respect of facts concerning Alois Holzknecht, to offences under Articles 183, 197 and 205 (c) of the Criminal Code. 11. By order dated the same day and served on 4 August 1961, the Investigating Judge summoned the Applicant for 18 August 1961 for further examination. Stögmüller, however, did not appear: on August 7, he had arrived in Greece on board a plane which he said belong[ed] to his father; he did not return to Vienna until 21 August 1961. From Thasos in Greece, Stögmüller had, however, sent, on 14 August 1961, a postcard to his father in which he said he could be reached at Cavalla airport. He asked his father to send him a telegram in case of need and to telephone his lawyer, Mr. Tuma, to get him to have the examination adjourned ("damit die Terminverlegung vom 18.VIII klappt"). According to the statements made to the Sub-Commission by the Applicant’s counsel, Mr. Tuma, on 30 September 1965 - and these were not disputed by the Government - Mrs. Tuma, his wife and secretary, had, on 17 August 1961, applied for an adjournment of the examination, and the Investigating Judge had granted her application. When she appeared before the Sub-Commission as a witness on 1 October 1965, Mrs. Tuma, although not questioned on this point despite the request made by Mr. Tuma, stated that the Investigating Judge had accepted the excuses she had made to him verbally in explanation of the Applicant’s non-appearance. On 21 August 1961, immediately on his return, Stögmüller – again according to the undisputed statements of Mr. Tuma – accompanied Mrs. Tuma to the chambers of the Investigating Judge who, however, refused to examine the Applicant, saying that he did not have time to hear him and would carry out the examination in September 1961. 12. Again on 21 August 1961, the Public Prosecutor’s Office made an application dated 18 August 1961 to the Investigating Judge to enlarge the scope of the preliminary investigation opened against Stögmüller, to issue a warrant for his arrest and to remand him in custody under Articles 175, paragraph 1, sub-paragraphs 2 and 4, and 180 of the Code of Criminal Procedure. The Public Prosecutor’s Office alleged that there was a danger of absconding (Fluchtgefahr-Article 175, paragraph 1, sub-paragraph 2) and a danger of repetition of offences (Wiederholungsgefahr-Article 175, paragraph 1, sub-paragraph 4), because the Applicant had, by his unauthorised journey to Greece, broken the solemn undertaking given on his release (see paragraph 5 above) and had committed other offences in the years 1960 and 1961. 13. On 24 August 1961, the Investigating Judge ordered Stögmüller’s arrest. The warrant (Haftbefehl) stated that the Applicant had travelled abroad without permission of the court which constituted a breach of his undertaking of 21 April 1958 (paragraph 5 above), and that he had committed further offences in 1960 and 1961 at the expense of borrowers. The warrant emphasised that a breach of undertaking entailed the remand in custody of the person charged (Article 191 in fine of the Code of Criminal Procedure) and that the Applicant’s conduct after his release also proved that there was a danger of repetition of offences. 14. On the same day, the preliminary investigation against Stögmüller was extended, in respect of the facts concerning Hans Burgmüller, Josef and Maria Reichel and Karl Schumlitsch, to offences under Articles 197 et seqq, 205 (c) and 5 of the Criminal Code. 15. The Applicant was arrested on 25 August 1961. On the following day he was examined about his personal situation by a judge of the Regional Criminal Court of Vienna and was remanded in custody (Verwahrungshaft) under Article 175, paragraph 1, sub-paragraphs 2 (danger of absconding) and 3 (danger of suppression of evidence) of the Code of Criminal Procedure. On 29 August 1961, Stögmüller was notified that the preliminary investigation had been extended by orders of the Regional Criminal Court of Vienna of 2 and 24 August 1961 (see paragraphs 10 and 14 above). On the same day he was notified of that court’s decision to remand him in custody (Untersuchungshaft) for the reasons stated in the warrant of arrest. 16. On 29 August 1961, the Applicant lodged a first appeal against this decision. He maintained that, on his release, he had informed the Investigating Judge of the Regional Criminal Court of Linz that he was obliged to travel a great deal as his residence was in Vienna but his office in Linz, and that he had asked whether the court had to be advised in advance of each of these journeys. According to the Applicant, the Investigating Judge replied that he need only leave his address at his office or with his parents. Stögmüller claimed that he had always complied with this condition in respect of his numerous journeys in Austria and abroad, and in particular after he had obtained his pilot’s licence. He added that he also travelled abroad frequently as a member of the Austrian national judo team. In spring 1961 he is also said to have informed the Investigating Judge of the Regional Criminal Court of Vienna that he intended to change his occupation and become a pilot. The judge had raised no objection, although he might have been expected to deduce that the Applicant had made, and planned to make, many flights in Austria and abroad. As to his failure to appear before the Investigating Judge on 18 August 1961, Mrs. Tuma had explained the reasons to the judge and after Stögmüller’s return (21 August 1961) is said to have also asked the Investigating Judge to set a new date for the examination to which the judge replied that he was overwhelmed with work at the time but would summon the Applicant after 14 September. From these various circumstances Stögmüller deduced that he had not committed any breach of the solemn undertaking he had made on 21 April 1958. Stögmüller also claimed that he had sold his business by notarial deed on 14 August 1961 on the advice of the Investigating Judge himself and had begun to earn his living as a pilot. From that he drew the conclusion that there was no danger of repetition of offences. 17. On 6 September 1961, the Investigating Judge sent to the Public Prosecutor’s Office a copy of the appeal, asking for a detailed opinion on the statements of Stögmüller relevant to the danger of repetition of offences. The Judge added: "This on the lines of our conversation. The accused’s contention - which is not yet proved - that he had given up the business of money-lender since 14 August 1961 is irrelevant in this respect." In answer to this request, the Public Prosecutor’s Office replied on 11 September that it was of opinion that the reasons for detention continued to exist. Recalling that the subject-matter of the preliminary investigation opened against the Applicant had been extended in 1960 (see paragraph 8 above) and that following the laying of substantiated information (fundierte Anzeigen) a further extension had been ordered in 1961 (see paragraphs 10 and 14 above), the Public Prosecutor’s Office concluded that a danger of repetition of offences remained. As regards the danger of absconding, the Public Prosecutor’s Office pointed out, inter alia, that since his release the Applicant had broken his solemn undertaking made in 1958, had obtained his pilot’s licence, had gone to Greece without the consent of the judge, on board a plane belonging to his father, had gone on frequent journeys abroad, and had to expect, in the light of the results of the preliminary investigation, a heavy sentence which might run, under the relevant legislation, from five to ten years’ severe imprisonment (schwerer Kerker). Furthermore, the Public Prosecutor’s Office asked the Investigating Judge to close the preliminary investigation as soon as possible. 18. By decision of 7 September 1961, the Judges’ Chamber of the Regional Criminal Court of Vienna instructed the Investigating Judge to obtain from Judge Thurner, of Linz, who had released Stögmüller in 1958, information on the directions which he had given to the Applicant on that occasion. 19. On 16 September 1961, Stögmüller submitted to the Regional Criminal Court of Vienna a letter which Mr. Otto Bittner, the lawyer who had represented him at the time he was first remanded in custody in 1958, had written to Mr. Tuma on 11 September 1961. In reply to Mr. Tuma’s questions, Mr. Bittner explained in that letter that, when Stögmüller was released in 1958, it was understood from the beginning that he would go to Vienna. This was the reason why the Applicant had not been obliged to report to the authorities (Meldepflicht) at Linz. Another reason why such an obligation had not been imposed on the Applicant was that he had undertaken to leave his address at Mr. Bittner’s office so that he could be contacted within a week. These arrangements had in fact worked satisfactorily until the case had been transferred to Vienna. In the years 1958-59, Miss Ingrid Lintinger, Stögmüller’s secretary, had always kept Mr. Bittner informed of the whereabouts of her employer. 20. In a written statement of 20 September 1961 made to Judge Leonhard (see paragraph 18 above), Mr. Thurner, formerly Investigating Judge at the Court of Linz, emphasised for his part that: - if his memory were correct, there had been no mention in 1958, at the time of the release of Stögmüller, of anything except his address at Vienna; - it was nonetheless possible that the Applicant had informed him that he would not be able to give immediate notice to the court of each of the many journeys he would have to make; - even if this were true, Mr. Thurner had certainly not replied to Stögmüller that it would be enough for him to leave his address at his office at Linz or with his parents at Vienna; but more likely he had told him, as was usual in such cases, to ensure that summonses from the court reached him as soon as possible; this reply did not mean that the court was under a duty to find out for itself the whereabouts of the Applicant if he were needed; - that Mr. Thurner had not insisted, however, on being informed of every departure or return of the person charged - which was, anyway, in his opinion, a practice unknown at the Court of Linz. 21. On 20 September 1961, Judge Leonhard asked that Mr. Bittner - released beforehand by Stögmüller from the obligation to observe professional secrecy - be questioned on the following points: (a) what persons were present at the time of Stögmüller’s release, when mention was made of his going to Vienna (see paragraph 19 above)? (b) when it was decided to waive the obligation for Stögmüller to notify the authorities of every journey, had it been specified that the waiver also covered journeys other than those between Vienna and Linz and, for example, journeys abroad? On 9 October 1961, Mr. Bittner was heard as a witness by a judge of the Regional Court of Linz and stated that he had not attended, on 21 April 1958, at the release of Stögmüller, but Stögmüller had told him of his intention to go to Vienna, saying that the Investigating Judge was aware of it. Mr. Bittner added that Judge Thurner had asked him, on 30 April 1958, to see to it that the Applicant would be present when he was needed; furthermore, Stögmüller’s secretary kept herself informed regularly through Mr. Bittner about the progress of the proceedings. On 29 May and 7 July 1959, Judge Thurner had asked Mr. Bittner to have his client attend and Stögmüller did in fact appear within the prescribed times. At the request of the Applicant, Mr. Bittner notified, on 12 January 1959, the Regional Court of Linz that Stögmüller intended to go to Egypt: the court made no objection. Express permission to travel was never given. 22. On 19 October 1961, the Judges’ Chamber (Ratskammer) of the Regional Court of Vienna refused the appeal of 29 August 1961 (see paragraph 16 above). The Chamber held first that Stögmüller had gone to Greece without obtaining permission from the Investigating Judge. Basing its findings on the depositions made by Messrs Thurner and Bittner, it came to the conclusion that no general permission had been given by Mr. Thurner to the Applicant to cover travel in Austria or abroad. There was no doubt that Stögmüller had always returned from his travels but the Chamber considered that this fact was not relevant: in its view, it was clear from Article 191 of the Code of Criminal Procedure that any breach of the solemn undertaking was liable to entail the remand in custody of the person concerned. For reasons very close to those set out in the unfavourable opinion given by the Public Prosecutor’s Office on 11 September 1961 (paragraph 17 above), the decision of 19 October 1961 found, in addition, that there was a danger of absconding and a danger of repetition of offences. On this last point, the Judges’ Chamber considered that it was of little importance to know whether Stögmüller had in fact sold his business on 14 August 1961. The Applicant attacked this decision on 25 October 1961. He began by stressing the fact that neither he nor his lawyer had yet had an opportunity to consult the case-file (Akteneinsicht) and that they were therefore only able to give their views on the results of the enquiry and the preliminary investigation in the light of the elements contained in the decisions of the Court. Stögmüller furthermore maintained that as far as he could recall the only ground for his first remand in custody had been a danger of suppression of evidence and that, on the occasion of his release, the Investigating Judge had reminded him in the first place that it was essential not to suppress any evidence and in particular not to attempt to interfere with the witnesses. Accordingly, he considered he had not broken his solemn undertaking of 21 April 1958. On this topic, he returned to the arguments put forward in his appeal of 29 August 1961 (see paragraph 16 above). Emphasising that he was unaware of the contents of Judge Thurner’s statement (see paragraph 20 above), he also alleged that that judge had said to Mrs. Tuma, in September 1961, that in his view the Applicant had not broken his word. Stögmüller complained, moreover, that Mrs. Tuma had not been heard as a witness in her interviews of 17 and 21 August 1961 with Judge Leonhard (see paragraph 11 above). He added that she had asked the judge, on 21 August 1961, not to fix the Applicant’s examination in two days’ time because Stögmüller wanted to go to Steyr on that day, and that Judge Leonhard had made no objection. In the same context, the Applicant specified that, from 21 April 1958 onwards, he had made ten or twelve journeys abroad to participate in international judo competitions - in which sport he had been several times Austrian champion until 1960; almost all the newspapers had reported at the time his successes and defeats. Again, certain civil actions brought against him by persons who claimed to be victims of his activities had obliged him, he said, to make journeys in his own country. He considered he was entitled to assume that the Investigating Judge would learn of these absences from the press and from official documents. On this point the Applicant referred to files 40 Cg 174/60 (Regional Civil Court of Vienna) and 6 C 413/59 (District Court of Hietzing) as well as to the information laid by Holzknecht, Reichel and Schumlitsch. The Public Prosecutor concerned in the case would, for his part, have known of the above-mentioned journeys from the hearings which had taken place on 15 June 1960 in the case reference 2b Vr 5328/59, (see paragraph 4 above) with which he was also dealing. Stögmüller submitted that all these facts established that he had never believed it necessary to have permission to travel from the judge to whom he had never ceased, in any event, to be available. The Applicant further complained that the Judges’ Chamber had found, in its decision of 19 October 1961, that there was a danger of absconding and yet the warrant of arrest was based solely on the breach of the undertaking and on the danger of repetition of offences. In his submission, this way of proceeding had prejudiced the right of defence because he had not had an opportunity, in his appeal of 29 August 1961, to put forward arguments to establish that there was no danger of his absconding. In his view, there was no such danger in this case. On this point, Stögmüller recalled that he had returned from each of his numerous journeys and, particularly, that he had appeared before the Regional Criminal Court of Vienna on 15 June 1960 in the case 2b Vr 5328/59 (see paragraph 4 above) although he had to expect, according to the indictment, a sentence of imprisonment from five to ten years. As to the new complaints made against him, he stressed that he had been informed of them six months before his second arrest. He added that the sentence to be foreseen in the present case was the same as in 1958. The fact that he was preparing the professional pilot’s examination was, he also maintained, a further guarantee: once he obtained the necessary licence he could pilot only Austrian aeroplanes; the cost of his professional training - which amounted to about 150,000 or 200,000 schillings and which his father intended to cover by the sale of his aeroplane - constituted a real security. The Applicant also emphasised that his amateur pilot’s licence would expire on 1 December 1961 and he could not renew it unless he recovered his liberty before that date. On the question of the danger of repetition of offences, Stögmüller alleged, not without protesting his innocence that all the facts subsequent to his release were tied up with his activities as a financial agent, which activities he had ceased on 14 August 1961. Finally, he pointed out that he had not yet been examined about a great many of the facts alleged against him and especially that he had not been heard on the merits of the case since his second arrest. 23. The Public Prosecutor’s Office, to which the Investigating Judge had referred the appeal for opinion, replied on 31 October 1961: - that the Prosecutor who had attended the hearing on 15 June 1960 was not familiar, at that time, with the file in the present case which was dealt with by one of his colleagues until the spring of 1960 and therefore the Applicant’s statements on this point were shown to be incorrect; - that Stögmüller had committed his first offences even before he began to work in his company; - that detailed inquiries were to be made into the circumstances of the purchase of the aeroplane and the sale of the company Stögmüller and Co., as well as into the accused’s debts and the expenses of the professional training which he had described. The Applicant was in fact examined on these matters by the Investigating Judge on 28 December 1961. 24. On 10 November 1961, the Court of Appeal (Oberlandesgericht) of Vienna refused the appeal of 25 October. The court did not find it necessary to go into the question whether or not Stögmüller had broken his solemn undertaking given on 21 April 1958: contrary to the view held by the Judges’ Chamber, it considered that a breach of this nature could not constitute specific grounds for remand in custody and, on this point, referred to a decision by the Supreme Court of 22 August 1958. Consequently, the Court of Appeal concentrated entirely on determining whether there was any danger of the Applicant absconding and any danger of repetition of offences. On the first of these matters, it decided that no danger existed for the reason that, during a period of more than three and a half years, the Applicant had complied with every summons issued by the Investigating Judge and had returned from all his many journeys although he held a pilot’s licence, had an aeroplane at his disposal and was aware that the accusations against him had been aggravated. On the other hand, the court confirmed the decision of 19 October 1961 as regards the danger of repetition of offences. It noted in effect that according to the well-substantiated information (durchaus fundierte Anzeigen) laid by Josef and Maria Reichel, Karl Schumlitsch, Hans Burgmüller and Alois Holzknecht, Stögmüller had, between May 1959 and March 1961, either alone or in concert with Knöpflmacher and Brommer, committed further punishable acts in connection with the granting of loans, thereby causing a loss of more than 70,000 schillings to the persons concerned. The court therefore concluded that Stögmüller might, if released until the final result of the criminal proceedings in question ("bis zur rechtskräftigen Beendigung des vorliegenden Strafverfahrens"), commit further offences on the lines of those he had committed over a number of years. Although the Applicant had theoretically withdrawn from business, the court held that the danger was merely increased thereby: deprived of his previous means of livelihood, Stögmüller might be tempted to have recourse to fraudulent practices in order to maintain his customary standard of living. 25. On 24 November 1961, Stögmüller, in a letter to the President of the Regional Criminal Court of Vienna, described in detail his business career and, in particular, the preparations he had made to take up the occupation of professional pilot. He stressed, in particular, that he had sufficient means to enable him to complete his pilot’s training because he had obtained 80,000 schillings as the proceeds of sale of his company and hoped to get 160,000 schillings for his father’s aeroplane which he intended to sell. While offering to provide bail if he was set free, Stögmüller declared that he was ready to give a solemn promise not to engage any more in business activities. Finally, he complained that he had never had an opportunity to explain his case to Judge Leonhard, and he asked the President to allow him to do this before a member of the Committee (Präsidium) of the Court. A perusal of the file does not show whether the President of the Court replied to this letter. 26. On 6 December 1961, the Applicant lodged a second application for provisional release. While he recognised that he had lost his livelihood by selling his business, he stressed that he hoped to obtain a professional pilot’s licence and that his father had agreed to provide for his maintenance; he claimed this proved that there was no danger of repetition of offences. He added that he would be unable to take up flying as a career if his detention were prolonged. He also offered to provide security in an amount commensurate with his assets and with those of his family. This application was accompanied by a letter addressed to Mr. Tuma on 27 November 1961, by the Applicant’s father, Johann Stögmüller. The latter showed his readiness, if his son were released, to pay for his maintenance and for his professional training as a pilot. On 21 December 1961, Stögmüller supplemented his application by explaining in detail the prospects he saw for a pilot in Austria; he referred in particular to a report in the "Express" newspaper on the need for Austria to recruit pilots for lack of Austrian pilots. The Applicant renewed his offer not to engage any more in business activities and declared himself ready to produce to the court within a reasonable time a contract of employment as a pilot. 27. On 29 December 1961, the Public Prosecutor’s Office, consulted by the Investigating Judge, expressed its opposition to the release of the Applicant on the grounds that, in this case, there was a danger of repetition of offences. The Office referred on this point to the decision of the Court of Appeal (paragraph 24 above) and to the discovery made in December 1961 of other serious misdemeanours on the part of Stögmüller since his release. Further, the Office also observed that Stögmüller was in debt and had had to bring civil action, which was still pending, for the proceeds of the sale of his company. 28. The Investigating Judge refused the application on 3 January 1962. He pointed out, in substance, that the situation had not altered in the Applicant’s favour since the decision of 10 November 1961; that, on the contrary, the danger of repetition of offences had become more acute as it had been learned that in 1959 Stögmüller had been instrumental in causing a certain Michael Schwanninger to lose several hundred thousand schillings; that Stögmüller was in debt and had no means of his own. The Investigating Judge did not express views on the offer to provide bail. 29. The Applicant appealed against this decision on 8 January 1962. Relying on the above-mentioned letter from his father (paragraph 25 above), he contended that the circumstances had indeed changed in his favour. He added that, according to case-law of the Supreme Court, only clear indications could be used to establish that a danger of repetition of offences existed. It seemed to him, then, that there were such indications in the present case because he had given up his activities as a financial agent and the Schwanninger case dated from 1959. 30. On being consulted once again, the Public Prosecutor’s Office gave an unfavourable opinion on 11 January 1962. The Office considered, in effect, that the existence of a danger of repetition of offences resulted definitely from the numerous punishable acts committed by Stögmüller since 21 April 1958. In this context, the Office further recalled that the accused had negotiated loans on a large scale even before beginning to work in his company. The Office finally suggested that further inquiries into the financial position of the Applicant and his father be commenced, and also into the circumstances surrounding the alleged sale of the aforesaid company. 31. The Judge’s Chamber of the Regional Criminal Court of Vienna refused the appeal on 25 January 1962. Referring to the reasons given by the Court of Appeal on 10 November 1961, and by the Investigating Judge on 3 January 1962, it added that there was strong reason to suspect that Stögmüller had continued his operations in 1960. According to information received by the court on 19 January 1962, the Applicant had persuaded Stefanie Holzdorfer and Margarete Lorin that they would make an excellent bargain if they purchased an aeroplane: as a result of this transaction, Mrs. Holzdorfer had lost her entire fortune, consisting of a house valued at 400,000 schillings, while the father of Stögmüller had acquired ownership of the plane. The Judges’ Chamber noted that as the two women claimed ownership of the aeroplane Johann Stögmüller could not sell it if he wished to do so to support his son and pay for his professional training as a pilot. The Chamber did not take any decision on the offer made by the Applicant to provide security. It had been decided on 24 January 1962 to open a preliminary investigation in the aeroplane case which was the subject of separate prosecutions (26 d Vr 592/62). 32. On 25 January, and again on 12 and 15 February 1962, Stögmüller appealed against the decision of 25 January. Recalling that he had sold his company on 14 August 1961, he drew the conclusion that there was no danger of repetition of the offences. He also stated that he had about 250,000 schillings available of which 170,000 came from the sale of the aeroplane and 80,000 were in the form of a bill of exchange outstanding against the purchase of the company; he deduced from this that his upkeep and his professional training were assured. He complained in particular that the Investigating Judge and the Judge’s Chamber had not taken into account the aforementioned letter from his father (paragraph 26 above). After describing in detail the way in which he was preparing for the pilot’s examination (paragraph 9 above), he stressed that he had almost finished his professional training and that due to the dearth of professional pilots in Austria, he would have no trouble in quickly finding employment in that profession. From this he reasoned that there was no danger of repetition of offences. In order to offer in this respect additional guarantees, he declared himself ready to undertake that, in the event of his release, he would carry on no business activities, he would report regularly to the court on his occupation and he would produce to the court his contract of employment. 33. The Vienna Court of Appeal refused the appeal on 14 March 1962. It considered that neither the Applicant’s proposed change of occupation nor the time he wished to devote to training as a pilot was likely to avert the danger of repetition of offences. It further stressed that four days after the contested decision, a lawyer at Lienz, Mr. Oberhofer, had laid a charge against Stögmüller of having caused, by fraud, to his clients Alois and Martha Weiskopf of Virgen, a loss of 43,000 schillings in connection with the granting of a loan. 34. On 16 April 1962, the Applicant lodged a disciplinary complaint (Aufsichtsbeschwerde) against the conduct of the proceedings by the Investigating Judge and supplemented it on 27 April 1962. On 9 May 1962, he lodged a second complaint on the grounds that the competent authorities had not yet acted on the earlier one. On 31 October 1962 - somewhat less than three months after the Application had been lodged with the Commission (1 August 1962) - Stögmüller lodged a further disciplinary complaint with the President of the Regional Criminal Court of Vienna. He complained that Judge Leonhard was dragging out the investigation, had not given him a hearing during seventeen months’ detention, except on three charges, treated him worse than other persons detained with him, had not bothered about the other persons implicated in his case, had taken reprisals against him and had been suborned by the accomplices of the Applicant in other criminal cases. His application to the President of the Court was not successful – no more than were his other disciplinary complaints - and, on 16 November 1962, Stögmüller applied to the Court of Appeal which, on 23 January 1963, dismissed his complaints after detailed examination. 35. Meanwhile, and more specifically on 7 November 1962, the Applicant had sought, in addition to the joinder of the proceedings 26 d Vr 1105/59 and 26 d Vr 592/62 (paragraphs 6 and 31 above), the withdrawal of the other judges under the jurisdiction of the Court of Appeal of Vienna and the transfer of the case to the Regional Court of Salzburg. In effect, he accused the afore-mentioned judges of bias. On this point, he alleged that an official counsellor at the Court of Appeal was implicated (verwickelt) in the case 26 d Vr 1105/59 and that one of those who was charged with him was the son of a magistrate. He also emphasised that the prosecutions had already been going on for almost five years and that he was in detention for seventeen months without having been heard by the Investigating Judge except on three points of minor importance. The Supreme Court refused the application for transfer and then, on 6 February 1963, dismissed the request for the withdrawal of the judges of the Court of Appeal of Vienna. The motion for the withdrawal of the other judges under the jurisdiction of the Court of Appeal was dismissed by the Court of Appeal on 27 February 1963. On 15 January and 4 March 1963, these various decisions were transmitted to the Investigating Judge who, in accordance with the legislation in force, had suspended the preliminary investigation pending the result of the proceedings for the withdrawal of judges. 36. On 5 December 1962, Stögmüller had made an appeal based on the Constitution. Emphasising that the proceedings against him had already continued for five years and that he had spent eighteen months in custody while on remand without having been heard by the Investigating Judge except on three out of the fifty-six transactions in issue, he claimed to be a victim of violations of Articles 5 (1) (c) and (3) and 6 (1) (art. 5-1-c, art. 5-3, art. 6-1) of the Convention. He further complained that he had been prevented by the Regional Criminal Court of Vienna from voting at parliamentary elections. On 27 May 1963, the Constitutional Court (Verfassungsgerichtshof) declared that it had no jurisdiction in the matter for the reason that the appeal was directed against judicial bodies acting in the normal course of their duties. 37. On 4 June 1963, the Investigating Judge ordered the joinder of the proceedings 26 d Vr 1105/59 and 26 d 592/62 (paragraph 35 above). 38. After consulting the Public Prosecutor’s Office through Dr. Tuma, the Applicant lodged, on 9 August 1963, a third application for provisional release. He claimed that, as a result of the many months - more than twenty-five in all - which he had spent in custody his business relations had been broken off and this gave greater credibility to his stated desire to give up his former occupation. He added that he would be in danger of losing his pilot’s licence if he was not speedily released and that in any event he had served in advance a large part of any sentence which might be imposed on him. According to him, the career which he hoped to take up would not give him any opportunity of committing offences of the type with which he was now charged. Stögmüller agreed, however, that employment as a pilot might raise suspicions that he would abscond. On this point he claimed that he had no intention of evading the proceedings instituted against him, as this would be pointless for a number of reasons. As proof of his good faith he nevertheless offered a security of 280,370 schillings, including the personal security of four relatives for a sum of 32,000 schillings each. On being consulted by the Investigating Judge, the Public Prosecutor’s Office agreed, on 19 August 1963, to the conditional release of the Applicant. The Office stated its agreement with Stögmüller’s argument that there was no longer any danger of repetition of offences but there was a danger of his absconding. In this context, the Office stressed that the investigation had shown that there were serious charges and that a heavy sentence might therefore be expected; it also recalled that Stögmüller intended to take up a career as a pilot. The Office took the view therefore, that only release accompanied by the above-mentioned guarantee was acceptable. On 30 September 1965, Mr. Tuma stated before the Sub-Commission that this offer of security had been a purely formal one, made with the Public Prosecutor’s agreement; its sole purpose was to enable the court to release the Applicant, whose family was in fact completely penniless. However that may be, the Investigating Judge decided, on 21 August 1963, to release the Applicant on bail. He pointed out that, as the Applicant had broken off his business connections for almost two years, the danger of repetition of the offences had clearly ceased to exist, but that there was thenceforth a danger of absconding; he added that this last danger could be overcome by the making of a solemn undertaking and the deposit of security. The following day, the Judges’ Chamber of the Regional Criminal Court of Vienna fixed the amount of the security at 280,370 schillings. Stögmüller was released on 26 August 1963 after giving the solemn undertaking provided for in Article 191 of the Code of Criminal Procedure. His second period in detention therefore lasted, without interruption, for two years and one day. According to the minute prepared on the occasion of his release, the Applicant declared: "I acknowledge that I have been released on parole under Article 191 of the Code of Criminal Procedure. I have been informed of the consequences of a breach of my solemn undertaking; I will reside at Auhofstrasse 255, Vienna. If I am absent from that place of residence for more than seven days - which may happen as I intend to work as a pilot - I will give prior notice to the Court." On 27 August 1963, the Court of Appeal acknowledged receipt of the required security. When Mr. Leonhard, the Investigating Judge, appeared before the Sub-Commission as a witness on 20 July 1966, he stated in this connection: "Once Stögmüller had decided to change his occupation from moneylender to aviator, the danger of new offences ceased to exist. If he ceases to be a moneylender, he can no longer commit offences of the type with which he is charged. On the other hand, his wish to become a pilot raises again the danger that he may abscond, for as a pilot one often spends more time abroad than at home .... Because of the change of occupation, there was no further danger of repetition of offences and the provision of bail averted the danger of absconding ...". 39. In July 1966, Judge Leonhard announced that the preliminary investigation had been completed and he sent to the Public Prosecutor’s Office the case record (Articles 111 and 112 of the Code of Criminal Procedure) which ran to well over twenty thousand pages. 40. When they appeared before the Commission, the parties agreed that the facts which had to be examined by the organs responsible for the investigation were highly complex. The difficulty lay essentially in the number of the operations in issue. The preliminary investigation was originally concerned with eighty commercial transactions effected by the Applicant, of which seventy involved loans, almost all of which had been granted to farmers threatened with foreclosure. Finally, only forty-five transactions remained to be dealt with. The investigation concerned a series of offences of fraud (Articles 197, 199 (d), 200, 201 (d) and 203 of the Criminal Code), fraudulent conversion (Articles 183 and 184 of the Criminal Code), embezzlement (Article 205 (c)) of the Criminal Code) usury (Sections 2, sub-section 3, and 3, sub-section 4 of the Wuchergesetz), and a number of minor offences and misdemeanours (Vergehen and Ubertretungen). The offences with which Stögmüller was charged had involved their victims in a loss of considerably more than one million schillings. These offences had been committed throughout Austria but particularly around Wels in Upper Austria. As Wels does not lie within the jurisdiction of the Vienna Court of Appeal, the Investigating Judge could not carry out all the necessary enquiries personally; for some hundred facts and items of evidence letters rogatory had to be issued. In order to simplify the procedure, Mr. Leonhard spent several weeks in Upper Austria in November and December 1961; with the agreement of the competent authorities, he there consulted the land registers and himself questioned five witnesses at Wels, eleven at Reid im Innkreis and seven at Braunau. A total of one hundred and seventy-nine witnesses - sixty-seven of them during the period of Stögmüller’s second detention while on remand (25 August 1961 to 26 August 1963) - and ten persons charged were heard during the preliminary investigation. 41. According to information supplied to the Commission by the Government on 14 June 1966, some two or three hundred days between 5 March 1958 and 18 March 1965 were devoted to hearing the Applicant. However, only seventy-eight interrogations were recorded in writing, namely, four between 5 March and 21 April 1958, four in 1961 (three of these after Stögmüller was arrested for the second time), six in 1962, six in 1963 (up to 26 August, the date of his release), fifty-one in 1964 and seven in 1965. The minutes filled about a thousand pages. According to the statement submitted to the Commission by the Government no record was kept of any interrogation of the Applicant between 28 December 1961 and 11 July 1962, nor between 23 July 1962 and 29 May 1963 nor between 26 August 1963 and 27 January 1964. According to the minutes of the interrogations which the Government submitted to the Court of 24 September 1968, Stögmüller was, between 5 March 1958 and 26 August 1963, the date of his second release, heard on only six of the numerous allegations which he had to face. The minutes drawn up during this period total one hundred and seven pages. When the lady President of the Sub-Commission asked him, on 20 July 1966, why the Applicant had not been interrogated more often in the course of his second remand in custody, Judge Leonhard stated, in particular, as follows: "... I would say that Stögmüller is the most intelligent person I have come across in thirty years’ (experience). "... At first I sat down with Stögmüller in the prison ... and began to go over the facts with him. After two or three days I realised that, because of his intelligence, this method was not getting me anywhere with him. It is, of course, usual for a judge ... to examine the person charged ... and then hear the witness ... That was not possible in Stögmüller’s case. I interrogated him ... Stögmüller insisted that the minutes should contain only his own words. He objected to any kind of summary. I had to accept everything he told me, without being able to raise the slightest objection as to whether this or that statement could be correct, for I had not the necessary testimony ... I came to see that by proceeding in this way with Stögmüller I was not making any progress in the case. In the last analysis, that is why I stopped interrogating him, I wanted first to collect the evidence ...". 42. During his second period of detention, Stögmüller brought fifty-nine applications and appeals, of which twenty-seven or twenty-eight were disciplinary complaints against the Investigating Judge and were all dismissed as ill-founded. The judge informed the Sub-Commission that in his view this was a deliberate manoeuvre designed to thwart his efforts. In this connection, he mentioned a letter which the Applicant had sent to his counsel on 5 February 1963. Stögmüller suggested in the letter that Mr. Tuma should employ the good offices of a colleague, Mr. Lang, to negotiate an agreement with the Investigating Judge: while reserving the right to pursue his applications for release, he said that, if certain concessions were granted, he would undertake not to present any more applications and appeals despite the legitimacy of his complaints; meanwhile, he added, he would continue to employ the tactics which he had agreed with his counsel. With the Sub-Commission’s permission, the Government produced this document on 20 July 1966. In its Report of 9 February 1967, the plenary Commission noted that Judge Leonhard, who was responsible for supervising the Applicant’s correspondence, had read the letter in question and had had a photocopy of it made before transmitting it to Mr. Tuma; in these circumstances, the Commission felt it could not take it into consideration. It also appeared in fact that, in order to speed up proceedings and following an exchange of views between counsel for the defence and the Investigating Judge, Stögmüller withdrew, on 3 July 1962, an appeal which he had lodged on 25 June 1962 against a decision ordering the inclusion in the file of a letter he had written to his parents. 43. In 1966-67, the Applicant’s pilot’s licence and his restricted radio-telephonic certificate were withdrawn by the competent authorities following his above-mentioned conviction of 5 March 1964 (paragraph 4 above). 44. On 1 August 1967, that is a little less than six months after the adoption of the Commission’s Report (9 February 1967), the Public Prosecutor’s Office at Vienna completed the preparation of the indictment (Anklageschrift, Article 207 of the Code of Criminal Procedure). One hundred and forty pages long, this document was directed against three persons, and Ernst Stögmüller was named first; a fourth person charged had died in the meantime. Stögmüller, for his part was indicted for: - aggravated usuary (Sections 2, sub-sections 1 and 3, and 3, sub-section 4, of the Usury Act) in nineteen instances; - the misdemeanour of usury (Section 4, sub-section 1, of the Usury Act) in two instances; - aggravated fraud or complicity in aggravated fraud (Articles 197, 199 (d), 200, 201 (d), 203 and 5 of the Criminal Code) in nineteen instances; - the crime of fraudulent conversion (Articles 183 and 184 of the Criminal Code) in seven instances; - an offence against Article 8 of the Criminal Code and Section 5, penultimate paragraph, of the Vagrancy Act. The amount of loss alleged against Stögmüller exceeded a million schillings. According to the indictment, thirty-two of the forty-eight acts therein referred to dated from before the first release of the Applicant (21 April 1958). The sixteen others had occurred in 1959, 1960 and 1961; however, they only related to six groups of persons out of a total of 27. It is clear, in effect, that the charges relating to certain facts were severed and then dropped (Article 57, 109 and 34, paragraph 2, of the Code of Criminal Procedure). This was so, in particular, as regards the charges in relation to the Weiskopf case (paragraph 33 above). The Public Prosecutor’s Office asked, in particular, for the opening of the trial before the Regional Criminal Court of Vienna sitting as a Lay-Judge court, the arraignment of the accused persons, sixty witnesses to be summoned and the depositions of thirty-seven other witnesses to be read, the reading of the opinions of two experts and of a series of other documents. 45. The trial opened on 17 April 1968. The Regional Criminal Court of Vienna heard eighteen witnesses and read the depositions of seventy-eight others as well as the opinions of two experts. On 9 May 1968, the court sentenced Stögmüller to four and a half years’ severe imprisonment, with one night of "sleeping-hard" (hartes Lager) and one day’s fasting each year, on nineteen counts of aggravated usury, one count of usury, nineteen counts of aggravated fraud and seven counts of aggravated fraudulent conversion. In application of Article 265 of the Code of Criminal Procedure, the court took into account the sentence imposed on the Applicant in 1963-64 (paragraph 4 above). Furthermore, Stögmüller was ordered to pay to five of his victims sums totalling more than 315,000 schillings in damages and the rights of the civil plaintiffs were expressly reserved in all other respects. The Applicant was acquitted on the remaining counts. Under Article 55 (a) of the Criminal Code, he was granted remission of sentence for the duration of the periods he had spent in provisional detention and in detention while on remand. In fixing the amount of the remission, the court took the view that in this case there was, notwithstanding certain aggravating circumstances - the extent of the loss caused and the number of offences established - a conjunction of "very important and overriding" extenuating circumstances (Article 265 (a) of the Code of Criminal Procedure). In this respect, the court noted first that a lot of time had elapsed between the commission of the offences and the date of judgment; it acknowledged, in particular, that Stögmüller was only in part responsible for the fact that ten years had gone by since the opening of the preliminary investigation. The court also stressed that the Applicant, who had been only twenty-two years of age when he began his criminal activities, had committed no more offences since the end of 1960, but on the contrary had, on his release chosen an "ordinary" career (bürgerlich), had been of irreproachable conduct, had founded a family and had succeeded in reintegrating himself into society. Stögmüller did not bring an appeal (Berufung), nor move to have the judgment set aside (Nichtigkeitsbeschwerde). Some time after his release, Stögmüller took up residence in the United Kingdom where he became a pilots’ instructor and had obtained the required certificate. However, he returned recently to his own country where he began to serve his sentence on 4 September 1968. 46. In his introductory Application dated 1 August 1962 (No. 1602/62), Stögmüller submitted: - that his arrest and detention had been effected without "reasonable suspicion" of his having committed an offence and without its being "reasonably considered necessary" to prevent his committing an offence (Article 5 (1) (c) of the Convention) (art. 5-1-c); - that he had not been brought to trial "within a reasonable time" or released pending trial (Article 5 (3)) (art. 5-3); - that he had not been granted "a fair and public hearing within a reasonable time" (Article 6 (1)) (art. 6-1); - that the manner in which the preliminary investigation had been carried out did not conform with the presumption of innocence (Art 6 (2)) (art. 6-2); - that he had not been informed promptly and in detail of the nature and cause of the accusation against him (Article 6 (3) (a)) (art. 6-3-a); - that he had not been permitted to examine or have examined witnesses against him (Article 6 (3) (d)) (art. 6-3-d); The Applicant requested: - that he be released, subject, if need be, to the sole condition that he should not exercise any other occupation than that of pilot; - that he should have an opportunity of examining the witnesses against him. On 14 September 1963, the Applicant also claimed that the Investigating Judge had become biased against him (Article 6 (1) (art. 6-1) of the Convention). On 7 July 1964, the Commission declared inadmissible, as manifestly ill-founded, this last complaint and that grounded on Article 5 (1) (c) (art. 5-1-c); the Commission deferred its decision as to the admissibility of the remainder of the Application. During an oral hearing held before the Commission on 1 October 1964, Mr. Tuma stated that he maintained only the claim in regard to the alleged violation of Article 5 (3) (art. 5-3). On that same day, the Commission decided that the Application was admissible in respect of that provision; it decided not to avail itself of its competence to examine further, ex officio, the allegations which had been withdrawn by the Applicant’s counsel (Article 6 (1) and (3)) (art. 6-1, art. 6-3). On 14 December 1966, it deemed it was not required to resume the examination ex officio of the allegation relating to the duration of the criminal proceedings instituted against Stögmüller (Article 6 (1) (art. 6-1): "reasonable time"). The Commission did not, however, exclude the possibility that the period of more than two years which had elapsed since its decision of 1 October 1964 might be a factor such as would justify the lodging of a further Application. 47. Following the decision that part of the Application was admissible, the Sub-Commission established the facts of the case and sought in vain to reach a friendly settlement (Articles 28 and 29 of the Convention) (art. 28, art. 29). 48. Before the Commission and Sub-Commission, the Applicant stated exactly how he viewed the problem raised in this case in respect of Article 5 (3) (art. 5-3). In his view, it was not enough to note that he had obtained his freedom on 26 August 1963; the question was whether he had been given his freedom in good time or after an excessively long delay. His two periods of detention while on remand - covering a total period of two years and seven weeks - could not, in his submission, be considered "reasonable" within the meaning of the Convention. Stögmüller stated that under Austrian law the penalty for the offences with which he was charged was not less than six months’ imprisonment and nor more than ten years’ penal servitude and in the event of his being found guilty he expected a sentence of two or three years. He deduced from this that his detention constituted an anticipated sentence. According to him, the course of the preliminary investigation had been subject to abnormal delays which he attributes to two reasons: Judge Leonhard was dealing with another very complex case (Rafael, Neumeister and accomplices); furthermore, the Judge had begun by summoning a large number of witnesses instead of first hearing the Applicant in accordance with normal practice. Stögmüller also claimed that during his second period of detention he had been questioned only thirteen times and on only five of the eighty or more operations in issue. He claimed that his detention had in fact been used as a means of pressure: that it was hoped by prolonging the detention to prevail on him to confess. The Investigating Judge was said to have had an illuminating conversation on this subject with Mr. Tuma in 1961. The Applicant conceded that his application for the withdrawal of judges had had the effect of suspending the preliminary investigation (see paragraph 35 above). He maintained, however, that he had been in custody for about a year before he had brought these applications and explained he had done so because he was exasperated by the slow progress of the proceedings; he said that the competent courts could, in any case, have taken a decision on these applications within one month. Referring also to Article 5 (1) (c) (art. 5-1-c) of the Convention, the Applicant claimed that his detention had ceased to be "lawful" ("régulière") on 10 November 1961, the date on which the Court of Appeal of Vienna had agreed that there was no danger of his absconding (see paragraph 24 above). As to the danger of repetition of offences, Stögmüller disputed its existence: he said that on 14 August 1961, that is, eleven days before his second arrest, he had sold his business and given up all commercial activity such as might possibly justify fears of this danger. He pointed out finally that the reasons which had led the authorities to release him in 1963 corresponded exactly to the arguments put forward by him two years earlier in his own applications and appeals. He therefore concluded that he ought to have been released in 1961. 49. After the failure of the Sub-Commission’s attempt to reach a friendly settlement, the Commission drew up the Report provided for in Article 31 (art. 31) of the Convention. This document was adopted on 9 February 1967 and transmitted to the Committee of Ministers of the Council of Europe on 11 May 1967. The Commission states its opinion therein, by eight votes against three, that Article 5 (3) (art. 5-3) of the Convention has been violated in the present case. The Report contains two concurring opinions and three dissenting opinions. Arguments of the Commission and the Government 1. In its Report of 9 February 1967, the Commission followed the method known as that of the seven "criteria" or "factors" which it adopted in the Wemhoff and Neumeister cases (see e.g. Publications of the Court, Series A, Neumeister case, judgment of 27th June 1968, pages 23-24). After applying each of these criteria to the present case, the Commission considered them as a whole. The factors whose consideration, according to the Commission, led it to find "unreasonable" the nature of the length of the detention on remand in issue, i.e. criteria Nos. 1, 2 and 6, appeared to it to weigh more heavily than those telling in the opposite direction. By a majority of eight to three, the Commission expressed the opinion that there had therefore been a violation of Article 5 (3) (art. 5-3) of the Convention. 2. At the hearings of 10 and 11 February 1969, the Commission’s Delegates based their arguments essentially on the judgments which the Court had given in the meantime in the Wemhoff and Neumeister cases, but also referred frequently to the Commission’s Report and in particular to the majority opinion. Referring to paragraph 10 of the section "As to the Law" in the first of these judgments, the Commissions’ Delegates observed that in the opinion or the Court and that of the Commission, the concept of "reasonable time" must be interpreted in the light of the concrete facts of each case. According to the Commission, it is in the nature of things that the same factors are not necessarily involved every time Article 5 (3) (art. 5-3) is invoked. However, the experience gained in the Wemhoff, Neumeister, Stögmüller and Matznetter cases showed that as a rule certain factors were considered by the Commission and the Court in such cases. In this connection, the Commission’s Delegates referred particularly to paragraph 5 of the section "As to the Law" of the Neumeister judgment and summarised the arguments put forward by the Applicant in support of his three applications for release on bail and the reasons why the competent Austrian courts refused the first two and granted the third. They reminded the Court that the Commission had examined these facts to see whether the proceedings dealing with the Applicant’s requests for release on bail had been unduly prolonged by the fault of the authorities concerned and that they had not found any such fault. Other factors should also be taken into consideration; in this respect the Delegates referred to the Applicant’s conduct during the preliminary investigation and particularly his fifty-nine appeals, applications and other motions, thirty-four of which could not be taken into consideration in the Report of 9 February 1967 as the Government had not drawn attention to them until its Memorial of 4 December 1967. The Delegates pointed out that in the opinion of the Commission Stögmüller "went beyond a fair exercise of his right of petition" in challenging all the judges of the Vienna Court of Appeal and that "this element points to the conclusion that the prolongation of his detention, which resulted from this challenge was not unreasonable" (paragraph 69 (4) of the Report). The Delegates nevertheless produced a letter dated 23 December 1967 and addressed to the Commission in which the Applicant explained why he made that challenge. Again, the complexity and difficulties of the preliminary investigation told in favour of the reasonableness of the length of detention in issue. Moreover, the Court had taken account of a similar factor in its judgment of 27 June 1968, in the Wemhoff case (paragraph 17 of the section "As to the Law"). Other factors told in the opposite direction, i.e. the length of the Applicant’s detention - both in itself and, in particular, in relation to the sentence applicable in case of conviction - and the manner in which the preliminary investigation had been conducted. In paragraph 16 of the reasons of the Wemhoff judgment, the Court had implied that the actual duration of a period of detention could in certain circumstances be a determining factor in deciding whether it was reasonable. As to the manner in which the preliminary investigation was conducted, the Court had taken account of this in the Neumeister judgment (paragraph 21 of the reasons); it was true that the Court was dealing with Article 6 (1) (art. 6-1) of the Convention but this aspect of the question was even more relevant from the point of view of Article 5 (3) (art. 5-3). In the present case. Judge Leonhard had to investigate several very difficult and complicated cases at the same time, including that of Rafael, Neumeister and others; the steps taken to relieve him of dealing with new cases, which were mentioned by the Government for the first time during the oral hearings, did not in any way refer to the cases already pending. 3. The Delegates then replied to the Government’s criticisms of the Commission’s method of establishing the facts and setting them out in its Report. 4. According to the Commission, the period of detention, the compatibility of which with Article 5 (3) (art. 5-3) had to be examined, ran from 25 August 1961 to 26 August 1963. The Applicant’s detention from 3 March to 21 April 1958 could not be taken into consideration because it occurred before the entry into force of the Convention with respect to Austria (3 September 1958). In reply to an objection by the Government that the present case dealt exclusively with the period of detention prior to the lodging of the Application (25 August 1961-1 August 1962, see paragraph 11 below), the Delegates replied by referring to paragraph 7 of the Neumeister judgment in which the Court had rejected a similar objection. They stated that the Commission had relied on this opinion of the Court in its recent decision on the admissibility of Application No. 2614/65, Ringeisen against the Republic of Austria (Collection of Decisions of the Commission, Volume 27, page 51). At the Court’s request, the Delegates then replied to the Government’s argument based on Article 26 (art. 26) of the Convention. They pointed out that the Applicant’s detention terminated on 26 August 1963, i.e. before the Commission’s decision on admissibility (1 October 1964). They added that it should be observed that this decision was taken after a hearing on the same day at which both parties were represented and in which the parties had made submissions on the admissibility of the complaint in question which related to the whole period of detention. The Government had not however, raised any objection to the Application grounded on Articles 26 and 27 (3) (art. 26, art. 27-3) of the Convention and the Commission had not considered that it should be rejected under these provisions for failure to exhaust domestic remedies. Before the above-mentioned decision of 1 October 1964, the Applicant had on two occasions applied to each of the authorities from whom a person detained while on remand in Austria may seek his release under Articles 113 et seqq. of the Code of Criminal Procedure; he had thus exhausted the domestic remedies. However, Austrian law does not limit the number and frequency of this type of application. The Delegates remarked that if the Government’s argument were to be accepted, it would lead to the conclusion that a person held in detention while on remand would have to make incessant applications in order to exhaust the domestic remedies with respect to the whole period of his detention: such a large number of applications would not only be likely to be considered as an obstruction of the normal course of criminal procedure but even as an abuse of the right of appeal. Again, a person alleging the violation of Article 5 (3) (art. 5-3) with respect to the length of his detention while on remand complains of a continuing situation which should be considered as a whole and not divided up in the manner suggested by the Government. In the opinion of the Delegates, if the Government’s argument were accepted, the effect of Article 5, paragraph (3) (art. 5-3), of the Convention would be gravely impaired: it would dissuade detained persons from petitioning the Commission until they had endured a long period of detention while on remand. The Delegates also emphasised that it might in the result be less favourable for the respondent State in cases where a detained person was set at liberty by virtue of a request for release subsequent to the lodging of his Application. The Delegates submitted that once the Application was declared admissible and Article 26 (art. 26) of the Convention had been respected at the stage of examination of admissibility, the Commission and the Court were competent to judge whether the length of the detention while on remand in issue was reasonable without this competence being in any way limited as to time. 5. Finally the Delegates replied to the Government’s arguments based on the fact that the Applicant had been convicted on 28 May 1963 by the Regional Criminal Court of Vienna in the first criminal proceedings instituted against him (file 2 b Vr 5328/59, see paragraph 10 below). In their view, the proceedings before the Commission related exclusively to the second prosecution (file 26 d Vr 1105/59); this appeared clearly from the Report of 9 February 1967. It was clear, moreover, that the decisions taken between 1961 and 1963 by the Austrian Courts with respect to the Applicant’s detention while on remand related to this latter prosecution. The Delegates also observed that the judgment of the Vienna Regional Criminal Court in the first criminal case was given in June 1960, i.e. more than a year before the arrest and detention of the Applicant in connection with the second prosecution. It would follow that the first prosecution was not relevant to the solution of the problem before the Court in the present case. 6. At the hearing of 10 February 1969, the Commission requested the Court: "to decide whether the Convention has been violated or not by the detention of Ernst Stögmüller from 25th August 1961 to 26th August 1963." 7. In its Application of 12 June 1967, the Government expressed the opinion that the Commission’s Report was based on erroneous legal reasoning, an incorrect finding of the facts and an inaccurate assessment of the evidence. These submissions were developed in detail in its memorial of 6 December 1967. The Government put forward arguments similar to those it had submitted in the Neumeister case (see pages 29 to 34, paragraphs 18 to 27 of the judgment of 27 June 1968). In particular, the Government raised objections of principle to the use of the criteria, to their application to the analysis of the facts and against criterion No. 1; it also disputed the way in which the Commission had used criteria Nos. 2, 4 and 6 in the present case. 8. At the oral hearings of 10 and 11 February 1969, the Government’s representatives based their pleadings in part on the judgments which the Court had given in the meantime in the Wemhoff and Neumeister cases. In their opinion, the reasons which led to the rejection of the Applicant’s first two requests for release on bail were conclusive and convincing; although the lack of danger of his absconding was acknowledged by the Court of Appeal on 10 November 1961, the danger of a repetition of the offences continued throughout the period of detention in issue; the decisions to this effect taken by the Austrian courts were confirmed by the judgment of 9 May 1968 convicting the Applicant which proved that offences had been committed after the first release. Even during his detention while on remand the Applicant had continued to recover debts due from his business activity, from which it might be concluded that he did not intend to abandon that activity. The danger of a repetition of the offences had, however, gradually lost its strength, particularly as a result of the progress of the preliminary investigation and the Applicant’s change of occupation. On the other hand, the sale of the company had little significance in this respect: the Applicant, who had never obtained the licence necessary to act as an agent for credit transactions, could have resumed his business activity at any time. But while the danger of a repetition of the offences gradually became less, the danger of his absconding had revived in view of the severity of the sentence to be expected and the fact that the Applicant intended to take up the career of pilot in the United Kingdom, a State which had not made an extradition treaty with Austria. However, the authorities had averted this danger by accepting the security offered by the Applicant. 9. The Government considered that the method laid down by the Court in the two judgments of 27 June 1968 (see, for example, paragraph 5 of the section "As to the Law" of the judgment in the Neumeister case) results inevitably in having to submit to the Court the merits of the final domestic decision on an Applicant’s detention while on remand. But such a result is contrary to the Convention and to the case-law of the Commission and the Court. This method would involve the risk of blurring the clear distinction which, according to the Government, should be maintained between paragraph (1) (c) and paragraph (3) of Article 5 (art. 5-1-c, art. 5-3). It was only the length of detention that was in issue and not the detention as such. The question whether the conditions justifying detention while on remand were fulfilled did not in the present case merit the importance that had been given to it by the Court in the Neumeister judgment. Referring to paragraph 10 of the reasons of the Wemhoff judgment, the Government’s representatives expressed their agreement with the manner in which the Court had interpreted the concept of reasonableness. In their opinion, account must be taken of all circumstances which have had a bearing on the length of detention: the practical difficulties of the preliminary investigation particularly with regard to the principle of the determination of the true facts, the behaviour of the Applicant, etc. In short, the question was whether an authority of the Austrian State had delayed the proceedings: if this was not so, the Government considered that there was no reason to accuse it of having failed to comply with the requirements of paragraph (3) of Article 5 (art. 5-3). In this connection, the Government insisted strongly on the exceptional difficulties encountered in the preliminary investigation and particularly the wide extent of the alleged dishonest dealings, the complexity of the facts, the skill of the Applicant and the number of witnesses. It also pointed out that the competent authorities, in their anxiety to speed up the course of the proceedings as far as possible, had ordered the severance of certain prosecutions and relieved Judge Leonhard of dealing with new cases during a number of periods which extended from 1 June 1959 to 30 September 1963 and amounted in all to about twenty-five months. This last-mentioned information had not been given to the Commission but the Government’s representatives thought it right and necessary to give it to the Court; there was no rule forbidding the introduction of new material (Neuerungsverbot) before the Court. It is true that Judge Leonhard had had to deal at the same time with the Stögmüller case and the case concerning Rafael, Neumeister and others; however, he had stated before the Sub-Commission that it was only the length of the preliminary investigation and not that of the Applicant’s detention while on remand which had been prolonged as a result. Again, the Commission had not in its Report found any fault on the part of the Austrian judicial authorities; it thus gave the impression that the present case - as indeed the Neumeister case - was concerned less with the particular proceedings than with the Austrian system of criminal investigation. Unlike the authorities concerned, the Applicant had systematically sought to delay and complicate the preliminary investigation. His dilatory tactics consisted in particular of a mass of applications and appeals - including the challenges to judges and requests for transfer of the proceedings - and of accusations of perjury against the prosecution witnesses. This appeared clearly from the letter addressed by Stögmüller to his lawyer on 5 February 1963. As matters stood, the fact that the proceedings did not terminate earlier had not prejudiced the Applicant: he had been granted remission of sentence for the time he had spent in detention while on remand; furthermore, the Court had exercised in his favour its "special right of mitigation" (Article 265 (a) of the Code of Criminal Procedure) which it did for the reason that a fairly considerable time had passed since the offences were committed. 10. In order to solve the problem raised by the present case the Government considers that it is necessary to take account of the first prosecution of the Applicant. Those proceedings, which ended with the judgment of the Vienna Regional Criminal Court of 28 May 1963 (file 2 b Vr 5328/59) and the second prosecution (file 26 d Vr 1105/59) together formed an indivisible whole. The two proceedings related, in effect, to similar offences which were interconnected and were tried by the same court; moreover, all the legal requirements (Article 56 of the Code of Criminal Procedure) for a joinder of the two proceedings were satisfied both at the time judgment was given and during the detention while on remand. According to the Government, the judgment of 28 May 1963 must be considered as satisfying the Applicant’s entitlement to be tried (Aburteilung) within the meaning of Article 5 (3) (art. 5-3) of the Convention. It could be regarded as a sort of partial or first judgment. As to the judgment of 9 May 1968, it was merely supplementary to that of 28 May 1963, to which it expressly referred (cf. Article 265 of the Code of Criminal Procedure). The Government added that it would cause serious difficulties if the Court were to ignore the first judgment; it observed that when a person is charged with a great number of offences the prosecution often begins, particularly in countries outside the European legal system, by separating some of the offences and putting them before the competent court; this practice which is perfectly in accord with the Convention would therefore have to be abandoned if the Court did not consider the judgment of 28 May 1963 as being a real judicial decision within the meaning of Article 5 (3) (art. 5-3). In reply to the arguments of the Commission’s Delegates, the Government’s representatives emphasised that although the first criminal proceedings had not led to an Application by Stögmüller against the Republic of Austria, they had nevertheless played a certain part in the proceedings before the Commission: they are mentioned in one of the annexes to the Commission’s Report and a question concerning those proceedings was put to the parties by the President of the Sub-Commission. It is true that judgment had been given in those proceedings on 15 June 1960 but this judgment had been set aside by the Supreme Court on 31 January 1961: therefore, the only judgment to be considered was the judgment of 28 May 1963. The Government therefore submitted that the length of detention in issue, which in its opinion should be reduced by about six months to make allowance for the delays caused by Stögmüller’s challenges to the judges, should be shortened by a further three months. 11. In its Memorial of 6 December 1967, the Government on the other hand, criticised the Commission for having taken into consideration the period which followed the lodging of the Application (1 August 1962-26 August 1963): in the Government’s opinion, the Commission could only deal with facts which had been put before it in an Application submitted under Article 24 (art. 24) or 25 (art. 25) and in all logic such an Application could only relate to matters prior to the date on which it was lodged. In a judgment of 27 June 1968 the Court rejected a similar argument put forward by the same Government in the Neumeister case (see pages 30 and 38 of the judgment). The Government nevertheless maintained its position on 10 and 11 February 1969. In its view, the case before the Court dealt exclusively with the period between 25th August 1961 and 1st August 1962. Apart from Articles 24 and 25 (art. 24, art. 25), the Government relied particularly on Article 26 (art. 26) of the Convention. In this context it maintained that the Commission’s decision on admissibility was not infallible and that the Court was competent under Articles 19 and 45 (art. 19, art. 45) of the Convention to examine the question whether proceedings had properly been brought against the respondent State and whether the Application was admissible. According to the Government, it would be contrary to Article 26 (art. 26) if one were to adopt the opinion that an Application alleging a violation of Article 5 (3) (art. 5-3) related to a situation and not to an isolated act (paragraph 7 of the reasons of the Neumeister judgment): it would be enough for the person concerned to have exhausted the domestic remedies immediately after the beginning of his detention while on remand in order to be entitled to question the legality of the whole period of detention by applying to the Commission; the respondent State would thus be prevented from taking steps to remedy within the framework of its domestic legal system a supposed violation which might very well not have occurred until after the lodging of the Application. In the Government’s opinion, such a result would be contrary to a rule of customary international law and Article 26 (art. 26) was purely and simply a reproduction of this rule. Moreover, in the Government’s view, the starting point of the Court’s reasoning was not at all beyond discussion. For the Application was not directed against the detention as such but against the length of a period of detention which in itself was compatible with the requirements of the Convention. Consequently, the time factor was of capital importance for the determination of the subject of the dispute, which was not so much a continuing situation but a definite fact, that is, the length of a detention which itself complied with the requirements of Article 5 (1) (c) (art. 5-1-c). Referring in particular to the decision of 18 July 1968 on the admissibility of Application No. 2614/65 (Ringeisen against the Republic of Austria), the Government expressed the concern it felt as to the manner in which the Commission interpreted Article 26 (art. 26): this very free and informal interpretation did not accord with the intention of the Contracting States. Referring to its own conception, the Government did not consider that this would oblige a person desirous of protecting his rights to introduce a series of successive applications. In its opinion, an aggrieved person should apply to the Commission when he considered that he had been too long in detention: such an Application would be successful if that was in fact the case; otherwise it would be rejected on the grounds that the Applicant was complaining of a violation which had not yet occurred. The Government concedes that it did perhaps fail to raise before the Commission the objection based on Article 26 (art. 26). It nevertheless considers that it is entitled to raise the matter before the Court: in its opinion, neither the rule forbidding the introduction of new matter (Neuerungsverbot) nor the obligation to raise certain matters at the beginning of proceedings (Eventualmaxime) appears to apply in the circumstances. 12. In the Government’s opinion, if the Court was nonetheless to hold that there had been a violation of paragraph (3) of Article 5 (art. 5-3), it ought to indicate the time when this violation commenced. Since it was not contested that Stögmüller’s original arrest was valid (paragraph 1 (c) of Article 5) (art. 5-1-c) this inference would, in the opinion of the Government, imply that the detention in issue was originally compatible with paragraph (3) (art. 5-3). It was therefore a great significance to the Government to know - if this should be the case - for what length of time the detention in question had continued to be reasonable. 13. In its Memorial of 6 December 1967, the Government made the following submissions to the Court which it confirmed at the hearing of 10 February 1969: "May it please the Court to declare that the length of detention pending trial, which is the subject of the Application lodged by Ernst Stögmüller against the Republic of Austria and of the Report drawn up by the European Commission of Human Rights on 9 February 1967 in accordance with Article 31 (art. 31) of the European Convention on Human Rights, does not conflict with the obligations arising from the said Convention".

dev

001-96701

ENG

RUS

CHAMBER

CASE OF SHUGAYEV v. RUSSIA

Violation of Art. 6-1;Violation of Art. 6-3-c;Violation of Art. 34

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

7. The applicant was born in 1961 and is serving a prison sentence in Orenburg. 8. On 6 May 2001 the applicant was arrested on suspicion of murder. On 7 June 2001 he was released on an undertaking not to leave town. 9. The applicant was subsequently apprehended on suspicion of another murder. According to him, the arrest took place on 18 October 2001. The Government submitted that he was arrested on 19 October 2001. It appears that the applicant was not provided with any legal assistance when questioned by the investigator. A lawyer was appointed to represent him on 13 January 2002. It appears that the applicant was dissatisfied with the quality of the lawyer’s services and dismissed him. 10. On 17 January 2002 the Shadrinsk Town Court found the applicant guilty of murder and sentenced him to fourteen years’ imprisonment. On 26 February 2002 the Kurgan Regional Court quashed the applicant’s conviction on appeal and remitted the matter for fresh consideration. 11. On 6 May 2002 the Shadrinsk Town Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. On 28 May 2002 the Kurgan Regional Court upheld the conviction on appeal. 12. On 15 February 2002 the Kurgan Regional Court opened another trial. Lawyer V. was appointed to represent the applicant. 13. On 26 February 2002 the applicant asked the court to dismiss the lawyer, alleging that he was not performing his duties properly. His request was denied. 14. On 13 June 2002 the Kurgan Regional Court found the applicant guilty of murder and sentenced him to life imprisonment. On 10 January 2003 the Supreme Court of the Russian Federation upheld his conviction on appeal. The applicant, who was not represented, made oral submissions to the court by means of a video teleconference. The prosecutor was present and argued in favour of dismissing the applicant’s appeal. 15. On 21 September 2004 the Sol-Iletskiy District Court of the Orenburg Region commuted the applicant’s sentence to twenty-two and a half years’ imprisonment. 16. Between 8 and 10 April 2003 the applicant was detained at transit prison IZ-56/1 in Orenburg. According to the Government, the relevant internal regulations required that, for the time of the applicant’s stay there, his personal property was withheld from him for security reasons. His personal belongings were duly logged and then returned to him at the end of his stay. According to the applicant, neither the documents nor many of his personal belongings were returned to him. 17. The applicant lodged a complaint with the General Prosecutor’s Office on 16 April 2003 alleging that his documents had been unlawfully seized and his personal property had been stolen. The complaint was transferred to the regional department of corrections. They questioned one of the guards and the applicant. The guard claimed that all the applicant’s belongings had been returned to him against a signed receipt. According to the Government, the applicant withdrew his allegations. They submitted a copy of a statement by the applicant dated 22 September 2003 where he confirmed in writing that he did not have any claims against the administration of the transit prison. 18. On an unspecified date the applicant lodged a complaint with the Leninskiy District Court of Orenburg in respect of the loss of his personal effects. On 31 August 2005 the court dismissed it without consideration on the merits due to the applicant’s failure to comply with certain procedural requirements. It appears that the applicant did not appeal. 19. Between 10 April 2003 and 16 December 2004 the applicant was detained at correctional institution IK-6 in Sol-Iletsk. 20. According to the applicant, he sent out two letters to the Court on 5 May and 9 July 2003. The letters never reached the Court. Nor were they registered in the outgoing correspondence log of the correctional institution submitted by the Government. The applicant’s next letter of 27 October 2003 reached the Court. That letter was not registered in the log either. 21. The letter which the applicant dated as of 13 January 2003 was dispatched by the administration of the correctional colony on 31 March 2004. 22. The applicant allegedly tried to send another letter to the Court on 14 September 2004. He claimed that his letter was not accepted for dispatch and the guards beat him up for persisting in his correspondence with the Court. 23. The applicant further alleged that on 21 October 2004 the administration of the correctional institution refused to dispatch his letter of 12 October 2004 addressed to the Court. The letter was returned to the applicant with a handwritten note on the envelope which read “what kind of news is that?” («Что за новости?»). 24. According to the copies of the logs of outgoing correspondence submitted by the Government, the applicant asked the administration of the correctional institution to send out three letters in 2003 and seven letters in 2004 respectively. Two of the letters sent out in 2004 were addressed to the Court. Both of them reached their destination. 25. It appears that the applicant was repeatedly transferred from one correctional institution to another. Between 12 April 2005 and 1 March 2006 he served his sentence at correctional institution IK-4 in Nyrob in the Perm Region. Then he was taken to transit prison IZ-56/1 in Orenburg where he arrived on 6 April 2006. According to the applicant, he sent a letter to the Court notifying it of the change of his address. The letter never reached the Court. 26. On 26 May 2006 the applicant was transferred back to correctional institution IK-6 in Sol-Iletsk. On 27 June 2006 he arrived and stayed there for a month. On 5 September 2006 he arrived at correctional institution IK-8 in Orenburg where he has been detained to date. According to the applicant, on 7 and 9 September 2006 he sent two letters to the Court notifying it of the change of his address. The letters did not reach the Court. 27. On 6 September 2006 the Court decided to give notice of the application to the Government. The relevant letter addressed to the applicant did not reach him. The Court further sent two more letters to the applicant on 3 January and 12 February 2007. The applicant did not receive the letters. Once the time-limit established by the Court for the submission by the applicant of his observations had expired, on 22 November 2007 the Court requested the Government to submit further information confirming the receipt by the applicant of the Court’s correspondence. A copy of the letter addressed to the applicant did not reach him. All the correspondence was forwarded to correctional institution IK-4 in Nyrob. 28. According to the copies of the incoming correspondence registration logs submitted by the Government, the above-mentioned letters from the Court did not reach the correctional institution to which they were addressed. 29. The Government also submitted copies of the outgoing correspondence registration log of IK-8, which indicated that the applicant sent out two letters to the Court on 10 April and 19 July 2007. The said letters did not reach the Court. 30. On 28 June 2007 the Court sent another letter to the applicant by registered mail. It appears that correctional institution IK-4, to which the letter was addressed, forwarded it to correctional institution IK-8, where the applicant was actually detained. On 5 August 2008 the administration of IK-8 registered the letter in the incoming correspondence log as received for the applicant from the Federal Service of Corrections (UFSIN). The letter was opened by an officer on duty and the applicant refused to accept it. The administration of the penitentiary establishment interpreted his refusal as a decision not to pursue further his application lodged before the Court and informed the Government accordingly. 31. On 22 and 28 August and 5 September 2007 the administration of the correctional institution summoned the applicant in order to deliver the Court’s letter to him. The applicant did not show up. 32. On 5 December 2007 the applicant had a meeting with one of the officers of the correctional institution concerning the updating of his personal file. The officer tried again to deliver the Court’s letter to the applicant, who refused to take it. He agreed to accept the letter only on 1 February 2008. 33. It appears that the officer who was responsible for the opening of the applicant’s letter was subjected to disciplinary dismissal. 34. The Court’s letter of 8 January 2008 sent to correctional institution IK-4 by registered mail was returned to the Court by the post office with a note that the applicant had not been found at the address indicated. 35. According to the Government, the letters sent by the Court to the applicant on 25 April and 6 June 2008 did not reach correctional institution IK-8. 36. On 19 September 2008 the applicant received the Court’s letter of 3 September 2008, as per the registration log submitted by the Government. 37. On 29 October 2008 the applicant submitted another letter to be dispatched to the Court. The letter was returned to him. The post office had allegedly refused to mail it because the envelope was covered with adhesive tape. The applicant resubmitted the letter in a new envelope without adhesive tape on 24 November 2008. It was duly sent to the Court. 38. The Code of Criminal Procedure of the Russian Federation (in force from 1 July 2002) provides: Article 51 “1. Participation of legal counsel in criminal proceedings is mandatory if: 1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code; ... 5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty; ... 2. ... 3. In the circumstances as set forth in paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on the request of, or with the consent of, the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.” Article 52 “1. The suspect or the accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the suspect or accused’s own initiative. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. ...” 39. Pursuant to Article 373, the appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal court may directly examine evidence, including additional material submitted by the parties. 40. In accordance with Article 376, upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the detained convict should be summoned to the hearing. If the convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court. 41. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court of the Russian Federation ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.” 42. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in Article 51. It further underlined the obligation of courts to secure the participation of defence counsel in appeal proceedings. 43. In a number of cases (decisions of 13 October 2004 and 26 January, 6 April, 15 June and 21 December 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the participation of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented. 44. The Code of Corrections of the Russian Federation (in force from 1997) provides: Article 91 “2. The incoming and outgoing correspondence of persons serving a prison sentence is subject to censorship by the administration of the correctional institution. The correspondence maintained with a court, a prosecutor’s office, a supervising body of corrections, as well as with the Ombudsman of the Russian Federation, a public monitoring commission established in accordance with applicable legislation of the Russian Federation, and the European Court of Human Rights shall be free of censorship.” 45. The Internal Regulations of Correctional Institutions (in force from 3 November 2005) provides: “53. The letters addressed to a person serving a prison sentence and received after his departure from a correctional institution shall be forwarded to his new address within three days of their receipt.”

dev

001-101853

ENG

GBR

CHAMBER

CASE OF GREENS AND M.T. v. THE UNITED KINGDOM

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - finding of violation sufficient

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

7. The first applicant, Mr Greens, was serving a determinate sentence of imprisonment at HM Prison Peterhead at the time his application was lodged with the Court. He was eligible for release on parole from 29 May 2010. It is not known whether he has been released on parole. The second applicant, M.T., is currently serving a determinate sentence of imprisonment at HM Prison Peterhead. According to information provided by the Government, he is scheduled to be released in November 2010. 8. On 23 June 2008 the applicants posted voter registration forms to the Electoral Registration Officer (“ERO”) for Grampian. They sought registration on the electoral register at their address in HM Prison Peterhead. 9. On 3 July 2008, the ERO replied referring to previous applications for registration which were refused in 2007 under sections 3 and 4 of the Representation of the People Act 1983, as amended, (see paragraph 19 and 21 below) on the basis of the applicants' status as convicted persons currently detained. The ERO requested clarification of whether there had been a change in circumstances in the applicants' cases. 10. On 5 August 2008 the applicants wrote to the ERO arguing that following the Court's decision in Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005IX, and the declaration of incompatibility made by the Registration Appeal Court in the case of Smith v. Scott (see paragraphs 27-30 below), the ERO was obliged to add their names to the electoral register. 11. On 12 August 2008, the ERO refused the applicants' registration applications on the basis of their status as convicted persons detained in a penal institution. 12. By letter of 14 August 2008 the applicants informed the ERO of their wish to appeal to the Sheriff Court against the refusal. 13. On 12 September 2008 the Sheriff considered the applicants' appeals together with appeals in a number of other similar cases and ordered written representations to be lodged. 14. On 25 September 2008 the applicants wrote to the court summarising their position. They provided further submissions on 1 October 2008. The applicants alleged that legal aid was not available for the proceedings and they therefore represented themselves. 15. On 10 November 2008 the applicants' appeals were refused. 16. On 20 November 2008 another serving prisoner whose appeal was also refused on 10 November 2008, Mr Beggs, applied to Aberdeen Sheriff Court to request that it state a case for the opinion of the Registration Appeal Court (see paragraph 22 below). On 30 December 2008, the Sheriff refused to state a case. Mr Beggs subsequently applied to the Court of Session for an order requiring the Sheriff to state a case, on the ground that the Sheriff had erred in law in refusing to do so. The most recent information available to the Court was that those proceedings were pending. It is not clear whether that remains the case. 17. On 4 June 2009, elections to the European Parliament took place. The applicants were ineligible to vote. 18. On 6 May 2010 a general election took place in the United Kingdom. The applicants were ineligible to vote. 19. Section 3 of the Representation of the People Act 1983 (“the 1983 Act”) provides: “(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.” 20. The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)(a)) or to those imprisoned only for default in, for example, paying a fine (section 3(2)(c)). 21. Section 4 of the 1983 Act provides: “(1) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he– (a) is resident in the constituency or that part of it; (b) is not subject to any legal incapacity to vote (age apart); ... (3) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he– (a) is resident in that area; (b) is not subject to any legal incapacity to vote (age apart); ...” 22. Sections 56-57 set out that there is a right of appeal against a decision of the registration officer. In Scotland, a further appeal lies on any point of law from a decision of the Sheriff to a court of three judges of the Court of Session (known as the “Registration Appeal Court”). 23. Section 8(1) of the European Parliamentary Elections Act 2002 (“the 2002 Act”) provides that a person is entitled to vote at an election to the European Parliament if he is within any of subsections (2) to (5) of section 8. These subsections provide, in so far as relevant, as follows: “(2) A person is within this subsection if on the day of the poll he would be entitled to vote as an elector at a parliamentary election ... ... (5) A person is within this subsection if he is entitled to vote in the electoral region by virtue of the European Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001 (S.I. 2001/1184) (citizens of the European Union other than Commonwealth and Republic of Ireland citizens).” 24. Section 3 of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows: “(1) 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. (2) This section- (a) applies to primary legislation and subordinate legislation whenever enacted; ...” 25. 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. ...” 26. Finally, 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.” 27. In Smith v. Scott, the Registration Appeal Court considered the refusal of the ERO for Clackmannanshire, Falkirk and Stirling to enrol a convicted prisoner on the electoral register on the basis of sections 3 and 4 of the 1983 Act, in anticipation of elections to the Scottish Parliament. The Secretary of State conceded in the proceedings that in light of the judgment of this Court in Hirst section 3(1) of the 1983 Act was incompatible with Article 3 of Protocol No. 1 to the Convention and that the appellant's rights under that Article had been violated. He also accepted that for the purposes of Article 3 of Protocol No. 1 the Scottish Parliament was a legislature. The court, handing down its judgment on 24 January 2007, summarised the matters for examination in the following terms: “1. Since section 3(1) of the 1983 Act, giving the words of that provision their ordinary meaning, was incompatible with Article 3 of the First Protocol, the Court should consider whether it was possible, in terms of section 3(1) of the Human Rights Act, to read it down in such a way as to make it compatible. If that was possible, it should be done and the appeal should be allowed. 2. If, however, that was not possible, then the appeal would be refused but the Court should consider whether it could and should make a declaration of incompatibility in respect of section 3(1) of the 1983 Act in terms of the Human Rights Act section 4(2). If that could be done, it should be. 3. If the Court did not take that course, it should consider, in the context of the requirement in terms of section 6 of the Human Rights Act for the Court not to act in a manner incompatible with the appellant's Convention rights, whether by refusing the appeal and providing the appellant with no remedy it would be acting in breach of that statutory requirement. If it would, then the Court was obliged to give such remedy as was open to it within its powers at common law or under any statute. Such a remedy would include granting a declarator that the appellant's rights under Article 3 of the First Protocol of the Convention had been violated. It was open to the Court in the exercise of its inherent jurisdiction to grant such a declarator.” 28. Counsel for the appellant argued that if there was some “possible” interpretation (or “reading down”) of section 3(1) of the 1983 Act which would remove the incompatibility identified by this Court in Hirst, the Registration Appeal Court should adopt it. He considered that insertion of words to the effect that any ban on prisoner voting “would apply at the discretion of the sentencing judge” would qualify, but not contradict, the “grain of the legislation” and that the case should accordingly be resolved along those lines. Counsel for the respondent submitted that while section 3 of the Human Rights Act empowered the court to interpret legislation, where possible, in a certain way, it did not entitle the court to amend or reverse clear legislative provisions, nor otherwise to usurp the legislative function of Parliament. The court summarised counsel's argument as follows: “26. ... section 3(1) of the 1983 Act clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences. There was thus no 'grain of the legislation' which could properly serve as a starting point for any interpretation designed to clothe some or all of such prisoners with voting rights. Over and above that, it was necessary to recognise the complexity of the issues which had been opened up by the decision of the European Court of Human Rights in Hirst, and the extensive consultation which would have to be undertaken before the Government could form a view as to the appropriate way forward. Since the Convention rights conferred by Article 3 of the First Protocol were in no way absolute, there were many possible levels at which the line might be drawn for the enfranchisement or disenfranchisement of convicted prisoners in different categories, and it could be no part of this Court's function to make an uninformed choice among such alternatives.” 29. The court continued: “27. Against that background, we are clearly of the opinion that the appellant's submission must be rejected and we decline to 'read down' section 3(1) of the 1983 Act in the manner proposed ... In our opinion to read down section 3(1) of the 1983 Act as providing for full or partial enfranchisement of convicted prisoners serving custodial sentences would be ... to depart substantially from a fundamental feature of the legislation. Without the benefit of consultation or advice, this Court would, in a real sense, be legislating on its own account, especially in view of the wide range of policy alternatives from which a 'possible' solution would require to be selected ...” 30. The court, however, made a declaration of incompatibility in respect of section 3(1) of the 1983 Act. 31. On 20 April 2007, the Outer House of the Court of Session considered the disenfranchisement of prisoners in judicial review proceedings challenging the legality of an order made by the Secretary of State for Scotland regarding the organisation of the elections to the Scottish Parliament in May 2007 and the involvement of the Scottish Executive in those elections. The challenge was based on the provisions of the Scotland Act 1998 and in particular the requirement that Scottish legislation and acts of the Scottish Executive be compatible with the Convention. Lord Malcolm rejected the claim for interdict (injunction), emphasising that it was for Parliament to decide whether to remove the incompatibility between domestic legislation and the Convention. 32. On the question of declaratory relief, he added: “11. I should record that I was asked to repeat the declarator of incompatibility pronounced in Smith. There is no dispute in these petitions as to the incompatibility between section 3 of the 1983 Act and article 3 of the first protocol. The discussion focused on other matters. That incompatibility has been authoritatively determined in Smith. I am satisfied that a further declarator in these proceedings is unnecessary and inappropriate ...” 33. In the case of Toner and Walsh, two convicted prisoners sought, in light of Hirst, a declaration that the disqualification of convicted prisoners from voting did not apply to elections to the Northern Ireland Assembly. After careful consideration of the judgment of this Court in Hirst and the decision of the Registration Appeal Court in Scott v. Smith, Gillen J held: “9(iv). I consider that the [Strasbourg] court has deliberately left the method of compliance in the hands of the Contracting States subject to the overriding veto of the court ... Accordingly I see nothing intrinsically objectionable about the various options being explored by the Government proposals contained in the consultation paper of 14/12/06 which makes up its response to the Hirst decision. The consequence of this is that not only is Mr Sweeney [Deputy Director, Rights and International Relations in the Political Directorate at the Northern Ireland Office] entitled to say ... that the Government is unlikely to propose that prisoners serving sentences as long as those of the applicants should become entitled to vote whilst detained, but I am left singularly unconvinced that the applicants are currently or will ever be able to lay claim to a right to vote. I reject the argument of Mr Larkin [for the applicants] that because a blanket prohibition on prisoners is incompatible with the Convention that somehow converts into the proposition that all prisoners are currently entitled to vote until the vacuum is filled. In my view that conforms neither with principle nor logic and certainly does not find any authority in Hirst which expressly recognises that restraints on Article 3 Protocol 1 are justifiable provided they pursue a legitimate aim and are proportionate.” 34. In judicial review proceedings brought in the High Court in Chester v. Secretary of State for Justice and another, the claimant, a prisoner, argued that his disqualification from voting in the then pending June 2009 European Parliament elections breached his rights under Article 3 of Protocol No. 1 and under European Union law. He was granted permission to bring his claim on 27 March 2009. At the hearing before Burton J, he argued that section 8 of the 2002 (see paragraph 23 above) Act should be “read down” in order to enable him to vote or, in the alternative, a declaration of incompatibility as regards section 3 of the 1983 Act and section 8 of the 2002 Act should be made. He accepted that no argument could be mounted that a “reading down” of section 3 of the 1983 Act would be feasible, within the parameters of the Human Rights Act. 35. The claim was dismissed by Burton J on 28 October 2009. As to the possibility of “reading down” section 8, Burton J held: “29. ... I am being asked effectively to draft fresh legislation by bolting on to existing legislation additional words which not only dramatically change its nature, but are imminently to be considered by the Legislature. Two competing alternatives are presented to me for consideration. One of these affects the franchise by allowing all convicted prisoners to vote. The other amends the statute so as to allow one particular category of convicted prisoners, the post-tariff lifers, to vote, while still retaining a bar on all other prisoners, including those only serving very short terms of imprisonment, to whom it seems, on any basis, the Government is proposing that the franchise should be extended; and to make such differentiation simply because the claimant in this case happens to be one of the category in whose favour the statute would now be amended. 30. The first proposal is not acceptable, not least for the same reasons as were enunciated by Gillen J in paragraph 9(iv) of his judgment [in Toner and Walsh], which I have cited earlier. Enfranchisement of all prisoners, including those with a minimum term/tariff of life which may or may not be what the legislature after full consultation and discussion of all the issues may consider, but it would be a dramatic change, was not, as Gillen J points out, required by Hirst. As for the alternative, selection of one particular category of prisoner simply because one of that category happens to be the Claimant, to effect what would in fact be a substantial amendment of the legislation, but only as to one category of convicted prisoner, cannot be an appropriate exercise of this jurisdiction. It would lead to piecemeal and possibly continuous amendments, without consideration by Parliament, of legislation dealing with matters of important social policy, all depending upon which claimant happened to be before the Court at any one time.” 36. Burton J concluded that if and in so far as section 8 of the 2002 Act was incompatible with the Convention or with EU law, reading it down was not an available remedy. 37. As to whether it would be appropriate to make a declaration of incompatibility in respect of section 3 of the 1983 Act, Burton J concluded: “34. ... I am content to say that there is no need for any declaration to be made by yet another court, as one has already been made which is binding on the UK Government. 35. However, towards the end of his submissions, Mr Southey [for the claimant] put forward another basis upon which to support his case for such a declaration. He submitted that, as the grant of a declaration is discretionary, there is no reason why it cannot be made again, if it is made on different grounds. He submits that I can and should make a declaration that s3 of the 1983 Act is incompatible with the ECHR, and do so by reference to the fact that it excludes (together with all other convicted prisoners) post-tariff lifers. Then there would be some point in making the declaration, given that the Government's proposed legislation seems, subject to what may have emerged from the second consultation, to be intended not to make any change in their position. Hence, it would be a declaration as to the incompatibility with regard to the present legislation, but to be made because it does not appear as if there is going to be any amelioration of his client's position by reference to the proposed legislation. This would effectively simply amount to the declaration of incompatibility being a peg upon which Mr Southey can hang his substantive submissions, to which I shall come in a moment. Subject however to that argument ... I reject his suggestion that I should make a declaration of incompatibility.” 38. In respect of the application for a declaration of incompatibility as regards section 8 of the 2002 Act, Burton J said: “43. I am satisfied that, but for Mr Southey's 'proposed legislation argument', this course is wholly inappropriate as a matter of discretion: (i) Simply as a matter of context and background, there is no presently intended European election, to which alone s8 would apply ... These proceedings were brought at the time when the June 2009 European elections were still in the future. There will now not be further such elections for 5 years. By that time, whatever the Claimant's personal position may be, new legislation, whatever it may be, will be well in place (and will have been capable of challenge, if appropriate). (ii) More significantly, it is plain that the challenge to s8 is purely parasitic to the real challenge, which is to s3. S8 merely provides that (with the exceptions discussed) the same people can vote in European elections as can vote in UK elections. When there is new legislation in place of s3, s8 will automatically follow. A declaration has already been made in relation to s3, upon which s8 wholly hangs, and legislation is to be put before Parliament with the intention of curing the contravention of the ECHR. 44. For the reasons I have given, namely that there is already a declaration of such incompatibility in relation to the governing section, s3, upon which s8 entirely depends, the same reasons drive me to conclude that there is no basis in the exercise of my discretion to grant a declaration of incompatibility in relation to s8, any more than there is to s3 ...” 39. On the need for a further declaration of incompatibility as a result of the apparently limited scope of the proposed legislation, Burton J considered that any declaratory or other relief which was intended to interfere with the process by which new legislation resulting from the consultation process was put before and debated by Parliament was inappropriate and was not to be granted. In any case, he concluded that the court was: “... ill-equipped to decide this issue of social policy, and certainly ill-equipped to legislate and provide for the consequences of any view, plain and obvious or otherwise, as to which category of prisoners ought to be enfranchised as a result of the removal of the absolute ban.” 40. The claimant appealed and on 13 May 2010, was granted leave to appeal by the Court of Appeal. The appeal was heard on 3 November 2010 and the judgment is pending. 41. In its recent report, “Enhancing Parliament's role in relation to human rights judgments”, 15th Report of 2009-10, published in March 2010, a parliamentary committee, the Joint Committee on Human Rights, considered domestic developments in the execution of the Grand Chamber's judgment in Hirst and noted: “108. ... our overriding disappointment is at the lack of progress in this case. We regret that the Government has not yet published the outcome of its second consultation, which closed almost 6 months ago, in September 2009. This appears to show a lack of commitment on the part of the Government to proposing a solution for Parliament to consider. ... 116. It is now almost 5 years since the judgment of the Grand Chamber in Hirst v UK. The Government consultation was finally completed in September 2009. Since then, despite the imminent general election, the Government has not brought forward proposals for consideration by Parliament. We reiterate our view, often repeated, that the delay in this case has been unacceptable. ... 117. ... Where a breach of the Convention is identified, individuals are entitled to an effective remedy by Article 13 ECHR. So long as the Government continues to delay removal of the blanket ban on prisoner voting, it risks not only political embarrassment at the Council of Europe, but also the potentially significant cost of repeat litigation and any associated compensation.” 42. On 2 November 2010 a short debate took place in the House of Commons following a question to the Government regarding their plans to give prisoners the right to vote. In the course of that debate, the Minister emphasised that the Government were under a legal obligation to change the law following the judgment in Hirst. He said that the Government were actively considering how to implement the judgment and that once decisions had been made, legislative proposals would be brought forward. 43. On 3 November 2010, in response to a question in the House of Commons, the Prime Minister also emphasised that the Government were required to come forward with proposals to implement the Court's judgment in Hirst. 44. On 3 December 2009, in the context of their supervision of the execution of the Court's judgment in Hirst, the Committee of Ministers adopted Interim Resolution CM/ResDH(2009)160, which stated as follows: “The Committee of Ministers, ... Recalling that, in the present judgment, the Court found that the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention; Recalling that the Court, while acknowledging that the rights bestowed by Article 3 of Protocol 1 are not absolute, expressly noted that in the present case the blanket restriction applied automatically to all prisoners, irrespective of the length of their sentence, the nature or gravity of their offence and their individual circumstances; Recalling further that the Court found 'no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote'; Noting that the blanket restriction imposed by Section 3 of the Representation of the People Act 1983 remains in full force and effect; Recalling that the United Kingdom authorities, in a revised Action Plan submitted in December 2006, committed to undertaking a two-stage consultation process to determine the measures necessary to implement the judgment of the Court, with a view to introducing the necessary draft legislation before Parliament in May 2008; Noting that the United Kingdom authorities have provided detailed information as regards the consultation process, and that they are committed to continuing to do so; Noting however that the second consultation stage ended on 29 September 2009, and the United Kingdom authorities are now undertaking a detailed analysis of the responses thereto, in order to determine how best to implement a system of prisoner enfranchisement based on the length of custodial sentence handed down to prisoners, EXPRESSES SERIOUS CONCERN that the substantial delay in implementing the judgment has given rise to a significant risk that the next United Kingdom general election, which must take place by June 2010, will be performed in a way that fails to comply with the Convention; URGES the respondent state, following the end of the second stage consultation period, to rapidly adopt the measures necessary to implement the judgment of the Court; ...” 45. On 4 March 2010 the Committee of Ministers adopted a decision in which they noted that notwithstanding the Grand Chamber's judgment in Hirst, a declaration of incompatibility with the Convention under the Human Rights Act by the highest civil appeal court in Scotland in the case of Smith v. Scott and the large number of persons affected, the automatic and indiscriminate restriction on prisoners' voting rights remained in force; reiterated their serious concern that a failure to implement the Court's judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons, giving rise to a substantial risk of repetitive applications to the European Court; and strongly urged the authorities rapidly to adopt measures, even if of an interim nature, to ensure the execution of the Court's judgment before the then pending general election. 46. On 3 June 2010 the Committee of Ministers adopted a further decision in which they expressed profound regret that despite the repeated calls of the Committee, the United Kingdom general election had been held on 6 May 2010 with the blanket ban on the right of convicted prisoners in custody to vote still in place; and expressed confidence that the new United Kingdom government would adopt general measures to implement the judgment ahead of elections scheduled for 2011 in Scotland, Wales and Northern Ireland, and thereby also prevent further, repetitive applications to the European Court. 47. On 15 September 2010 the Committee of Ministers adopted their most recent decision on the execution of Hirst, in the following terms: “The Deputies, 1. recalled that in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction of the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention; 2. recalled that since its 1059th meeting (June 2009), the Committee has urged the United Kingdom to prevent future, repetitive applications by adopting general measures to implement the judgment; 3. deeply regretted that despite the Committee's calls to the United Kingdom over the years to implement the judgment, the risk of repetitive applications to the European Court has materialised as the Court has communicated 3 applications to the government with a view to adopting the pilot judgment procedure and has received over 1 340 applications; 4. noted, that according to the information provided by the United Kingdom authorities during the meeting, the new government is actively considering the best way of implementing the judgment; 5. regretted, however, that no tangible and concrete information was presented to the Committee on how the United Kingdom now intends to abide by the judgment; 6. called upon the United Kingdom, to prioritise implementation of this judgment without any further delay and to inform the Committee of Ministers on the substantive steps taken in this respect; 7. highlighted in this connection that, within the margin of appreciation of the state, the measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote, such a restriction is proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned; ...” 48. Article 20(2)(b) TFEU provides: “2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: ... (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; ...” 49. Article 22(2) TFEU provides: “Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.” 50. Article 223 TFEU provides: “1. The European Parliament shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States. The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions ...” 51. To date, the Council has not adopted an instrument setting out a uniform election procedure. However, certain agreed principles are set out in the 1976 Act (see below). 52. Article 1 of the 1976 Act provides: “1. In each Member State, members of the European Parliament shall be elected on the basis of proportional representation, using the list system or the single transferable vote. 2. Member States may authorise voting based on a preferential list system in accordance with the procedure they adopt. 3. Elections shall be by direct universal suffrage and shall be free and secret.” 53. The 1976 Act also contains provisions on, inter alia, the allocation of seats, campaign expenses, the term and nature of members' mandates and the organisation of elections. 54. Article 8 clarifies that: “Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions. These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system.” 55. Article 1 of Directive 93/109/EC stipulates that the directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate in elections to the European Parliament. 56. Article 3 provides: “Any person who, on the reference date: (a) is a citizen of the Union ...; (b) is not a national of the Member State of residence, but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals, shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence unless deprived of those rights pursuant to Articles 6 and 7.” 57. In so far as relevant, Article 9 provides: “... 2. In order to have his name entered on the electoral roll, a Community voter shall produce the same documents as a voter who is a national. He shall also produce a formal declaration ... 3. The Member State of residence may also require a Community voter to: (a) state in his declaration under paragraph 2 that he has not been deprived of the right to vote in his home Member State; ...” 58. Article 6 refers to the right to stand as a candidate. Article 7 allows the State of residence to verify whether a person seeking to exercise his right to vote under the Directive has been deprived of that right in the home State. If the information provided invalidates the content of the declaration made under Article 9, the State of residence is required to take the appropriate steps to prevent the person concerned from voting. 59. In a preliminary reference to the European Court of Justice (“ECJ”) in case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA, the ECJ was asked to consider the extent to which national courts were required to interpret national law in light of the wording and the purpose of an EC directive which had not been implemented by the Member State in question. The ECJ held that: “... the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter ...”

dev

001-61434

ENG

ITA

CHAMBER

CASE OF GAMBERINI MONGENET v. ITALY

Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Peer Lorenzen

4. The applicants were respectively born in 1938, 1943 and 1948 and live in Rome. 5. The applicants' father was the owner of a flat in Rome, which he had let to C.C. 6. In a writ served on the tenant on 24 January 1984, the applicants' father informed the tenant that he intended to terminate the lease on expiry of the term and summoned him to appear before the Rome Magistrate. 7. By a decision of 17 April 1984, which was made enforceable on 2 May 1984, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 16 April 1985. 8. On 10 March 1985, the applicants' father served notice on the tenant requiring him to vacate the premises. 9. On 3 April 1987, the applicants' father served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 12 May 1987. 10. On 14 February 1992, the applicants' father died and they inherited the flat. Subsequently they became parties to the eviction proceedings. 11. Between 12 May 1987 and 15 February 2000, the bailiff made fifty-seven attempts to recover possession. Each attempt proved unsuccessful, as neither the applicants' father nor themselves were entitled to police assistance in enforcing the order for possession. 12. On an unspecified date in February 2000, reaching an agreement with the tenant, the applicants recovered possession of the flat. 13. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003. 14. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 15. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 16. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 17. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. 18. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.” 19. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 20. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 21. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.

dev

001-91608

ENG

HRV

CHAMBER

CASE OF SANDRA JANKOVIĆ v. CROATIA

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

5. The applicant was born in 1964 and lives in Split. She is unemployed and unwaged. 6. From October 1996 the applicant occupied a room and common premises of a privately owned flat in Split together with other tenants. On 2 August 1999 the applicant found that the lock of the entrance door to the flat had been changed and that her belongings had been removed from the flat. The applicant called the police, who drew up a report. On 3 August 1999 the applicant brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against two individuals, M.P. and I.P., seeking protection against the disturbance of her occupation of a room and common premises in the flat. 7. After a first-instance judgment by default of 16 September 1999 had been quashed at a hearing held on 9 November 1999 before the Split Municipal Court, subsequent hearings were held on 21 December 1999, 22 February, 28 March, 3 May and 7 June 2000, when a fresh judgment, allowing the applicant’s claim, was adopted. It was, however, quashed by the Split County Court (Županijski sud u Splitu) on 17 August 2000 and the case was remitted to the Municipal Court. 8. In the fresh proceedings the Municipal Court held hearings on 7 June, 5 September and 22 November 2001 and 22 January, 26 February, 3 April and 14 May 2002. On this latter date a judgment ordering that the applicant was to regain her co-occupation of the flat in question was adopted. A subsequent appeal by the defendants was declared inadmissible in a decision of the Split Municipal Court, adopted on 24 May 2002, which was upheld by the Split County Court on 7 March 2003. 9. Since the defendants in the civil proceedings had failed to comply with the judgment of 14 May 2002, the applicant applied to the Split Municipal Court on 31 March 2003, seeking an enforcement order. The order was issued on 10 April 2003. The defendants lodged an appeal. The execution of the order was scheduled for 5 June 2003. It was duly carried out. However, on 6 June 2003 the applicant was thrown out of the flat (see paragraph 13 below). Accordingly, on 2 July 2003 she requested the Split Municipal Court to resume the enforcement proceedings. 10. On 26 August 2004 the Split County Court allowed the defendants’ appeal, quashed the enforcement order of 10 April 2003 and remitted the case to the Split Municipal Court. The latter, on 18 March 2005, invited the applicant to amend her request. The applicant submitted an amended request on 26 April 2005. On 29 March 2007 the Municipal Court again invited the applicant to amend her request. The applicant submitted the amended request on 13 April 2007. On 24 April 2007 the Municipal Court invited the applicant to adjust her request within eight days. On 8 January 2008 the Split Municipal Court dismissed the applicant’s request for the enforcement proceedings to be resumed. 11. On 9 August 2002 the applicant complained to the Constitutional Court (Ustavni sud Repbulike Hrvatske) about the length of the civil proceedings described above. In a decision of 18 March 2005 the Constitutional Court dismissed the complaint as ill-founded, finding that the proceedings had been concluded within a reasonable time. 12. On 10 April 2007 the applicant lodged a complaint about the length of the enforcement proceedings with the Split County Court. On 31 March 2008 the County Court allowed the complaint, found a violation of the applicant’s right to a hearing within a reasonable time, awarded her 5,000 Croatian kunas (HRK) in compensation and ordered the Municipal Court to complete the enforcement proceedings within three months, although in fact those proceedings had already ended with the Split Municipal Court’s decision of 8 January 2008. The County Court examined the length of the enforcement proceedings with reference to the period from 31 March 2003 until 31 March 2008. 13. On 6 June 2003, the day after the applicant had regained possession of the flat in question, she was attacked by three individuals, two women and a man, upon her arrival in front of the flat. During the incident of 6 June 2003 the police were called and arrived on the scene. They interviewed the applicant and drew up a report. The relevant part of the report reads as follows: “[The applicant] stated that at about 8 p.m. she had been verbally and physically attacked by three individuals when she had attempted to enter a flat ... The attackers had pulled her hair, hands and clothes and thrown her down the stairs from the first floor. They had also insulted her by shouting obscenities ... She further stated that they had threatened to kill her if she came back. ... There were visible bruises and contusions on Sandra’s right hand and her shirt was torn at the back. She asked for medical assistance after the interview. ...” 14. On 10 June 2003 the police lodged a complaint with the Split Minor-Offences Court against three individuals, including J.M., for disturbance of public peace and order, alleging that they had physically attacked the applicant, kicked her entire body, pulled her by the hair and pushed her down the stairs, all the while shouting obscenities at her. The first hearing in the proceedings was held on 4 February 2005. 15. In a decision of 11 May 2005 the Split Minor-Offences Court found all three defendants guilty of insulting the applicant with defamatory expressions and sentenced them to a fine in the amount of HRK 375. As to allegations of the physical assault on the applicant they found that there were insufficient evidence in that respect. 16. However, this decision did not become final since the applicant lodged an appeal, complaining that the Minor-Offences Court had not addressed her allegations of physical assault. On 8 June 2005 the same Minor-Offences Court terminated the proceedings on the ground that the prosecution in respect of the offences with which the defendants were charged had meanwhile become time-barred. The applicant lodged an appeal. Both appeals lodged by the applicant were dismissed on 12 February 2007 by the High Minor-Offences Court. 17. In a detailed criminal complaint of 2 October 2003 filed against seven individuals with the Split Municipality State Attorney’s Office (Općinsko državno odvjetništvo Split) the applicant alleged, inter alia, that on 6 June 2003 at about 8 p.m., when she had arrived in front of the flat in question, three individuals, J.M., N.M and J.M.L., had come out of the flat, shouting at her and preventing her from entering the flat. They had attacked her physically, insulted her and threatened her, telling her not to come back or she would disappear and “be disposed of”. The applicant also submitted medical evidence showing that she had sustained blows to her elbow and tailbone. 18. In a decision of 11 November 2003 the State Attorney’s Office decided not to open an official investigation on the ground that the act in question qualified as a criminal offence of inflicting bodily injuries of a lesser nature and that a prosecution for that offence had to be brought privately by the victim. The decision, inter alia, stated: “In her criminal complaints [the applicant] stated that on 6 June 2003 about 8 p.m. in front of a flat in Split ..., the suspects had verbally attacked her and insulted her, kicked her with their hands and legs all over her body, pulled her hair and pushed her down the stairs while J.M. had also threatened her not to come back to the flat or otherwise she would disappear. ...” The applicant was also instructed to proceed accordingly and to lodge within eight days a request for an investigation with a Split County Court investigation judge. 19. The applicant complied with the said instruction on 3 December 2003 and submitted a request to a Split County Court investigation judge seeking to have an investigation opened in connection with the above event. She sought an investigation in respect of seven individuals, including J.M., N.M. and J.M.L., listing their names and addresses. She proceeded to describe the event in question in detail, specifying the acts carried out by her three attackers. She made a list of evidence in support of her allegations, including medical documentation about the injuries she had sustained and the police report issued on 6 June 2003. She further alleged that these acts constituted, inter alia, the criminal offence of making threats under Article 129 of the Criminal Code and the criminal offence of violent behaviour under Article 331 of the same Code. She specified her allegations in respect of each of the individuals concerned. 20. On 5 January 2005 the Municipal Court invited the applicant to amend her request within eight days so as to include a description of the offence, the legal classification of the offence and circumstances showing that there was a well-founded suspicion that the individuals in question had committed criminal offences, as well as evidence supporting her allegations. On 26 January 2005 the applicant submitted an amended request, repeating in essence the same allegations as in her initial request. In her further submissions of 30 May 2005 the applicant submitted some documents from the minor-offences proceedings. 21. On 19 September 2005 the Split County Court investigation judge declared the applicant’s request for an investigation (istažni zahtjev oštećene kao tužiteljice) inadmissible. The relevant part of this decision reads: “The injured party, acting as subsidiary prosecutor (oštećena kao tužitelj), has lodged with this court a request for an investigation in respect of J.M. and others ... Pursuant to Article 71, paragraph 3, of the Code of Criminal Procedure, this court invited the injured party acting as subsidiary prosecutor on 5 January 2005 and once again orally, to amend her request and warned her that it would be declared inadmissible if she did not comply with the instruction within the set time-limit. The injured party acting as subsidiary prosecutor answered both calls but has failed to amend her request for an investigation in accordance with the court’s instruction. The court considers the injured party’s submission incomprehensible and incomplete. Therefore, it has to be declared inadmissible pursuant to Article 71, paragraph 3, of the Code of Criminal Procedure.” 22. On 16 January 2006 the applicant lodged an appeal against the above decision with the Split County Court. She claimed that she had fully complied with the instructions given in the court’s letter of 5 January 2005 amending her initial request for an investigation so that it contained all the necessary information. She further contended that she had never received an oral invitation. On 9 February 2006 the Split County Court dismissed the applicant’s appeal, finding that “the submissions lodged by the subsidiary prosecutor are incomprehensible and incomplete”. The applicant lodged a further appeal against that decision. 23. On 23 April 2007 the applicant also complained to the Supreme Court (Vrhovni sud Republike Hrvatske) about the length of the criminal proceedings. On 20 September 2007 the applicant’s complaint was dismissed and she was instructed to lodge such a complaint with the Constitutional Court. On 21 November 2007 the applicant lodged a complaint about the length of proceedings with the Constitutional Court, before which it is still pending. 24. The applicant’s appeal was declared inadmissible by the Split County Court on 17 June 2008. On 23 June 2008 the applicant lodged a fresh appeal, which is still pending. 25. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows: “(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens. (2) It may be exceptionally provided by law that criminal proceedings in respect of certain criminal offences should be instituted upon a private prosecution or that the State Attorney’s Office should institute criminal proceedings upon [a private] application.” “Whoever inflicts bodily injury to another person or impairs another person’s health shall be fined or sentenced to imprisonment for a term not exceeding one year.” “Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of private prosecution.” “(1) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months. (2) Whoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year. ... (4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.” “A public official, or another person acting at the instigation or with the explicit or tacit acquiescence of a public official, who inflicts on another person pain or grave suffering, whether physical or mental, for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, shall be sentenced to imprisonment for a term from one to eight years.” “Whoever for such purposes as violent abuse, ill-treatment or particularly insolent behaviour in public submits another person into a degrading position shall be sentenced to imprisonment for a term from three months to three years.” 26. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows: “(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ... (2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. (4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.” Article 13 obliges the court conducting the criminal proceedings to instruct a participant in those proceedings who may be ignorant in such matters about his or her rights and the consequences of a failure to undertake a requisite procedural step. Articles 47 to 61 regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities for whatever reason have decided not to prosecute. “(1) A request to prosecute shall be lodged with the competent State Attorney’s Office and a private prosecution with the competent court. (2) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute. (3) Where the injured party has lodged a criminal complaint or a request to prosecute but the [competent authorities] establish that the criminal offence in question should be prosecuted upon a private prosecution, the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if they have been submitted within the time-limit prescribed for [bringing] a private prosecution...” Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of the party’s right to take over the proceedings, as well as to instruct that party on the steps to be taken. “... (2) Where the criminal proceedings are conducted upon a request by the injured party acting as a subsidiary prosecutor in respect of a criminal offence punishable with more than three years’ imprisonment, he or she may ask to have legal counsel appointed free of charge where this is in the interests of the proceedings and where the injured party lacks the means to bear the expenses of legal representation ...” “(1) Private prosecutions, bills of indictment, requests to prosecute, legal remedies and other statements and information shall be submitted in writing unless otherwise provided by law. (2) The submissions referred to in paragraph 1 shall be comprehensible and contain the necessary information for the authorities to act upon them. (3) Unless otherwise provided in this Act, the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them. Where the submissions have not been amended as required, the court shall declare them inadmissible. (4) In its invitation to amend the submissions, [the court conducting the proceedings] shall warn the person concerned about the consequences of not complying with the instruction.” “(1) Citizens shall report criminal offences subject to public prosecution. ...” “(1) A [criminal] complaint shall be lodged with the competent State Attorney’s [Office] in writing or orally. ...” “Where the allegations set out in the criminal complaint do not concern a criminal offence subject to public prosecution, the competent State Attorney shall declare it inadmissible in a reasoned decision ...” Article 188 governs, inter alia, the required contents of a request for an investigation, namely: identification of the person in respect of whom the request is submitted, a description and the legal classification of the offence at issue, the circumstances confirming a reasonable suspicion that the person concerned has committed the offence at issue, and the existing evidence. Article 205, paragraph 1, allows a private prosecutor and the injured party acting as a subsidiary prosecutor to lodge with an investigation judge of a competent court a request for prosecution and other submissions.

dev

001-79910

ENG

MDA

CHAMBER

CASE OF ISTRATII v. MOLDOVA

Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

6. The applicants, Mr Viorel Istratii, Mr Alexandru Burcovschi and Mr Roman Luţcan, are Moldovan nationals who were born in 1971, 1970 and 1976 respectively and all live in Chişinău. 7. The facts of the case, as submitted by the parties, may be summarised as follows (most events happened in the same way and on the same date in respect of all the applicants; whenever facts differ, it is specified in the text). 8. On 25 October 2004 the Department for Cross-Border and Information Crime of the Ministry of Internal Affairs opened a criminal investigation against the applicants for fraud in connection with the purchase of plots of land in Chişinău, which allegedly cost the State approximately 15,000 euros (EUR). 9. On 12 November 2004 the prosecutor requested warrants for the pre-trial detention of the applicants. On the same day three Buiucani District Court judges issued warrants for the applicants' pre-trial detention for ten days for the following reasons: “[Each applicant] is suspected of committing a serious offence for which the law provides a punishment of deprivation of liberty for more than two years; the evidence submitted to the court was lawfully obtained; the isolation of the suspect from society is necessary; he could abscond from law enforcement authorities or the court; could obstruct the finding of truth in the criminal investigation or re-offend”. 10. On 15 November 2004 the applicants appealed against the decisions ordering their pre-trial detention, questioning the grounds for that detention. They submitted that they had appeared before the investigating authorities when summoned and had not attempted to interfere in any way with the investigation or to abscond thereafter. Each applicant emphasised that he had no criminal record, had a family, including minor children, and a permanent residence in Chişinău, and had special medical needs. Mr Burcovschi submitted that he was the only breadwinner in his family and that his detention might cause serious hardship for his family, including his elderly mother who suffered from cardiac disease. Mr Luţcan added that he had come to the investigating authority directly from the maternity hospital and that he had not even seen his son, born on the day he was arrested, and could not give any support to his wife and child. 11. On 18 November 2004 the Chişinău Court of Appeal rejected the appeals, without responding explicitly to any of the above submissions. It rejected Mr Istratii's appeal for the following reasons: “In exceptional circumstances, depending on the complexity of the criminal case and the gravity of the crime and where there is a risk that the accused might abscond or put pressure on witnesses, the period of pre-trial detention during the criminal investigation may be prolonged ... taking into account that Mr Istratii is suspected of committing a particularly serious offence, that there is a risk that he could put pressure on witnesses, could abscond from law enforcement authorities; the separation of the suspect from society remains necessary”. It rejected Mr Burcovschi's appeal for the following reasons: “The request to remand Mr Burcovschi was examined within the limits of the law and was correctly accepted on the basis of documents in the criminal file, which was opened in accordance with the law and with the need to remand the suspect”. The Court of Appeal rejected Mr Luţcan's appeal for the following reasons: “Mr Luţcan is suspected of committing a serious offence for which the law provides a punishment of deprivation of liberty for more than two years; he could abscond from law enforcement authorities or the court; could obstruct the finding of truth in the criminal investigation. ... The lower court correctly reasoned the applicant's remand without committing any procedural violations”. 12. On 18 November 2004 the Buiucani District Court prolonged the applicants' detention on remand for another 30 days. The applicants made submissions against their continued detention. The court gave similar reasoning in each case, citing Article 186 § 3 of the Criminal Procedure Code ('CPC', see paragraph 24 below). 13. On 24 November 2004 the Chişinău Court of Appeal upheld those decisions. The court used similar reasoning in each case, finding that: “The circumstances which were the basis for his detention remained valid; there was a risk that [each applicant] might put pressure on victims and witnesses. In prolonging the remand no violations of the law affecting the lawfulness of the decision have been established”. 14. The prosecutor obtained decisions from the Buiucani District Court prolonging the applicants' detention on remand on three occasions, in December 2004, January 2005 and February 2005. All of these decisions were upheld by the Court of Appeal. The reasons given for each of these prolongations were similar to those in the court decisions of 18 and 24 November 2004 mentioned above. 15. The applicants made habeas corpus requests to the investigating judge of the Buiucani District Court, noting, inter alia, that some of their property had been seized by the court and that this would be an additional guarantee of their proper conduct. The requests were rejected in December 2004 and in February 2005. The court used similar reasoning in each case, finding that: “[the applicant] is accused of committing a particularly serious offence for which the law provides a punishment of deprivation of liberty for more than two years; the prosecution case is not complete and a further criminal investigation is to be conducted, there is a risk that he may abscond from law enforcement authorities; there is a continued need to separate him from society and the grounds for his detention on remand remain valid”. 16. On 29 April 2005, following another habeas corpus request, the Rîşcani District Court ordered the applicants' release, subject to an obligation not to leave the country, finding that: “[the applicants] have no criminal record, all have permanent residence, are well appreciated at work, have families and minor dependants. Mr Luţcan suffers from a serious illness, Mr Istratii underwent surgery during detention and needs treatment; all have jobs and none has absconded from the investigation authorities; there is no evidence that they have obstructed the investigation in any manner; the criminal file is now ready for trial; all the prosecution evidence has been gathered and all witnesses have made statements. Accordingly, the court considers that the accused cannot abscond from the court, obstruct the criminal investigation or commit other crimes and considers it possible to replace the preventive measure of detention on remand with an obligation not to leave the country”. 17. Between 12 November 2004 and 23 February 2005 Mr Istratii was held in the remand centre of the Centre for Fighting Economic Crime and Corruption in Chişinău (CFECC). 18. Until 11 February 2004 there were allegedly no medical personnel in that institution. The applicant had an acute crisis of paraproctitis with rectal haemorrhage on 18 November 2004. He was transported to a hospital three hours after the incident. He was handcuffed to a wall heater until his surgery on 19 November 2004 and was guarded at all times by two CFECC officers. Some four hours after the operation, the CFECC officers accompanying him requested his transfer to the Pruncul detainee hospital. The applicant was admitted to the detainee hospital two and a half hours after leaving the civil hospital where he had been operated upon. Medical reports drawn up after the transfer confirm that Mr Istratii complained about post-surgery problems in the months following his transfer. 19. In response to the applicant's lawyer's questions, Dr M.E., the surgeon who had operated upon the applicant, wrote that the recovery period after such surgery was typically about one month and that on 1819 November 2004 the applicant had been handcuffed to a wall heater at the request of CFECC officers, who had stayed in his hospital room. According to Dr M.E., the patient could not move after the surgery because of pain and the risk of bleeding. The Government annexed to their observations of January 2006 an explanatory note written by Dr M.E. The doctor explained that Mr Istratii had not been handcuffed during the surgery, but had been handcuffed to a wall heater before surgery and that no ill-treatment of any kind had been applied to him. The doctor confirmed that a one-month recovery period was necessary after surgery of the type undergone by the applicant. 20. On 23 February 2005 all three applicants were transferred to the remand centre of the Ministry of Justice in Chişinău (also known as prison no. 3). According to the applicants, they were detained in inhuman and degrading conditions there (see paragraphs 61-65 below). The conditions in this particular remand centre were reviewed three times by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT, see paragraph 29 below). The problem of overcrowding and insufficiency of funding for repairs, meat, fish, dairy products and bedding was also emphasised in two domestic reports (see paragraph 28 below). 21. The applicants' lawyers asked for permission to have confidential meetings with their clients. They were offered a room where they were separated by a glass wall and allegedly had to shout to hear each other. It appears from the photographs and video recording submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre, the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass. Both plates have small holes pierced with a drill; however the holes do not coincide so that nothing can be passed though the window. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window. There appears to be no space for passing documents between a lawyer and his client. 22. According to the applicants, they were able to hear conversations between other detainees and their lawyers, which made them refrain from discussing at length their cases. The Government did not dispute this. 23. The relevant domestic law has been set out in the case of Sarban v. Moldova (no.3456/05, §§ 51-56, 4 October 2005). 24. In addition, the relevant provisions of the Code of Criminal Procedure read as follows: “Article 176 “(1) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are sufficient reasonable grounds for believing that an accused ... will abscond, obstruct the establishment of the truth during the criminal proceedings or re-offend, or they can be applied by the court in order to ensure the enforcement of a sentence. (2) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding two years. In cases concerning offences in respect of which the law provides for a custodial sentence of less than two years, they may be applied if ... the accused has already committed the acts mentioned in paragraph (1). (3) In deciding on the necessity of applying preventive measures, the prosecuting authority and the court will take into consideration the following additional criteria: 1) the character and degree of harm caused by the offence, 2) the character of the ... accused, 3) his/her age and state of health, 4) his/her occupation, 5) his/her family status and existence of any dependants, 6) his/her economic status, 7) the existence of a permanent place of abode, 8) other essential circumstances. Article 186 (3) In exceptional circumstances, depending on the complexity of the criminal case and the gravity of the crime and where there is a risk that the accused will abscond or put pressure on witnesses, destroy or tamper with evidence, the period of pre-trial detention during the criminal investigation may be prolonged...” 25. Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any procedures regarding persons detained in the remand centre of the CFECC until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients. The demands of the Bar Association were refused (see Sarban v. Moldova, no. 3456/05, § 126, 4 October 2005). 26. On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and another lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a commission which had inspected the CFECC detention centre. During the inspection they asked that the glass partition be taken down in order to check that there were no listening devices. They pointed out that it would only be necessary to remove several screws and they proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration rejected the proposal. 27. On 24 October 2003 the Parliament adopted decision no. 415-XV, regarding the National Plan of Action in the Sphere of Human Rights for 2004-2008. The plan includes a number of objectives for 2004-2008 aimed at improving the conditions of detention, including the reduction of overcrowding, improvement of medical treatment, involvement in work and reintegration of detainees, as well as the training of personnel. Regular reports are to be drawn up on the implementation of the Plan. 28. At an unspecified date the Ministry of Justice adopted its “Report on the implementing by the Ministry of Justice of Chapter 14 of the National Plan of Action in the Sphere of Human Rights for 2004-2008, approved by the Parliament Decision no. 415-XV of 24 October 2003”. On 25 November 2005 the Parliamentary Commission for Human Rights adopted a report on the implementation of the National Plan of Action. Both those reports confirmed the insufficient funding and related deficiencies and the failure to implement fully the action plan in respect of most of the remand centres in Moldova, including Prison no. 3 in Chişinău. The first of these reports mentioned, inter alia, that “as long as the aims and actions in [the National Plan of Action] do not have the necessary financial support ... it will remain only a good attempt of the State to observe human rights, described in Parliament Decision no. 415-XV of 24 October 2003, the fate of which is non-implementation, or partial implementation”. On 28 December 2005 the Parliament adopted its decision no. 370-XVI “Concerning the results of the verification by the special Parliament Commission regarding the situation of persons detained pending trial in the remand centre no. 13 of the Penitentiaries Department whose cases are pending before the courts”. The decision found, inter alia, that “the activity of the Ministry of Justice in the field of ensuring conditions of detention does not correspond to the requirements of the legislation in force.” 29. The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), read as follows (unofficial translation): “76. Although not a deliberate ill-treatment, the CPT is compelled to point out that at prison No. 3, the vast majority of prisoners were subjected to a combination of negative factors - overcrowding, appalling material and hygiene conditions, virtually non-existent activity programmes - which could easily be described as inhuman and degrading treatment. In contrast, in all the other detention areas, living conditions of the vast majority of the prison population left a considerable amount to be desired. In the most of the cells, the living space per prisoner was well below the minimum standard set and the cramming in of persons had reached an intolerable level. ... In addition, the delegation observed that cells of 8 m² to 9 m² accommodated up to four people. Furthermore, in these cells access to natural light was very limited, artificial lighting was mediocre, and the air polluted and rank. For prisoners still under investigation (i.e. over 700 prisoners), the situation was even worse, their cells being virtually totally without access to natural light because of the thick external metal blinds covering the windows. By force of circumstances, the equipment was reduced to the bare minimum, comprising metal or bunk beds which were extremely rudimentary and in a poor state, and a table and one or two benches. Furthermore, in many cells, there were not enough beds and prisoners had to share them or sleep in turns. In addition, the bedding was in a bad condition; the very small stocks of mattresses, blankets and sheets was not enough and many prisoners without family or resources had to sleep just on the bed frame and/or the mattress. The cells had a sanitary annex, a real source of infection. Above the Asian toilet was a tap which served both as a flush and as a source of water which prisoners could use to freshen up or wash. Moreover, this area was only partially partitioned by a small low wall less than one metre high, which meant that it was not possible to preserve one's privacy. The state of repair and cleanliness in the cell blocks, overall, was also of considerable concern. In addition, many of the cells were infested with cockroaches and other vermin and some prisoners also complained that there were rodents. To sum up, the living and hygiene conditions for the vast majority of the prison population were execrable and, more particularly, constituted a serious health risk.” “37. The CPT recommends that the right of access to a lawyer as from the very outset of custody be rendered fully effective in practice. It also recommends that detainees be able to receive visits from lawyers in conditions fully ensuring the confidentiality of the discussions. ... 70. In certain prisons, particularly those serving as remand establishments, the situation was exacerbated by sometimes severe overcrowding (as at Prison No. 3 in Chişinău, which in 2001 held 1,892 prisoners, compared with an official capacity of 1,480. ... The 2001 visit showed how urgent it is for the authorities to put their plans for legislative reforms into effect; the extension of the prison estate does not constitute a solution. As already stressed in the previous CPT report, it is far more important to revise the current legislation and practice concerning detention on remand and sentencing and execution of sentences, and the range of available non-custodial sentences. This is a sine qua non if there is to be any hope in the near future of offering decent conditions in prisons. ... 82. ... the follow-up visit to Prison No. 3 in Chişinău revealed positive changes which the CPT welcomes. It particularly approves of the removal of the heavy blinds covering the windows of cells looking onto the interior of the establishment. That said, the appalling living conditions and state of hygiene in buildings I, II and III, including the transit cells, described in paragraphs 80 and 81 of the previous report, had not changed (except as far as access to natural light is concerned). Indeed, the acute overcrowding in these buildings exacerbated matters still further. In the few cells viewed that were properly equipped and fitted out, this was due to the prisoners themselves, who had been able to procure what was needed from their families.” “b. Remand Centre of the Centre for Fighting Economic Crime and Corruption 53. The material conditions in this remand centre were in clear contrast to those in the remand centre of the Ministry of Justice. The cells, approximately 14m2, could accommodate a maximum of four detainees. They had access to daylight, had sufficient artificial lighting and were well ventilated. They had partially separated toilets and lavatories, as well as full bed linen (mattress, sheets, pillow, blanket). ... In sum, the material conditions in this remand centre prove that it is clearly possible to ensure in Moldova adequate material conditions of detention. 55. The situation in the majority of penitentiaries visited, faced with the economic situation in the country, remained difficult and one recounted a number of problems already identified during the visits in 1998 and 2001 in terms of material conditions and detention regimes. Added to this is the problem of overcrowding, which remains serious. In fact, even if the penitentiaries visited did not work at their full capacity – as is the case of prison no. 3 in which the number of detainees was sensibly reduced in comparison with that during the last visit of the Committee – they continued to be extremely congested. In fact, the accommodation capacity was still based on a very criticisable 2m2 per detainee; in practice often even less. 77. The follow-up visit to Prison no. 3 in Chişinău does not give rise to satisfaction. The progress found was in fact minimal, limited to some current repair. The repair of the ventilation system could be done due primarily to the financial support of civil society (especially NGOs), and the creation of places for daily walk was due to support by the detainees and their families. The repair, renovation and maintenance of cells is entirely the responsibility of detainees themselves and of their families, who also pay for the necessary materials. They must also obtain their own bed sheets and blankets, the institution being able to give them only used mattresses. 79. ... In sum, the conditions of life in the great majority of cells in Blocks I-II and the transit cells continue to be miserable. ... Finally, despite the drastic reduction of the overcrowding, one still observes a very high, even intolerable, level of occupancy rate in the cells. 83. ... everywhere the quantity and quality of detainees' food constitutes a source of high preoccupation. The delegation was flooded with complaints regarding the absence of meat, dairy products. The findings of the delegation, regarding both the food stock and the communicated menus, confirm the credibility of these complaints. Its findings also confirmed that in certain places (in Prison no.3, ...), the food served was repulsive and virtually inedible (for instance, presence of insects and vermin). This is not surprising, given the general state of the kitchens and their modest equipment. Moldovan authorities have always emphasized financial difficulties in ensuring the adequate feeding of detainees. However, the Committee insists that this is a fundamental requirement of life which must be ensured by the State to persons in its charge and that nothing can exonerate it from such responsibility. ...” 30. Resolution (73) 5 of the Committee of Ministers of the Council of Europe concerning the Standard Minimum Rules for the Treatment of Prisoners (adopted by the Committee of Ministers on 19 January 1973), insofar as relevant, reads as follows: “93. An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions. At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.” 31. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies), insofar as relevant, reads as follows: “23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. ... 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. ... 23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.”

dev

001-106526

ENG

AUT

ADMISSIBILITY

POPOVICI v. AUSTRIA

Inadmissible

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Nina Vajic

The applicant, Mr Livius Popovici, is an Austrian national who was born in 1927 and lives in Vienna. He was represented by Mr Reif-Breitwieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. By a decision of the Tax Authority (Finanzamt) of 9 December 2002 the applicant was ordered to pay a “first surcharge” for the late payment of his income tax (erster Säumniszuschlag) for the years 1996, 1997 and 1998. The Tax Authority held that the applicant had failed to pay the taxes by their due date of 11 November 2002. By letters dated 17 and 18 December 2002 the applicant appealed against the decisions regarding the surcharges for income tax for 1996 and 1998 respectively. The surcharges amounted to 2% of the outstanding taxes, totalling 137.91 euros (EUR). By a decision of 3 June 2003 the Independent Financial Panel (Unabhängiger Finanzsenat – “the IFP”) dismissed the applicant’s appeals as ill-founded and upheld the decision of 9 December 2002. The applicant, who was in receipt of legal aid, complained to the Administrative Court (Verwaltungsgerichtshof) on 29 September 2003, arguing that the law applicable at the time the tax surcharges were due, did not provide for “first surcharges”, but only for “surcharges”. On 18 November 2004 the IFP submitted comments on the applicant’s complaint. On 6 December 2004 the applicant submitted comments in reply. By a decision of 4 June 2008 the Administrative Court rejected the applicant’s complaint. It held that while the law in force at the time only provided for (one) surcharge, and “first”, “second” and “third” surcharges were only introduced by a later amendment to the law, the applicant had not suffered any disadvantage, as the substantive content of the law before and after the amendment was the same. The amount of the surcharge itself was the same under the law in force at the time as the amount of a “first” surcharge under the law after the amendment. It was only their denotation that had changed. The decision was served on the applicant’s counsel on 2 July 2008. On 4 March 2010 the applicant informed the Court that by a decision of the Tax Authority of 30 March 2009, the decision obliging him to pay surcharges had been annulled. Section 217 of the Federal Tax Act (Bundesabgabenordnung) deals with the imposition of surcharges for the late payment of taxes. The provision in force at the material time provided that the surcharge was to be fixed at 2% of the amount of tax not paid in time.

dev

001-60926

ENG

POL

CHAMBER

CASE OF BUKOWSKI v. POLAND

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Nicolas Bratza

9. On 15 March 1986 the applicant sued for damages the Warsaw-Mokotów District Office (Urząd Dzielnicowy), the Warsaw Architecture Office (Urząd Stołecznej Architektury) and three of his neighbours, A.H., H.H. and T.H., in the Warsaw Regional Court (Sąd Wojewódzki). The applicant sought 1,000,000 old Polish zlotys (PLZ) for the loss that he had allegedly sustained on account of various impediments to the construction of his house. 10. On 4 January 1988 the applicant withdrew his claims against the first two defendants. Since then, the proceedings have been directed only against his neighbours A.H., H.H. and T.H. 11. Between 1988 and March 1992 the Regional Court listed 8 hearings. It also ordered that 3 reports from construction experts be obtained so as to assess the value of the financial loss sustained by the applicant. The last of those reports was submitted to the court in December 1992. 12. At the hearing held on 29 September 1993 the court heard evidence from Z.S., an expert. Later, both parties contested Z.S.' s report. The applicant nevertheless asked the court to give a ruling on his claim, stressing that the length of the proceedings had to date exceeded 8 years. On 18 November 1994 the court ordered that fresh evidence be obtained from Z.S. 13. In December 1994 the presiding judge stepped down and the case was referred to another judge. 14. On 27 February 1995 the applicant complained to the President of the Warsaw Court of Appeal (Sąd Apelacyjny) about – in his words – “an exceptional delay in the proceedings”. In a letter of 26 April 1995 the President admitted that the procrastination in the proceedings had indeed been caused by the fact that the Regional Court had failed to keep the proceedings moving along procedural lines. He apologised to the applicant in the name of the administration of justice. 15. On 16 May 1995 the applicant complained to the President of the Supreme Court (Sąd Najwyższy) about the inactivity of the Warsaw Regional Court. On 13 June 1995 the President referred the complaint to the Minister of Justice, an authority responsible for monitoring the conduct of court proceedings. He observed, however, that despite the case having already been brought under the Minister's supervision, since 29 September 1993 no hearing had taken place before the Regional Court. 16. Subsequently, the applicant made three further similar complaints to the President of the Warsaw Court of Appeal. In a letter of 4 August 1995 the President again apologised to the applicant and admitted that the monitoring of the conduct of the proceedings had not been very successful. He also informed the applicant that the President of the Warsaw Regional Court had been instructed to take steps in order to accelerate the proceedings. 17. On 4 October 1995 the court held a hearing and served copies of Z.S.'s fresh report on the parties. Since the inflation rate and purchasing power of the Polish currency had meanwhile changed substantially, the court ordered the applicant to state the exact amount of damages claimed in the light of current circumstances. 18. On 11 October and 17 October 1995 the applicant filed two pleadings with the court and stated that the current total value of his claim was 355,585.59 new Polish zlotys (PLN). 19. On 6 March 1996 the court held a hearing. It ordered the applicant to pay court fees of PLN 14,342 for having lodged, in the court's view, a new and higher claim, and on pain of the statement of claim being returned to him. 20. On 31 May 1996, on an appeal by the applicant, the Warsaw Court of Appeal quashed the contested order as being premature. It found that the lower court had misconstrued the applicant's pleading and ordered it to obtain from the applicant a clear statement of the amount currently claimed. 21. Meanwhile, on 5 May 1997, the applicant had complained to the court about the lack of progress in the litigation. He stressed that as of that date the length of the proceedings was about 12 years, but his claim was still far from being determined. He repeated that he had not increased, and was not going to increase, the value of the claim. 22. At the hearing which was held on 26 May 1997 the court ordered Z.S. to prepare yet another report and to determine the current value of various items included in his report of 28 February 1995. That order was a consequence of the fact that, since the beginning of 1995, the inflation rate and the purchasing power of the Polish currency had again changed considerably. 23. On 27 August 1997 the court held the next hearing. 24. On 9 September 1997, the applicant lodged a complaint with the Supreme Court, submitting that the length of the proceedings in his case had exceeded all reasonable limits. On 22 September 1997 the Case-law Department of the Supreme Court informed him that he should address his complaints to the Minister of Justice, who was responsible for monitoring the conduct of the proceedings. 25. On 3 October 1997 the Warsaw Regional Court ordered that evidence from yet another construction expert be obtained. On 20 December 1997 K.S., an expert, submitted his report to the court. 26. On 20 April, 24 June and 14 September 1998 the Regional Court held hearings. 27. On 15 October 1998 the applicant submitted a pleading to the court, pointing out that K.S. had based his findings on inaccurate indexes of the value of the construction works and had, therefore, come to wrong and unfair conclusions on the assessment of his loss. 28. On 2 November 1998 he submitted his comments on the value of certain construction works, as assessed by K.S. He further asked the court to proceed with his case and to give “any ruling terminating the proceedings that have so far lasted 13 years”. 29. On 26 November 1998 the applicant again asked the court to give a ruling. 30. The next hearing took place on 8 February 1999. The court heard evidence from K.S. and adjourned the proceedings to enable the expert to prepare a supplementary report. 31. At the hearing held on 26 April 1999, the court ordered K.S. to prepare yet another supplementary report. 32. Subsequent hearings were held on 25 August and 22 November 1999. The court heard evidence from the expert and, on 22 November 1999, once again ordered the applicant to specify his claims. On 10 January 2000 the applicant informed the court in writing that he had already specified his claims on three occasions. 33. On 15 May 2000 the court held a hearing, but then adjourned the proceedings sine die. The next hearings were listed for 10 April and 5 July 2001 and, subsequently, for 14 February and 14 May 2002. 34. In the light of the material before the Court, it appears that the proceedings are still pending in the court of first instance.

dev

001-119975

ENG

UKR

CHAMBER

CASE OF NATALIYA MIKHAYLENKO v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

5. The applicant was born in 1971 and lives in Simferopol. 6. The applicant was born with congenital facial injury and was diagnosed with a “midline cranial cleft”. Between 1990 and 1997 she repeatedly underwent surgery in a clinic in the United States of America, following which her cranial disorders were mostly cured. However, owing to the extensive surgery, the applicant developed a mental illness. Since then she has needed regular supervision in the United States clinic. 7. In 2007 the applicant’s father applied to the Simferopol District Court of the Autonomous Republic of Crimea (“the District Court”), seeking to have her deprived of legal capacity on the ground that she suffered from serious mental illness. 8. Following a request by the District Court, on 5 June 2007 a forensic psychiatric expert issued an opinion stating that the applicant suffered from a chronic mental illness, namely paranoid schizophrenia, which prevented her from comprehending and controlling her actions. 9. On 10 July 2007 the District Court deprived the applicant of her legal capacity. The decision was not appealed against and became final. 10. On 21 November 2007 the applicant’s sister was assigned as the applicant’s guardian (опікун). 11. Gradually, the applicant’s mental health improved, so that on 3 April 2008 she took up a position at a local factory. 12. In 2009 the applicant’s guardian applied to the District Court for restoration of the applicant’s legal capacity. However, on 30 October 2009 the application was dismissed without being considered on the merits owing to the guardian’s repeated failure to appear in court. 13. On 1 November 2010 the applicant applied on her own to the District Court, seeking restoration of her legal capacity. She specified that Article 241 § 4 of the Code of Civil Procedure, which did not provide for the right for an incapacitated person to submit such an application, was not compatible with international legal standards and was discriminatory. 14. On 4 November 2010 the District Court returned the application to the applicant without considering it on the merits, noting that, by virtue of Article 121 § 3 and Article 241 § 4 of the Code of Civil Procedure, the applicant was not entitled to submit such an application. 15. On 12 January 2011 the court of appeal dismissed the applicant’s appeal against the decision of 4 November 2010 noting that Article 241 § 4 of the Code of Civil Procedure did not provide the applicant with the right to lodge an application for restoration of her legal capacity. The District Court had therefore lawfully returned the application without considering it on the merits, as required by Article 121 § 3 of that Code. On 12 March 2011 the court of cassation dismissed as unfounded the applicant’s appeal on points of law. 16. Article 67 of the Code provides that a guardian is obliged to take measures for the protection of the civil rights and interests of the person who is under his or her guardianship. 17. Article 121 § 3 of the Code provides that a court cannot accept a claim for consideration on the merits if it has been submitted by a person deprived of legal capacity. 18. Article 241 § 4 of the Code provides that a court decision declaring a physical person entirely incapable may be quashed and the legal capacity of that person may be restored by another court decision provided that the person has been cured or his or her mental state has significantly improved. Such a decision is to be taken upon an application submitted by the guardian or the guardianship authority (орган опіки та піклування) and must be supported by relevant conclusions by a forensic psychiatric expert. 19. This Order requires the guardianship authorities, among other things, to supervise the activities of guardians and to take measures for the protection of the rights of persons who have been placed under guardianship.

dev

001-92807

ENG

BGR

ADMISSIBILITY

TODOROVI v. BULGARIA

Inadmissible

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicants, Todor Ivanov Todorov and Petranka Ruseva Todorova, are Bulgarian nationals who were born in 1944 and 1948 respectively and live in Varna. They are represented before the Court by Mr M. Ekimdjiev and Mrs K. Boncheva, lawyers practising in Plovdiv. The applicants are spouses. In 1986 they bought from the Varna municipality a State-owned apartment, which had been managed by the company C. On 7 January 1991 the applicants bought from the municipality an attic room in the same building for 4,034 old Bulgarian levs (“BGL”). Apparently, following the legal reforms of the 1990s (see below, Relevant background facts, domestic law and practice), the company C. considered that it had become the owner of the attic room and on an unspecified date it granted the tenancy of the room to Mr and Mrs P. In 1997 the applicants brought a rei vindicatio action against Mr and Mrs P. claiming the possession of the room. In a judgment of 25 June 1998 the Varna District Court dismissed the claim. On 9 August 1999 the Varna Regional Court upheld the lower court’s judgment. It found, inter alia, that the sale contract of 7 January 1991 was null and void ab initio as it had not been signed by the mayor, as required by law, but by another official of the municipality. The applicants, thus, had not shown that they were the owners of the attic room. In the meanwhile, on 30 April 1999 the company C. sold the attic room to Mr and Mrs P. On 27 February 2001 the applicants brought an action against C. seeking back the price they had paid for the attic room in 1991, updated in accordance with the inflation indexes. On 4 April 2002 the Varna Regional Court dismissed the claim finding that the 7 January 1991 sale contract had been found to be null and void in proceedings, which had not involved the company C.; it was not therefore bound by this founding of nullity. Upon appeal by the applicants, on 16 January 2003 the Varna Court of Appeal reversed the judgment and held that the applicants were in principle entitled to recovery of the sum. It awarded them the amount they had paid for the attic in 1991, the equivalent of BGL 4,034. However, as a result of inflation and the depreciation of the Bulgarian currency after 1991, the sum amounted to approximately EUR 2. In a final judgment of 18 March 2004 the Supreme Court of Cassation dismissed the applicants’ claim. It found that the action had been time-barred as the five-year time limit for seeking the recovery of what had been paid under a void contract started running from the day of payment, which in this case had been in 1991. By section 55 (1) of the Obligations and Contracts Act, everyone who has paid a sum of money on a non-existent ground is entitled to seek its recovery. In a binding interpretative decision of 1979 the Supreme Court of Bulgaria (now Supreme Court of Cassation) held that the time-limit to bring such an action started running from the moment of payment (Interpretive Decision No. 1 of the Plenary of the Supreme Court of 28 May 1979, case No. 1/79). In accordance with the Bulgarian courts’ established practice revalorisation of claims to reflect inflation and currency depreciation is not possible. Until the beginning of the 1990s, all commercial assets were the property of the State and were only allocated to State enterprises for “use and management”. After the beginning of democratisation and economic change and the ensuing transformation of these enterprises into State-owned limited liability or joint stock companies, the transformed companies acquired ownership of real estate or other assets they had used and managed (see, for more detail, the Court’s description of this transformation in the case of Credit Bank and Others v. Bulgaria (no. 40064/98, ECHR 30 April 2002)).

dev

001-81677

ENG

POL

CHAMBER

CASE OF BOBEK v. POLAND

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

6. The applicant was born in 1929 and lives in Rzeszów. 7. The applicant, who was an advocate, made a declaration under the provisions of the Lustration Act 1997 that she had never secretly collaborated with the communist secret service. She only admitted that between 1945 and 1953 she had been working at the Security Office (Urząd Bezpieczeństwa) in Rzeszów as an office assistant, but in 1953 she had left the job. 8. On 14 April 1999 the Commissioner of Public Interest (Rzecznik Interesu Publicznego) applied to the Warsaw Court of Appeal (Sąd Apelacyjny), acting as the firstinstance Lustration Court (sąd lustracyjny), to institute proceedings in the applicant's case under the Lustration Act (ustawa lustracyjna) on the ground that the applicant had lied in her declaration by denying her collaboration with the secret services after 1953. (This security service was known as Urząd Bezpieczeństwa, but after 1956 it was called Slużba Bezpieczeństwa.) 9. On 31 May 1999 the applicant was notified that lustration proceedings had been instituted concerning her declaration (oświadczenie lustracyjne). 10. On 9 September 1999 the Warsaw Court of Appeal, acting as the first-instance court, held a hearing in the applicant's case. The Commissioner of Public Interest requested the court to conduct a public hearing and the applicant supported this motion. She was questioned by the court and commented on the evidence at the court's disposal. The file of the case was composed of the applicant's lustration declaration, copies of certain documents contained in the applicant's file compiled by the communist secret police and of the Commissioner's application for lustration proceedings to be instituted. Towards the end of the hearing, both the Commissioner and the applicant declared that they had no request for further evidence to be taken by the court. The court closed the hearing. 11. However, on 13 September 1999 the applicant requested the court to take further evidence. She submitted various documents concerning her professional career, her character and morality. 12. On 15 September 1999 the court re-opened the hearing and admitted the applicant's documents to the case file. It then closed the hearing again. 13. On 16 September 1999 the court sent the applicant the operative part of its judgment of 15 September 1999, by which it had found that the applicant had submitted an untrue lustration declaration because she had been an intentional, secret collaborator of the communist secret services after 1953. It further informed the applicant that the written grounds of the judgment had been prepared under Article 100 § 5 of the Code of Criminal Procedure and that she could consult them in the office of its secret registry (kancelaria tajna). As she had not appointed legal representation, the full written grounds could only be read by herself, to the exclusion of all other persons, except the Commissioner of Public Interest. 14. The applicant appealed. 15. On 8 November 1999 the Warsaw Court of Appeal, acting as the secondinstance lustration court, dismissed her appeal and upheld the firstinstance judgment. 16. On 22 November 1999 the same court informed the applicant that the written grounds of that judgment had been prepared under Article 100 § 5 of the Code of Criminal Procedure, and that she could consult them at the office of the court's secret registry. 17. The applicant lodged a cassation appeal with the Supreme Court, which held a hearing on 10 October 2000, but the applicant chose not to attend. The Court allowed the Commissioner's request to examine the applicant's appeal in camera, having regard to Article 360 § 1 (3) of the Code of Criminal Procedure. By a judgment of the same date the Court dismissed the applicant's cassation appeal. “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...” Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” Under the established caselaw of the Constitutional Court, it has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999). 19. On 3 August 1997 the Lustration Act (Ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) entered into force. Its purpose was to ensure transparency as regards those people exercising public functions who had been secret collaborators with the secret service during the communist era. It lost its binding force on 15 March 2007. 20. Pursuant to section 4 of the Act, “collaboration” was understood as the “intentional and secret collaboration with the operational or investigative branches of the State's security services as a secret informer or assistant, supplying them with information”. 21. Section 6 (1) of the Act read: “Persons in the categories listed in Article 7 of this law shall submit a declaration concerning work for or service in the State's security services or collaboration with these services between 22 July 1944 and 10 May 1990 (hereafter called 'the declaration').” 22. Section 7 (1) contained a list of public functions and professions, the holders of which must make the declaration under Article 6. 23. Under section 7 (1) item 10 (a) as amended in 1998, candidates to the bar and advocates were also obliged to make such declarations. Their declarations were to be submitted to the Minister of Justice. 24. The declarations were also transmitted to the Lustration Court. Pursuant to section 1 of the Act, the Warsaw Court of Appeal was vested with powers to conduct lustration proceedings. Such proceedings could be instituted at the request of the Commissioner of Public Interest (rzecznik interesu publicznego). 25. The Commissioner would institute proceedings before the Lustration Court when he or she had doubts whether the declaration of noncollaboration was truthful. 26. According to section 17(d), the duties of the Commissioner included in particular: “1. i) analysing the lustration declaration submitted to the court; ii) collecting the information necessary for a correct assessment of the declaration; iii) lodging an application with the court with a view to initiating lustration proceedings; ... 2. In carrying out his or her duties enumerated in points 1 and 2 above, the Commissioner may require to be sent or shown the relevant case files, documents and written explanations, and if necessary may hear witnesses, order expert opinions or conduct searches; in this respect, and as regards the duties described in section 17(1), the provisions of the Code of Criminal Procedure concerning the prosecutor shall likewise apply to the Commissioner.” Pursuant to section 17 (e), the Commissioner had full access to all documents and other sources of information, regardless of the form in which they were recorded, created before 10 May 1990 by organs specified in that provision, including sources within the Ministry of Internal Affairs. 27. Under section 19, matters not covered by the Act and relating to lustration proceedings were governed by the provisions of the Code of Criminal Procedure. 28. According to section 20, the person under scrutiny was afforded the same defence rights as an accused in criminal proceedings. The proceedings before the Lustration Court terminated with a decision on whether the declaration made by the person concerned was true. A decision of this court could be appealed to the second-instance Lustration Court. Such an appeal was examined by a different panel of three judges of the Warsaw Court of Appeal. 29. Pursuant to section 23, the decisions of the Lustration Court were to be served on the person concerned with their written grounds. 30. A cassation appeal to the Supreme Court lay against the secondinstance judgment. 31. The final judgment, finding a particular declaration untrue, was immediately made public in the “Official Law Gazette” (Monitor Polski). 32. Pursuant to section 30, the final judgment of an untrue declaration established the loss of moral qualifications which were, according to the relevant laws, necessary for the exercise of certain public functions, including the profession of advocate. It therefore entailed disbarment. 33. Article 156 § 4 of the Code provides that, when a danger arises that State secrets may be revealed to the public, access to the case files, making notes and copying documents from such files shall only be allowed under special arrangements provided for by the president of the court or by the court. 34. Article 100 § 5, which concerns the delivery of a judgment, provides: “If the case has been heard in camera because of the substantial interests of the State, instead of reasons, notice will be served to the effect that the reasons have been prepared.” 35. Article 360 § 1 (3) of the Code provides that the court shall order a hearing to be held in camera if its public character could disclose circumstances which should remain secret in the light of important State interests. 36. Section 2 (1) of the Protection of State Secrets Act 1982 (Ustawa o ochronie tajemnicy państwowej i służbowej), which was in force until 11 March 1999, read as follows: “A State secret is information which, if divulged to an unauthorised person, might put at risk the State's defence, security or other interest, and concerns in particular: ... 2) the organisation of the services responsible for the protection of security and public order, their equipment and working methods, and the data enabling the identification of their officers and persons collaborating with the security services...” 37. Section 86 of the Protection of Classified Information Act 1999 (Ustawa o ochronie informacji niejawnych), in its relevant part, provided as follows: “2. Persons referred to in section 21 (1) [those authorised to sign the document and to assign a confidentiality rating], or their legal successors in relation to documents containing information classified as a State secret, created before 10 May 1990, shall within 36 months from the date of enactment of this Act, review these documents with the purpose of adjusting their current security classification to the classifications provided by this Act. Until then, these documents shall be considered classified under the provisions of paragraph 1 unless otherwise provided by law...” Appendix No. 1 to the Act provided, in so far as relevant: “I. Information that can be classified as 'top secret': ... 21. information concerning documents that make it impossible to establish data identifying officers, soldiers or employees of State bodies, services and institutions authorised to engage in operational activities or on the resources that they use in their operational activities.” Section 52 (2) of the 1999 Act concerned the organisation of the secret registry. It provided in so far as relevant: “Documents marked “top secret” and “secret” (ściśle tajne i tajne) can be released from the secret registry only if the recipient can secure the protection of those documents from unauthorised disclosure. In case of doubts regarding the conditions of protection, the document can be made available only in the secret registry.” 38. Certain limited aspects of the Lustration Act 1997 have been examined by the Constitutional Court as to their compatibility with the Constitution. In a judgment of 10 November 1998, the Constitutional Court recalled the historical background to the Lustration Act and explained its purpose: “As can be seen from the legislative history, the main aim of the Act was to 'make it impossible to use a person's political past', the fact of cooperating with the secret services, 'for the purpose of blackmailing ... persons holding key decisionmaking functions in the Polish State'... The concept of lustration as adopted by the legislator, in respect of the subject of scrutiny, decision-making and possible sanction in lustration proceedings, is the truthfulness of the declaration submitted under Article 6 of the [Lustration Act]. Thus, as follows directly from the Act and from the Constitutional Court's judgment of 21 October 1998, the law does not associate criminal or quasi-criminal liability with the sole fact of past collaboration with the State's security services... The legislator's intention is that persons who are exercising public functions or standing for election to posts involving the exercise of public functions shall submit a declaration regarding cooperation. The purpose of such regulation is to secure the open nature of public life, to eliminate [the possibility of] blackmail because of facts from the past which can be considered as compromising, and to submit those facts for public consideration. The collaboration itself does not prevent any citizen from exercising public functions, and lustration proceedings are designed only to scrutinise the truthfulness of those who exercise or wish to exercise public functions. It is therefore not the collaboration, but the submission of a false declaration which has negative consequences for those affected.” 39. In a judgment of 21 October 1998 (K 24/98), the court examined the constitutionality of certain provisions of the Lustration Act as amended in 1998. These amendments concerned the provisions regulating the position of the Commissioner of Public Interest and, also, provisions to the effect that certain categories of persons, if found to have made a false lustration declaration, were to be regarded as having lost the moral qualifications necessary for the exercise of certain public functions. 40. In a judgment of 19 June 2002 (K 11/02), the court held that certain amendments to the Lustration Act, enacted on 15 February 2002, were incompatible with the Constitution because Parliament (Seym) had failed to respect the legislative procedure provided for by the relevant constitutional provisions. 41. In its judgment of 5 March 2003 ( K 7/01), the Constitutional Court examined the compatibility with the Constitution of certain provisions of the Lustration Act which created the obligation to publish a lustration declaration made by candidates to certain public functions insofar as they did not make any distinction between various categories of collaboration with the secret services. 42. In its judgment of 28 May 2003 (K 44/02), the court examined the scope of the notion of secret collaboration as provided for by Article 4 of the Lustration Act as amended in September 2002. 43. The court also dealt with other problems concerning the Lustration Act in its judgments K 39/97, P 3/00, SK 10/99 and SK 28/01. 44. The following are extracts from Parliamentary Assembly of the Council of Europe Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems: “9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services... 11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or 'decommunisation' laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now. 12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy. 13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the "Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law" as a reference text.”

dev

001-108781

ENG

BGR

CHAMBER

CASE OF P.M. v. BULGARIA

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

5. The applicant was born in 1977 and lives in Stara Zagora. 6. According to the judgment of 30 November 2005 of the Stara Zagora District Court, in the afternoon of 29 March 1991 the applicant, then aged thirteen, was invited to a party at the home of Mr T.Z. There were several young people in the apartment. After some time Mr D.I., then aged seventeen, took the applicant to a separate room and threatened her, after which he raped her. Then he went out and Mr T.Z., who was twenty-one years old, entered the room. He beat the applicant and attempted to rape her but was interrupted by his mother ringing the doorbell. Mr T.Z. asked the applicant and the other guests to leave. 7. The applicant told her parents that she had been raped, and they took her to the doctor and informed the police. 8. In a medical expert report of the same date two experts of the Stara Zagora Military Medical Institute established that there was an injury to the applicant’s hymen and that she had several bruises on her head. 9. On 4 April 1991 the applicant’s mother lodged a written complaint with the police authorities against Mr T.Z. and Mr D.I. 10. The police carried out an inquiry, in the course of which it took statements from the applicant, Mr T.Z. and Mr D.I. The two suspects gave their addresses. 11. On 27 January 1992 the Stara Zagora district prosecutor opened criminal proceedings against Mr T.Z. and Mr D.I. 12. On 9 April 1992 Mr T.Z. was charged with attempted aggravated rape and was ordered not to leave the town pending the criminal proceedings against him. On the same day the investigator questioned him, the applicant and a witness. 13. In a letter of 10 April 1992 the investigator requested the police to establish the full names and addresses of four witnesses. 14. On 28 April 1992 the investigator established that Mr D.I. had not appeared before him, although he had been duly summoned, and that the whereabouts of certain witnesses were unknown. He proposed that the criminal proceedings be stayed. By a decree of 24 November 1992 the district prosecutor stayed the criminal proceedings against Mr T.Z. and Mr D.I., on the ground that the latter’s whereabouts were unknown. 15. There is no information as to whether the authorities took any steps to find the persons concerned. 16. In a report of 8 September 2000 a police officer stated that Mr D.I. had been found. The address specified in the report was the same as the one Mr D.I. had given in his written statement of 1991. In a statement of 8 September 2000 Mr D.I. said that he had not changed his place of residence and that he had never been summoned by the investigator. 17. On 19 December 2000 the district prosecutor resumed the criminal proceedings against Mr T.Z. and Mr D.I. 18. In a letter of 26 February 2001 the investigator asked the district prosecutor to extend the period of investigation by six months, stating that the work on the case had not been completed on time because of his involvement in other cases. On 19 March 2001 the district prosecutor granted a two-month extension. 19. In a letter of 28 June 2001 the district prosecutor instructed the investigator to take urgent measures to complete the investigation, informing him that the case would be subject to special monitoring. 20. On 5 November 2002 Mr D.I. was charged with aggravated rape and was ordered not to leave the town pending the criminal proceedings against him. On 14 November 2002 he was questioned before a judge. 21. In the period between 7 November and 5 December 2002 the investigator questioned twelve witnesses, and appointed two experts to make a psychiatric and psychological assessment of Mr T.Z., Mr D.I. and the applicant, as well as a medical expert, who, on the basis of the documents in the file, confirmed the conclusions of the medical report of 29 March 1991. 22. The results of the preliminary investigation were communicated to Mr T.Z. and Mr D.I. on 4 March 2003. 23. On 6 March 2003 the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that the two accused should be put on trial. 24. In a decree of 30 September 2003 the district prosecutor terminated the criminal proceedings in respect of Mr D.I. as time-barred. He found that a shorter prescription period was applicable to him because he had been under age at the time of the offence. 25. In a decree of 29 March 2004 the district prosecutor terminated the criminal proceedings in respect of Mr T.Z., finding that the charges against him had not been proved and that it would be practically impossible to gather any new evidence in view of the period of time which had elapsed since the events. 26. Following an appeal by the applicant, on 20 April 2004 the Stara Zagora District Court quashed the decree of 29 March 2004 and resumed the proceedings in respect of Mr T.Z. It found that the district prosecutor should have ordered witness confrontations. 27. On 30 April 2004 the district prosecutor referred the case back to the investigator for further examination. 28. In the period from 7 to 11 June 2004 the investigator carried out four witness confrontations. 29. A second psychiatric and psychological report was submitted in respect of the applicant on 22 June 2004. It confirmed that she had been able to understand the events of 29 March 1991 and that she had not been able to effectively resist the mental and physical violence against her. It was unlikely that the applicant had testified under the influence of her parents. 30. On 9 June 2004 the investigator ordered an expert examination of the clothes allegedly worn by the applicant on the day of the incident, as well as of other items. Several expert reports were prepared in the period from 16 to 22 June 2004. 31. On 25 June 2004 the results of the preliminary investigation were presented to Mr T.Z. On the same date the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr T.Z. should be tried for attempted rape. 32. On 19 July 2004 the district prosecutor once again terminated the criminal proceedings against Mr T.Z. for lack of direct evidence. 33. Following an appeal by the applicant, on 25 August 2004 the Stara Zagora regional public prosecutor’s office upheld the decree of 19 July 2004. The applicant appealed further. 34. In a decree of 21 September 2004 the Plovdiv appeals public prosecutor’s office quashed the decrees of 25 August 2004, 19 July 2004 and 30 September 2003 (see paragraph 24 above) and referred the case back to the district prosecutor for further investigation. The district prosecutor was ordered to monitor the case and see to the lawful and timely completion of the investigation within two months. The decision further stated that the applicant’s account of the events had been corroborated by numerous pieces of circumstantial evidence and that the prescription period for prosecuting Mr D.I. had not expired because there was evidence of complicity between the two accused which affected the legal characterisation of the charges. 35. On 5 October 2004 the district prosecutor referred the case back to the investigator with instructions to gather additional evidence within thirty days. On 8 November 2004 this deadline was extended by thirty days. 36. In a letter of 3 January 2005 the district prosecutor instructed the investigator to send him the file as soon as possible. In a note of 12 January 2005 the district prosecutor stated that he had reached an agreement with the investigator that the file would be sent by 31 January 2005. 37. A confrontation between the applicant and Mr T.Z. was carried out on 17 January 2005. 38. On 18 January 2005 the applicant was questioned before a judge. 39. On 21 January 2005 Mr D.I. and Mr T.Z. were charged with aggravated rape and attempted aggravated rape respectively, committed in complicity, and were ordered not to leave the town pending the criminal proceedings. They were questioned on the same day. 40. A confrontation between the applicant and Mr D.I. was carried out and two witnesses were questioned before a judge between 24 and 26 January 2005. 41. An expert report concerning a tear in the jeans allegedly worn by the applicant on the date of the incident was submitted on 31 January 2005. 42. The results of the preliminary investigation were communicated to Mr D.I. and Mr T.Z. on 2 and 3 February 2005 respectively. 43. On 9 February 2005 the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr D.I. and Mr T.Z. should be tried on the charges. 44. An indictment against the two accused was filed with the Stara Zagora District Court on 22 February 2005. 45. Two hearings scheduled for 14 April and 22 June 2005 were postponed because one of the accused and the lawyer of the other accused had fallen ill. 46. A hearing was held on 11 July 2005. The applicant joined the proceedings as a private prosecutor. She did not bring a civil action. 47. On 12 October and 30 November 2005 the District Court held hearings. The defendants did not plead the statute of limitations but asked the court to pronounce a judgment. 48. In a judgment of 30 November 2005 the District Court convicted Mr D.I. of aggravated rape but relieved him from liability and punishment. It reasoned that although Mr D.I. had not pleaded the statute of limitations, the latter was nevertheless an absolute obstacle to his punishment. It further convicted Mr T.Z. of attempted aggravated rape and sentenced him to three years’ imprisonment. It found that the long lapse of time since the rape represented a mitigating factor which must be taken into account in determining his punishment. The court acquitted the two accused of the complicity charges. 49. Upon appeals by the applicant, the district prosecutor and Mr T.Z., on 20 October 2006 the Stara Zagora Regional Court upheld the judgment of 30 November 2005 in respect of Mr D.I. This part of the judgment was not subject to appeal and became final. 50. The Regional Court further terminated the criminal proceedings against Mr T.Z. as time-barred, finding that the prescription period for his prosecution had expired meanwhile. 51. On 18 May 2007 the applicant’s lawyer was informed of the judgment and of the applicant’s right to appeal against the termination of the criminal proceedings against Mr T.Z. The applicant did not appeal. 52. Pursuant to the 1974 Criminal Procedure Code, in force at the relevant time and until 2006, as well as the constant case-law of the Supreme Court of Cassation, the courts had to terminate criminal proceedings upon expiry of the statutory period of limitation. Nevertheless, the accused could request their continuation (Article 21). In such a case, the court could find him guilty but could not punish him (Article 303).

dev

001-112481

ENG

UKR

CHAMBER

CASE OF VASILIY IVASHCHENKO v. UKRAINE

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Respondent State to take measures of a general character (Article 46-2 - Changes of regulations;Legislative amendments);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

5. The applicant was born in 1961. He is currently serving a prison sentence in Izyaslav, the Khmelnytsk Region. 6. On 12 April 1998 a police officer was killed and another police officer was severely wounded by a group of people using fire arms. On the same day the police stopped a car, whose driver stated that he had dropped off three people, who had allegedly committed the above crime, in a field several hundred metres away. Thereupon four police officers went to search for the suspects. They saw three people, including the applicant, crossing the field. The police officers fired several shots into the air and ordered the people to lie down on the ground. 7. According to the applicant, they all obeyed the orders of the police. The officers then approached them and started beating the applicant and the two others. The applicant was hit and kicked in the head, chest, kidney and groin area, as a result of which he lost consciousness. The applicant stated that the officers had pierced his cheek with a needle and had used a cigarette lighter to burn his right hand and suggested that they had done so in order to make him regain consciousness. 8. According to the written statements of the police officers submitted by the Government, while the applicant and the other suspects threw aside their guns they refused to obey the orders of the police and “offered physical resistance to the arrest”. Because of this, the police officers employed “unarmed combat techniques”, forced the suspects to the ground and handcuffed them. 9. Several hours later the applicant was taken to the medical wing of the investigative detention unit (слідчий ізолятор – “the SIZO”) in Cherkasy where he regained consciousness. 10. He was examined by a doctor who noted a number of lesions and bruises on the applicant’s head and body, including a wound and a haematoma on his forehead, and haematomas on his left shoulder, chest and right thigh. The medical report, written by that doctor, also stated that the applicant had several blisters on his fingers which, according to the applicant, were the result of burns. The doctor stitched the wound on the applicant’s forehead, prescribed a pain killer and suggested that the applicant see a neurologist. According to the report, an X-ray examination of the applicant’s chest did not reveal fractures of his ribs. 11. According to the applicant, the doctor did not note down all of his injuries. For instance, fractures of the applicant’s ribs and two fingers on his right hand were not revealed as no X-ray examination was carried out. 12. The next day a medical expert examined the applicant and noted that his injuries were minor. 13. In the course of the criminal investigations against him, the applicant complained of ill-treatment by the police to various public authorities, including the prosecutors. 14. By decisions of 21 August 1998 and 25 January 1999, the prosecutors refused to bring criminal proceedings against the police officers, finding that they had acted lawfully during the arrest. The finding was based on the statements of the police officers and the applicant’s medical documents (see paragraphs 8, 10 and 11 above). The applicant did not challenge the prosecutors’ decisions before the courts. 15. He again raised complaints of ill-treatment in the course of his trial before the Cherkasy Regional Court of Appeal (“the Cherkasy Court”) and the Supreme Court, which rejected them as unsubstantiated (see paragraphs 30 and 39 below). 16. On 13 April 1998 the investigator came to see the applicant in the SIZO. The investigator wished to question the applicant. He informed the applicant that he was suspected of aggravated robbery and murder committed on 12 April 1998 and explained to the applicant his basic procedural rights and guarantees, including the right to legal assistance and to remain silent. The relevant records were signed by the applicant, the investigator and a lawyer, Mr B., who, according to the Government, was also present during the applicant’s questioning. The lawyer was appointed by the investigator to represent the applicant in the proceedings. 17. The records also contain a statement by the applicant expressing the wish to be represented by another lawyer, Mr T., but that if that lawyer refused to take part in the case he would agree to be represented by Mr B. In the records the applicant also noted that the statement was made in the presence of Mr B. Accordingly, the applicant refused to be questioned on that day. During his subsequent questioning, including at the trial stage, the applicant denied his responsibility for the crimes of which he was suspected. 18. In his application to the Court, the applicant stated that Mr B. had taken part in the proceedings at the request of the applicant’s wife, who had paid the lawyer’s fees. The applicant also contended that the lawyer had not been present at the SIZO on 13 April 1998 and that he had signed the records at a later date. The applicant submitted letters issued by the SIZO administration on 16 June 2004, according to which during the pre-trial investigations lawyers had not visited the applicant in the SIZO and the applicant had left the SIZO only once – to undergo a psychiatric examination on 12 August 1998. 19. On 14 April 1998 the prosecutors invited Mr T. to defend the applicant. As that lawyer refused to take part in the proceedings, Mr B. continued to represent the applicant throughout the proceedings. 20. According to the records submitted by the Government, Mr B. took part in the investigative actions, including the applicant’s questioning which took place in the SIZO on 21 April 1998 and 10 January 1999, studied the materials of the case, attended the court hearings, made written and oral pleadings, and prepared an appeal in cassation contesting the applicant’s conviction. The court hearings which the lawyer did not attend were adjourned. 21. The applicant argued that during the entire period of the investigations he had not communicated with Mr B. and had not been allowed to correspond with anyone outside the SIZO. The investigators allegedly told him that it was not possible to see the lawyer before the trial. The applicant met the lawyer for the first time when the trial commenced. 22. On 21 April 1998 the applicant was charged with several counts of aggravated robbery, murder and inflicting bodily injuries. 23. In March 1999 the investigations were completed. The applicant and Mr B. were invited to familiarise themselves with the case file. The applicant expressed the wish to study it without the lawyer, allegedly at the request of the investigator, who promised the applicant that he would be allowed to meet with his brother. 24. In January 2000 the applicant finished studying the case file and in March 2000 the Cherkasy Court started examining the case as a court of first instance. 25. In the course of the court proceedings the applicant submitted several requests for the withdrawal of Mr B., stating that he did not need a lawyer at all. While the trial court made several requests to the local bar association inviting it to suggest another lawyer for the applicant, no replacement was found. The court also invited the applicant to hire a new lawyer himself, which the applicant did not do. By a letter dated 13 September 2000, the President of the Cherkasy Court informed the Deputy Minister of Justice that the applicant’s and his co-defendants’ refusal to be legally represented had resulted in a delay of three months to the court proceedings, which could not be pursued without the participation of a lawyer given the gravity of the charges. It was also noted that the defendants had submitted numerous procedural requests, including requests for their representation by the Minister of Justice and relinquishment of jurisdiction in favour of the Supreme Court, which evidenced that they were in fact trying to protract the proceedings. 26. Before the trial court the applicant contested the charges against him and alleged that the testimony of his co-defendants confirming his and their involvement in the impugned criminal acts had been obtained under physical and psychological pressure from the police. The applicant also lodged a request with the court for a video or audio-recording to be made of the proceedings, but this was rejected by the court. 27. The applicant’s co-defendants raised similar complaints before the court and denied their submissions made in the course of the pre-trial investigations. 28. On 28 January 2002 the Cherkasy Court found the applicant guilty of several counts of aggravated robbery, inflicting grievous bodily injuries and murder. It sentenced the applicant to life imprisonment. The court based its judgment on the testimony of about thirty witnesses and victims of the crimes, partly on the statements of the applicant’s co-defendants in the course of the investigations, and also on the conclusions of several forensic, ballistic and other expert examinations. The court further took into account the fact that in the course of the searches at the defendants’ places of residence the police had found a large number of objects belonging to the victims of the crimes. 29. The court also dealt with the defendants’ allegations that they had been tortured by the police in the course of the pre-trial investigations in order to obtain their confessions. It questioned the investigators and the police officers concerned and concluded that those allegations were unsubstantiated. The court also noted that the defendants, excluding the applicant, had made their statements to the investigators in the presence of their lawyers. The applicant’s co-defendants had not complained of illtreatment to the law-enforcement authorities. The court therefore found no ground which could prevent it from relying on these statements in its judgment. 30. As to the applicant, the court observed that he had not admitted his guilt at any stage of the proceedings, and there was no evidence that he had been forced to do so. Having questioned the police officers who had arrested the applicant on 12 April 1998 and one of the officers from the Cherkasy SIZO, the court noted that the applicant had been injured during the arrest but that there was no evidence that he had been ill-treated during his subsequent detention. 31. On 12 and 27 February 2002 respectively the applicant and Mr B. lodged separate cassation appeals, contesting the factual findings of the first-instance court. The applicant also complained that the trial court had failed to give due consideration to the defendants’ arguments that “they had been denied the opportunity to have and meet with a lawyer before their first questioning” and that the trial court had not allowed the defendants’ lawyers to visit them in detention. The applicant further made reference to his ill-treatment on 12 April 1998 and alleged that the statements of his codefendants had been obtained under physical and psychological pressure from the police. 32. Meanwhile, on 7 February 2002 the applicant and one of his codefendants concluded an agreement with Mr Br., pursuant to which Mr Br. undertook to defend them in the proceedings. 33. On 10 February 2002 the applicant asked the Cherkasy Court to allow Mr Br. to participate in the proceedings as his defence counsel. 34. On 20 February 2002 the Cherkasy Court informed the applicant that it had no jurisdiction to decide on the matter. 35. On 11 March 2002 Mr Br. complained to the President of the Supreme Court about the Cherkasy Court’s refusal to allow him to act as the applicant’s and his co-defendant’s counsel. Mr Br. also requested access to the criminal case file so that he could prepare a cassation appeal on behalf of the applicant and his co-defendant and to be granted leave to visit them in the SIZO. No reply was given by the Supreme Court to Mr Br.’s requests. 36. On 21 May 2002 the applicant sent an amended cassation appeal to the Supreme Court in which he complained about the Cherkasy Court’s refusal to allow Mr Br. to act as his defence counsel. 37. By a letter of 4 June 2002, the Cherkasy Courtdefendant submitted that the applicant had been there. 38. The court also noted that Mr Br. did not have an advocate’s licence and that he had not proved that, under domestic law, he could participate as defence counsel in criminal proceedings. The court further reiterated that Mr Br. should have asked the Supreme Court to grant him leave to participate in the cassation proceedings, since the first-instance court, which had already delivered a judgment in the case, was not competent to decide on that matter. 39. On 9 July 2002 the Supreme Court held a hearing on the cassation appeals. According to the applicant, Mr Br. was allowed to take part in the hearing on the applicant’s behalf. The applicant, his co-defendants and their lawyers were also present. The Supreme Court rejected the cassation appeals submitted by the applicant and Mr B. The Supreme Court further upheld the conclusions of the Cherkasy Court concerning the defendants’ allegations of their ill-treatment at the pre-trial stage of the investigation. 40. According to the applicant, Mr Br. was not given an opportunity to study the case file or to meet with the applicant prior to the Supreme Court hearing. 41. On 23 November 2002 the applicant lodged his present application with the Court. 42. On 22 April 2004 the applicant asked the Cherkasy Court to provide him with copies of the medical reports drawn up after his examination in the SIZO and of the procedural decision concerning his request for a video or audio-recording of the proceedings before that court, which he intended to submit to the Court in substantiation of his application. 43. By a letter of 28 May 2004, the Deputy President of the Cherkasy Court informed the applicant that his request had been refused, as it was not the function of that court to copy documents for the applicant. The court also noted that there were no funds in the court’s budget allocated for such purposes. 44. On 21 June 2004 the applicant lodged a complaint with the Prydniprovskyy District Court of Cherkasy (the “Prydniprovskyy Court”) against the Deputy President of the Cherkasy Court for failure to provide him with copies of the documents from his case file. In his complaint, the applicant stated that he needed copies of these documents in order to submit them to the Court. He also sought compensation for the damage allegedly caused by the refusal to provide him with the documents. 45. On 25 June 2004 the Prydniprovskyy Court declined jurisdiction to consider the applicant’s complaint. The court held that under Ukrainian law judges acting in their official capacity enjoyed immunity from court proceedings against them. 46. On 8 July 2004 the applicant appealed against the decision of 25 June 2004. 47. On 15 July 2004 the same court granted the applicant time to rectify certain shortcomings in his appeal. The court held that the applicant’s appeal should have been typewritten and should have contained information concerning the parties to the proceedings, in particular, their names and addresses. 48. On 26 July 2004 the applicant submitted a new version of his appeal. The applicant also attached a note, issued by the administration of the SIZO, stating that, in accordance with the law, detainees were not provided with the opportunity to type their documents. 49. On the same day the Prydniprovskyy Court refused to accept the applicant’s appeal for failure to comply with the decision of 15 July 2004. According to the applicant, he appealed against the decision of 26 July 2004. There is no information concerning the outcome of his appeal. 50. By a letter of 28 June 2004, the Court asked the applicant to submit copies of his appeal in cassation against the judgment of 28 January 2002 and of his requests for legal assistance. 51. On 19 July 2004 the applicant asked the President of the Cherkasy Court to provide him with a copy of his appeal in cassation as well as with copies of the documents which he had already requested in his letter of 22 April 2004. The applicant referred to the Court’s letter, but did not enclose a copy. 52. On 4 August 2004 the acting president of the Cherkasy Court rejected the applicant’s request on the same grounds as in the letter of 28 May 2004. The acting president of the court also stated that, if necessary, the Court could ask the State authorities to provide it with copies of these documents. 53. The applicant’s further requests for copies of the documents from his case file were also rejected by the Cherkasy Court. 54. In April 2007 the Government submitted, at the Court’s request, copies of various documents from the applicant’s criminal case, including his appeal in cassation and documents concerning legal assistance in the course of the domestic proceedings. 55. In July and October 2007 the Court received several letters sent from the applicant’s brother’s address. In these letters the applicant alleged that the Government had blocked his correspondence with the Court. In particular, the applicant stated that on 10, 14, 17 and 23 May, and on 9 and 15 July 2007 he had submitted his observations on the admissibility and merits of the application, claims for just satisfaction, a friendly settlement proposal, and some additional information to the staff of the Colony, to which the applicant had been transferred from the SIZO in 2005, for them to send to the Court. The applicant provided a copy of the document dated 4 October 2007 in which the authorities confirmed that they had dispatched the applicant’s correspondence addressed to the Court on the above dates. However, the Court never received the applicant’s submissions. 56. According to the Government, the impugned letters were sent promptly to the Court. The staff of the Colony was not responsible for the fact that they did not reach the Court. 57. In December 2007 the applicant complained to the Prosecutor General and the Izyaslav Court alleging interference with his correspondence. The complaints were dealt with by the prosecutors and the postal service. The prosecutors replied to the applicant that his letters had been duly dispatched by the staff of the Colony. The prosecutors also noted that it was not possible to check whether the postal service had received and dispatched the applicant’s letters, which were unregistered mail. That was confirmed by the postal service. 58. By a letter dated 1 July 2009, the Vice-President of the Cherkasy Court rejected another request from the applicant for copies of documents from his case file. In the letter it was also noted that the applicant had the right to hire a lawyer, pursuant to paragraph 2 of Article 8 of the Code on the Execution of Sentences, or to appoint a representative among one of his close relatives. The applicant was informed that such a representative would be given an opportunity to study the case file and to make notes. 59. The relevant provisions of domestic legislation and the relevant provisions of the Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules were summarised and quoted in the judgment in the case of Naydyon v. Ukraine (no. 16474/03, §§ 35-38 and 41-42, 14 October 2010), which mainly concerned the failure of the authorities to provide the applicant with the opportunity to obtain copies of documents needed for his application before the Court. 60. In the context of the execution of the Court’s judgment in Naydyon, in September 2011 the Ukrainian Government submitted to the Committee of Ministers an action plan on measures to comply with that judgment. An extract from the action plan concerning general measures reads as follows: “1. Publication and dissemination of the judgment The summary of the judgment was published in the Government’s Gazette [Uriadovyi Kurier], no. 28 of 15 [February] 2011. By letters of 22 March 2011, explanatory notes on the conclusions of the Court in the above-mentioned judgment were sent to the Supreme Court of Ukraine, the High Specialised Court of Ukraine for civil and criminal cases, the Donetsk Court of Appeal, the General Prosecutor’s Office and the State Prison Service. Moreover, the Court’s conclusions in the above judgment were included in the submission to the Cabinet of Ministers of Ukraine concerning the execution of ECHR judgments (as of March 2011). The Cabinet of Ministers of Ukraine instructed the relevant authorities to take measures to remedy the violation found, to avoid similar violations and bring their practices in accordance with the requirements of the Convention. 2. Legislative measures In order to determine whether any legislative amendments are required the authorities are currently holding multilateral discussions. As soon as this issue is determined at the national [level] the Committee of Ministers will be informed thereof.” 61. At its 1120th meeting on 13-14 September 2011 the Committee of Ministers took note of the action plan and invited Ukraine to keep it informed of the progress made in its implementation. So far, the Committee of Ministers has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention.

dev

001-104810

ENG

HRV

ADMISSIBILITY

IMOBILIJE MARKETING D.O.O. AND DEBELIC v. CROATIA

Inadmissible

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The first applicant, Imobilije Marketing d.o.o., is a limited liability company incorporated under Croatian law, which has its registered office in Rab. The second applicant, Mr Ivan Debelić, is a Croatian national who was born in 1939 and lives in Rab. He is an advocate practising in Rab. The first applicant was represented before the Court by the second applicant. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 14 June 1999 the applicants concluded a lease agreement with Mrs K.K. whereby they as lessors leased their business premises to her for a period of five years (from 1 April 1999 until 1 April 2004). In return, K.K. as a lessee was obliged to pay them in Croatian kunas (HRK) the counter value of 10,000 German marks (DEM) per year. For the first year K.K. agreed to pay the applicants in kunas the counter value of: (a) DEM 2,000 upon the conclusion of the agreement, (b) DEM 1,000 by 20 July 1999; and (c) DEM 7,000 by 30 August 1999. For every subsequent year K.K. agreed to pay in kunas the counter value of: (a) DEM 3,000 by 1 April of the current year for the following year, and (b) DEM 7,000 by the end of the current year for that year. The agreement was concluded in the form of a notarial deed (javnobilježnička isprava) and contained an enforcement clause entitling the applicants to directly institute enforcement proceedings against K.K. if she failed to pay the annual rent. Given that by 20 July 1999 K.K. had paid only the counter value of DEM 1,500 of the amount due by that date, on 26 July 1999 the applicants instituted enforcement proceedings before the Rab Municipal Court (Općinski sud u Rabu) with a view to collecting the unpaid amounts. By 26 October 2009 the applicants had instituted another ten sets of enforcement proceedings before the same court with a view to satisfying their claims arising from the above-mentioned lease agreement. However, even though the court had frozen K.K.’s bank account already on 1 September 1999, the applicants were unable to satisfy any of their claims owing to the lack of funds on that account. It would appear that eight out of the eleven enforcement proceedings are still pending, Meanwhile, on 23 August 1999 the applicants instituted non-contentious proceedings before the Rab Municipal Court asking the court to issue a preliminary measure (prethodna mjera) – a type of security measure (mjera osiguranja) – freezing K.K.’s bank account for the sum corresponding in kunas to the counter value of DEM 47,000, that is, the remaining amount of rent that would become due before the expiry of the lease agreement on 1 April 2004. They argued that K.K.’s behaviour, in particular her failure to pay the full amount of the rent due by 20 July 1999, suggested that it was likely that she would not pay the future instalments of the rent as they become due. On 11 April 2003 the court dismissed the applicants’ request. Following an appeal by the applicants, on 15 October 2003 the Rijeka County Court (Županijski sud u Rijeci) quashed the first-instance decision and remitted the case. In the resumed proceedings, on 4 August 2006 the Rab Municipal Court again dismissed the applicants’ request. Following an appeal by the applicants, on 23 October 2006 the Rijeka County Court again quashed the first-instance decision and remitted the case. On 24 September 2007 the Rab Municipal Court dismissed the applicants’ request for a third time. The court found the applicants’ request superfluous because their claim had been sufficiently secured. In particular, the court found that the applicants had frozen K.K.’s bank account already on 1 September 1999 in the above-mentioned enforcement proceedings. On 28 May 2009 the Rijeka County Court dismissed the applicants’ appeal and upheld the first-instance decision endorsing the reasons contained therein. It added that it was not allowed to issue a preliminary measure after the claim to be secured had become enforceable. On 1 October 2009 the applicants lodged an appeal on points of law (revizija) against the second-instance decision. It would appear that the case is currently pending before the Supreme Court (Vrhovni sud Republike Hrvatske). On 3 May 2007 the applicants lodged a request with the Rijeka County Court for protection of the right to a hearing within a reasonable time in respect of the above non-contentious proceedings. On 22 September 2009 the Rijeka County Court found a violation of the applicants’ right to a hearing within a reasonable time and awarded them each HRK 5,000 in compensation. The relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008), which entered into force on 29 December 2005, reads as follows: “(1) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court. (2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia. (3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be urgent. The rules of non-contentious procedure shall apply mutatis mutandis in those proceedings and, in principle, no hearing shall be held. (1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time. (2) The compensation shall be paid out of the State budget within three months from the date the party’s request for payment is lodged. (3) An appeal, to be lodged within fifteen days with the Supreme Court, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court’s decision but one may lodge a constitutional complaint.” The Enforcement Act (Ovršni zakon, Official Gazette of the Republic of Croatia, nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 6720/08) regulates both enforcement proceedings (ovršni postupak) in civil law matters and security proceedings (proceedings for the issuance of interim measures, postupak osiguranja). The Act provides for six types of security (interim) measure (mjere osiguranja), two of which are voluntary and four of which are compulsory. The two voluntary measures are: (a) judicial and notarial pledge security on the basis of the agreement of the parties (sudsko i javnobilježničko založnopravno osiguranje tražbina na temelju sporazuma stranaka) and (b) judicial and notarial (fiduciary) security by transferring ownership of a property or by transferring a right (sudsko i javnobilježničko (fiducijarno) osiguranje prijenosom vlasništva na stvari i prijenosom prava). The four compulsory measures are: (a) security by compulsory mortgaging of an immovable property (osiguranje zasnivanjem založnog prava na nekretnini), (b) security by anticipatory enforcement (osiguranje prethodnom ovrhom), (c) security by preliminary measures (osiguranje prethodnim mjerama), and (d) provisional measures (privremene mjere). The relevant provisions of the Enforcement Act regulating preliminary measures provide as follows: C h a p t e r t h i r t y SECURITY BY PRELIMINARY MEASURES Requirements for imposition of a preliminary measure Section 284 “(1) A preliminary measure shall be imposed with a view to securing a monetary claim on the basis of: 1. a decision of a court or an administrative authority that has not [yet] become enforceable, 2. a settlement concluded before a court or an administrative authority, if the claim determined therein has not [yet] become due, 3. a notarial deed , if the claim determined therein has not [yet] become due. (2) The court shall on the basis of the documents referred to in paragraph 1 of this section impose a preliminary measure if the requesting party [i.e. the creditor] demonstrates that without such a security [measure] there is a probable risk that the satisfaction of the claim [i.e. the collection of the debt] would be frustrated or seriously hindered.” Types of preliminary measures Section 287 “(1) A court may impose the following as preliminary measures: 1. ... 2. ... 3. A prohibition on the bank to pay the opposing party [i.e. the debtor] or a third party, at the opposing party’s order, an amount from his or her account for which the preliminary measure has been imposed. (2) ... (3) By the implementation of the preliminary measure, the requesting party [i.e. the creditor] shall acquire the right of pledge on the object of the security [measure]. (4) The sum of money deposited by the opposing party in the bank, on which the prohibition of payment has been imposed, may not be transferred from that account until the prohibition is in force, except to satisfy the secured claim.” Decision on imposition of a preliminary measure Section 289(2) “A period for which a preliminary measure is imposed may not be longer than fifteen days after the conditions for enforcement have been met.” Croatian legal scholars classify security (interim) measures (mjere osiguranja) into three main categories according to their purpose: (a) protective (conserving) measures, (b) regulatory measures, and (c) anticipatory measures. Protective measures are those measures whose purpose is to create conditions for the future satisfaction of a creditor’s claim. Judicial and notarial pledge security, judicial and notarial fiduciary security, security by compulsory mortgaging of an immovable property, all preliminary measures and the majority of provisional measures are considered as protective measures. Regulatory measures are those measures whose purpose is to temporarily regulate relations between the parties. Certain provisional measures are considered regulatory measures. Anticipatory measures are those measures whose purpose is to satisfy a creditor’s claim in advance. The anticipatory enforcement and certain provisional measures are considered anticipatory measures. In terms of their effects, Croatian legal scholars classify security (interim) measures into three main categories: (a) those that lead to (complete or partial) satisfaction of creditors’ claims (the anticipatory enforcement and certain provisional measures), and (b) those that create certain rights in rem (judicial and notarial pledge security, judicial and notarial fiduciary security, security by compulsory mortgaging of an immovable property and all preliminary measures), and (c) those that create certain quasi rights in rem or which de facto remove or reduce the risk of a future impossibility to satisfy a creditor’s claim (all provisional measures).

dev

001-97623

ENG

BGR

CHAMBER

CASE OF PATRIKOVA v. BULGARIA

Violation of Art. 6;Violations of P1-1;Pecuniary damage and non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

4. The applicant was born in 1967 and lives in Isperih. At the relevant time she was a sole trader, registered under the name ET GATZI-92 Galina Patrikova. Under Bulgarian law her business did not have a distinct legal personality. She traded in alcoholic beverages and tobacco, which are considered as excise duty products under Bulgarian tax law. 5. The applicant possessed a licence, issued in 1994, for wholesale trading in excise duty products. 6. On 6 June 2000 the Razgrad tax authority inspected one of the two storehouses where the applicant held her merchandise, seized all tobacco and alcoholic products found therein and by decision of 27 June 2000 fined the applicant. The decision was based on the tax authority's opinion that the relevant law required a separate license for storage of excise duty products whereas the applicant only had a trading license. 7. The authorities seized a significant quantity of tobacco products, 11,864 bottles of wine and 86,638 bottles of other alcoholic beverages with higher alcohol content (98,502 bottles in total). They were moved to a storage building used by the Razgrad tax authority. At the time of seizure, the total value of the merchandise was the equivalent of approximately 150,000 euros (EUR). The fine imposed on the applicant was in the amount of 221,139 Bulgarian levs (BGN), the equivalent of approximately EUR 115,000. 8. It appears that, during the seizure, part of the merchandise was damaged or destroyed due to improper handling. 9. The applicant lodged an appeal. On 20 July 2000 the Isperich District Court decided in her favour and quashed the Razgrad tax authority's decision. The court found that the relevant law did not require a storage license separate from the trading license. In the ensuing cassation proceedings, on 11 December 2000 the Razgrad Regional Court reversed the decision and upheld the seizure and fine. 10. In January 2001 the applicant filed a request for reopening on the basis of newly obtained information that storage licenses had never been issued in the practice of the relevant authorities. On 5 October 2001 the District Court agreed to reopen the proceedings and quashed the Razgrad tax authority's decision of 27 June 2000, stating, inter alia, that there was no support in the relevant law for the view that a separate storage license was required. On 18 January 2002 the Regional Court upheld the District Court's judgment. 11. On 7 June 2000 criminal proceedings were instituted against the applicant on suspicion of tax evasion, selling excise tax goods without the requisite tax labels and illicit trading in excise goods. 12. On 11 September 2000, the Isperih District Prosecutor's Office ordered the attachment as evidence of the merchandise that had already been seized by the Razgrad tax authority. 13. The applicant's ensuing appeals were dismissed on 16 October 2000 by the Razgrad Regional Prosecutor's Office and on 17 January 2001 by the Isperih District Court. 14. In January 2001 a prosecutor from the Razgrad Regional Prosecutor's Office, having inspected the file, noted that there was no evidence of a criminal offence, that the charges against the applicant were unclear and incoherent and that the investigation had not been conducted properly. Ensuing instructions were given to the Isperih District Prosecutor. 15. On 23 August 2001 the criminal proceedings were terminated by the Isperih District Prosecutor for lack of evidence. The decision stated that the attached merchandise remained at the disposal of the Razgrad tax authority. 16. On the same day, 23 August 2001, the same prosecutor in Isperih instituted a fresh inquiry on the suspicion that the applicant might have used counterfeit excise tax labels on the seized bottles of alcohol. 17. On 27 February 2002 a police investigating officer from Isperih visited the tax authority's storage building and inspected the alcoholic beverages seized from the applicant on 6 June 2000. He drew up minutes noting the presence of 52,118 bottles. The minutes further stated that, after the inspection, the bottles had been seized. The exact legal meaning of this statement is unclear, having regard to the fact that it did not concern attachment and that the bottles were not in fact seized but remained in the Razdrad Tax Authority's storage building. 18. On 22 April 2002, an expert appointed by the police filed her report stating that the labels found on a sample of more than 6,000 bottles (out of 52,118) had been forged. 19. On 13 March 2003 the Isperih District Prosecutor dropped the criminal charges against the applicant as there was no evidence that she had known that they were forged. 20. The prosecutor ordered that the proceedings should continue against an “unknown perpetrator” and that the seized bottles should be placed under the control of the local tax authority which was competent to decide on a possible confiscation of the bottles carrying counterfeit excise tax labels. 21. On 19 March 2003 the applicant appealed, arguing that there was no valid legal ground to withhold the bottles since the charges against her had been dropped. The appeal was not examined until December 2005. On 15 December 2005 the District Court quashed the prosecutor's order on grounds unrelated to the applicant's appeal. It noted that only a sample of the merchandise had been analysed for counterfeit labels and that, therefore, all bottles had to be attached in relation to the pending criminal proceedings for forgery by an unknown perpetrator. 22. The applicant has not been informed of any new developments since December 2005. 23. On 18 August 2000, shortly after the seizure, the applicant wrote to the Razgrad tax authority stating that the seized merchandise was perishable and should be sold to avoid loss of value. She requested permission to sell it and offered a bank guarantee for its value. The Razgrad tax authority did not grant the request. 24. On 7 August 2001 the Razgrad tax authority wrote to the District Prosecutor's Office in Isperich seeking their approval to sell the merchandise at an auction, having regard to the fact that it was perishable. The request was not followed up. 25. On 15 October 2001 the applicant wrote to the Razgrad tax authority insisting that the alcoholic beverages must be sold immediately since the validity of the excise tax labels on them expired on 31 October 2001 and also because new regulations on alcohol content would make it impossible to sell the bottles after 1 January 2002. The applicant did not receive a reply. 26. Between 2001 and 2005, the applicant also addressed to the Razgrad tax authority several unsuccessful requests for the appointment of experts to assess the damage caused during the seizure in June 2000 and any damage caused by inadequate storage conditions. 27. On 4 February 2002 the applicant wrote to the Razgrad tax authority seeking the restitution of the seized merchandise on the basis that the seizure of 6 June 2000 had been declared unlawful and the decision of 27 June 2000 had been repealed by final judgment of 18 January 2002. The tax authority agreed and on 2 March 2002 the applicant received back all tobacco products. She refused, however, to collect the bottles of wine and other alcoholic beverages as in her view a prior assessment of their condition was needed. 28. By letters of May, September and December 2002 the tax authority reiterated its invitation to the applicant to remove the remaining merchandise, indicating the dates on which this could be done, and warned her that the authority would not be responsible for any damage if she failed to collect the bottles. The applicant was also warned that in such case the bottles might be treated as abandoned and confiscated. The applicant replied, stating that the merchandise had lost its value and that experts should examine it to determine the damage it had sustained. She did not appear on the dates indicated by the tax authority. In her letter of 2 October 2002, addressed to the local tax authority, she explained that she had brought an action for damages against the authority and the relevant prosecutors and that there was “no reason [for her] to collect the merchandise which had become unfit for use”. In her letter of 14 December 2002 the applicant added that the tax authority should order an expert examination of the bottles. 29. The contacts on this issue continued. According to the applicant, in meetings with the tax authority's representatives she expressed willingness to hire an expert and organise the assessment of the merchandise. At a meeting held on 6 April 2004, the parties had allegedly been close to an agreement. 30. On 12 April 2004 the director of the Razgrad tax authority issued an order under section 106(5) of the Tax Proceedings Code, declaring the merchandise abandoned property acquired by the State. The text of the decision referred to all alcoholic beverages (98,502 bottles) as described in the seizure order of 6 June 2000 (see paragraphs 6 and 7 above) and mentioned that the merchandise was held in a storage house under the responsibility of the tax authority. The applicant appealed, stating that the goods had not been abandoned. 31. By judgment of 11 May 2006 the Varna Regional Court, noting that 52,118 bottles had been seized as evidence in criminal proceedings (see paragraph 17 above) and that the provisions on acquisition of abandoned property by the tax authorities were inapplicable in such situations, quashed the acquisition order in so far as it concerned those bottles. The Regional Court found that with regard to this part of the merchandise the question whether or not the applicant had undertaken the necessary steps to recover it from the tax authorities was irrelevant, since the tax authorities did not have the power to release goods seized as evidence in criminal proceedings. 32. As regards the remainder of the alcoholic beverages (46,384 bottles), the Regional Court upheld the order of 12 April 2004. It found, inter alia, that pursuant to an amendment to the Tax Procedure Code (see paragraph 58 below), the tax authorities automatically acquired as abandoned merchandise held by them in the event of its owner not having sought to recover it within nine months of 13 May 2003, the date of the amendment's entry into force. Noting that the applicant had not made requests to recover the bottles between 13 May 2003 and 13 February 2004 and considering that the events outside this nine-month period were irrelevant, the courts found that the tax authorities had lawfully acquired the merchandise. The court rejected the applicant's argument that all relevant events, before or after the statutory nine-month period, should be taken into consideration. 33. On 30 March 2007 the Supreme Administrative Court upheld the Regional Court's judgment. 34. On 17 May 2002 the applicant brought a claim for damages against the Razgrad tax authority, the police and the prosecuting authorities in respect of the unlawful seizure of her merchandise and the authorities' failure to allow the marketing of the alcoholic beverages before the expiry of their period of validity. She claimed the full value of the alcoholic beverages, stating that they had become improper for use, as well as compensation for loss of opportunity and moral damage. 35. Between June and November 2002, four adjournments were caused by failure to appear of one or more representatives of the defendant State organs. 36. At the hearing on 20 November 2002 the applicant requested the recusal of the presiding judge as he had participated in the administrative proceedings concerning the June 2000 seizure order against the applicant. The judge accepted the request and withdrew. 37. The next hearing was held on 4 December 2002. The applicant made requests for the collection of evidence. 38. A hearing was held on 12 March 2003. 39. The next hearing, listed for 14 May 2003, could not proceed as one of the defendant State organs had not been summoned. 40. On 11 June 2003 the court admitted documents in evidence, requested information about the pending criminal investigations and appointed an expert to report on the damage caused to the bottles still held by the tax authority and on the applicant's loss of profit resulting from the seizure of her merchandise. 41. In November 2003 the applicant submitted to the Varna Court of Appeal a complaint under Article 217a of the Code of Civil Procedure. In December 2003 the Varna Court of Appeal rejected the complaint. 42. Thereafter, the Regional Court held hearings on 24 September, 27 October and 26 November 2004 and on 25 March, 29 April, 20 May, 27 May, 30 September, 28 October and 25 November 2005. 43. It appears that most hearings were adjourned as the parties sought the production of additional documents and exchanged objections in respect of the admissibility of pieces of evidence. 44. At the hearing on 27 January 2006, the expert appointed to report on the damage to the merchandise and the applicant's loss of profit declared that she had become a member of the Bar and could no longer act as an expert. The court appointed three experts to present a report on the same subject. 45. At some of the hearings that followed, on 14 April, 31 May, 27 July, 10 November and 8 December 2006, the three newly appointed experts complained that the defendant State bodies had not given them access to the relevant documents. The court issued disclosure orders. 46. Hearings were held on 26 January, 9 March and 29 June 2007 and the examination of the case was again adjourned. The hearing held on 29 June 2007 was adjourned as one of the three experts had not been present. 47. On an unspecified date between June and September 2007 the experts appointed by the court submitted their report. The report only concerned analysis of financial documents concerning the activities of the applicant as a merchant and assessment of the loss of profit occasioned by the seizure of her merchandise. The experts did not provide information about missing and damaged bottles, stating that they would submit an additional report later. 48. On 26 October 2007 the court examined and refused the defendants' requests for the judge's recusal and for suspension of the proceedings. The court also dealt with the defendants' objections against the accuracy of the experts' report and adjourned the matter for further deliberation. 49. The hearings listed for 5 December 2007 and 20 February 2008 did not proceed as the experts had not submitted their additional report. 50. The hearing listed for 26 March 2008 was adjourned on unspecified grounds. 51. The next hearing was scheduled for 20 October 2008 but was adjourned as the applicant's lawyer had fallen ill. The court noted that two of the experts appointed to present a joint opinion refused to work together and invited the applicant to propose another expert. 52. In January 2009 the newly appointed experts presented a report, which was discussed at the hearing held on 25 February 2009. The experts gave contradictory answers to some of the parties' questions. Also, the defendants insisted on additional research by the experts. The court did not admit the report in evidence, instructed the experts to submit a new report clarifying their findings and adjourned the hearing until 15 April 2009. 53. On 15 April 2009 the hearing was adjourned as one of the experts had had an accident and was unable to attend. 54. On an unspecified date one of the experts was replaced. 55. On 18 June 2009 the experts submitted their report. 56. At the hearing held on 24 June 2009 the court noted that the report had been signed by one of the experts only and had not been submitted sufficiently in advance of the hearing. It adjourned the examination of the case and scheduled the next hearing for 16 September 2009. 57. As a result of the seizure of her merchandise the applicant became insolvent. She eventually discontinued her commercial activities. In 2006 her business was declared insolvent. 58. Pursuant to an amendment of 13 May 2003 to the Tax Procedure Code 1999, as in force at the relevant time, commodities that have not been collected by their owner for more than nine months following their seizure by the tax authorities should be deemed abandoned and become State property (Article 106(5) and additional provision 1(16), in force between 13 May 2003 and 31 December 2005). Pursuant to paragraph 50 of the final and transitory provisions to the May 2003 amendment, in cases of seizures predating the amendment, the nine-month period started to run from the date of the amendment's entry into force.

dev

001-90356

ENG

AZE

CHAMBER

CASE OF MAHMUDOV AND AGAZADE v. AZERBAIJAN

Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

5. The applicants were born in 1961 and 1979 respectively and live in Baku. 6. The first applicant was the acting chief editor of the Müxalifət newspaper. The second applicant was a journalist working for the same newspaper. 7. In its issue of 12-18 April 2003, the newspaper published an article named “Grain Mafia in Azerbaijan” (“Azərbaycanda taxıl mafiyası”), under the by-line of Samir Sharif, a pseudonym of the second applicant. The article was accompanied by a picture of J.A., who was a member of the National Academy of Sciences, a well-known expert in agriculture, and a member of the Milli Mejlis (Parliament). The article generally spoke about a number of problems in the country’s agricultural sector. It also appeared to imply, amongst other things, that J.A. was in charge of the breeding of certain experimental crops in “experimental” fields in several agricultural regions. J.A.’s name was printed in full in the article itself. 8. Specifically, the article read as follows (translated from Azerbaijani): “[President] Heydar Aliyev’s famous conference in Sumgait was rich in memorable moments. Naturally, in the essence of this richness, it is impossible not to notice the scale of arbitrariness and corruption and how the entire nation is held up to ridicule. But we are not talking about the dismissal ... of [certain government officials] for reasons which remain obscure to many. We are also not talking about how it was far from logical to accuse of stinginess a businessman named Isgandarov who has spent more than 30,000 dollars on charity in one year, while not a single member of the clan which has misappropriated billions of dollars of the country’s wealth is willing to expend a penny on development of our motherland. What is interesting is that the Head of State accused the people, whom he had turned into an object of reproach, of nepotism ... and monopolisation of the private sector in Sumgait. Aliyev says that he has refused to appoint his relatives to any [official] positions despite [having received] insistent requests in this regard. But what he does not say is that there is no person in this country other than the son Aliyev who simultaneously occupies four “armchairs”. Speaking of seizing control over [well-to-do sectors of economy], today even a baby who is just learning to speak knows which people control such a huge sphere of the Azerbaijani economy as the agricultural sector. Thousands of hectares of fertile land in Azerbaijan have been turned into an experimental zone for “valuable sorts” of grains. For almost ten years the agricultural sector has been plundered as if it were in the private ownership of the certain known person. During the Soviet period agriculture was the main contributor to the gross domestic product and the main area of the population’s employment. However, in the Aliyev era of independence, the agrarian sector, like all other sectors of the economy, has been monopolised to serve the interests of peri-governmental circles. With the exception of grain and livestock farming, other leading branches of agriculture have slumped. The productivity level of poultry farming has decreased from 143,000 tonnes in 1995 to 35,000 tonnes in 2002. Viticulture can be said to have been completely ruined, while cotton growing is in such an acute state of decline that within the last 10 years its share in the total agricultural product has decreased from 12-13% to 2%. As a result of appropriation of the cotton-processing industry by a group of monopolists, cotton planters are being seriously exploited. At the moment fourteen of the twenty-one cotton-ginning plants existing in the country are controlled by a company named MKT. This company’s share of all the cotton processed in the country last year was 85%. [A description is given of various specific monopolistic policies pursued by this company.] The development of the grain-growing industry is under the special care of a group [of persons] who have monopolised this sphere. For two years the people in the provinces either cannot sell the grain they have grown under considerable hardship or, in the best-case scenario, are forced to sell it for 350-400 manats per kilogramme. For example, during the last harvest season in such big grain-growing regions as Saatli, Beylagan and Agjabedi, the local executive authorities either prevented the major grain buyers from Baku from entering these regions or forced them to buy grain from specified fields. [This was done] for a simple reason – in order to sell, in a timely manner, all the grain from the thousands of hectares of [J.A.’s] ‘experimental’ fields in these regions. It is clear that, as simple peasants do not possess necessary facilities (such as special buildings) for storage of grain, they are forced to sell their crop at low prices. The land reform is often spoken about. But at the same time several important issues are forgotten. Firstly, as many as half of those who are given a share of land do not possess even the minimum facilities to cultivate it. Secondly, thousands of hectares of fertile land, labelled as ‘state land fund’ during the land reform, are held hostage by the ‘agrarian mafia’, and not a single penny goes to the state budget from its lease. Nowadays this mafia ... bends over backwards to obtain from the State about 250 million dollars in yearly subsidies for the development of agriculture. But no one is asking the Minister of Agriculture ... why, if he cares so much about the development of agriculture, he sells the equipment donated by the Japanese government, and not even for discount prices, but for prices higher than the ex-factory price. These people – those who sell a plough, which they have obtained free of charge, to the peasant for four to five thousand dollars, a tractor for fourteen to fifteen thousand dollars, and a grain combine harvester for fifty thousand dollars – now they want to get money from the State to revive agriculture. Sorry, but we aren’t duped by you. Your ‘Programme for the Development of Agriculture to 2015’, which you have submitted to the Government [for implementation], is not a programme aimed at supporting the peasant, but a programme allowing you to increase your personal wealth at a cost of 150-200 million dollars which you snatch from the State budget every year.” 9. On 23 April 2003 J.A. filed a criminal complaint with the Yasamal District Court using the procedure of a private prosecution. He claimed that the article clearly referred to him in a defamatory, slanderous and insulting manner. Specifically, he cited the following extracts as defamatory: “... today even a baby who is just learning to speak knows which people control such a huge sphere of the Azerbaijani economy as the agricultural sector. Thousands of hectares of fertile land in Azerbaijan have been turned into an experimental zone for “valuable sorts” of grains. For almost ten years the agricultural sector has been plundered as if it were in the private ownership of the certain known person. ... The development of the grain-growing industry is under the special care of a group [of persons] who have monopolised this sphere. For two years the people in the provinces either cannot sell the grain they have grown under considerable hardship or, in the best-case scenario, are forced to sell it for 350-400 manats per kilogramme. For example, during the last harvest season in such big grain-growing regions as Saatli, Beylagan and Agjabedi, the local executive authorities either prevented the major grain buyers from Baku from entering these regions or forced them to buy grain from specified fields. [This was done] for a simple reason – in order to sell, in a timely manner, all the grain from the thousands of hectares of [J.A.’s] ‘experimental’ fields in these regions. ...” 10. J.A. argued that the article clearly implied that he was in close contact with certain alleged criminal circles and thus, in essence, accused him of serious crimes such as the misappropriation of state funds allocated for agricultural research. He contended that the second applicant had deliberately made false statements damaging to his reputation and that the first applicant, as an acting chief editor, had failed to prevent this. He requested the court to convict the applicants under Articles 147.1 (defamation) and 148 (insult) of the Criminal Code. 11. During the trial, the applicants argued that the article had not contained any defamatory or insulting statements about J.A. They maintained that the phrase “the certain known person” did not refer to J.A. The picture of J.A. was placed in the article because of his general achievements in the development of grain farming. Lastly, they noted that the article was concerned with the general situation of the agricultural sector and that it contained no information specifically accusing J.A. of any criminal activity. 12. By a judgment of 20 May 2003, the Yasamal District Court convicted the applicants of defamation and insult under Articles 147.1 and 148 of the Criminal Code. Having examined the extracts from the article quoted above (see paragraph 9), the court noted that the applicants’ denial of the fact that the article had anything to do with J.A. was groundless, because the text of the article clearly mentioned J.A.’s name in full and clearly stated that thousands of hectares of grain fields belonged to him. The court went on to find that: “... expression by Y. Agazade of the idea of the existence of a mafia that does not exist in reality and his dissemination of this idea through the mass media constitutes defamation, that is, deliberate dissemination of false information tarnishing J.A.’s honour and dignity and damaging his reputation. Therefore, the court finds that, by disseminating [through the mass media] the information about the existence of a mafia that does not exist in reality, Y. Agazade committed an offence under Article 147.1 of the Criminal Code, and that, by making and disseminating the statement ‘in order to sell, in a timely manner, all the grain from the thousands of hectares of [J.A.’s] ‘experimental’ fields in these regions’, Y. Agazade committed an offence under Article 148 of the Criminal Code. The other accused person, R. Mahmudov, bears the same criminal responsibility for [allowing such dissemination as the newspaper’s acting chief editor]. Accordingly, R. Mahmudov and Y. Agazade must be found guilty under Articles 147.1 and 148 of the Criminal Code.” 13. The court sentenced each applicant to three months’ imprisonment under Article 147.1 of the Criminal Code and three months’ imprisonment under Article 148 of the Criminal Code. By partially merging these sentences, the court fixed a total sentence of five months’ imprisonment in respect of each applicant. At the same time, applying section 2.3 of the Milli Mejlis (Parliament) Resolution on Amnesty in Connection with the Anniversary of the Victory over Fascism in World War II, dated 6 May 2003, the court exempted them from serving their sentences. 14. The applicants appealed. They argued that the article discussed a number of problems in the agricultural sector and did not specifically relate to J.A. The fact that it contained J.A.’s picture and a statement that he possessed thousands of hectares of grain fields did not amount to defamation or insult. In respect of that statement, they argued that it was a generally known fact and did not offer any evidence in its support. The applicants also argued that J.A. and the Yasamal District Court had wrongly construed the totality of statements contained in the article as defamatory whereas their intended meaning was harmless. 15. On 16 July 2003 the Court of Appeal upheld the Yasamal District Court’s judgment. 16. On 2 March 2004 the Supreme Court upheld the lower courts’ judgments. 17. Articles 47 and 50 of the Constitution guarantee freedom of thought and speech and freedom of the mass media. 18. Article 147.1 of the Criminal Code provided as follows: “Defamation, that is dissemination, in a public statement, publicly exhibited work of art or in mass media, of knowingly false information discrediting the honour and dignity of a person or damaging his or her reputation – is punishable by a fine in the amount of one hundred to five hundred conditional financial units, or by community service for a term of up to two hundred and forty hours, or by corrective labour for a term of up to one year, or by imprisonment for a term of up to six months.” 19. Article 148 of the Criminal Code provided as follows: “Insult, that is deliberate humiliation of the honour and dignity of a person, expressed in an obscene manner in a public statement, publicly exhibited work of art or in mass media – is punishable by a fine in the amount of three hundred to one thousand conditional financial units, or by community work for a term of up to two hundred and forty hours, or by corrective labour for a term of up to one year, or by imprisonment for a term of up to six months.” 20. According to Article 81 of the Criminal Code, persons convicted of a criminal offence may be exempted from serving their sentence by an amnesty act. According to Article 83.1, a convicted person retains a criminal record until his or her conviction is removed or expunged. According to Article 83.2, the conviction of a person dispensed from serving his sentence is considered to be expunged. 21. The Milli Mejlis (Parliament) Resolution on Amnesty in Connection with the Anniversary of the Victory over Fascism in World War II, dated 6 May 2003, exempted a large number of convicts (with a number of exceptions) from serving their sentences or the remainder of their sentences. The amnesty applied to persons who had committed a criminal offence prior to the entry into force of the Resolution. Section 2.3 of the Resolution provided as follows: “Persons sentenced, for deliberate commission of a criminal offence, to imprisonment for a term of no more than three years shall be dispensed from serving their sentences.” 22. Article 10 of the Law on Mass Media of 7 December 1999 prohibits the mass media from, inter alia, publishing defamatory material. According to Article 60, editors of mass media sources and journalists may be held liable criminally, administratively or otherwise, if, inter alia, an editor fails to ensure the compliance of the published material with the requirements of this Law, or if the published material interferes with an individual’s private life.

dev

001-81359

ENG

GBR

GRANDCHAMBER

CASE OF O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM

No violation of Art. 6-1;No separate issue under Art. 6-2

Alvina Gyulumyan;Christos Rozakis;Egbert Myjer;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luzius Wildhaber;Matti Pellonpää;Nicolas Bratza;Snejana Botoucharova;Stanislav Pavlovschi;Volodymyr Butkevych

8. The applicants were born in 1933 and 1939 and live in London and Petersfield respectively. 9. On 7 April 2000, at 4.55 a.m., a vehicle of which the applicant was the registered keeper, registration number T61 TBX, was caught on a speed camera driving at 69 miles per hour (mph) on the M11 motorway where the temporary speed limit was 40 mph. 10. On 17 April 2000, the police camera enforcement unit of the Essex Constabulary wrote to the applicant: “I have photographic evidence that the driver of T61 TBX failed to comply with the speed limit ... It is intended to institute proceedings against the driver for the offence of failing to comply with the speed limit ... You have been named as the driver of the vehicle at the time of the alleged offence and have a legal obligation to comply with the provisions of the notice contained on page 2. I must warn you that if you fail to comply with this demand within 28 days you will commit an offence and be liable on conviction to a maximum penalty similar to that of the alleged offence itself – a fine of £1,000 and 3-6 penalty points.” 11. The attached Notice of Intended Prosecution informed the applicant that it was intended to institute proceedings against the driver of the vehicle. He was asked to furnish the full name and address of the driver of the vehicle on the relevant occasion or to supply other information that was in his power to give and which would lead to the driver’s identification. He was again informed that a failure to provide information was a criminal offence under section 172 of the Road Traffic Act 1988. 12. The applicant answered the letter confirming that he was the driver at the relevant time. 13. On 27 March 2001 the applicant was summoned to attend North Essex Magistrates’ Court where he was tried for driving in excess of the speed limit. Prior to the trial, the applicant sought to exclude the confession made in response to the Notice of Intended Prosecution, relying on sections 76 and 78 of the Police and Criminal Evidence Act 1984 read in conjunction with Article 6 of the Convention. His application was refused in the light of the decision of the Privy Council in Brown v. Stott [2001] 2 WLR 817. Thereafter the prosecution relied upon the photograph of the speeding vehicle and the admission obtained as a result of the section 172 demand. The applicant was convicted and fined 100 pounds sterling (GBP), ordered to pay GBP 150 costs and his licence was endorsed with six penalty points. 14. On 11 April 2001 the applicant asked the magistrates to state a case for the opinion of the High Court: “Whether in the circumstances of this case, the admission that the defendant was indeed the driver should have been excluded under sections 76 and 78 of the Police and Criminal Evidence Act 1984 having regard to the Human Rights Act and the recent cases decided by the European Court as he had been obliged to incriminate himself?” 15. On 23 April 2001 the magistrates’ clerk informed the applicant that the magistrates refused to state a case as the issue had already been decided definitively by the Privy Council in Brown v. Stott (cited above) and by the High Court in Director of Public Prosecutions v. Wilson ([2001] EWHC Admin 198). 16. On 19 October 2001 the applicant’s application for judicial review of the magistrates’ decision was refused. 17. A car of which the applicant was the registered keeper was caught on speed camera on 12 June 2001 driving at 47 mph where the speed limit was 30 mph. 18. On 19 June 2001 the Surrey Police sent the applicant a Notice of Intended Prosecution in the following terms: “In accordance with section 1, Road Traffic Offenders Act 1988, I hereby give you notice that proceedings are being considered against the driver of Alvis motor vehicle registration mark EYX 622 ... This allegation is supported by means of photographic/recorded video evidence. You are recorded as the owner/keeper/driver or user for the above vehicle at the time of the alleged offence, and you are required to provide the full name and address of the driver at the time and location specified. Under section 172 of the Road Traffic Act you are required to provide the information specified within 28 days of receipt of this notice. Failure to supply this information may render you liable to prosecution. The penalty on conviction for failure to supply the information is similar to that for the offence itself, i.e. a fine and penalty points.” 19. On 17 July 2001 the applicant wrote to the Surrey Police invoking his right to remain silent and privilege against self-incrimination. 20. On 18 July 2001 the Surrey Police informed the applicant that the appeal in Brown v. Stott, cited above, held that section 172 did not infringe the said rights. 21. The applicant refused to supply the information. 22. On 28 August 2001 the applicant was summoned to the Magistrates’ Court for failing to comply with section 172(3) of the Road Traffic Act 1988. He obtained an adjournment. 23. On 9 November 2001 the Magistrates’ Court agreed to a further postponement, apparently with reference to the applicant’s proceeding with an application in Strasbourg. The applicant wrote to the Court on 15 November 2001, relying on Article 6 §§ 1 and 2 of the Convention. 24. On 8 February 2002 the Magistrates’ Court cancelled the postponement and fixed the trial for 15 April 2002, on which date the applicant was convicted and fined GBP 750 with GBP 250 costs and three penalty points. He states that the fine was substantially heavier than that which would have been imposed if he had pleaded guilty to the speeding offence. 25. Section 172 of the Road Traffic Act 1988 (“the 1988 Act”) deals with the duty to give information of a driver of a vehicle in certain circumstances. Subsection (1) refers to the traffic offences to which the section applies. They include parking on a cycle track (under section 21 of the 1988 Act) and causing death by reckless driving (section 1), offences under a number of other provisions, including speeding, and manslaughter by the driver of a motor vehicle. Subsection 2 provides: “Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies – (a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and (b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.” Subsection 3 provides: “Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.” Subsection 4 provides: “A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.” 26. A person guilty of an offence under subsection 3 can be disqualified or have his licence endorsed with three penalty points; he may also be fined up to level three on the standard scale, that is, GBP 1,000. 27. Section 12(1) of the Road Traffic Offenders Act 1988 provides that on summary trial for a relevant offence, including speeding offences, a statement in writing signed by the accused under section 172(2) of the 1988 Act that he was the driver of the vehicle on that occasion may be accepted as evidence of that fact. 28. Section 76 provides “(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section; (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid. ...” 29. Section 78(1) provides: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” 30. In Brown v. Stott, cited above, the Privy Council considered the case of a woman arrested for shoplifting in the vicinity of a car that appeared to be hers. She was breathalysed and tested positive for alcohol consumption. With a view to ascertaining whether she had been guilty of driving her car while under the influence of alcohol (contrary to section 5 of the 1988 Act), the police served her with a section 172 notice. The Procurator Fiscal sought to use her answer that she had been driving as the basis for a prosecution for driving with excess alcohol. The High Court of Justiciary allowed the defendant’s appeal, finding that the prosecution could not rely on evidence of the admission which she had been compelled to make. 31. On appeal by the Procurator Fiscal, the Privy Council found that the use of the admission did not infringe the requirements of Article 6 of the Convention. Lord Bingham of Cornhill, giving the leading judgment, held, inter alia: “The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies. The need to address it in an effective way, for the benefit of the public, cannot be doubted. Among other ways in which democratic societies have sought to address it is by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying, prosecuting and punishing offending drivers. Materials ... incomplete though they are, reveal different responses to the problem of enforcement. Under some legal systems (Spain, Belgium and France are examples) the registered owner is presumed to be the driver guilty of minor traffic infractions unless he shows that some other person was driving at the relevant time or establishes some other ground of exoneration. There being a clear public interest in enforcement of road traffic legislation the crucial question in this case is whether section 172 represents a disproportionate response, or one that undermines a defendant’s right to a fair trial, if an admission of being the driver is relied on at trial. I do not for my part consider that section 172, properly applied, does represent a disproportionate response to this serious social problem, nor do I think that reliance on the respondent’s admission in the present case, would undermine her right to a fair trial. I reach that conclusion for a number of reasons. 1. Section 172 provides for the putting of a single, simple question. The answer cannot of itself incriminate the suspect, since it is not without more an offence to drive a car. An admission of driving may, of course, as here, provide proof of a fact necessary to convict, but the section does not sanction prolonged questioning about facts alleged to give rise to criminal offences such as understandably was held to be objectionable in Saunders, and the penalty for declining to answer under the section is moderate and non-custodial. There is in the present case no suggestion of improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice, and if there were evidence of such conduct the trial judge would have ample power to exclude evidence of the admission. 2. While the High Court was entitled to distinguish ... between the giving of an answer under section 172 and the provision of physical samples, and had the authority of the European Court in Saunders ... for doing so, this distinction should not in my opinion be pushed too far. It is true that the respondent’s answer whether given orally or in writing would create new evidence which did not exist until she spoke or wrote. In contrast, it may be acknowledged, the percentage of alcohol in her blood was a fact, existing before she blew into the breathalyser machine. But the whole purpose of requiring her to blow into the machine (on pain of a criminal penalty if she refused) was to obtain evidence not available until she did so and the reading so obtained could, in all save exceptional circumstances, be enough to convict a driver of an offence ... [I]t is not easy to see why a requirement to answer a question is objectionable and a requirement to undergo a breath test is not. Yet no criticism is made of the requirement that the respondent undergo a breath test. 3. All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime. This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the State but because the possession and use of cars (like, for example, shotguns ...) are recognised to have the potential to cause grave injury. It is true that section 172(2)(b) permits a question to be asked of ‘any other person’ who, if not the owner or driver, might not be said to have impliedly accepted the regulatory regime, but someone who was not the owner or driver would not incriminate himself whatever answer he gave. If, viewing this situation in the round, one asks whether section 172 represents a disproportionate legislative response to the problem of maintaining road safety, whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual, whether (in short) the leading of this evidence would infringe a basic human right of the respondent, I would feel bound to give negative answers. If the present argument is a good one it has been available to British citizens since 1966, but no one in this country has to my knowledge, criticised the legislation as unfair at any time up to now.” The decision was adopted by the English High Court in Director of Public Prosecutions v. Wilson, cited above.

dev

001-92667

ENG

RUS

CHAMBER

CASE OF BATSANINA v. RUSSIA

Remainder inadmissible;No violation of Art. 6-1;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Alvina Gyulumyan;Anatoly Kovler;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

4. The applicant was born in 1957 and lives in the town of Gelendzhik, in the Krasnodar Region. 5. The applicant's husband was a staff member of the Oceanology Institute of the Russian Academy of Sciences, a State-owned institution. In 1977 he was placed on a waiting list to receive housing. In August 1998 he was on the top of the list. In order to obtain a larger flat from the Institute, it was agreed that the applicant would transfer title to her own flat to the Institute. On 4 December 1998 the applicant and the Institute signed an exchange agreement. The Institute subsequently discovered that the applicant had sold her old flat in March 1998. 6. On an unspecified date, having become aware of the above transactions, the Gelendzhik town prosecutor, acting on behalf of the Institute and the person who had been allocated the applicant's flat (a Mr M), brought proceedings against the applicant and her husband to have the exchange agreement invalidated and to evict the applicant's family from the flat granted to her husband. The applicant's husband brought a counter-claim seeking the acknowledgement of his right to the new flat received from the Institute. 7. On 9 March 2000 the Gelendzhik Town Court of the Krasnodar Region granted the public prosecutor's claim. On 25 April 2000 the Krasnodar Regional Court quashed the judgment and ordered a re-examination of the case by the first-instance court. 8. The first instance heard the prosecutor, the applicant, her husband and their counsel. The Oceanology Institute's and Mr M's representatives were also present and made submissions to the court. On 1 June 2001 the Town Court granted the public prosecutor's claim. On 18 June 2001 the Town Court dismissed the counter-claim in a separate judgment. The applicant appealed. On 16 August 2001 the Regional Court upheld the judgments of 1 and 18 June 2001. The prosecutor was present at the appeal hearing. There is no written proof that the applicant received any summons for the appeal hearing scheduled for 16 August 2001. 9. On 30 January 2003 the Supreme Court refused to initiate supervisory proceedings in respect of the above judgments. It rejected, inter alia, the applicant's complaint about non-notification of the appeal hearing, noting that the parties had been apprised of it. 10. In the meantime, on 4 February 2000 criminal proceedings were instituted against the applicant on suspicion of embezzlement in relation to the same facts. On 19 December 2000 the case was discontinued for lack of a corpus delicti. On 15 August 2006 the above decision was quashed and the preliminary investigation was resumed. Its outcome remains unclear. 11. The RSFSR Code of Civil Procedure (CCP) in force at the material time read as follows: “A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens... The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge applications, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law...” 12. The Prosecutor's Offices Act (Federal Law no. 2202-I of 17 November 1992), as in force at the material time provided: “... 3. In accordance with the procedural legislation of the Russian Federation, prosecutors shall participate in the hearing of cases by courts of law and commercial courts (hereinafter referred to as the “courts”) and shall challenge any court decisions, sentences and rulings which are contrary to the law...” “1. The prosecutor shall take part in court hearings in the cases provided for by the procedural legislation of the Russian Federation and other federal laws... 3. The prosecutor, in accordance with the procedural legislation of the Russian Federation, shall be entitled to make an application to the court or to enter the case at any stage of the proceedings, if the protection of civil rights and lawful interests of society or the state so requires...” 13. Article 106 of the RSFSR CCP provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a phone call or a telegram. Pursuant to Articles 108 and 109, court summonses were to be sent by mail or by courier and served on the person who was a party to the case. 14. According to Instruction no. 8 issued by the Judiciary Department of the Supreme Court of Russia on 29 January 1999, in force at the material time, there was no requirement for registering acknowledgment-of-receipt cards for summons; the cards were to be filed into the relevant case files (point 12). Under Instruction no. 171 issued on 29 December 1999, the storage period for case files in civil cases examined by a first-instance court on the merits varied from five to fifteen years depending on the nature of the case; certain case files had to be stored for an indefinite period of time; the storage period for case files in civil cases examined by a court of appeal amounted to three years; registers of incoming correspondence were to be kept for three years; copies of summons issued by regional courts were to be kept for five years. 15. The relevant part of the Parliamentary Assembly's Resolution 1604 (2003) On the Role of the Public Prosecutor's Office in a Democratic Society Governed by the Rule of Law reads as follows: “it is essential: a. that any role for prosecutors in the general protection of human rights does not give rise to any conflict of interest or act as a deterrent to individuals seeking state protection of their rights; b. that an effective separation of state power between branches of government is respected in the allocation of additional functions to prosecutors, with complete independence of the public prosecution from intervention on the level of individual cases by any branch of government; and c. that the powers and responsibilities of prosecutors are limited to the prosecution of criminal offences and a general role in defending public interest through the criminal justice system, with separate, appropriately located and effective bodies established to discharge any other functions...” 16. The European Commission for Democracy through Law (the Venice Commission) at its 63rd plenary session (10-11 June 2005) adopted an Opinion on the Prosecutor's Offices Act (see above). Its relevant provisions provide as follows: “...57...It is, of course, clear that the Russian Office of the Prosecutor General is among those Offices which does not conform to the model which the Parliamentary Assembly considered to be essential. Moreover, in respect of the Prosecutor's predominant role in the Russian administration, which can hardly be described as limited or exceptional, the Prosecutor's Office does not seem to conform to the tests...which are as follows: 1. In addition to the essential role played by prosecutors in the criminal justice system, some member states of the Council of Europe provide for the participation of the prosecutor in the civil and administrative sectors for historical, efficiency and economic reasons but their role should always be exceptional (principle of exceptionality). 2. The role of the prosecutor in civil and administrative procedures should not be predominant; the intervention of the prosecutor can only be accepted when the objective of this procedure cannot, or hardly be ensured otherwise (principle of subsidiarity). 3. The participation of the prosecutor in the civil and administrative sectors should be limited and must always have a well-founded, recognisable aim (principle of speciality). 4. States can entitle prosecutors to defend the interest of the state (principle of protection of state interest). 5. Prosecutors can be entitled to initiate procedures or to intervene in ongoing procedures or to use various legal remedies to ensure legality (principle of legality). 6. In case it is required for reasons of public interest and/or the legality of decisions (e.g in cases of protection of the environment, insolvency etc.) the participation of the prosecutor can be justified (principle of public interest). 7. Protecting the rights and interests of disadvantaged groups of society unable to exercise their rights can be an exceptional reason for the intervention of the prosecutor (principle of protection of human rights)... 13. Prosecutors should have no decision-making powers outside the criminal field or be given more rights than other parties before courts (principle of equality of arms). 14. Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well-grounded reasons (principle of non-discrimination)... 74. There have been undoubted reforms in the Russian system of Procuracy, notably the limitations on the prosecutor's powers of supervisory review of court decisions... and the fact that intervention in court cases on behalf of the citizens is limited to cases where they are unable to act for themselves or where this is justified because numerous citizens are affected by the wrongdoing concerned”. 17. Opinion no. 3 (2008) adopted by the Consultative Council of European Prosecutors, an advisory body set up by the Council of Europe Committee of Ministers by its decision of 13 July 2005, contains the following comparative analysis [internal footnotes omitted]: “22. Court actions – irrespective of the procedural rules governing them (rules of civil proceedings or special administrative law rules) – are bound to court proceedings: prosecutors act as parties therein. Prosecution services did not report any special powers or authority when prosecutors take part in civil court proceedings as petitioners, they have the same powers as other parties. Their position is not exclusive, the proceedings may be started by other interested persons as well. In such cases prosecutors have definitely no decision-making powers regarding the merit of cases, their decisions concern only initiation of a case: submitting a petition to the civil law court. 23. Almost in all countries where prosecutors have competences in the non criminal field, prosecutors are empowered to launch new court-actions, to use ordinary and extraordinary remedies (appeals) as parties of proceedings. However some rules could be identified (prohibition of extraordinary appeal or proposal for reopening of proceedings; prohibition of settlement in the name of the party)... 25. The aims of non penal activities of prosecutors, irrespective of their substantive or procedural differences, are much more concordant: ensuring rule of law (integrity of democratic decisions, legality, observance of law, remedy against violation of law), protection of rights and liberties of persons (mostly of those incapable to protect their rights – minors, persons with unknown domicile, mentally incapables), protection of assets and interests of State, protection of public interest (or of public order), harmonisation of jurisdiction of courts (special remedies against final court decisions in the best interest of law, action as parties in such proceedings of the highest court levels)... 27. ...[T]he CCPE is aware of occasional improper practice of public prosecutors acting outside the field of criminal justice assessed by the Court or by certain Constitutional Courts or criticised by other bodies of the Council of Europe. The most disconcerting events were in connection with rejection without reason of requests to start civil law court actions; intervention in court proceedings without reasonable interest (of State, of public interest or based on protection of rights) violating the principle of equality of arms; quashing of final judgment of courts violating the principle of legal certainty (res judicata) ; participation of prosecutors in panels of supreme courts confusing the decision-making role of judges with prosecutors tasks; unlimited right to start litigation. 28. The contribution of prosecutors to the consolidation of the case-law of the courts is a fact in many member States. The role of prosecutors in this respect should not allow them to exercise undue influence on the final decision-taking process by judges.” The Opinion referred to the following principles applicable in the relevant field: “a. the principle of separation of powers should be respected in connection with the prosecutors' tasks and activities outside the criminal law field and the role of courts to protect human rights; b. the respect of impartiality and fairness should characterise the action of prosecutors acting outside the criminal law field as well; c. these functions are carried out “on behalf of society and in the public interest”, to ensure the application of law while respecting fundamental rights and freedoms and within the competencies given to prosecutors by law, as well as the Convention and the case-law of the Court; d. such competencies of prosecutors should be regulated by law as precisely as possible; e. there should be no undue intervention in the activities of prosecution services; f. when acting outside the criminal law field, prosecutors should enjoy the same rights and obligations as any other party and should not enjoy a privileged position in the court proceedings (equality of arms); g. the action of prosecution services on behalf of society to defend public interest in non criminal matters must not violate the principle of binding force of final court decisions (res judicata) with some exceptions established in accordance with international obligations including the case-law of the Court; h. the obligation of prosecutors to reason their actions and to make these reasons open for persons or institutions involved or interested in the case should be prescribed by law; i. the right of persons or institutions, involved or interested in the civil law cases to claim against measure or default of prosecutors should be assured; j. the developments in the case-law of the Court concerning prosecution services' activities outside the criminal law field should be closely followed in order to ensure that legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments...”

dev

001-71594

ENG

GRC

CHAMBER

CASE OF BEKOS AND KOUTROPOULOS v. GREECE

Violations of Art. 3;No separate issue under Art. 13;No violation of Art. 14+3 (alleged racist treatment);Violation of Art. 14+3 (failure to investigate possible racist motives);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Nicolas Bratza

8. The applicants, who are Greek nationals of Roma origin, were born in 1980 and live in Mesolonghi (Western Greece). 9. On 8 May 1998, at approximately 00.45 a.m., a patrol car from the Mesolonghi police station responded to a telephone complaint reporting the attempted burglary of a kiosk. The call had been made by the grandson of the owner of the kiosk, Mr Pavlakis. Upon arriving at the scene, the latter found the first applicant attempting to break into the kiosk with an iron bar while the second applicant was apparently acting as a lookout. He struggled with the second applicant, who subsequently stated that Mr Pavlakis had punched him in the face. 10. At that point three police officers, Mr Sompolos, Mr Alexopoulos and Mr Ganavias, arrived. The first applicant claimed that he was initially handcuffed without being beaten. Then, an officer removed his handcuffs and repeatedly beat him on the back and the head with a truncheon. He stopped when the first applicant complained that he had a medical condition and was feeling dizzy. 11. Following their arrest, the applicants were taken to the Mesolonghi police station, where officers Tsikrikas, Avgeris, Zalokostas, Skoutas and Kaminatos were present. The first applicant alleged that as he was being led to his cell one officer beat him twice with a truncheon and another slapped him in the face. 12. At 10.00 a.m. the first applicant was taken to the interview room, where allegedly three police officers punched him in the stomach and the back, trying to extract confessions to other crimes and information about who was dealing in drugs in the area. According to the first applicant, the police officers took turns beating him, slapping him and hitting him all over his body. The first applicant further alleged that another police officer beat him with the iron bar that had been used in the attempted burglary. He alleged that this officer also pushed him against the wall, choking him with the iron bar and threatening to sexually assault him, saying “I will f... you”, while trying to lower his trousers. 13. The second applicant said that he was also abused throughout his interrogation. During the early hours of the day, he was allegedly beaten with a truncheon on his back and kicked in the stomach by an officer who later returned to beat him again. Subsequently, the second applicant identified the officer as Mr Tsikrikas. The second applicant also testified that the police officers “inserted a truncheon in [his] bottom and then raised it to [his] face, asking [him] whether it smelled”. 14. The applicants stated that they were both able to hear each other’s screams and cries throughout their interrogation. The first applicant testified before the domestic court: “I could hear Koutropoulos crying in the other room”. The second applicant stated: “I screamed and cried when they were beating me. I could also hear Bekos’s screams and cries”. They also claimed that they suffered repeated verbal abuse about their Roma origins. In his sworn deposition dated 3 July 1998 the first applicant testified before the public prosecutor that the officer who had choked him with the iron bar said to him “you guys f... your sisters” and “your mothers are getting f... by others” (see also paragraph 25 below). The Government disputed that the applicants had been assaulted or subjected to racial abuse while in police detention. 15. The applicants remained in detention until the morning of 9 May 1998. At 11.00 a.m. they were brought before the Mesolonghi Public Prosecutor. The first applicant was charged with attempted theft and the second applicant with being an accomplice. The Public Prosecutor set a trial date and released the applicants. In November 1999 the applicants were sentenced to thirty days’ and twenty days’ imprisonment respectively, in each case suspended for three years. 16. On 9 May 1998, the applicants went to the regional hospital in order to obtain medical evidence of their injuries. However, the intern they saw at the hospital was only able to verify that they both had bruises. In order to acquire stronger evidence of their injuries, the applicants consulted a forensic doctor in Patras. The latter issued a medical certificate dated 9 May 1998, in which he stated that the applicants bore “moderate bodily injuries caused in the past twenty-four hours by a heavy blunt instrument...” In particular, the first applicant had “two deep red (almost black) parallel contusions with areas of healthy skin, covering approximately 10 cm stretching from the left shoulder joint to the area of the deltoid muscle and the right shoulder joint. He complains of pain in his knee joint. He complains of pain in the left parietal area”. The second applicant had “multiple deep red (almost black) parallel ‘double’ contusions with areas of healthy skin covering approximately 12 cm stretching from the left shoulder joint along the rear armpit fold at the lower edge of the shoulder blade, a contusion of the aforementioned colour measuring approximately 5 cm on the rear left surface of the upper arm and a contusion of the aforementioned colour measuring approximately 2 cm on the right carpal joint. He complains of pain on the right side of the parietal area and of pain in the midsection. He complains that he is suffering from a torn meniscus in the right knee, shows pain on movement and has difficulty walking”. The applicants produced to the Court pictures taken on the day of their release, showing their injuries. The Government questioned the authenticity of these pictures and affirmed that they should have first been produced to the domestic authorities. They also questioned the credibility of the forensic doctor who examined the applicants and submitted that he had convictions for perjury. 17. On 11 May 1998 the Greek Helsinki Monitor and the Greek Minority Rights Group sent a joint open letter to the Ministry of Public Order protesting against the incident. The letter bore the heading “subject matter: incident of ill-treatment of young Roma (Gypsies) by police officers”; it stated that members of the above organisations had had direct contact with the two victims during a lengthy visit to Roma camps in Greece and that they had collected approximately thirty statements concerning similar incidents of ill-treatment against Roma. The Greek Helsinki Monitor and the Greek Minority Rights Group Reports urged the Minister of Public Order in person to ensure that a prompt investigation of the incident was carried out and that the police officers involved be punished. They expressed the view that precise and detailed instructions should be issued to all police stations in the country regarding the treatment of Roma by the police. Reports of the incident were subsequently published in several Greek newspapers. 18. On 12 May 1998, responding to the publicity that had been generated, the Ministry of Public Order launched an informal inquiry into the matter. 19. After the incident received greater public attention, the Greek police headquarters requested that the internal investigation be upgraded to a Sworn Administrative Inquiry (Ενορκη Διοικητική Εξέταση), which started on 26 May 1998. 20. The report on the findings of the Sworn Administrative Inquiry was issued on 18 May 1999. It identified the officers who had arrested the applicants and found that their conduct during the arrest was “lawful and appropriate”. It concluded that two other police officers, Mr Tsikrikas and Mr Avgeris had treated the applicants “with particular cruelty during their detention”. The report noted that the first applicant had consistently identified the above officers in his sworn depositions of 30 June and 23 October 1998 and that the second applicant had also consistently and repeatedly identified throughout the investigation Mr Tsikrikas as the officer who had abused him. 21. More specifically, it was established that Mr Tsikrikas had physically abused the applicants by beating them with a truncheon and/or kicking them in the stomach. It further found that although the two officers had denied ill-treating the applicants, neither officer was able to “provide a convincing and logical explanation as to where and how the above plaintiffs were injured, given that according to the forensic doctor the ill-treatment occurred during the time they were in police custody”. 22. As a result, it was recommended that disciplinary measures in the form of “temporary suspension from service” be taken against both Mr Tsikrikas and Mr Avgeris. The inquiry exculpated the other police officers who had been identified by the applicants. Despite the above recommendation, neither Mr Tsikrikas nor Mr Avgeris were ever suspended. 23. On 14 July 1999 the Chief of the Greek Police fined Mr Tsikrikas 20,000 drachmas (less than 59 euros) for failing to “take the necessary measures to avert the occurrence of cruel treatment of the detainees by his subordinates”. The Chief of the Greek Police acknowledged that the applicants had been ill-treated. He stated that “the detainees were beaten by police officers during their detention ... and were subjected to bodily injuries”. 24. On 1 July 1998 the applicants and the first applicant’s father filed a criminal complaint against the Deputy Commander in Chief of the Mesolonghi police station and “all other” officers of the police station “responsible”. 25. On 3 July 1998 the first applicant gave a sworn deposition relating to his allegations of ill-treatment. He claimed that during his arrest, he had been beaten on the head with a truncheon by a “tall, blond” policeman, who also gave him a beating in the police station and that he had been subjected to racial insults (see paragraph 14 above). 26. On 18 December 1998 the Mesolonghi Public Prosecutor asked the Mesolonghi investigating judge to conduct a preliminary inquiry into the incident (προανάκριση). The findings of the inquiry were then forwarded to the Prosecutor of the Patras Court of Appeal. In January 2000 the Patras Court of Appeal ordered an official judicial inquiry into the incident (κύρια ανάκριση). 27. On 27 January 1999 and 1 February 2000 the first applicant stated that the behaviour of the police officers “was not so bad”, that he wanted “this story to be over” and that he did not want “the police officers to be punished”. On the same dates the second applicant repeated that he had received a beating at the hands of Mr Tsikrikas, but said that the police officers’ behaviour was “rightfully bad” and that he did not want them to be prosecuted. He apologised to the owner of the kiosk and said that he wanted “this story to be over” because he has joining the army and wanted “to be on the safe side”. 28. On 31 August 2000 the Mesolonghi Public Prosecutor recommended that three police officers, Mr Tsikrikas, Mr Kaminatos and Mr Skoutas, be tried for physical abuse during interrogation. 29. On 24 October 2000 the Indictment Division of the Mesolonghi Criminal Court of First Instance (Συμβούλιο Πλημμελειοδικών) committed Mr Tsikrikas for trial. It found that “[the] evidence shows that Mr Tsikrikas ill-treated [the applicants] during the preliminary interrogation, in order to extract a confession from them for the attempted theft ... and any similar unsolved offences they had committed in the past”. The Indictment Division further stated that Mr Tsikrikas had failed to provide a plausible explanation as to how the applicants were injured during their interrogation and noted that they had both identified Mr Tsikrikas, without hesitation, as the officer who had ill-treated them. On the other hand, it decided to drop the criminal charges against Mr Kaminatos and Mr Skoutas on the ground that it had not been established that they were present when the events took place (bill of indictment no. 56/2000). 30. Mr Tsikrikas’s trial took place on 8 and 9 October 2001 before the three-member Patras Court of Appeal. The court heard several witnesses and the applicants, who repeated their allegations of ill-treatment (see paragraphs 10-14 above). Among others, the court heard Mr Dimitras, a representative of the Greek Helsinki Monitor, who stated that the said organisation was monitoring the situation of Roma in Greece and that the incident was reported to him during a visit to the Roma/Gypsy camps. He claimed that he was horrified when he saw the injuries on the applicants’ bodies and that the latter were initially afraid to file a complaint against the police officers. Mr Dimitras also referred to the actions subsequently taken by the Greek Helsinki Monitor in order to assist the applicants. The court also read out, among other documents, the Greek Helsinki Monitor’s and the Greek Minority Rights Group’s open letter to the Ministry of Public Order (see paragraph 17 above). 31. On 9 October 2001 the court found that there was no evidence implicating Mr Tsikrikas in any abuse and found him not guilty (decision no. 1898/2001). In particular, the court first referred to the circumstances surrounding the applicants’ arrest and to the subsequent involvement of members of the Greek Helsinki Monitor in the applicants’ case, noting their role in monitoring alleged violations of human rights against minorities. Taking also into account the forensic doctor’s findings, the court reached the following conclusion: “... Admittedly, the second applicant had clashed with Mr Pavlakis. Further, given the applicants’ light clothing, it was logical that they were injured during the fight that took place when they were arrested. Even if some of the applicants’ injuries were inflicted by police officers during their detention, it has not been proved that the accused participated in this in one way or the other, because he was absent when they arrived at the police station and did not have contact with them until approximately two hours later, on his arrival at the police station. In his sworn deposition dated 3 July 1998, the first applicant stated that in the process of his arrest he had been beaten with a truncheon by a tall, blond police officer (a description that does not match the features of the accused) and that the same police officer had also beaten him during his detention. However, the accused was not present when the applicants were arrested. If the applicants had indeed been beaten by police officers during their detention, they would have informed their relatives who arrived at the police station that same night. Thus, the accused must be found not guilty.” 32. Under Greek law, the applicants, who had joined the proceedings as civil parties, could not appeal against this decision. 33. In its country reports of the last few years, the European Commission against Racism and Intolerance at the Council of Europe (ECRI) has expressed concern about racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia. 34. The Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, prepared by the European Union (EU) network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, had been reported in a number of EU member States, such as Austria, France, Greece, Ireland, Italy and Portugal. 35. In its second report on Greece, adopted on 10 December 1999 and published on 27 June 2000, ECRI stated, inter alia: “26. There have been consistent reports that Roma/Gypsies, Albanians and other immigrants are frequently victims of misbehaviour on the part of the police in Greece. In particular, Roma/Gypsies are often reported to be victims of excessive use of force -- in some cases resulting in death -- ill-treatment and verbal abuse on the part of the police. Discriminatory checks involving members of these groups are widespread. In most cases there is reported to be little investigation of these cases, and little transparency on the results of these investigations. Although most of these incidents do not generally result in a complaint being filed by the victim, when charges have been pressed the victims have reportedly in some cases been subjected to pressure to drop such charges. ECRI stresses the urgent need for the improvement of the response of the internal and external control mechanisms to the complaints of misbehaviour vis à vis members of minority groups on the part of the police. In this respect, ECRI notes with interest the recent establishment of a body to examine complaints of the most serious cases of misbehaviour on the part of the police and emphasises the importance of its independence and of its accessibility by members of minority groups. 27. ECRI also encourages the Greek authorities to strengthen their efforts as concerns provision of initial and ongoing training of the police in human rights and anti-discrimination standards. Additional efforts should also be made to ensure recruitment of members of minority groups in the police and their permanence therein ... ... 31. As noted by ECRI in its first report, the Roma/Gypsy population of Greece is particularly vulnerable to disadvantage, exclusion and discrimination in many fields... ... 34. Roma/Gypsies are also reported to experience discrimination in various areas of public life...They also frequently experience discriminatory treatment and sometimes violence and abuse on the part of the police ...” 36. In its third report on Greece, adopted on 5 December 2003 and published on 8 June 2004, ECRI stated, inter alia: “67. ECRI notes with concern that since the adoption of its second report on Greece, the situation of the Roma in Greece has remained fundamentally unchanged and that overall they face the same difficulties – including discrimination - in respect of housing, employment, education and access to public services... ... 69. ECRI welcomes the fact that the government has taken significant steps to improve the living conditions of Roma in Greece. It has set up an inter-ministerial committee for improving the living conditions of Roma... 70. ...ECRI deplores the many cases of local authorities refusing to act in the interests of Roma when they are harassed by members of the local population. It is also common for the local authorities to refuse to grant them the rights that the law guarantees to members of the Roma community to the same extent as to any other Greek citizen... ... 105. ECRI expresses concern over serious allegations of ill-treatment of members of minority groups, such as Roma and both authorised and unauthorised immigrants. The ill-treatment in question ranges from racist insults to physical violence and is inflicted either at the time of arrest or during custody. ECRI is particularly concerned over the existence of widespread allegations of improper use of firearms, sometimes resulting in death. It is equally concerned over reports of ill-treatment of minors and expulsion of non-citizens outside of legal procedures. 106. The Greek authorities have indicated that they are closely monitoring the situation and that mechanisms are in place to effectively sanction such abuses. For example, the Internal Affairs Directorate of the Greek Police was established in 1999 and is responsible for conducting investigations, particularly into acts of torture and violation of human dignity. The police –specifically police officers working in another sector than that of the person under suspicion - and the prosecution equally have competence over such matters and must inform the above-mentioned body when dealing with a case in which a police officer is implicated. The Greek Ombudsman is also competent for investigating, either on request or ex officio, allegations of misbehaviour by a police officer, but he is only entitled to recommend that appropriate measures be taken. ECRI welcomes the fact that the chief state prosecutor recently reminded his subordinates of the need for cases of police ill-treatment, particularly involving non-citizens, to be prevented and prosecuted with the appropriate degree of severity. The authorities have pointed out that instances of ill-treatment were primarily due to difficult conditions of detention. ECRI notes with satisfaction cases of law enforcement officials having been prosecuted, and in some cases penalised, for acts of ill-treatment. However, human rights NGOs draw attention to other cases where impunity is allegedly enjoyed by officials responsible for acts of violence, whose prosecution has not lead to results or even been initiated. ECRI deplores such a situation and hopes that it will no longer be tolerated.” 37. In their joint report published in April 2003 (“Cleaning Operations – Excluding Roma in Greece”), the European Roma Rights Center and the Greek Helsinki Monitor, which represent the applicants in the instant case, stated, inter alia: “ERRC/GHM monitoring of policing in Greece over the last five years suggests that ill-treatment, including physical and racist verbal abuse, of Roma in police custody is common. Although Greek authorities deny racial motivation behind the ill-treatment of Roma, Romani victims with whom ERRC/GHM spoke testified that police officers verbally abused them using racist epithets. Anti-Romani sentiment among police officers often leads to instances of harassment, inhuman and degrading treatment, verbal and physical abuse, and arbitrary arrest and detention of Roma at the hands of police. The ERRC and GHM regularly document ill-treatment of Roma at the hands of the police, either at the moment of arrest or in police custody. Police officers’ use of racial epithets in some cases of police abuse of Roma is indicative that racial prejudice plays a role in the hostile treatment to which officers subject Roma...” 38. According to Article 2 § 1 of the Greek Constitution, the “value of the human being” is one of the fundamental principles and a “primary obligation” of the Greek State. 39. Article 5 § 2 of the Constitution reads as follows: “All persons living within the Greek territory shall enjoy full protection of their life, honour and liberty irrespective of nationality, race or language and of religious or political beliefs. Exceptions shall be permitted only in cases provided for by international law...” 40. Law no. 927/1979 (as amended by Law no. 1419/1984 and Law no. 2910/2001) is the principal implementing legislation on the prevention of acts or activities related to racial or religious discrimination. 41. European Union Council Directive 2000/43/CE of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/CE of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, provide, in Article 8 and Article 10 respectively: “1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. 2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs. 3. Paragraph 1 shall not apply to criminal procedures. ... 5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.”

dev

001-104651

ENG

RUS

CHAMBER

CASE OF SUTYAGIN v. RUSSIA

Violation of Art. 5-3;Violations of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

6. The applicant was born in 1965 and currently lives in London. 7. The applicant worked at the Institute of the USA and Canada at the Russian Academy of Science as the head of the Military-Technical and Military-Economic Policy Department. He resided in Obninsk, Kaluga Region. 8. On 26 October 1999 the Kaluga Region Department of the Federal Security Service of the Russian Federation (Управление Федеральной службы безопасности Российской Федерации по Калужской области, the “FSB”) opened criminal proceedings under Article 283 of the Criminal Code in connection with the publication in 1998 of the book “Strategic Nuclear Weaponry of Russia” which allegedly contained State secrets. 9. On 27 October 1999 the FSB, acting on the basis of a search warrant, searched the applicant’s flat in the presence of the applicant and his wife and seized notes, books, press clippings, computers, money in foreign currencies (cash) and other items. They took the applicant to their office in Obninsk. Over the next three days an investigator questioned him as a witness, having warned him about his criminal liability if he refused to testify or made false statements. The applicant had no access to a lawyer, nor did he request that one be appointed. 10. On 29 October 1999 the FSB brought criminal proceedings against the applicant on suspicion of high treason in the form of espionage, punishable under Article 275 of the Criminal Code. 11. On the same day an investigator joined the two cases and ordered the applicant’s detention on remand under Article 90 of the Code of Criminal Procedure. The detention order, upheld by the prosecutor of Obninsk on the same day and served on the applicant at 12.30 a.m. on 30 October 1999, stated that the applicant had gathered, systematised and summarised information of a military-technical nature and then passed it on to representatives of a foreign organisation, Alternative Futures, for remuneration, during meetings with them outside Russia. Thus, in September 1998 in Budapest the applicant had allegedly handed over analytical materials containing State secrets on the state of the Russian rocket attack warning system. In July 1999 in Brussels he had allegedly passed on materials concerning the latest Russian aircraft complexes and had been requested to collect information on the Akula submarine and the MIG-29 aircraft. He had prepared that information and obtained an entry visa for Italy, intending to hand it over in Rome in October 1999. He had failed to do so for reasons beyond his control. The investigator concluded that the applicant’s actions contained elements of treason, punishable under Article 275 of the Criminal Code. The order also stated that the preparation of charges against the applicant had not been completed, that he might obstruct the investigation and continue his criminal activities and that he might abscond. 12. On 1 November 1999 the applicant was questioned as a suspect in the presence of his lawyer. 13. On 5 November 1999 the applicant was charged with high treason in the form of espionage under Article 275 of the Criminal Code. The charges were formulated in a one-page document. The applicant was accused of collecting and handing over to the UK-based consultancy firm Alternative Futures information containing State secrets and other information damaging to Russia’s national security, in the manner described in the detention order of 29 October 1999. 14. On 24 December 1999 the prosecutor’s office extended the term of the preliminary investigation and the applicant’s detention on remand to 26 March 2000. 15. On 25 February 2000 the applicant’s counsel requested the investigator to replace the applicant’s detention with another preventive measure that would not involve deprivation of liberty. He specifically requested that factors other than the gravity of the charge against him be taken into consideration. He pointed out that Obninsk was the place of the applicant’s permanent residence, that the applicant was married and had two small children, that his family did not have a source of income other than his salary, that he had a number of diseases which required medical care and that he wished to continue his work at the institute. The request was supported by applications from a Vice-President of the Russian Academy of Science and another scientist, who wished to be the applicant’s personal guarantors. On 1 March 2000 the investigator from the Kaluga Region Department of the FSB rejected the request. The applicant appealed against this decision. 16. On 23 March and 13 April 2000 the prosecutor’s office extended the term of the preliminary investigation and the applicant’s detention on remand to 26 April and 26 July 2000 respectively. 17. On 26 April 2000 the Regional Prosecutor’s office dismissed the applicant’s appeal against the investigator’s decision of 1 March 2000, stating that the investigator had rightly rejected the request because the applicant had been charged with a particularly serious offence. A further appeal to the Deputy General Prosecutor of the Russian Federation was rejected on 28 April 2000 on the same ground. 18. On an unspecified date the applicant filed a court appeal complaining that his detention was unlawful and unjustified and requesting his release. In particular, he argued that he had been unlawfully detained from 27 to 29 October 1999. He pointed out that there was no evidence that he might flee, and that various other factors, including his family situation, made him eligible for release. On 29 June 2000 the Kaluga District Court of the Kaluga Region rejected the application as unfounded. The court pointed out that the applicant was accused of a crime falling into the category of particularly serious offences. It then observed that the domestic law permitted [the courts] to remand in custody those accused of such offences by a mere reference to the gravity of the offence. The court added that the investigation into the charges against the applicant had not been completed. It did not comment on the applicant’s allegations concerning the period from 27 to 29 October 1999. The decision of 29 June 2000 was subject to appeal to the Kaluga Regional Court. There is no indication that the applicant appealed against it. 19. The investigating authority ordered that an expert examination be carried out with a view to determining whether the materials which the applicant had allegedly collected, stored and passed on to Alternative Futures contained State secrets, and whether they could have been obtained from the publications to which the applicant referred as the sources of his information. The applicant asked the investigating authority to give him an opportunity to provide explanations to the experts. His motion was rejected. 20. On 30 June 2000 a commission of experts from the Land Forces Headquarters, which included expert K., reached the conclusion that materials on the topic “The RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998” could have been derived from open publications and did not contain State secrets. 21. On 12 July 2000 the Deputy General Prosecutor extended the term of the applicant’s detention in custody until 26 September 2000. An appeal by the applicant against this decision and an application for release were rejected by the Kaluga District Court on 10 August 2000. In its decision the court again referred to the gravity of the charges against the applicant as the only reason for his continued detention. There is no indication that the applicant appealed to the Kaluga Regional Court against this decision. 22. On 17 August 2000 another group of experts from the General Headquarters of the Russian armed forces, which included expert N., stated that the information on the topic “Options for the structure of the RF’s strategic nuclear forces for the period up to 2007” could have been derived from open sources, represented the result of analytical research, was untrue and did not contain State secrets. 23. Information relating to thirty-eight other topics was found by the experts to have contained State military secrets. 24. On 19 September 2000 the finalised charges were brought against the applicant. They consisted of thirty-eight items, set out on eleven pages. The applicant was accused of gathering, by way of analysing and systematising information published in Russia and other countries, and information from other non-established sources, and of passing on materials concerning Russia’s military and defence potential which contained State secrets and other materials of a military and military-technical nature, to two representatives of the US intelligence service, who were working under cover of the consultancy firm Alternative Futures, to be used to damage Russia’s national security. According to the charge sheet, the applicant had handed over materials on thirty-eight topics of the above nature, for remuneration, during seven meetings in 1998-1999 in Birmingham, London, Budapest and Brussels. 25. According to the applicant, all of the information used in charging him was obtained by the investigating authority from his statements given on 27-29 October 1999, 1-5 and 24 November 1999, 25 January and 4 September 2000. 26. On 26 September 2000 the preliminary investigation was finalised. 27. On 23 October 2000 the defence finished examining the case file. 28. On 26 October 2000 the Deputy Kaluga Regional Prosecutor transmitted the case to the Kaluga Regional Court for trial. 29. On 9 December 2000 the Kaluga Regional Court ordered that the case be heard by a bench composed of a judge and two people’s assessors, in a closed trial. On the same day the court rejected the applicant’s request for release, supported by two non-governmental organisations, on the ground of the gravity of the charges against him. 30. A hearing was originally scheduled for 26 December 2000. It was adjourned until 9 January and then until 26 February 2001, on a request by the applicant’s two new counsels, in order to allow time for examination of the case file. 31. On 7 February 2001 the Supreme Court of the Russian Federation (“the Supreme Court”) dismissed the applicant’s appeal against the decision of 9 December 2000. It stated that, under Article 96 of the Code of Criminal Procedure, detention on remand could be applied on the mere ground of the gravity of the crime. It held: “As follows from the materials of the case, Sutyagin is accused of committing a particularly grave crime. In these circumstances one cannot accept the arguments in the appeal with regard to the unlawfulness and groundlessness of the judge’s decision to maintain detention on remand as a measure of restraint.” 32. The hearing took place on 27 and 28 February 2001. On 1 March it was adjourned to 5 March 2001, 3 and 4 March being non-working days, because one of the defence counsel would be busy in another trial on the following day. 33. The hearing was held on 5-7 March 2001. Between 14 March and 21 May 2001 no hearing took place because one of the defence counsels was ill. 34. The examination of the case continued on 25, 28-30 May, 4-9, 14-15, and 18-20 June 2001. On the latter date the court granted the prosecutor’s request to call witnesses and experts and adjourned the hearing until 17 July 2001. 35. The trial continued on 18-20, 23-27 and 30-31 July, 2-3, 6-10, 13-14 and 16-17 August 2001. On 20 August 2001 the hearing was adjourned to 4 September 2001 on account of the defence counsel’s illness. It continued on 5-7, 10-14, 17-18, 20-21 September 2001. On the latter date the court granted the prosecution’s request to adjourn the hearing until 29 October 2001 to allow time for preparation of their pleadings. 36. The hearing continued on 29-31 October 2001. The defence asked that the hearing be adjourned to 12 November 2001 to allow the defence time to prepare on the basis of the prosecutor’s submissions. The request was granted. 37. On 1 November 2001 the court heard the prosecutor’s pleadings. According to the applicant, the First Deputy Prosecutor of the Kaluga Region B., who represented the prosecution, acknowledged that the applicant had been unlawfully detained by the FSB department of the Kaluga Region from 27 to 29 October 1999 and asked the court to issue a “special finding” (частное определение) with such an acknowledgment. 38. On 12 November 2001 the court heard pleadings by the defence. 39. On 13 November 2001 the court adjourned the hearing until 25 December 2001, giving no reasons, and then until 27 December 2001 on account of illness among the judges. 40. On 27 December 2001 the court heard the applicant’s final statement. The applicant stated that he had gathered information for Alternative Futures using open sources and denied the charges against him. 41. On the same day, after deliberations, the Kaluga Regional Court remitted the case for additional investigation. 42. In its decision the Kaluga Regional Court stated that the investigating authority had significantly breached the rules of criminal procedure in the course of the preliminary investigation, thus prejudicing the applicant’s right to defend himself. The charges against the applicant in the statement of charges of 19 September 2000 and in the bill of indictment, notably the content of the materials which the applicant had allegedly gathered, stored and transmitted to a foreign intelligence service, were excessively vague. Those documents contained the titles and general description of the topics about which the applicant had allegedly transmitted information, but did not indicate the content of that information. With regard to some accusations there was a significant discrepancy between their formulation in the statement of charges and the bill of indictment, which fact, in line with the practice directions of the Supreme Court, was a ground for remitting the case for additional investigation. With regard to certain other charges, the court noted that the investigating authority had contradicted itself in the statement of charges and the bill of indictment by referring to the same information as classified and non-classified. 43. A general criticism about the charges on twenty-nine topics was that it remained unclear exactly what information the applicant had allegedly gathered, stored and transmitted. This made it impossible for the court to assess the arguments put forward by the prosecution and the defence; to establish factual questions concerning the sources and circumstances in which the information was collected; to assess whether the information was truthful and comprised State secrets, and to assess the possibility that it was damaging to Russia’s external security. The vague formulation of the charges, which made it impossible for the applicant to know exactly what he was accused of, also violated his right to defend himself. 44. The investigating authority had established the applicant’s guilt based, inter alia, on the applicant’s own statements. At the same time they had failed to set out and analyse in the bill of indictment the applicant’s statements concerning the circumstances in which the information was collected and stored and the content of that information. 45. According to the investigating authority, the applicant’s guilt was corroborated by the applicant’s four notebooks. There was nothing in the bill of indictment about the content of those notebooks or its analysis. 46. The bill of indictment referred to mutually exclusive evidence which had not been analysed and was not assessed by the investigating authority. Thus, the applicant was accused of gathering, storing and transmitting secret information concerning “options for the structure of the RF’s strategic nuclear forces for the period up to 2007”. The bill of indictment referred to three expert reports as evidence: (i) report of 29 February 2000 by the commission of experts from the Armed Forces General Headquarters, according to which this information was “top secret”; (ii) statements by a certain expert to the effect that this information was partially untrue but did however contain State secrets; and (iii) report of 17 August 2000 by the commission of experts from the Armed Forces General Headquarters, according to which the information was untrue and did not contain State secrets. 47. The bill of indictment did not set out the applicant’s arguments and any results of their examination by the investigating authority. Thus, after the charges had been served on him Mr Sutyagin contended that he had taken certain information, allegedly secret, from various published interviews with Russian military commanders. He asked whether such information had been declassified. Neither the applicant’s arguments nor the results of their examination were set out in the bill of indictment. The applicant had argued that he obtained some information from the foreign press in English. However, the experts submitted to the trial court that they had never examined these publications. The applicant had contended that he had received all of his information, including that which, according to the experts, had comprised State secrets, from open sources. These arguments by the applicant had not been properly examined in the course of the preliminary investigation. The results of the examination had not been set out in the bill of indictment. 48. During the preliminary investigation, expert examinations had been conducted into the secrecy of the information allegedly gathered, stored and transmitted by the applicant. Four expert commissions had concluded that part of the information contained State secrets of different levels. The experts’ conclusions had been included in the formulation of charges. In their examination the experts had been governed by order no. 055 of the Ministry of Defence of 10 August 1996, containing a list of information subject to classification in the RF Armed Forces, to which the applicant had never had access. By failing to provide the applicant with access to that document the investigating authority had violated his right to defend himself. Furthermore, that list was a secret document and had never received State registration; it should not therefore have been relied on by the experts (the Supreme Court in its decision of 12 September 2001 held that this order was a document touching upon human rights which should be registered; normative acts void of registration were invalid). 49. The trial court agreed with the defence that the expert examinations (reports of 29 February, 25 July, 2 and 17 August 2000) had been ordered and carried out in violation of the law on criminal procedure. 50. In view of the above violations the trial court remitted the case to the Kaluga regional prosecutor for additional investigation, as required by Articles 232 § 1 (2) and 308 of the Code of Criminal Procedure, and ordered, without giving any reasons, that the applicant should remain in detention. 51. The court held that should the evidence gathered as a result of the new investigation be sufficient to bring charges against the applicant, those charges were to be formulated in detail in a statement of charges, in accordance with the requirements of Article 144 of the Code. A bill of indictment had to comply with Article 205 of the Code and contain, in particular, the detailed formulation of a charge, which was not to differ significantly from the formulation in the statement of charges to the detriment of the accused. The bill of indictment had further to describe and examine evidence produced by the investigating authority and the accused’s arguments in his defence. Expert examination of the information included in the charges should, if necessary, be carried out so that the accused’s rights would be duly respected. 52. The applicant and his counsel appealed against this decision. They did not dispute the trial court’s findings with regard to the procedural violations by the investigating authority. They argued, however, that the vague formulation of the charges, as well as the violations in preparing the bill of indictment and in ordering and carrying out expert examinations, showed the irreparable incompleteness of the investigation, which warranted the applicant’s acquittal. The trial court should not have remitted the case for additional investigation on its own initiative without relevant requests to that effect by the parties. The flawed preliminary investigation should have resulted in the applicant’s acquittal. 53. The defence also appealed against the decision upholding the applicant’s detention. They submitted that there was no evidence that he would flee. The applicant and his family and relations – his wife, two minor children, parents and brother – resided permanently in Obninsk. His wife and children were in a difficult financial situation. The applicant had a number of diseases which could not be treated properly in his detention facility. There was no evidence that the applicant could obstruct the investigation or would engage in criminal activities. The counsel complained about violations of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms in particular, given that the gravity of the offence was the sole ground for the applicant’s continued detention. 54. On 20 March 2002 the Supreme Court dismissed the appeal and upheld the decision. It maintained that the charges against the applicant had been too vague, and stated that the Kaluga Regional Court had rightly decided to remit the case for additional investigation and remand the applicant in custody, and that it found no ground to quash or amend that decision. 55. On 8 April 2002 the investigation department of the FSB of the Kaluga Region commenced the additional investigation. 56. On 6 June 2002 they ordered a new comprehensive expert report on whether the information which the applicant had allegedly transmitted to Alternative Futures contained State secrets. The defence objected to that decision, arguing that the experts were supposed to compare the statutory list of classified information and the transmitted information, which was in fact legal assessment. The applicant requested that he be allowed to be present at the expert examination and to provide explanations to the experts. He also noted that for unknown reasons the investigating authority had not forwarded to the experts a number of publications used by him. He requested that those publications be sent to the experts for their examination. 57. In his decision of 17 June 2002 the head of the investigation department rejected the applicant’s requests. He stated, in particular, that all open sources had been forwarded for expert examination, except for those to which the applicant had referred without any ground, as they were mismatched chronologically (published after the events incriminated to the applicant) or textually with the information transmitted by the applicant. He stated that the applicant’s presence at the expert examination was not necessary since the materials submitted to the experts, including the applicant’s statements, were sufficient to answer the questions put to them. 58. On 18 June 2002 the case was transferred to the FSB central investigation department in Moscow on the Deputy Prosecutor General’s instruction. 59. On 18 July 2002 a commission of experts from the Headquarters of the Ministry of Defence of the Russian Federation carried out an assessment of the materials given to them by the investigating authority (records of the applicant’s interrogations and the publications to which the applicant referred as the sources of his information) and reached the conclusion that the materials on the following five topics constituted State secrets, were true and could not have been obtained from the publications examined by them: – the structure and state of the missile [early-]warning system; – the RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998; – options for the structure of the RF’s strategic nuclear forces for the period up to 2007; – specific features of the construction and military potential of the MiG-29 SMT aircraft and the military potential of the modernised MiG-29; – possible directions in the development of Russian air-to-air missiles. 60. In their assessment the experts were governed by the Official Secrets Act, as amended on 6 October 1997, Presidential decree no. 1203 of 30 November 1995, the Code of Criminal Procedure and unpublished decrees of the Ministry of Defence nos. 055 and 015 issued on 10 August 1996 and 25 March 2002 respectively. 61. On 29 July 2002 the applicant was re-charged with five counts of treason by way of espionage under Article 275 of the Criminal Code. He was accused of gathering, using the opportunities provided by his job at the Institute of the USA and Canada, information on five topics containing State secrets from various sources, including closed sources, and transmitting it, on five occasions in 1998-1999, to representatives of a foreign state with a view to damaging the national security of Russia. The charges in respect of the remaining items were withdrawn. 62. On 7 August 2002 the additional investigation was finalised. 63. On the same day the applicant and his counsel began examination of the case file. The case file was composed of more than 8,120 pages, computer files, audio and video records. 64. On 9 August 2002 the Moscow City Court extended the applicant’s detention on remand to 8 October 2002 at the investigator’s request. The applicant appealed. On 2 October 2002 the Supreme Court quashed the decision as unlawful and ordered a fresh examination. It stated in its decision that pre-trial detention could only be extended if legitimate grounds were supported by the relevant factual circumstances. 65. Following this decision, an investigator from the prosecutor’s office submitted to the Moscow City Court a copy of a document from which it followed that the applicant had received an entry visa for Italy which had expired in November 1999. 66. On 3 October 2002 the City Court gave a new decision extending the applicant’s detention until 8 October 2002, on the grounds that, in view of his open visa for a trip abroad, he could abscond or otherwise obstruct the investigation and that he was accused of committing a particularly serious offence. 67. On 4 October 2002 the Moscow City Court extended the applicant’s detention on the same grounds until such time as the applicant had completed examination of the case file. 68. The defence appealed against the two decisions, pointing out, inter alia, that, according to the applicant’s passport, his Italian visa had been issued for the period from 28 October 1999 to 18 November 1999. 69. On 25 December 2002 the Supreme Court rejected the appeals, holding that there were no grounds for the applicant’s release and referring to the gravity of the charges. 70. On 15 August 2003 the defence finished its examination of the case file. The applicant requested that N. and K., who had carried out the expert assessment in the case in 2000, be examined by a trial court. The investigating authority included these individuals in the list of witnesses to be examined by a trial court, which was enclosed with the bill of indictment. Three prosecution witnesses, the Obninsk Navy training unit officers T., V. and G., were also added to that list. 71. In August 2003 the applicant lodged a request for his case to be heard by a jury. The case was transferred to the Moscow City Court for trial. 72. On 8 September 2003 a judge of the Moscow City Court listed a preliminary hearing for 15 September 2003. The hearing started on the latter date but was adjourned to 25 September 2003 at the prosecutor’s request to allow time for preparation. 73. On 23 September 2003 the President of the Moscow City Court assigned the case to judge Sh., who held a preliminary hearing on 25 September and scheduled a hearing on the merits by a jury for 3 November 2003. 74. On 29 September 2003 judge Sh. examined an application for release lodged by the defence. He observed that the applicant had been detained in connection with the accusation of a particularly grave offence, on well-founded grounds which were still valid. He held that the applicant’s detention as a preventive measure should therefore remain in place. The defence appealed, arguing that the decision contained no reasons for the applicant’s continued detention. 75. The jury was formed and the trial commenced on 3 November 2003. 76. On 5 November the prosecution asked that the hearing be adjourned to 11 November 2003 in order to produce evidence. The request was granted. 77. On 11 November the hearing was postponed to 18 November 2003 as the prosecution witnesses had failed to appear. 78. On 12 November 2003 the Supreme Court rejected the applicant’s appeal against the decision of 29 September 2003 and upheld that decision. It noted the seriousness of the charges against the applicant and stated that the reasons for the initial decision to remand the applicant in custody as a preventive measure were still valid and that there had been no violations of the rules of criminal procedure. 79. On 18 November 2003 the examination of the case was adjourned to 25 November 2003 as the applicant had not been transported to court on account of quarantine in his detention facility. 80. On 25 November 2003 the court adjourned the hearing until the end of the quarantine period and the applicant’s recovery. 81. On 26 November 2003, as the defence later learned from the materials of the case file, the President of the Moscow City Court assigned the case to judge K. The materials of the case file contain the following resolution by the President: “To M.A. K., [I] [a]sk [you] to take the case over for examination”. 82. The list of jurors of the Moscow City Court for 2004 was approved by the Mayor of Moscow on 4 December 2003 and later sent to the court. 83. According to the applicant, the quarantine ended on 5 December 2003. The defence filed numerous requests with the presiding judge, the President of the court and various authorities, seeking to have hearings in the case resumed. 84. On 16 February 2004 the defence was notified that the hearing would take place on 15 March 2004 and that the case had been assigned to judge K. The defence lodged a number of requests, seeking information on the grounds and reasons for the replacement of the presiding judge, including a request of 15 March 2004 addressed to the President of the Moscow City Court. They were all left unanswered. 85. On 24 February 2004 judge K. examined a request by the prosecution for extension of the term of the applicant’s detention. She also examined an application for the applicant’s release, supported by an application from representatives of various non-governmental organisations, the State Duma and the Academy of Science. The judge noted that the sixmonth period of the applicant’s detention in custody, from the moment of the receipt of the case by the court, would expire on 25 February 2004. Under Article 255 § 3 of the Code of Criminal Procedure, in cases concerning grave and particularly grave offences a court could prolong the terms of detention in custody for not more than three months each time. In the circumstances, the judge concluded that the period of the applicant’s detention should be extended until 25 May 2004. The defence appealed against this decision, arguing that it contained no reasons to justify the extension of the applicant’s detention. 86. The new presiding judge K. held a hearing on 15 March 2004 at which she carried out the selection of a new jury from thirty-one candidate jurors. 87. The request by the defence to have the case examined by the initial composition of the jury, which, they alleged, had been unlawfully dismissed, was rejected. So too was a motion challenging the presiding judge who, according to the defence, was conducting the trial in a way favourable to the prosecution. 88. One of the questions put to the candidate jurors by the presiding judge was whether there were among them heads or deputy heads of bodies of the representative or executive authorities, deputies, servicemen, clergymen, judges, prosecutors, investigators, advocates, notaries and persons serving in the Ministry of Interior or the FSB. Four persons responded that they had served in the FSB. They were dismissed at the request of the defence. The defence asked the candidate jurors fourteen questions, some of which were addressed to all of them, for example, questions about their place of work, knowledge of foreign languages and Internet use. The defence challenged some of the candidate jurors twice without giving reasons. A candidate juror, Mr Y., answered that he worked as a deputy head of a foreign company representative office and spoke Polish. 89. On the same day the individuals who were selected to serve on the jury took the oath. 90. The hearing was adjourned until 17 March 2004 in order for the applicant to have additional time to examine the case file, as requested by him. On the latter date the defence unsuccessfully challenged the presiding judge. 91. On 22 March 2004 the prosecution witnesses, notably T., V., G. and L., were examined before the jury. 92. At a hearing on 29 March 2004 the presiding judge granted the motion by the defence to have those publications, which, according to the applicant, had been the only source for the information transmitted to Alternative Futures, presented to the jury. The publications were presented. 93. The expert reports of 18 July 2002 and 17 August 2000 were then read out before the jury on a motion by the defence. 94. It follows from the records of the hearing that the defence then requested the examination of N. as one of the experts who had prepared the report of 17 August 2000. The representatives of the prosecution objected, stating that it was impossible to understand from the report which part of the examination had been carried out by a particular expert; that in 2000 and 2002 the experts had examined different materials; and that the 2000 report had lacked the “research part”, as a result of which a new expert examination – conducted in compliance with the legal requirements – had been commissioned at the stage of the additional investigation in 2002. The prosecution requested that the report of 17 August 2000, which had been conducted in breach of the law on criminal procedure, be declared inadmissible evidence. The presiding judge granted the motion by the defence to examine N. as an expert. Since his examination was connected with the issue of admissibility of evidence the judge ordered N.’s examination in the jury’s absence and adjourned the decision on the admissibility of evidence until after N.’s examination. After hearing N. the judge declared the expert report of 17 August 2000 inadmissible evidence on the ground that the expert examination had been carried out with breaches of the law on criminal procedure, notably Article 191 of the RSFSR Code of Criminal Procedure, in force at the material time. Thus, the report did not state what examination had been carried out by a particular expert, what facts a particular expert had established and what conclusions he or she had reached. The judge rejected the motion by the defence to have N. examined before the jury since “the expert’s examination [was] connected with the issue of admissibility of evidence”. Upon the jury’s return to the court room they were told that the expert report of 17 August 2000 had been declared inadmissible evidence and that the parties could not therefore refer to it. 95. On 30 March 2004 more publications, from which, the applicant alleged, he had obtained information for Alternative Futures, were presented to the jury. The defence asked to examine the expert report of 30 June 2000 before the jury. The presiding judge declared the report inadmissible evidence for the same reasons as the report of 17 August 2000. It follows from the records of the hearing that the defence asked to examine as a witness K., one of the experts who had prepared the report of 30 June 2000 and who came to the court at the request of the defence. The defence asked to examine him on issues unrelated to the expert examination in question. The prosecution objected, arguing that at the preliminary investigation K. had carried out the expert examination and had later been examined as an expert in the trial before Kaluga Regional Court. This prevented him from being examined as a witness in the case. K. had erroneously been put on the list of witnesses in the bill of indictment. The prosecution requested that the motion by the defence be rejected. The presiding judge rejected the motion to examine K. on the ground that K.’s procedural status as an expert who had carried out the examination and given statements at the earlier hearing excluded the possibility of examining him as a witness. 96. The applicant asked that the expert assessment report of 18 July 2002 be declared inadmissible evidence since, he claimed, it had the same procedural defects as the above two expert reports, given that it also lacked a “research” section. The judge rejected the motion. The applicant argued before the jury that not all publications from which he had obtained the information transmitted to Alternative Futures had been examined by the experts who prepared the report of 18 July 2002. 97. The judge rejected a request by the defence to examine before the jury an opinion obtained by the defence from the Russian aircraft construction corporation MiG, which allegedly could help the defence to prove that the materials concerning the MiG-29 aircraft (specific features of the construction and military potential of the MiG-29 SMT aircraft and the military potential of the modernised MiG-29) did not contain State secrets. 98. The applicant consistently claimed that in preparing the materials for Alternative Futures he had only used information from publicly available sources – Russian and foreign publications – which were listed in his statements to the investigating authority and the court. According to the Director of the Institute of the USA and Canada, who was examined at the trial, the applicant did not have admission or access to information containing State secrets during his work at the Institute. As a researcher at the institute, the applicant had to be aware of all publicly available information concerning the armament policies of the USA and Russia. The institute did not have at its disposal information containing State secrets. According to the applicant, the prosecution did not establish any closed source from which he had allegedly obtained classified information. 99. On 30 and 31 March 2004 the defence again challenged presiding judge K., since they considered that she had violated the principle of equality of arms. She dismissed the requests. 100. On 1 April 2004 the Supreme Court dismissed the applicant’s appeal against the decision of 24 February 2004 extending his pre-trial detention, stating that he could not be released because the trial was underway. 101. The following four questions were put to the jury by the presiding judge: Question 1. Has it been shown that, from 19 February to June 1998, meetings occurred in Birmingham and London (Great Britain) at which a cooperation agreement was concluded with S. Kidd, a representative of US military intelligence, on gathering information about the Russian Federation, for subsequent transfer to the above-mentioned individual; in accordance with instructions from S. Kidd, the following information was collected in the Institute for the USA and Canada in Moscow and Obninsk (Kaluga oblast), stored and handed over on various dates: (a) from 24 June to 15 September 1998 information on the topic “the structure and state of the domestic missile early warning system”, specifically ... was collected and stored, and subsequently handed over to S. Kidd, representative of US military intelligence, at hotel A in Budapest (Hungary) from 15 to 17 September 1998; (b) from 22 October 1998 to 15 January 1999 information on the topic “the RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998”, specifically ... was collected and stored, and subsequently handed over to Locke and Kidd, representatives of US military intelligence, at hotel B in Budapest (Hungary) from 15 to 18 January 1999; (c) from 18 January to 27 March 1999 information on the topic “options for the structure of the RF’s strategic nuclear forces for the period up to 2007”, specifically ... was collected and stored, and subsequently handed over to S. Kidd, representative of US military intelligence, at hotel C in London (Great Britain) from 27 to 31 March 1999; (d) from 31 March to 20 May 1999 information on the topic “specific features of the construction and military potential of the MiG-29 SMT aircraft and the military potential of the modernised MiG-29”, specifically ... was collected and stored, and subsequently handed over to N. Locke, representative of US military intelligence, at hotel D in Birmingham (Great Britain) from 20 to 23 May 1999; (e) from 23 May to 14 July 1999 information on the topic “possible directions in the development of domestic air-to-air directed missiles”, specifically ...was collected and stored, and was handed over to N. Locke, representative of US military intelligence, at hotel E in Brussels (Belgium) from 14 to 18 July 1999 ; Question 2. If an affirmative answer has been given to the first question, then has it been shown that the actions set out in it were committed by Sutyagin and that he received financial compensation for them? Question 3. If affirmative answers have been given to Questions 1 and 2, then is Sutyagin guilty of having committed the above-mentioned actions? Question 4. If an affirmative answer has been given to Question 3, then does Sutyagin deserve leniency? 102. The applicant’s lawyers sought to have other questions put to the jury, in particular a question as to whether the collected and transmitted information contained State secrets and had been obtained from closed sources. Their motion was refused by the presiding judge. 103. On 5 April 2004 the jury unanimously found the applicant guilty, having answered the first three questions put to them in the affirmative and the fourth question in the negative. 104. On 7 April 2004 the judgment was delivered. It stated as follows: “The court ..., having examined in a closed hearing a criminal case on the charges against Sutyagin Igor Vyacheslavovich of having committed an offence provided for by Article 275 of RF CC [Criminal Code] ESTABLISHED: By the jury verdict of 5 April 2004 that Sutyagin is found guilty in that from 19 February to June 1998 in the cities of Birmingham and London (Great Britain) [he] met with Sh. Kidd, representative of US military intelligence, and gave his consent for co-operation for collection of data about the Russian Federation with its subsequent transfer to the said person. On Sh. Kidd’s instructions Sutyagin collected, stored and transferred, at different times, at the RAN [Russian Academy of Science] Institute for the USA and Canada in Moscow and Obninsk, Kaluga Region, the following data: (a) from 24 June to 15 September 1998, information on the topic “the structure and state of the domestic missile early warning system”, specifically ... , was collected and stored, and subsequently handed over to Sh. Kidd, representative of US military intelligence, at ... [hotel A] in Budapest (Hungary) from 15 to 17 September 1998; (b) from 22 October 1998 to 15 January 1999, information on the topic “the RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998”, specifically ..., was collected and stored, and subsequently handed over to Sh. Locke and N. Kidd, representatives of US military intelligence, at ... [hotel B], room ..., Budapest (Hungary), from 15 to 18 January 1999; (c) from 18 January to 27 March 1999, information on the topic “options for the structure of the RF’s strategic nuclear forces for the period up to 2007”, specifically ..., was collected and stored, and subsequently handed over to Sh. Kidd, representative of US military intelligence, at ... [hotel C], London (Great Britain) from 27 to 31 March 1999; (d) from 31 March to 20 May 1999, information on the topic “specific features of the construction and military potential of the MiG-29 SMT aircraft and the military potential of the modernised MiG-29”, specifically ..., was collected and stored, and subsequently handed over to N. Locke, representative of US military intelligence, at ... [hotel D] in Birmingham (Great Britain) from 20 to 23 May 1999; (e) from 23 May to 14 July 1999, information on the topic “possible directions in the development of domestic air-to-air directed missiles”, specifically ..., was collected and stored, and was handed over to N. Locke, representative of USA military intelligence, at ... [hotel E], Brussels (Belgium) from 14 to 18 July 1999. On the basis of circumstances as established by the guilty verdict the court determines that the accused Sutyagin’s acts were high treason in the form of espionage under Article 275 of the RF CC, specifically transmission, collection and storage with a view to transmission to foreign state representatives, of information constituting State secrets, to be used to damage the RF’s national security committed by a RF citizen. It has been established that the aforementioned information, which Sutyagin collected and stored with a view to transmission, and transmitted to US military intelligence representatives, constitutes State secrets. Furthermore, the mechanism of the espionage activities committed by him is characterised by a mercenary motive ... [Sutyagin] transmitted to foreign state representatives information about the Russian Federation of a military and military-political nature constituting State secrets to damage the RF’s national security in exchange for a cash award in an attempt to derive gains of a pecuniary nature. ... In deciding on the culprit’s punishment in accordance with Article 60 of the RF CC the court takes into account the nature and the degree of social danger of the committed acts, information on his personality, and the impact of the punishment imposed on his reformation and on the conditions of his family’s life. The court takes into account Sutyagin’s positive references from his place of work and residence, his having two dependant minor children, born in 1990 and 1991, and his state of health. Under the jury’s verdict the culprit does not deserve leniency. The court found no circumstances extenuating or aggravating Sutyagin’s punishment. and the fact that the RF’s defence and security was damaged as a result of the transmission by Sutyagin of information about Russia constituting State secrets to foreign state representatives, the court concludes that the culprit’s correction and reformation are only possible in the conditions of his isolation from society by serving his sentence in a strict-regime correctional colony. On the basis of the aforesaid and being governed by Articles 343, 348, 350 paragraph 3 and 351 of the RF CCP, the court SENTENCED: Sutyagin Igor Vyacheslavovich to be convicted of an offence provided for by Article 275 of the RF CC and to be punished by way of deprivation of liberty for 15 years, to be served in a strict-regime correctional colony. I.V. Sutyagin’s sentence is to be calculated from 29 October 1999. ...” 105. The applicant appealed against the judgment. In particular, he complained that the replacement of Judge Sh. and the original jury composition by assigning judge K. to the case had been unlawful; that juror Y. should not have sat in his trial as he had been included in the list of jurors of the Moscow Circuit Military Court; and that the list of jurors of the Moscow City Court had not been published. The applicant further complained that the questions to the jury had been formulated in breach of the domestic law. The presiding judge had dismissed his request to put to the jury questions as to whether the information collected, stored and transmitted by him had constituted State secrets and had been received from closed sources. No questions had been put to the jury as to whether he had had intent to damage national security, whether the representatives of Alternative Futures had belonged to foreign intelligence or whether he had transmitted information which had previously been published in open sources. Nor was the latter question examined in the judgment. The applicant further argued that the trial court had had no grounds to declare the exculpatory expert reports of 30 June and August 2000 inadmissible evidence, to reject his request for examination of N. and K. as witnesses and simultaneously to refuse to declare the inculpatory expert report of 18 July 2002, which had the same procedural flaw as the former two reports, inadmissible evidence. In his appeal the applicant relied on Articles 6, 7 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. 106. In May 2004 the general list of jurors for the Moscow Circuit Military Court was published with Y.’s name on it. 107. On 17 August 2004 the Supreme Court delivered a final decision in the case. It rejected the appeal and upheld the judgment, having succinctly stated that there had been no violations of the RF Code of Criminal Procedure on the part of the trial court, in particular in its reasoned refusal to examine experts as witnesses and to admit their reports in evidence, as well as in its formulation of questions to the jury. The Supreme Court stated that the principle of immutability of a court composition had not been violated in the case, which had been examined in compliance with the requirements of Article 242 of the Code of Criminal Procedure. It noted that Y. had been included in the approved list of jurors of Moscow. It held that the court’s finding of the applicant’s guilt had been based on the jury’s lawful verdict and that the applicant’s acts had been legally characterised in accordance with the factual circumstances established by the jury’s verdict. The applicant’s arguments concerning the failure to prove his guilt could not be taken into consideration as the judgment delivered as a result of the jury trial could not be appealed against and quashed on those grounds, of which the applicant had been aware. 108. The general list of jurors of the Moscow City Court (for the North administrative circuit of Moscow) was published on 18 August 2004. It included Mr Y. According to the applicant, thereafter the defence obtained information that juror Mr Y. had allegedly worked for the FSB. 109. In July 2010, after signing a clemency petition to the President of the Russian Federation in which the applicant acknowledged his guilt in the crime of which he was convicted, he was released as part of an exchange of prisoners between Russia and the United States. He was taken to Britain, where he currently resides. The applicant claims that he was coerced into acknowledging his guilt by the circumstances surrounding the exchange and that he in fact denies his guilt. 110. For the domestic law regulating detention during criminal proceedings see Bykov v. Russia [GC], no. 4378/02, §§ 4955, ECHR 2009... in respect of the period until 1 July 2002, and Veliyev v. Russia, no. 24202/05, §§ 107-113, 24 June 2010 in respect of the period since 1 July 2002. 111. The Constitution of the Russian Federation guarantees the right to have one’s case examined in a court and by a judge whose jurisdiction to examine the case is established by law (Article 47). According to the Constitutional Court’s judgment of 16 March 1998, such a law (laws) must contain criteria which would predetermine in which court this or that civil or criminal case falls to be examined. This would allow the court (judge), parties and other participants in the proceedings to avoid uncertainty in this question. Such uncertainty would have otherwise to be obviated by way of an enforcement decision, that is, the discretionary power of an enforcement body or official. In the latter case jurisdiction would not be determined on the basis of law. 112. The Constitution provides that judges are independent and that they are subordinate only to the Constitution and the federal law (Article 120). 113. The Code of Criminal Procedure of the Russian Federation in force since 1 July 2002 (Law no. 174-FZ of 18 December 2001, the “CCrP”), provides as follows: “1. The case must be examined by one and the same judge or by a court bench in one and the same composition. 2. If one of the judges is no longer able to take part in the hearing he must be replaced by another judge, and the court hearing must restart from the beginning.” 114. Law no. 3132-I of 26 June 1992 “On the Status of Judges in the Russian Federation” provides: 1. The Court President, at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by Federal Constitutional Laws and Federal Laws, carries out the following functions: (1) organises the court’s work; ... (3) distributes duties between the President’s deputies and, in accordance with the procedure provided for by Federal Law, between the judges; ... 115. The instruction on courts’ internal document management, in force at the material time, provided that the court President was responsible for the court’s clerical and office management (Instruction no. 169 of the Courts Administration Office at the Supreme Court of the Russian Federation of 28 December 1999). 116. As a matter of common practice, a court President distributed cases lodged with a court between the judges of that court. 117. Under paragraph 19 of Resolution no. 23 of the Supreme Court Plenum of 22 November 2005, setting out practice directions on the application of the Code, the replacement of a presiding judge in jury trials invalidates the trial which has taken place up to that moment and calls for the replacement of a jury because, under Article 328 of the Code, the obligation to form a jury is imposed on the presiding judge. 118. Article 30 of the CCrP reads as follows: “... 2. In courts of first instance, criminal cases shall be examined by the following compositions: ... (2) At the defendant’s request, the judge of a federal court and a jury of twelve persons shall examine cases concerning the crimes set out in Article 31 § 3 of this Code....” Article 31 § 3 of the Code includes, inter alia, a crime punishable under Article 275 of the Criminal Code. 119. A secretary or a judge assistant selects candidate jurors from the court’s annual list of jurors by drawing them at random (Article 326 of the Code). 120. The procedure for drawing up the list of jurors of Moscow for 2004 was regulated by the RSFSR Law on the Judicial System of 8 July 1981, as amended on 16 July 2003, and the Moscow Mayor’s instruction of 31 October 2003. The initial lists of jurors were drawn up by the Moscow district councils, informing the public and providing the public with access to the lists with a view to enabling them to request their inclusion or exclusion from the lists. After necessary corrections the lists were then amalgamated by the prefectures of the Moscow administrative circuits and further served as the basis for drawing up separate lists of jurors for the Moscow City Court and the Moscow Circuit Military Court by the Moscow Administration’s Territorial Organs Department. The lists were to be approved by the Moscow mayor and forwarded to those courts. 30 November 2003 was fixed as a time-limit for submitting the 2004 jurors’ lists, approved by the Mayor, to the Moscow City Court and the Moscow Circuit Military Court. The lists were to be published. Under paragraph 14 of Recommendations of the RF Minister of Justice of 30 September 1993 concerning the procedure for drawing up lists of jurors, it was desirable to publish general and reserve lists of jurors in the regional press not later than two weeks before sending them to the relevant court. The publication had to explain to citizens their rights to request regional councils to include or exclude them from those lists. 121. One and the same person cannot sit as a juror more than once a year (Article 326 of the CCrP and section 85 of the Judicial System Act). 122. Parties to proceedings can challenge candidate jurors with or without reasons, twice in the latter case (Article 327 of the CCrP). The parties can ask them questions for the purpose of uncovering circumstances which would prevent them from sitting in a case. The presiding judge explains to candidate jurors their duty to answer questions put to them truthfully (Article 328 of the Code). 123. Under Article 330 of the Code, before the jurors take the oath it is open to the parties to proceedings to plead that the jury as a whole might be unable to deliver an objective verdict in view of the specific features of a case. After hearing the parties the presiding judge delivers a decision. If the request is found to be justified the jury will be dismissed. 124. Each juror takes an oath prior to the examination of a case. The oath reads as follows (Article 332 of the Code): “In assuming the responsible duties of a juror, I solemnly swear to fulfil them honestly and impartially, to take into consideration all the evidence examined in court, both which incriminates the defendant and which exonerates him or her, to decide the criminal case on the basis of my inner conviction and conscience, not acquitting the guilty and not convicting the innocent, as befits a free citizen and fair person.” The presiding judge reads the text of the oath, after which each juror replies when called by the judge: “I swear.” 125. Under Articles 334 § 1 and 339 of the CCrP, jurors take decisions on the following questions which are put to them after examining the evidence and hearing the parties: – has it been proven that the acts of which the culprit is accused were committed; – has it been proven that those acts were committed by the culprit; – is the culprit guilty of committing those acts? Jurors can also be asked particular questions about, inter alia, circumstances which may have an impact on the issues of guilt or may entail the culprit’s exemption from liability. No questions requiring legal assessment can be put to jurors. If the culprit is found guilty the jurors also state whether the culprit deserves leniency. The questions to the jury are formulated in writing by the presiding judge. The parties can make their observations on the questions and propose new questions (Article 338 of the CCrP). 126. Questions other than those to be decided by jurors, as stated above, are decided by the presiding judge alone without jurors’ participation (Article 334 § 2 of the CCrP). 127. Issues of inadmissibility of evidence are examined without jurors’ participation. After hearing the parties the presiding judge takes a decision to exclude evidence which he or she found inadmissible (Article 335 §§ 5 and 6 of the CCrP). 128. Before the jury retires to the deliberation room the presiding judge gives directions (Article 340 of the CCrP). The presiding judge sums up the charges; informs them about the applicable criminal law provisions; sums up the evidence examined at the trial and the positions of the prosecution and the defence; and explains the rules of assessment of evidence in their entirety, the principle of presumption of innocence, the rule of interpreting insoluble doubts in favour of the accused, the rule that their verdict must only be based on evidence examined at the trial and that no evidence has predetermined force for them. The presiding judge further brings jurors’ attention to the fact that the culprit’s refusal to give statements at the trial should not be interpreted as evidence of guilt. The presiding judge explains the rules of deliberations and voting. The jurors are reminded of the oath taken by them. 129. No one except the jurors may be present in the deliberation room (Article 341 of the CCrP). The questions put to the jurors are answered by way of affirmation or negation, to be supplemented by a word or a phrase to make the meaning of the answer precise (Article 343 § 7 of the CCrP). 130. If the jury delivers a guilty verdict the trial continues without the jurors to examine, inter alia, circumstances relevant to the legal characterisation of the acts committed by the culprit, sentencing and determination of a civil claim. The parties’ submissions may concern any legal issues to be resolved in a judgment (Articles 346-347 of the CCrP) which will be delivered by the presiding judge on the basis of the jury’s verdict. The presiding judge may deviate from the guilty verdict and acquit the culprit if he or she finds that the acts committed by the culprit do not contain the elements of a crime. The presiding judge may dissolve the jury and order a fresh examination of the case by a new composition of the court if he or she finds that the event of a crime or the culprit’s participation in a crime have not been established and that the guilty verdict has therefore been delivered in respect of an innocent person and there are sufficient grounds for his or her acquittal (Article 348 of the CCrP). The jury’s opinion that the culprit deserves leniency is binding on the presiding judge (Article 349 of the CCrP). 131. A higher court which examines the case on appeal may not quash or change a judgment delivered as a result of a jury trial on the ground of inconsistency between the conclusions reached by the trial court in its judgment and the facts established by that court. Permissible grounds for quashing or changing a judgment in such a case are violation of the procedural law, misapplication of criminal law, and unfairness of the sentence imposed (Article 379 of the CCrP). 132. Article 29 § 4 of the Constitution provides: “Everyone has the right to freely search, obtain, impart, generate and disseminate information by all lawful means. The list of information constituting State secrets shall be defined by a federal law.” The Constitutional Court of the Russian Federation held that this provision was motivated by the need to defend the sovereignty of Russia and to ensure its defence and security, and is in accord with Article 55 § 3 of the Constitution, which permits restrictions of human rights and freedoms and, therefore, the right to information for the above-mentioned purposes. It follows that the legislature may establish a list of information which can be classified as State secrets and regulate its declassification and protection, as well as admission and access to such information. Under section 1 of the State Secrets Act, its provisions are binding within and outside the territory of the Russian Federation for, inter alia, nationals of the Russian Federation who have accepted obligations or are obliged in view of their status to enforce the requirements of the Russian legislation on State secrets. The duty to observe the legislation on State secrets flows from the general legal duty to observe the Constitution and the laws (Article 15 § 2 of the Constitution). Thus, section 1 of the State Secrets Act is in conformity with the Constitution (the Constitutional Court’s judgment of 27 March 1996). 133. The Criminal Code of the Russian Federation of 1996 provides: “High treason, i.e. espionage, disclosure of state secrets or assistance otherwise provided to a foreign state, a foreign organisation or their representatives for their subversive activities undermining the external security of the Russian Federation, committed by a Russian national, shall be punishable by 12 to 20 years’ imprisonment with or without confiscation of property.” 134. Section 5 of the “Official Secrets Act” (RF Law no. 5485-1) of 21 July 1993, as amended on 6 October 1997, provided: “The following information shall be classified as State secrets: (1) information in the military sphere: On the content of strategic and operational plans, documents of the combat department on the preparation and conduct of operations, and on the strategic, operational and mobilisation deployment of the Armed Forces of the Russian Federation, and of other troops, military formations and units as envisaged in the Federal “Defence Act”, on their combat and mobilisation readiness, on the creation and use of mobilisation resources; On plans to develop the Armed Forces of the Russian Federation, other troops of the Russian Federation, on guidelines on the development of armaments and military hardware, on the content and results of special programmes, research and experimental design projects on the creation and modernisation of models of armaments and military hardware; On the development, technology, production, output volume, storage and recycling of nuclear munitions, their components, fissionable materials used in nuclear munitions, on the technical systems and (or) methods for protecting nuclear munitions from unauthorised use, and also on nuclear power units and special physical installations for defence purposes; On the tactical-technical specifications and potential for combat use of models of armaments and military hardware, on the properties, formulae or production technology of new forms of rocket fuel or explosives for military use; On the disposition, names, degree of readiness, defence capabilities of operational and especially important facilities, their designs, construction and exploitation, and also on the assignment of land, underground areas and bodies of water for these facilities; On the disposition, actual names, organisational structure, weapons, and numerical strength of troops and the status of their combat support systems, and also on militarypolitical and (or) operational conditions; ...” 135. Under section 4 of the Official Secrets Act, the RF President approves, upon the Government’s submission, the list of information constituting State secrets. Presidential Decree no. 1203 of 30 November 1995 defined the list of military information classified as State secrets as follows: 1. Information revealing strategic plans for the use of troops, operational plans, battle management documents, documents on bringing troops to various levels of combat readiness. 2. Information on the strategic and operational deployment of troops. 3. Information on construction plans, development, numerical strength, effective combat strength or quantity of troops, their combat readiness, and also on militarypolitical and (or) operational conditions. 4. Information revealing the status of operational (combat) training of troops, support services for their activities, and the composition and (or) status of command and control systems. 5. Information on the mobilisation deployment of troops, their readiness for mobilisation, the creation and use of mobilised resources, the control and command system for mobilisation deployment and (or) on the potential for augmentation of troop strength with personnel, armaments, military hardware and other material and financial resources, and also military transport movements. 6. Information revealing the guidelines, long-term forecasts or plans for the development of armaments and military hardware, the content or results of special programmes and research and experimental design projects for the creation or modernisation of models of armaments or military hardware, and their tactical and technical specifications. 7. Information revealing the design and construction guidelines, production technology, isotope composition, combat, physical, chemical or nuclear characteristics, and procedure for use or operation of armaments and military hardware. 8. Information revealing the production capacity and actual or projected data on the production and (or) shipment (in physical terms) of bacteriological agents or medical protective means. 9. Information on the development, technology, production, output volume, storage and (or) recycling of nuclear munitions and (or) their components, fissionable materials, nuclear power units, special physical installations for defence purposes, and technical systems and (or) methods for the protection of nuclear munitions from unauthorised use. Information revealing the content of previously completed projects concerning weapons of mass destruction, the results of such projects, and also information on the composition of the model and (or) receptor, production technology or equipment of products. 10. Information on the design, installation, operation or security support of nuclear installations. 11. Information revealing the achievements of nuclear science and engineering with important defence and economic implications or determining a qualitatively new level of potential for the creation of armaments and military hardware and (or) fundamentally new articles and technologies. 12. Information revealing the properties, formulae or production technology of rocket fuels, and also ballistic propellants, explosives or military demolition explosives, and also new alloys, special liquids, new fuels for armaments and military hardware. 13. Information revealing the disposition, actual names, organisational structure, weapons and numerical strength of troops where publication of such information is not foreseen by the international obligations of the Russian Federation. 14. Information on the use of the infrastructure of the Russian Federation to safeguard the State’s defensive capabilities and security. 15. Information on the disposition, names, level of readiness or protection of operations facilities not covered by the Russian Federation’s commitments under international treaties, on the selection, assignment of parcels of land, underground areas or bodies of water for the construction of these facilities, and also on planned or current exploratory, design or other projects for the establishment of such facilities. The same information in relation to the special facilities of government agencies. 16. Information on the use or developmental prospects of the coordinated communications network of the Russian Federation to safeguard the State’s defensive capabilities and security. 17. Information revealing the distribution or use of radio frequency bands of military or special electronic equipment. 18. Information revealing the organisation or functioning of all forms of communication and of radar or wireless troop support services. 19. Information revealing the content, organisation or results of the main types of activity of the Russian Federation border troops (FPS) and the organisation of the defence of the state borders, exclusive economic zone and continental shelf of the Russian Federation or those of the Member States of the CIS. 20. Information revealing the guidelines for the development of dual-purpose equipment and technology, the content and results of special programmes, research and (or) experimental design projects on the development or modernisation of such equipment or technology. Information on the use of dual-purpose resources and technology for military purposes. 21. Information on the prospects for the development and (or) use of the Russian Federation’s space infrastructure to safeguard the State’s defensive capabilities and security. 22. Information revealing the status and (or) guidelines of hydronautic projects to safeguard State defence and security.” 136. The UN Human Rights Council Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, in his report on his mission to the Russian Federation (19 to 29 May 2008), published on 23 March 2009, stated: “61. The distribution of cases among the judges is left to the discretion of the court chairperson. It appears that there is no system for ensuring that cases are allocated according to objective criteria. Instances have been reported in which more sensitive cases are allocated to ‘certain’ judges or where a criminal case was transferred to another judge during the ongoing trial because the judge in question refused to be influenced. ... 96. In order to assist the Russian Federation in pursuing and renewing efforts in the judicial reform process, the Special Rapporteur recommends that: ... 99. To enhance the independent role of judges: ... A mechanism be established to allocate court cases in an objective manner.” 137. In its Resolution 1685 (2009) entitled Allegations of politically motivated abuses of the criminal justice system in Council of Europe member states adopted on 30 September 2009, the Parliamentary Assembly of the Council of Europe stressed the fundamental importance, for the rule of law and the protection of individual freedom, of shielding criminal justice systems throughout Europe from politically motivated interference. It held as follows: “3.1 ...True independence of judges also requires a number of legal and practical safeguards, including: ... 3.1.4. the independence of judges vis-à-vis court chairpersons ... shall be protected, inter alia, by the allocation of cases on the basis of predetermined, objective systems, by strict rules protecting judges from being taken off individual cases without reasons specifically defined by law...” The Assembly noted, inter alia, that in the Russian Federation court chairpersons have disproportionate power over other judges, in particular because of their power to decide on the distribution of cases (paragraph 4.3.6.). The Assembly called on the Russian Federation to: “5.5.3. strengthen the system of allocation of cases among the courts and to individual judges or sections within the courts, in such a way as to prevent any “forum shopping” by the prosecutor’s office and the exercise of any discretion in this respect by the court chairpersons; 5.5.4. promote the development of a spirit of independence and critical analysis in legal education in general and in initial and continued training of judges and prosecutors in particular, and to robustly sanction any local, regional or federal officials that continue to try to give instructions to judges, as well as any judges who seek to obtain such instructions; ...”

dev

001-92572

ENG

RUS

CHAMBER

CASE OF KALACHEVA v. RUSSIA

Violation of Art. 8;Non-pecuniary damage - award

Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger

5. The applicant was born in 1978 and lives in Astrakhan. 6. On 5 September 2003 the applicant gave birth to a daughter out of wedlock. 7. On 11 November 2003 she lodged a claim with the Kirovskiy District Court of Astrakhan against Mr A., with whom she allegedly had been in a relationship since 2000, in order to establish paternity and obtain child maintenance. In the course of the proceedings the applicant was represented by a counsel. 8. On 15 December 2003 the court ordered a DNA test to be carried out. The blood samples were collected in Astrakhan and sent to a specialised institute in Moscow for a forensic genetic examination. According to the expert conclusion submitted on 19 March 2004, the probability that Mr A. was the father of the applicant’s daughter was 99.99%. 9. On 2 June 2004 the court heard the defendant’s representative, who contested the admissibility of the DNA test on account of procedural shortcomings, and the applicant, who insisted on its accuracy; and rejected the applicant’s claim in full. It found that the applicant had failed to support her allegations. With respect to the expert forensic report the court found as follows: “...Blood sampling for the expert report was entrusted to the Bureau of forensic-medical examinations in the Astrakhan Region... According to the Instruction on organisation and production of expert examinations in Bureaus of forensic medical examinations, blood samples must be packed individually... An envelope must be supplied, with identifying information (on the basis of an identity document) and signatures of a medical worker who took the blood samples and two medical workers who were present during this procedure... On the envelopes with the blood samples of Mr A., Ms Kalacheva and Ms K.D. [the applicant’s daughter] there are no data based on the identity documents of the above persons. Moreover, there are only two signatures on the envelopes, one of which belongs to a person who took the blood samples... Taking into account that the blood samples were collected with serious violations of the Instruction..., the court is critical of the expert conclusion, since it cannot exclude the possibility that the blood samples received by the experts were not those collected from the parties.” 10. The court found the other evidence submitted by the applicant, namely a photo showing her with the defendant and a badge in her name, issued by the hostel (where they allegedly met), insufficient to conclude that the defendant was her child’s father. 11. The applicant and her lawyer lodged an appeal against this judgment, claiming that the case should be sent to a fresh examination due to the court’s failure to respect the civil procedural law. On 29 June 2004 the Astrakhan Regional Court upheld the judgment of 2 June 2004. It mentioned that, under civil procedural law, an expert conclusion was not binding on the court, and that in the present case the DNA test, carried out in breach of the relevant procedure, was not corroborated by other evidence. 12. On 20 June 2005 the Supreme Court of the Russian Federation rejected an application for supervisory review lodged by the applicant’s lawyer. 13. Under Article 37 of the Code of Civil Procedure of the Russian Federation (“CCP”, in force as of 1 February 2003), rights and interests of minors are protected in court proceedings by their legal representatives – parents, adoptive parents or tutors. Under Article 49 of the Family Code of the Russian Federation of 29 December 1995 (Семейный кодекс РФ, in force as of 1 March 1996), if a child is born to parents who are not married to each other and there is no joint declaration or declaration by the child’s father, the paternity of the child shall be established in court proceedings on the application of either parent, or tutor, or a child in question upon reaching a full age. In such proceedings the court shall have regard to any evidence that establishes the child’s paternity with certainty. 14. Article 67 of the CCP provides that a court shall evaluate evidence in confidence, based upon a comprehensive, detailed and impartial review of all the evidence of the case. No evidence has a predetermined value. 15. An expert conclusion is not binding upon the court, and shall be evaluated by the court according to the rules stated in Article 67 of this Code. If the court disagrees with the expert conclusion, it shall explain its reasons in its decision (Article 86 § 3 of CCP). In case of doubt as to the accuracy or reasonableness of the expert conclusion, a court may order a second expert opinion to be prepared by other experts (Article 87 § 2 of CCP). 16. Resolution no. 9 of the Plenary Supreme Court of the Russian Federation of 25 October 1996 on application by the courts of the Family Code of the Russian Federation to cases concerning paternity and maintenance provides that in order to establish paternity the court may, if necessary, order a forensic examination. Under Article 86 § 3 of the CCP, the experts’ conclusion regarding a child’s descent, including a DNA test, is evidence that must be weighed together with other evidence (Article 6).

dev

001-58977

ENG

AUT

CHAMBER

CASE OF T. v. AUSTRIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Criminal charge;Reasonable time);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) (Article 6 - Right to a fair trial;Article 6-3-b - Preparation of defence)

6. On 27 June 1988 the C-Bank filed an action for payment of Austrian schillings (ATS) 8,497 against the applicant on the ground that, following termination of their contractual relationship, the applicant's current account showed a debit balance for this amount. 7. On 18 July 1988 the Hietzing District Court (Bezirksgericht), in summary proceedings, issued an order for payment of the debt (Zahlungsbefehl) against the applicant. The applicant, represented by Mr K., filed an objection (Einspruch), which the District Court received on 5 August 1988. 8. On 15 November 1988 judge D. at the District Court held a hearing. 9. On 30 November 1988 the District Court received notice that Mr K. no longer represented the applicant. On 2 February 1989 a hearing which had been scheduled for 9 February 1989 was cancelled. The Government submit that this was due to the fact that the applicant's representative had withdrawn from the case, while the applicant submits that the court was prevented from holding the hearing. Subsequently, 22 December 1989 was set for the next hearing. 10. On 13 December 1989 the applicant, represented by Mrs O., filed a counterclaim (Widerklage) requesting compensation in the total amount of ATS 89,543 for loss of interest which had allegedly been caused by the negligent conduct of the bank in connection with a loan taken out by a certain E., for which he, the applicant, had mortgaged his property. Further, he requested a declaratory decision to the effect that a guarantee he had given to the C-Bank in relation to E.'s debt was null and void. 11. On 21 December 1989, the bank filed preparatory submissions in reply. It particularly denied that there was a link between the two claims at issue. 12. On 22 December 1989 judge G. at the District Court held a hearing. 13. On 30 March, 24 April and 25 June 1990, judge P. at the District Court held hearings. The parties presented documentary evidence and the court heard N. and W., two employees of the C-Bank, and K., the lawyer involved in the case, as witnesses. At the last of these hearings the court decided to join the proceedings concerning the bank's claim and the applicant's counterclaim. It also noted that the C-Bank had extended their claim, requesting additional payment of ATS 14,180 for which the applicant was allegedly liable on account of his guarantee for the debt of E. 14. On 29 June 1990 the District Court decided to adjourn the proceedings until the judgment in another set of proceedings between the applicant and E., which was pending before the Vienna Regional Civil Court (Landesgericht), became final. 15. On 16 October 1990 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision to adjourn on the ground that, according to the relevant procedural rules, it had to be taken in the course of an oral hearing. 16. On 16 January 1991 Mrs O. informed the District Court that she no longer represented the applicant. The applicant was subsequently represented by Mr R. 17. On 11 April 1991 and 10 October 1991, judge Ed. at the District Court held further hearings. The applicant was heard as a party and W. was again heard as a witness. At the latter hearing the Court again decided to adjourn the proceedings until the judgment of the Vienna Regional Civil Court in the proceedings between the applicant and E. became final. 18. On 4 February 1992 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision and ordered the District Court to continue the proceedings. It found that the District Court had wrongly assumed that the proceedings between the applicant and E. would resolve a preliminary incidental question. The District Court received the Regional Court's decision on 10 March 1992. 19. On 1 September 1992 the applicant extended his counterclaim to a total amount of ATS 213,440. 20. On 6 October 1992 judge Ed. at the District Court, upon the claimant's request, adjourned a hearing which had been scheduled for 15 October 1992 to 26 January 1993. 21. On 2 November 1992 the applicant informed the District Court that he had revoked Mr R.'s power of attorney. 22. On 18 January 1993 judge Ed. made a request to be replaced as she considered herself to be biased on account of certain accusations which the applicant had made against her. On the same day the President of the District Court granted her request and assigned the case to judge A. A hearing which had been scheduled for 26 January 1993 was cancelled. The applicant was at that time represented by Mrs W. 23. On 23 February 1993 the District Court received notice that Mrs W. no longer represented the applicant. 24. The next hearing was scheduled for 21 June 1993 but had to be postponed to 12 July 1993 upon the claimant's request. 25. On 17 June 1993 the applicant requested legal aid. Upon the District Court's request, he supplemented his application on 1 July 1993. 26. On 5 July 1993 the District Court dismissed the applicant's request for legal aid. 27. On 9 July 1993 Mr H., who had been appointed as the applicant's representative by the Lawyer's Chamber under section 10 § 3 of the Lawyer's Act (Rechtsanwaltsordnung) - applicable in a case where a litigant who is not indigent is unable to find a lawyer willing to represent him - requested that the hearing scheduled for 12 July 1993 be postponed. The applicant claims that he had only requested the appointment of counsel for this specific request, while the Lawyer's Chamber appointed Mr H. to represent him in the further proceedings. 28. On 16 November 1993 the District Court upon the request of Mr H. postponed the next hearing which had been scheduled for 3 December 1993 to 21 January 1994. 29. On 18 January 1994 Mr H. requested that the hearing again be postponed as he had been unable to obtain the necessary information from the applicant. The District Court dismissed the request. The applicant submits that he was unaware that Mr H. acted as his counsel and that the latter had tried to contact him at a wrong address. He further claims that the summons to appear personally at the hearing of 21 January 1994 was not correctly served on him. 30. On 21 January 1994 judge A. at the District Court held a further hearing and admitted the extension of the applicant's counterclaim. 31. On 25 February 1994 the District Court received notice that Mr H. no longer represented the applicant. 32. On 18 April 1994 the District Court cancelled the date for the next hearing which had been set for 22 April 1994. It noted that, in the proceedings at issue, the parties were obliged to be represented by a lawyer (Anwaltszwang). As the applicant had requested legal aid (see paragraph 35 below) and was currently not represented, the hearing could not take place. 33. On 11 October 1996 judge Z. at the District Court set 30 October 1996 as a date for the next hearing. In the summons the applicant was informed that he had to be represented by counsel at the hearing. Should he not be represented, he would be considered as being in default. Upon the claimant's request the hearing was postponed to 2 December 1996. 34. On 2 December 1996 neither of the parties appeared at the hearing. Consequently, the proceedings were stayed (Ruhen des Verfahrens). So far, neither of the parties has requested their continuation. 35. On 8 April 1994 the applicant requested legal aid. He submitted a declaration of means, according to which he had no income, property, savings or other assets. Further, he declared that he had debts with the S-Bank and the Sch. limited company. The standard form for this declaration contained a warning that, in case legal aid was obtained improperly by making false or incomplete statements, a fine for abuse of process (Mutwillensstrafe) could be imposed. 36. In his accompanying submissions the applicant stated, inter alia, that until September 1993 he had received ATS 15,000 per month from the Sch. Company. As of 1 October 1993 he was without income and was moreover obliged to pay back any payments he had received from that company. His old-age pension was only due as of 1 September 1994. Further, the applicant stated that he had no relatives and received support from a few acquaintances. 37. On 11 April 1994 judge Er. at the District Court ordered the applicant to provide further information. He was requested to submit the names and addresses of the persons supporting him, and to specify the amounts, intervals and means of their payments. Further, the applicant was requested to submit a number of supporting documents. 38. On 15 April 1994 the applicant submitted that he received ATS 200 per week from a certain Mrs F. He also submitted a number of documents. 39. On 5 May 1994 the District Court, without a hearing, dismissed the applicant's request for legal aid and imposed a fine of ATS 30,000 for abuse of process. Referring to the applicant's declaration of means and his further submissions, it found that the applicant had made incomplete or false statements. In particular he had declared that he was without income since 1 October 1993 and only received ATS 200 per week. However, the documents submitted by him showed that he had paid his rent of ATS 1,234 from October 1993 to January 1994. As the total income which he claimed per month was less than this sum, it could not be deduced from his submissions how he had been able to pay his rent. Finally, the Court noted that it had fixed the fine in a relatively modest amount as the applicant had only attempted improperly to obtain legal aid. 40. On 8 May 1994 the applicant appealed against this decision. 41. On 28 February 1995 the Vienna Regional Civil Court, sitting in private, dismissed the applicant's appeal. It found that the District Court had rightly rejected the applicant's request for legal aid. The applicant's submissions that he had savings which allowed him to pay his rent from October 1993 onwards, constituted new facts which were inadmissible in the appeal proceedings. In his request for legal aid he had stated that he had received no income since 1 October 1993 and depended on the support of acquaintances. Upon the Court's request to supplement his submissions, the applicant had specified that he received ATS 200 per week as support. He had not, however, stated that he had any savings to cover his maintenance. The District Court had rightly concluded that he had made incomplete or false statements and had, thus, failed to show that the costs of the proceedings would endanger his means of livelihood. It had also correctly imposed a fine for abuse of process in accordance with section 69 of the Code of Civil Procedure (Zivilprozessordnung). 42. On 28 March 1995 the District Court issued an order for payment of the fine for abuse of process. 43. On 16 August 1995 the District Court, referring to section 220 § 3 of the Code of Civil Procedure, noted that an attempt to collect the fine had been futile, and converted the fine into ten days’ imprisonment. The applicant was informed that he could lodge an appeal against this decision. It appears that the applicant did not do so. 44. Section 69 of the Code of Civil Procedure (Zivilprozeßordnung) provides that a court shall impose a fine for abuse of process of up to ten times the amount provided for in section 220 § 1 of the same Code (namely ATS 400,000) on a litigant who obtains legal aid improperly by making false or incomplete statements. 45. Section 220 provides inter alia that a fine for abuse of process may not exceed ATS 40,000 (paragraph 1). In the event of an inability to pay, the fine shall be converted into imprisonment. The length of imprisonment shall be determined by the court, but may not exceed ten days (paragraph 3). 46. According to section 514 of the Code of Civil Procedure an appeal (Rekurs) lies against any decision of a court, unless it is explicitly excluded. 47. Section 19 of the Penal Code (Strafgesetzbuch) deals with fines (Geldstrafen). It provides that fines shall be expressed as day-fines. They shall not amount to less than two day-fines (paragraph 1). Day-fines shall be fixed according to the offender’s means and personal circumstances at the time of the judgment at first instance. However, they shall not amount to less than ATS 30 or more than ATS 4,500 (paragraph 2). If a fine proves to be irrecoverable, a sentence of imprisonment in default shall be passed. One day’s imprisonment in default shall correspond to two day-fines (paragraph 3).

dev

001-60494

ENG

SVK

CHAMBER

CASE OF KOMANICKY v. SLOVAKIA

Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

Nicolas Bratza

9. The applicant was employed by the District National Committee (Okresný národný výbor) in Bardejov. In 1988 he was dismissed for breach of discipline. Subsequently courts at two levels of jurisdiction declared the dismissal unlawful. Their decisions became final on 2 August 1991. 10. In 1990, while the above proceedings were pending, the national committees ceased to exist ex lege, and their liquidation formally ended on 31 July 1991. The national committees were replaced by district offices (okresné úrady) which were not formally their legal successors. 11. On 2 September 1991 the Bardejov District Office gave notice to the applicant pursuant to Section 46 (1) (b) of the Labour Code. The dismissal became effective on 31 December 1991. The applicant challenged this decision. He argued, in particular, that the dismissal was unlawful and claimed compensation for damage caused by the termination of his contract of employment. 12. On 16 July 1993 the Bardejov District Court (Okresný súd) heard the parties and dismissed the applicant’s action. 13. The applicant appealed. He alleged that the governmental regulations relating to liquidation of the former national committees were unlawful, that he had become an employee of the District Office in Bardejov after his dismissal in 1988 had been declared unlawful on 2 August 1991, and that the District Office had paid his salary until the end of 1991. 14. On 8 March 1994 the Košice Regional Court (Krajský súd) heard the parties. The case was adjourned and the representative of the defendant was requested to submit the Government’s regulation of 24 November 1990 concerning the practical aspects of liquidation of the national committees. On 14 April 1994 the applicant complained to the Regional Court that it should have decided on the case on 8 March 1994 as it had had all relevant evidence before it. Another hearing before the Regional Court was held on 26 April 1994. The parties were acquainted with documentary evidence submitted by the representatives of the defendant. The applicant requested the exclusion of the Regional Court judges. 15. On 7 July 1994 the Košice Regional Court (Krajský súd) quashed the first instance judgment and ordered the District Court to take further evidence. The decision stated that the first instance court had not established with sufficient certainty whether or not the applicant had been employed by the District Office in Bardejov between 2 August 1991 and his second dismissal. In particular, the Regional Court considered it necessary to establish whether the applicant had received a salary, or compensation therefor, during the period in question, that is, whether the sums which he had received had been paid from the funds allocated to the District Office or from a special fund of the Ministry of the Interior. The appellate court further instructed the District Court to establish whether or not the Ministry of the Interior had authorised the head of the District Office in Bardejov to settle the applicant’s claims. The decision stated that witnesses should be heard with a view to establishing the above facts. The case was sent back to the Bardejov District Court for a new adjudication. 16. The applicant and the representative of the defendant failed to appear before the District Court on 8 September 1994. The applicant did not appear at subsequent hearings scheduled for 26 September 1994 and 4 October 1994. He excused his absence on the last mentioned date. In his letter of 3 October 1994 the applicant explained that he could not attend the hearing for personal reasons and that he had not been allowed to become properly acquainted with the case file. The applicant further requested that witnesses and representatives of the defendant should not be heard in his absence. 17. Another hearing was scheduled for 4 November 1994. The District Court proceeded with the case in the applicant’s absence as, according to the Government, the summons had been served on the applicant’s daughter and the applicant had not excused himself. The applicant contends that he was not summoned. On 4 November 1994 the District Court heard two officials of the District Office in Bardejov who confirmed that the applicant had not been employed by that authority and that he had not received any pay from the budget of the District Office. The compensation for pay the applicant received between 2 August 1991 and 31 December 1991, that is, until his dismissal became effective, were paid from a special fund of the Ministry of the Interior. The witnesses further explained that the notice which the District Office had sent to the applicant related to his contract of employment with the District National Committee which, in the meantime, had ceased to exist. The District Court had sent it in accordance with the relevant instructions issued by the Ministry of the Interior. 18. On 14 November 1994 the District Court adjourned the case as the applicant had excused himself in advance that he was ill. 19. The next hearing was scheduled for 10 January 1995. The applicant received the summons on 27 December 1994. According to the applicant, he submitted, at 7.30 a.m. on 10 January 1995, a letter to the District Court’s registry informing the court that he would not attend the hearing scheduled for 8.30 a.m. on the same day. In the letter the applicant explained that, several days earlier, he had not been allowed to consult the case file and that, therefore, he did not consider it necessary to excuse himself for his absence. The Government maintain that the letter was delivered to the court’s registry at 10 a.m. This is contested by the applicant who alleges that the time of receipt of the letter was added to it later and that his copy of the letter, stamped by the court’s registry, bears no indication of the hour when it was submitted. 20. On 10 January 1995 the Bardejov District Court proceeded with the case in the applicant’s absence. It delivered a judgment by which it dismissed the action. In the judgment the District Court found that the District Office was not a legal successor to the applicant’s former employer and that the applicant had no right to be employed by the District Office. The court held that, by sending a notice to the applicant, the District Office had acted in accordance with the relevant regulations of the Ministry of the Interior and of the Ministry of Finance. Under these regulations, the district offices were charged with settling issues concerning labour relations which remained unresolved after the working groups established with a view to liquidating the national committees had ceased to exist by 31 July 1991. The court concluded that the District Office had acted in accordance with Section 251 of the Labour Code. 21. The applicant appealed. He alleged that the District Office had had no power to send him a notice, and that it should have offered him a job after his dismissal by the previous employer had been declared unlawful. He alleged, with reference to the relevant pay slips, that he had been paid from the same account as the other employees of the District Office after his first dismissal had been declared unlawful on 2 August 1991. The applicant considered irrelevant that the Ministry of the Interior had put at the District Office’s disposal a sum of money for the purpose of settling any outstanding issues relating to the existence of the former national committees as, in his view, that sum of money had been used for different purposes. In his appeal the applicant stated that he had been a supervisor and that he had an excellent knowledge of the relevant issues. The veracity of his allegations could be proved by an expert. 22. The applicant also complained to the appellate court that the District Court had not considered his arguments, that it had not established the relevant facts and that it had decided in his absence. Finally, the applicant stated that the appellate court should proceed with the case in his presence, that he had the intention to make further oral submissions to the court and that he wished to put questions to witnesses and to the representatives of the defendant with a view to having the relevant facts clarified. 23. Hearings before the Košice Regional Court scheduled for 20 September 1995 and 26 January 1996 were adjourned as the parties did not appear. The applicant excused his absence on both occasions. Prior to the latter hearing the applicant informed the court that he had encountered various difficulties including health problems and requested that the case be decided in his presence. 24. The next hearing was scheduled for 6 March 1996. The Regional Court invited the applicant to submit a medical certificate should he not be able to attend, failing which the case would be decided in his absence. On 2 March 1996 the applicant sent a registered letter in an envelope addressed to the “State Regional Court” in Košice. In the letter the applicant informed the Regional Court that he was ill and enclosed a medical certificate. The applicant further asked the court not to proceed with the case in his absence. The letter indicated the case number, the name of the presiding judge and also the date of the hearing. 25. The letter was stamped by the registry of the Regional Court. The stamp indicates that the letter was delivered on 5 March 1996. The letter bears a hand-written remark by the president of the Regional Court dated 4 March 1996 and indicating that it should be transmitted to the presiding judge. The letter bears another hand-written remark by the presiding judge indicating that the chamber by which the case fell to be examined had received it on 6 March 1996 at 10.30 a.m. 26. The Government submit that the letter was considered to be a complaint and that the envelope was submitted, unopened, to the secretariat of the president of the Regional Court on 5 March 1996. The president of the Regional Court mistakenly dated his above instruction 4 March 1996. According to the Government, the applicant’s letter reached the presiding judge five minutes after the delivery of the judgment on the case. 27. On 6 March 1996 the Košice Regional Court examined the case in the applicant’s absence and upheld the first instance judgment. It stated that the applicant’s letter posted on 2 March 1996 had reached the judges on 6 March 1996 at 10.30 a.m., that is after the hearing was over. The judgment further stated that the letter had been addressed to the president of the Regional Court and not directly to the presiding judge. 28. In its judgment the Regional Court pointed out that it had taken further evidence, in that it had requested the Ministry of the Interior to submit a report concerning the delegation of its powers to District Offices. It concluded, with reference to all the evidence before it, that the applicant’s appeal was ill-founded. 29. In particular, the Regional Court found that the applicant’s dismissal by the District National Committee in Bardejov had been declared unlawful by a decision which became final on 2 August 1991. By that time the national committees had ceased to exist ex lege, and their liquidation had formally ended. In accordance with the relevant instructions issued by the Ministry of the Interior and the Ministry of Finance, the newly established district offices were ordered to settle any labour issues relating to the former national committees which could not be resolved by 31 July 1991. The Regional Court therefore upheld the view of the first instance court according to which the District Office in Bardejov had acted in accordance with Section 251 of the Labour Code. The Regional Court had also regard to the supplementary evidence which the District Court had taken on 4 November 1994 and which indicated that the money which had been paid to the applicant had been derived from the budget of the Ministry of the Interior. The Regional Court concluded that the applicant had not become an employee of the District Office. Accordingly, the notice in question was in conformity with Section 46 (1) (b) of the Labour Code. 30. On 23 April 1996 the applicant lodged an appeal on points of law. He complained, inter alia, that he had not been able to act before the appellate court and invoked Article 237 (f) of the Code of Civil Procedure. 31. On 26 November 1997 the Supreme Court (Najvyšší súd) rejected the appeal on points of law as being inadmissible without hearing the parties. In its decision the Supreme Court found that there had been no shortcomings within the meaning of Article 237 (f) of the Code of Civil Procedure in the proceedings challenged by the applicant. The Supreme Court did not address the merits of the case. 32. Section 46 (1) (b) provides that a person may be dismissed from a job when the organisation employing him or her ceases to exist or when a part of that organisation is to be incorporated into another organisation and the latter has no possibility of offering the person concerned a job in accordance with his or her contract of employment. 33. Pursuant to Section 251, in cases when an organisation is being liquidated, the liquidator or the State has to satisfy the claims of the employees of such an organisation. 34. Article 101 (1) provides that the parties are obliged to assist the court in achieving the purpose of the proceedings, by inter alia, complying with the court’s instructions. Paragraph 2 of Article 101 entitles the court to proceed with a case even when the parties remain inactive. When a party to the proceedings fails to appear at a hearing despite the fact that he or she has been duly summoned and when such a party has not requested that the hearing be adjourned for a serious reason, the court may proceed with the case in the absence of that party. It shall thereby have regard to the contents of the file and the evidence which has been already taken. 35. Pursuant to Article 237 (f), an appeal on points of law is available when a party has been prevented, by the appellate court’s conduct, from acting before the court. 36. In accordance with the Supreme Court’s case-law (Collection of the Judicial Decisions and Opinions of the Supreme Court, No. R 31/1995), a party’s illness which has been duly certified by a doctor represents a serious reason within the meaning of Article 101 (2) of the Code of Civil Procedure. When a party to the proceedings has asked in time that the proceedings be adjourned in such a case, the court’s proceeding with the case in that party’s absence is considered as preventing him or her from acting before the court within the meaning of Article 237 (f) of the Code of Civil Procedure.

dev

001-104811

ENG

GRC

ADMISSIBILITY

ANASTASSAKOS AND OTHERS v. GREECE

Inadmissible

Flogaitis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen;Spyridon Flogaitis

The applicants, Mr Ioannis Anastassakos, Mr Spyridon Zavitsanos and Mr Stavros Leoussis are Greek nationals who were born in 1955, 1957 and 1944 respectively. They live in Athens. They are represented before the Court by Mr N. Alivizatos and Mr Y. Ktistakis, both lawyers practising in Athens. The Greek Government (“the Government”) are represented by their Agent, Mr M. Apessos, Senior Adviser at the State Legal Council, Mrs U. Patsopoulou, Adviser at the State Legal Council and Mrs S. Trekli, Legal Assistant at the State Legal Council. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants have a direct or indirect involvement in the operation of AGB, a company under Greek law, which specialises in providing television audience measurement services. In particular, the first applicant was the first managing director of AGB, currently holds 5% of that company’s shares and is the chairman of the board of directors. The second applicant has been the managing director of AGB since 2003. The third applicant was one of the co-founders of AGB and today holds 18% of the company’s shares. AGB was founded in 1987 and has remained the sole provider of TV audience data to the present day. The applicants state that it has been noticed worldwide that the relevant national markets prefer to share a common source of television audience data. This is due to the fact that commonly accepted television data in the context of national markets form a decisive parameter in the decision-making process, as regards advertising investment strategies. The applicants submit that Greece is a unique case in the field of terrestrial television broadcasting owing to the fact that, under the successive laws that have been enacted since 1989, when the State monopoly was abolished, there are today at least five private, fifty regional and sixty local television channels, none of which has a proper operating licence. It is submitted that in this context of institutional anarchy AGB’s role has become more crucial than in other countries. The applicants claim that, for this reason, AGB has occasionally been the target of campaigns in which its professionalism and reputation have been attacked. In 2002 a high-ranking executive of Alpha TV drafted and made public a report on AGB’s activities suggesting that AGB and its executives had committed irregularities with regard to the choice of sample and the subsequent processing of television data. The Television Audience Measurement Committee, an independent committee created by virtue of section 11(4) of Law no. 2328/1995, conducted a special investigation and cleared AGB of all charges. In autumn 2004 Alpha TV, which at the time was allegedly facing major financial difficulties and low ratings, again drew attention to the above-mentioned report. The latter gained widespread publicity, and on 14 December 2004 a preliminary examination was ordered in respect of AGB’s managers by the Athens Public Prosecutor’s Office. In February 2006 all three applicants were summoned to the prosecutor’s office to answer rather general questions, without being bound by oath (ανομωτί). On 30 March 2006 the public prosecutor initiated criminal proceedings against the applicants for the concurrent offences of fraud, fraud committed against the State and filing of false statements before an administrative authority. On the same date, the case file was transmitted to the investigating judge. The applicants submit that, on 30 March 2006, during the regular off-the-record meeting of the senior prosecuting authority with the media held on the premises of the Court of Cassation, journalists were briefed that criminal proceedings were to be initiated against the three applicants in relation to AGB’s alleged irregularities. Long excerpts and explicit details about the allegations were read from the unofficial prosecutor’s report (πόρισμα). This report is only an internal document and Greek law does not provide for such a report. It is only by way of a working practice that such reports are drafted by the prosecutor in charge as an informal description and assessment of the facts for the sole purpose of briefing the supervising prosecutor on the case. Moreover, the accused had not yet been notified of the report, and therefore the applicants had no official knowledge of its content. On the same day, M.T., a journalist hosting a popular television show, Η Ζούγκλα (“The Jungle”), appeared before a large panel of guests, holding a copy of the prosecutor’s confidential report. While showing the report on camera with frequent close-ups, he went on to read out extensive parts of it. Quoting selected extracts from the report, he stated that AGB was an integral part of a “network of conspiracy” and the “real centre of power” in Greece, both at political and at economic level. Other guests participating in the panel stated that AGB not only built or destroyed TV careers but also distributed millions and constituted a “spider’s web” and a “fraudulent trap”. The following day’s newspapers contained extensive articles on the case. Three Athens dailies quoted parts of the prosecutor’s confidential report, and one of them published photographs of the first two applicants and another three pages of the original report. The story caused such interest throughout Greece that, on the evening of 31 March 2006, the first and third applicants were forced to answer pressing questions by journalists live on two of the most popular evening television broadcasts. The applicants submit that both their private and professional lives have dramatically changed. After the disclosure of the prosecutor’s report and the ensuing publicity, they are allegedly looked upon with distrust and disapproval and are in a state of uncertainty as to their future careers. They state that the impact on their private lives has also been considerable. In particular, the first applicant started receiving anonymous hostile telephone calls and letters, which forced him to seek protection for his premises from private security guards. After the television reports, the first and second applicants’ children started using their mothers’ maiden name at school, so as to avoid further abuse. The second applicant, having already had health problems with his vocal cords, suffered a relapse, which required a second operation, after the above-mentioned events took place. On 26 June 2009 the Indictment Division of the Athens Court of Appeal dismissed all the charges against the applicants (decision no. 1294/2009). It stated, inter alia, that there were no grounds to commit the applicants for trial. 1. The relevant provisions of the Constitution provide as follows: “1. All persons are entitled to information, as specified by law. Restrictions to this right may be imposed by law only in so far as they are absolutely necessary and justified for reasons of national security, combating crime or protecting the rights and interests of third parties. 2. All persons are entitled to participate in the Information Society. Facilitation of access to electronically processed information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State, always in observance of the guarantees of Articles 9, 9A and 19.” “Actions against judicial officers for miscarriage of justice shall be tried, as specified by law, by a special court composed of the President of the Supreme Administrative Court, as President, and one councillor of the Supreme Administrative Court, one Supreme Civil and Criminal Court judge, one councillor of the Court of Auditors, two law professors of the law schools of the country’s universities and two lawyers from among the members of the Supreme Disciplinary Council for lawyers, as members, all of whom shall be chosen by lot. In each case, the member of the special court who belongs to the judicial body or branch the actions or omissions of an officer of which the court is called upon to judge shall be exempted. In the case of an action against a member of the Supreme Administrative Court or an officer of the ordinary administrative courts, the special court shall be presided over by the President of the Supreme Civil and Criminal Court. No permission shall be required to institute an action for miscarriage of justice.” 2. The following provisions of the Introductory Law (Εισαγωγικός Νόμος) to the Civil Code (Law no. 2783/41) are relevant: “The State shall be liable in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets.” “The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.” This section establishes the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts (Kyriakopoulos, Interpretation of the Civil Code, section 105 of the Introductory Law to the Civil Code, no. 23; Filios, Contract, Special Part, volume 6, Tort, 1977, para. 48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima, 16th year, p. 75). The admissibility of an action for damages is subject to one condition, namely, the unlawfulness of the act or omission. 3. The relevant provisions of the Civil Code read as follows: “Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries. In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded.” “In the cases provided for in the two preceding Articles, the court may, in the judgment it gives on the application of the person whose right has been infringed, and regard being had to the nature of the infringement, also order the infringer to make reparation for the plaintiff’s non-pecuniary damage. Such reparation shall consist in the payment of a sum of money, publication of the court’ “Whoever unlawfully and culpably causes damage to another shall be bound to make reparation to the other for any damage thus caused...” “In the case of an unlawful act, the court may, irrespective of any award of compensation for pecuniary damages, award reasonable compensation ... for any non-pecuniary harm suffered...” 4. The relevant provisions of the Criminal Code read as follows: “1. Anyone who is under the legal obligation to perform judicial duties and discloses to a third person confidential information of the deliberations or the vote in which he took part shall be punished by up to two years’ imprisonment. (...)” “A civil servant who, with the exception of cases described under Articles 248, 249, 250 and 251, deliberately and with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the State or a third party, discloses to a third person (a) information which came to his knowledge because of his position or (b) a document either entrusted to him or accessible to him owing to his position, shall be punished by at least three months’ imprisonment.” “A civil servant who deliberately breaches an official duty with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the State or a third party shall be punished by up to two years’ imprisonment, save where the offence is punishable pursuant to another provision of criminal law.” “1. Except in cases which amount to defamation (Articles 362 and 363), anyone who by words or by deeds or by any other means injures another’s reputation shall be punished by up to one year’s imprisonment or by a pecuniary penalty. The pecuniary penalty may be imposed in addition to imprisonment. 2. If the injury to reputation is not severe, considering the circumstances and the person injured, the offender shall be punished by imprisonment or a fine. 3. The provision of paragraph 3 of Article 308 shall apply in this case.” “1. An insult committed through an act (Article 361, paragraph 1) shall be punishable by at least three months’ imprisonment if it was unprovoked by the victim. 2. If two or more persons participated in the act referred to in the previous paragraph, it shall be punishable by at least six months’ imprisonment.” “Anyone who by any means disseminates information to a third party concerning another which may damage the latter’s character or reputation shall be punished by up to two years’ imprisonment or a pecuniary penalty. The pecuniary penalty may be imposed in addition to imprisonment.” “If, in a case under Article 362, the information is false and the offender was aware of the falsity thereof, he shall be punished by up to three months’ imprisonment, and, in addition, a pecuniary penalty may be imposed and deprivation of civil rights under Article 63 may be ordered.” “1. Anyone who by any means asserts or disseminates information concerning a corporation with respect to its business, financial position, products or members of its board of directors which may lower the confidence of the public in the corporation and generally harm its business shall be punished by up to one year’s imprisonment or a pecuniary penalty. 2. If the accused proves the truth of the information which he asserted or disseminated, he shall not be punished. 3. If the information which the accused asserted or disseminated is false, and he was aware of the falsity thereof, he shall be punished by imprisonment.” Article 241 of the Code of Criminal Procedure reads as follows: “The judicial investigation takes place in writing and without any publicity (...)” 5. Article 99 of the Magistrates’ Code provides in so far as relevant: « (...) 2. The competent judicial authorities are bound to initiate disciplinary proceedings when their attention is drawn by any means to acts committed by the judiciary which may constitute a disciplinary fault (...)” 6. Section 22(4) of Law no. 2472/1997 provides: “Anyone who unlawfully interferes in any way whatsoever with a personal data file, or takes notice of such data, or extracts, alters, adversely affects, destroys, processes, transfers, discloses, makes accessible to unauthorised persons, or permits such persons to take notice of, such data or anyone who exploits such data in any way whatsoever, shall be punished by imprisonment and a fine and, in the case of sensitive data, by imprisonment for a period of at least one (1) year and a fine amounting to between one million drachmas (GRD 1,000,000) and ten million drachmas (GRD 10,000,000), unless otherwise subject to more serious sanctions.” 7. In its Köbler judgment of 30 September 2003 (Case C-224/01) the Court of Justice of the European Communities made clear that, since, in international law, a State which incurred liability for a breach of an international commitment was viewed as a single entity, irrespective of whether the breach which gave rise to the damage was attributable to the legislature, the judiciary or the executive, that principle must apply a fortiori in the Community legal order since all State authorities, including the legislature, were bound, in performing their tasks, to comply with the rules laid down by Community law which directly governed the situation of individuals.

dev

001-5676

ENG

FIN

ADMISSIBILITY

M.S.S. v. FINLAND

Inadmissible

Georg Ress

The applicant is a Finnish national, born in 1947 and living in Malaga, Spain. The facts of the case, as submitted by the applicant, may be summarised as follows. On 21 December 1993 the Helsinki Tax Office made a decision that the applicant was due to pay residual taxes since he had not announced certain income in the amount of FIM 100,000 in his tax returns. The applicant was also obliged to pay a 20% tax increase on the amount. The decision was based on a tax audit in a company called AT. This company had paid FIM 100,000 to the limited company F, which was owned by the limited partnership company SR. The applicant was the only active partner of SR, which owned 100% of the shares of F. On 20 February 1994 the applicant appealed to the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa, complaining that the decision was wrong and that he had not been informed of the legal provisions on which the decision was based. The appeal was referred to the local tax rectification board (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden) which, on 9 May 1994, rejected the appeal. On 1 August 1994 the applicant again appealed to the County Administrative Court. On 19 January 1996 the court lowered the tax increase from 20% to 10% and upheld the remainder of the decision. The court stated that the payment of the amount of FIM 100,000 was considered to be the applicant’s personal income since he had received payment for his actions related to a sales contract concerning an airplane. The payment was considered to be the applicant’s personal income, even though he had waived his right to the amount in favour of company F. Further the court noted that, as the applicant had not announced that amount in his tax returns, the tax office had a right to order the payment of a residual tax and impose a tax increase. Finally, the court rejected, for lack of a legal basis, the applicant’s request that the taxes already paid by companies AT and F on the same ground be counted for his benefit. On 31 December 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the applicant’s request for leave to appeal. On 29 September 1994 the Execution Office collected from the applicant FIM 62,116 as residual taxes, FIM 1,863 as a payment of back taxes, additional taxes amounting to FIM 32,178, default interest of FIM 4,347 and FIM 400 as execution fee, altogether FIM 100,904 (€ 16,970). After the decision of the County Administrative Court the applicant was refunded FIM 5,093.

dev

001-88571

ENG

GBR

ADMISSIBILITY

BELLON v. THE UNITED KINGDOM

Inadmissible

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant, Mr Luciano Bellon, is an Italian national who was born in 1945 and lives in Leeds. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 29 January 1998. On 12 February 2002, the applicant made a claim for widows’ benefits. On 18 February 2002 the applicant was informed that his claim had been disallowed as he was not a woman. On 4 March 2002 the applicant appealed. On 26 March 2003 the decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

dev

001-71299

ENG

BGR

CHAMBER

CASE OF CAPITAL BANK AD v. BULGARIA

Government's request for strike-out rejected;Violations of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings

Christos Rozakis

10. The applicant bank was set up and acquired a banking licence in 1993. On 20 November 1997 its licence was revoked by the BNB and on 6 January 1998 it was put into compulsory liquidation (see paragraphs 20 and 27 below). On 20 April 2005 the bank was wound up and it was struck off the register of companies (see paragraph 37 below). 11. On 27 March 1997 the BNB ruled that the applicant bank was insolvent. 12. On 5 May 1997 the BNB lodged a petition with the Sofia City Court to wind up the applicant bank. 13. In a decision of 15 May 1997 the BNB found that the overall amount of the applicant bank’s outstanding major loans was more than twenty times greater than the amount of its capital (including paidup capital and reserves), when the regulatory maximum was eight times. Considering that that situation put at risk the bank’s ability to operate and posed certain other problems with its financial standing, it decided to restrict the bank’s operations. In particular, it prohibited it from taking deposits, granting loans or other credit facilities, purchasing bills of exchange or promissory notes, entering into foreigncurrency or preciousmetals transactions, entering into deposit transactions, acting as a surety or guarantor or providing security to third parties, effecting noncash operations, clearing current accounts of third parties and conducting factoring transactions. The BNB also appointed a special administrator (see paragraph 49 below) to supervise the activities of the applicant bank and to verify whether it complied with the restrictions. 14. On 23 September 1997 the Sofia City Court, finding that the BNB had yet to revoke the applicant bank’s licence, which was a precondition to making a winding-up order under the new Banks Act of 1997, discontinued the proceedings. Its decision was upheld by the Supreme Court of Cassation on 12 November 1997. 15. In principle, it would have been possible to remedy the problems noted in the BNB’s decisions of 27 March and of 15 May 1997 (see paragraphs 11 and 13 above) by increasing the applicant bank’s capital. 16. This appears to have been the reason why on 23 March 1997 the applicant bank’s general meeting of shareholders resolved to issue new shares up to an amount of 12,000,000,000 old Bulgarian levs (BGL), to be subscribed by the shareholders. The resolution was registered by the Sofia City Court and took effect on 12 May 1997. 17. Two of the applicant bank’s shareholders, TOO Royal Flash and OOO Rontadent Trade, subscribed the shares and, accordingly, became liable to pay for them. However, they sought to discharge this liability by other means. On 30 June and 7 and 29 August 1997 the two shareholders purchased, at a discount, debts due by the applicant bank to the BNB and several other banks and companies. By virtue of these debt assignments the applicant bank’s shareholders also became its creditors. They advised the applicant bank that they wished to set off their obligations to pay for their newly subscribed shares against the debts that the applicant bank now owed them. Accordingly, the applicant bank made entries in its accounts to effect the required set-offs. 18. On 11 November 1997 the deputygovernor of the BNB responsible for banking supervision, in whom the Central Bank’s powers under section 65 of the Banks Act of 1997 (see paragraph 48 below) were vested, directed the applicant bank to cancel the abovementioned entries in its accounts. She reasoned that the set-offs represented noncash consideration for the shares and that they had been effected in breach of sections 72 and 73 of the Trade Act of 1991 and of section 19(2)(5) of the Banks Act of 1997 (see paragraphs 7072 below). The deputygovernor of the BNB also ordered the applicant bank to present to the BNB a rectified balance sheet showing the cancelling of the entries. The order was immediately enforceable and not subject to judicial review (see paragraph 56 below). 19. In a subsequent decision of 20 November 1997 (see paragraph 20 below) the BNB appears to have considered that the set-offs were in fact a conversion of assets which could not improve the applicant bank’s financial situation. 20. On 20 November 1997 the governor of the BNB, acting on a recommendation by the deputygovernor responsible for banking supervision, revoked the applicant bank’s licence and appointed two special administrators to act in place of the applicant bank’s board of directors. The reasons for his decision were as follows: “In its decision [of 27 March 1997] the BNB’s board of governors found that the [applicant bank] was insolvent and petitioned the court to put it in compulsory liquidation. With a view to allowing the [applicant bank’s] managing bodies to improve its financial situation by increasing its capital and accumulating additional funds and thus allowing it to restore itself to a state of solvency, [the BNB’s] banking supervision department decided not to recommend the revocation of the bank’s licence on grounds of insolvency. The analysis of the [applicant bank’s] financial situation as of 11 November 1997, carried out by [the BNB’s] banking supervision department, indicates that the bank’s capital has not been increased through the accumulation of additional funds, but mainly through the conversion of assets – a conversion which was, moreover, not carried out in the proper manner – which has not led to a substantial improvement in the bank’s financial situation. The overall capital adequacy of the bank is negative – minus 16.74% –, and the valuation of the bank’s assets and liabilities, carried out in accordance with the BNB’s supervisory requirements and rules, indicates that the value of the bank’s liabilities exceeds the value of its assets by BGL 1,072,977,000. Moreover, the bank has failed for more than seven working days to pay a due debt of 437,975.65 United States dollars (USD) to the Commercial and Savings Bank AD (in liquidation). Because of all these facts the BNB’s deputygovernor in charge of the banking supervision department has recommended that the bank’s licence be revoked by reason of insolvency.” 21. The decision, a copy of which was sent to the applicant bank by fax on 20 November 1997 and later by a letter of 1 December 1997, which was received by the bank on 2 December 1997, stated that it was immediately enforceable and not subject to judicial review (see also paragraph 56 below). On 25 November 1997 it was published in the State Gazette. 22. The applicant bank contended that the debt to which the BNB had referred in its decision had in fact been settled. In support of that assertion it presented a decision of 12 April 2001 of an enforcement judge at the Sofia District Court, which indicated that by 5 September 1997 the applicant bank had paid in full a debt to the Commercial and Savings Bank AD under a writ of execution. The applicant bank further claimed that the BNB had been informed of the payment of the debt through a report made by the applicant bank’s special administrator on 8 September 1997. The Government disputed the applicant bank’s contentions and said that the debt in fact remained unpaid, as the Sofia City Court had found in its judgment approving the list of agreed creditors’ claims in the liquidation proceedings (see paragraph 35 below). The parties also produced a number of other documents in corroboration of their assertions. 23. The applicant bank further contended that its assets exceeded its liabilities, contrary to what the BNB had found in its decision. In particular, it had money in two accounts in banks in the United States of America. The Government disputed that statement. Both parties presented various documents in corroboration of their assertions. 24. On 24 November 1997 the BNB filed with the Sofia City Court a petition to wind up the applicant bank. In the petition it repeated almost verbatim the findings it had made in its decision of 20 November 1997 (see paragraph 20 above). 25. A hearing was held on 17 December 1997, at which the applicant bank was represented by the special administrators previously appointed by the BNB (see paragraph 20 above). A prosecutor from the Sofia City Prosecutor’s Office also took part in the proceedings, as mandated by former section 81 of the Banks Act of 1997 (see paragraph 61 below). 26. Counsel instructed by the special administrators argued that there was no indication that the applicant bank’s liabilities exceeded its assets or that it had defaulted on a debt which had fallen due. This position was supported by the prosecutor, who also submitted that it was necessary to gather evidence on the applicant bank’s real financial situation. 27. In a judgment of 6 January 1998 the Sofia City Court granted the BNB’s petition, declared the applicant bank insolvent, made an order for it to be wound up, divested its decision-making bodies of their powers and the bank of the right to administer its property, ordered the sale of its assets, and appointed liquidators. It found that the conditions for making a winding-up order – namely, that an order revoking the bank’s licence had been made and a copy of that order produced to the court – were satisfied. The Banks Act of 1997 gave the court limited jurisdiction in proceedings to wind up an insolvent bank. The only fact the court had to verify in such proceedings was whether the above two conditions were met. The judgment continued: “...in view of the new procedure introduced by the Banks Act [of 1997], ... the objection ... that the BNB’s averment of [the applicant bank’s] insolvency is not supported by evidence is unfounded. Unlike the repealed Banks and Credit Business Act [of 1992], which provided that the BNB had to ... prove ... the bank’s insolvency, the new Banks Act [of 1997] does not contain such a requirement. Moreover, in section 79(1) and (3) of the Act the legislature has exhaustively specified the conditions for making a winding-up order [in respect of a bank] and the requirements that the BNB’s petition has to conform to. These boil down solely to indicating the grounds on which the bank’s licence has been revoked under section 21(2) of the Act. The logical and comparativelaw construction of the above provisions ... leads to the categorical conclusion that the changes in the statutory regime of bank insolvency are aimed, on the one hand, at a significant reduction in the court’s jurisdiction, [and even] at taking away its power to determine whether the bank is insolvent, and, on the other hand, at empowering [the BNB] to determine that issue without being required to substantiate or prove its finding before the court... An argument in favour of the above conclusion is section 21(5) of the Act, which expressly provides that the decision of [the BNB] to revoke a banking licence is not subject to judicial review. ... Gathering evidence relating to the ... insolvency of a bank would run counter to the abovecited prohibition against judicial review. In view of all this the court finds that all [the applicant bank’s] requests and objections ... contesting the BNB’s averments about its insolvency are inadmissible and cannot be examined. The same goes for the evidence presented by [the applicant bank]: even if it is admissible, it should not be taken into account, as it is absolutely irrelevant to the dispute at hand. The two abovecited prerequisites – the order ... revoking the banking licence of [the applicant bank] and the production of a copy of that order to the court... – are sufficient for the resolution of this dispute.” 28. As the judgment was immediately enforceable (see paragraph 64 below), it was considered that from that moment onwards the persons entitled in law to act on the applicant bank’s behalf were the courtappointed liquidators. Accordingly, the liquidators represented the applicant bank in the ensuing stages of the proceedings. 29. The liquidators did not appeal against the judgment, but the Sofia City Prosecutor’s Office did. It argued that the Sofia City Court had erred in not examining whether the applicant bank was in fact insolvent. It had thus turned the proceedings into a mere rubber-stamping of the BNB’s petition for an order winding up the applicant bank. Had the court taken the trouble to look at the actual circumstances, it would have found that the applicant bank had more than USD 3,000,000 in cash, as evidenced by a report drawn up by the BNBappointed special administrators. That fact raised the question whether the BNB’s finding that the value of the applicant bank’s liabilities exceeded the value of its assets was indeed true. Also, the BNB had not specified the amount or the date of maturity of the overdue debt the applicant bank was alleged to have failed to pay for more than seven working days. It was thus impossible to carry out an independent assessment of the veracity of its allegation. The Prosecutor’s Office presented an expert report according to which the applicant bank’s assets adequately covered its liabilities. 30. In reply the BNB and the applicant bank’s liquidators argued that the appeal was unfounded. 31. On 10 March 1998 a threemember panel of the Supreme Court of Cassation upheld the Sofia City Court’s judgment. Although it held that it could independently establish the facts, without deferring to the BNB’s findings, it was of the view that the applicant bank was indeed insolvent. An analysis of the evidence showed that, according to the BNB’s deputygovernor, the value of the applicant bank’s assets was BGL 8,391,953,000, and the value of its liabilities BGL 9,464,930,000. The difference between those figures was exactly the amount mentioned in the BNB’s decision and its ensuing winding-up petition. Turning to the other factual evidence of insolvency – the nonpayment of a due debt for more than seven working days – the court held that the applicant bank did in fact owe another bank more than USD 2,500,000 under a debt rescheduling agreement of 18 September 1997. No payments had been made in satisfaction of that debt. The applicant bank’s objection that it had not been able to make any payments because of the prohibition on noncash operations imposed on it by the BNB’s decision of 15 May 1997 (see paragraph 13 above) was unfounded. In any event, the reasons for non-payment were irrelevant, since inability, however caused, to pay a debt for more than seven working days was of itself sufficient for the court to find insolvency. 32. The Chief Prosecutor’s Office filed a petition for review of the judgment of the threemember panel. 33. On 30 June 1998 a fivemember panel of the Supreme Court of Cassation dismissed that petition in the following terms: “The first-instance court’s construction of the law – the Banking Act [of 1997] – is correct. The regime of bank insolvency is a lex specialis in relation to general commercial insolvency law ... In this context it has to be considered that the ... prerequisites for ... an order winding up a bank are governed not by the general rules of the Trade Act [of 1991], but by the special rules of the Banks Act [of 1997]... This is necessary because of the specific character of the banking business ... [Banks operate] predominantly with other people’s money, which necessitates compliance with strict requirements for capital adequacy, formation of provisions and ... liquidity. [The BNB monitors compliance with these requirements] as part of its function of banking supervision, with a view to preserving the stability of the banking system and achieving effective and enhanced protection of depositors. Because of this specificity proceedings to wind up banks are expedited, with a view to protecting the interests of the creditors of the insolvent bank. ... The Sofia City Court correctly held that the soundness and the expediency of the BNB’s decision to revoke [the applicant bank’s] licence could not be reviewed by the court, because [the BNB has special powers] in discharging its banking supervisory duties. By virtue of section 82 of the Banking Act [of 1997] the court is bound by [the BNB’s] winding-up petition, if it meets the requirements of section 79(3) in conjunction with section 21(2). [T]he court does not carry out an additional examination of circumstances evidencing the insolvency of a bank. ... The BNB alone ... has the competence to determine extra-judicially whether the two grounds for [declaring a bank insolvent] exist. [This determination] is not subject to review by the court, which has no latitude in such proceedings. Once the BNB has established the insolvency of a bank before the winding-up procedure begins, the court may not reconsider the issue. It must only carry out a formal, ex facie verification of [the BNB]’s winding-up petition, without venturing into the substantive issues..., because it is the revocation of the licence itself that constitutes the ground for making a winding-up order. The court may only verify whether [the BNB]’s decision is void, but may not examine whether [the BNB’s] finding of insolvency is borne out by the facts...” 34. Thereafter winding-up proceedings unfolded in respect of the applicant bank. 35. In the course of those proceedings the applicant bank’s creditors, which included its three shareholders, submitted their proofs of debt to the bank’s liquidators. The liquidators examined the proofs and drew up a list of agreed claims. Two of the bank’s shareholders, TOO Royal Flash and OOO Rontadent Trade, and two other creditors made objections to the list, which the liquidators examined. The liquidators then transmitted the list to the Sofia City Court for approval. No objections to the list were made to the court, which approved it in a final judgment of 9 February 1999. On 7 December 2000 the liquidators tried to obtain a ruling that a debt to the Commercial and Savings Bank AD did not exist and that the underlying claim should accordingly be disallowed, but the Sofia City Court declared their request inadmissible in a decision of 23 January 2001, holding that no objections had been made to that claim at the appropriate time, and that the existence of the debt had therefore been conclusively established in its judgment of 9 February 1999, which was binding on the bank, its creditors and liquidators. 36. On 10 October 2003 the applicant bank’s liquidators applied to the Bank Deposits Guarantee Fund (see paragraph 67 below) for permission to start negotiations with potential buyers for the purchase of the applicant bank’s entire undertaking. Permission was granted on 14 October 2003 and on 31 January 2005 the liquidators entered into a contract for the sale of the undertaking to the Central Cooperative Bank AD, with the latter agreeing to pay a purchase price of BGN 1 and the applicant bank’s creditors BGN 3,254,000 in satisfaction of their claims. The contract was approved by the Sofia City Court in a final judgment of 8 April 2005. 37. In a final judgment of 20 April 2005 the same court, on an application by the applicant bank’s liquidators, brought the winding up to an end and ordered that the applicant bank be struck off the register of companies. 38. On an unspecified date in 2002 one of the applicant bank’s shareholders, First Financial AD, lodged with the Supreme Administrative Court an application for judicial review of the BNB’s decision to revoke the bank’s licence. It argued that the decision was null and void. Later the chairman and vicechairman of the applicant bank’s board of directors, purporting to act on the bank’s behalf, requested leave to intervene in the proceedings. 39. In a decision of 5 March 2002 a threemember panel of the Supreme Administrative Court held that the applicant bank’s request to be allowed to intervene in the proceedings was inadmissible because it had been lodged by persons who no longer represented it. Following the winding-up order and by virtue of section 84(3) of the Banks Act of 1997, read in conjunction with section 658(1) of the Trade Act of 1991, the only persons with power to act on its behalf were the liquidators. The court went on to hold that First Financial AD’s application for judicial review of the BNB’s decision was inadmissible. Section 21(5) of the Banks Act of 1997 excluded decisions by the BNB to revoke a bank’s licence from the scope of judicial review. That provision was to be construed according to its plain meaning and was applicable regardless of whether the request was to annul the decision or to declare it null and void. Furthermore, First Financial AD had no standing to lodge an application for judicial review, because the BNB’s decision was addressed to the applicant bank, not to its shareholders. 40. The chairman and the vicechairman of the applicant bank’s board of directors and First Financial AD appealed. 41. In a decision of 10 April 2002 a fivemember panel of the Supreme Administrative Court declared the appeal by the chairman and vicechairman of the applicant bank’s board of directors inadmissible and First Financial AD’s appeal illfounded. It held that no appeal lay against the refusal to allow the applicant bank to intervene in the proceedings. It also held that the decision not to examine First Financial AD’s application for judicial review on the merits was correct. The prohibition of section 21(5) of the Banks Act of 1997 applied regardless of whether the request was to annul the BNB’s decision or to declare it null and void. 42. In late 1997 the chairman and the vicechairman of the applicant bank’s board of directors complained to the prosecution authorities about the actions of the BNB’s deputygovernor in charge of banking supervision who had made the order of 11 November 1997 and the recommendation to the governor of the Central Bank to revoke the applicant bank’s licence (see paragraphs 18 and 20 above). They argued that she had acted in excess of her powers with a view to causing damage to the applicant bank. On 8 June 1998 the Chief Prosecutor’s Office ordered a criminal investigation into the deputygovernor’s actions. On 6 November 1998 she was charged with abuse of office. In the course of the investigation the prosecution authorities ordered expert reports on, inter alia, the issue of whether the applicant bank had been insolvent as of 20 November 1997. One of the experts answered that question in the affirmative, another answered it in the negative. 43. One of the expert reports, drawn up on 7 April 1999, noted that a confidential agreement concluded in May 1997 between the International Monetary Fund (“the IMF”) and Bulgaria for the establishment of a currency board in the country stipulated that the right to appeal against the BNB’s decisions should be preserved, but should not hamper it in the performance of its banking supervisory functions. According to an opinion expressed by the IMF’s mission in Bulgaria, any successful appeal should only lead to an award of compensation, not to the invalidation of the BNB’s decision to close the bank. It appears to have been the view of the IMF’s mission in Bulgaria that the protracted process of judicial review of the BNB’s decisions and their possible invalidation would not be consistent with the effective process of banking supervision. 44. On 23 April 1999 a prosecutor from the Supreme Cassation Prosecutor’s Office discontinued the proceedings, considering that the BNB’s deputygovernor had acted lawfully and had not acted in abuse of office. On 11 March 2005 another prosecutor from the Supreme Cassation Prosecutor’s Office, acting on a complaint by the applicant bank’s shareholders, decided to reopen the investigation, which the Court understands is still pending. 45. In 199697 a serious financial crisis unfolded in Bulgaria, leading to economic instability, considerable inflation and the failure of a number of Stateowned and private banks. As a response to that and after negotiations with the IMF, the country adopted a currency board, whereby its national currency became pegged to the German mark, and also established a completely new legislative framework regulating the activity of banks, mainly consisting of the new Bulgarian National Bank Act of 1997 („Закон за Българската народна банка“), which entered into force on 10 June and 1 July 1997, and the Banks Act of 1997 („Закон за банките“), which entered into force on 1 July 1997 and superseded the Banks and Credit Business Act of 1992 („Закон за банките и кредитното дело“). 46. The BNB, established in 1879, is the Central Bank of Bulgaria. At present its mission, structure, mandate and powers are principally set out in the Bulgarian National Bank Act of 1997. Its duties comprise, inter alia, regulating and supervising the other banks in the country with a view to securing the stability of the banking system and protecting the interests of depositors (section 2(6) of the Act). It is accountable to the National Assembly (section 1(2) of the Act), which elects its governor (section 12(1) of the Act) and deputygovernors (section 12(2) of the Act). The three remaining members of its board are appointed by the President of the Republic (section 12(3) of the Act). Section 44 of the Act, as worded at the material time, provided that the BNB was independent of the instructions of the Council of Ministers or any other government agency in the exercise of its powers. 47. Under the Banks and Credit Business Act of 1992 the BNB could, under certain conditions, restrict the activities of a bank and the types of transactions it could enter into (section 56(1)(5) of the Banks and Credit Business Act of 1992; see also section 65(2)(6) of the Banks Act of 1997). 48. Section 65(1)(1) and (2)(3) of the Banks Act of 1997 allows in broad terms the BNB to direct a bank in writing to remedy breaches of the Act or of the BNB’s regulations or other Acts or directives. 49. Under section 58(2) in conjunction with section 56(1)(5) of the Banks and Credit Business Act of 1992, the BNB could appoint special administrators („квестори“) with the power to, inter alia, control the activities of the bank, verify whether it had complied with restrictions, gain access to its premises and check all its operations (see also section 58(1)(1) and (2) of that Act). 50. Sections 68 and 69 of the Banks Act of 1997 also allow the BNB to appoint special administrators to a bank. These special administrators act in lieu of the bank’s board of directors (section 71(1)), that is to say on behalf of the bank. They are appointed and dismissed by the BNB (section 69(1)), which may give them instructions (section 71(3)), and are accountable only to it (section 71(5)). All transactions made by a bank without the prior approval of the special administrators are null and void (section 71(6)). 51. The BNB is required to revoke a bank’s licence on the ground of insolvency if (a) the bank fails for more than seven working days to repay a debt which has fallen due or (b) the total of the bank’s liabilities exceeds the total of its assets (section 21(2) of the Banks Act of 1997). The value of the bank’s assets and liabilities is determined by the BNB in accordance with supervisory requirements and its own rules (section 21(3)). 52. When it revokes a bank’s licence, the BNB must appoint special administrators (see paragraphs 49 and 50 above) if none have yet been appointed (section 21(4) of the Banks Act of 1997). The administrators represent the bank until the court appoints liquidators (section 69(3) of the Banks Act of 1997). A decision by the BNB to revoke a bank’s licence is immediately enforceable (section 21(5) of the Banks Act of 1997). 53. As an exception to the general rules of administrative procedure (sections 7(2) and 11(1) of the Administrative Procedure Act of 1979 („Закон за административното производство“)), the BNB does not inform the bank of the commencement of the procedure for revoking its licence and does not have to examine or take into account the bank’s representations and objections, if any (section 21(5) of the Banks Act of 1997). Under previous legislation (section 56(4) of the now repealed Banks and Credit Business Act of 1992), when revoking a bank’s licence the only circumstance in which the BNB could dispense with informing the bank of the commencement of the procedure and with examining its representations and objections was if the case was exigent and urgent. 54. After revoking a bank’s licence on the ground of insolvency, the BNB is required to file with the competent insolvency court a petition for an order winding-up the bank (former section 79(1) of the Banks Act of 1997; see also sections 8 and 9 of the Bank Insolvency Act of 2002 („Закон за банковата несъстоятелност“), which in December 2002 superseded the provisions of the Banks Act of 1997 relating to the winding up of insolvent banks). 55. Article 120 of the Constitution of 1991 provides: “1. The courts shall review the lawfulness of the administration’s acts and decisions. 2. Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.” 56. Whereas the BNB’s decisions under the Banks and Credit Business Act of 1992 were, without limitation, subject to review by the Supreme Administrative Court (section 88(2) and (3) of the Banks and Credit Business Act of 1992), the Banks Act of 1997 prohibits judicial review of a number of the BNB’s decisions. Thus, supervisory and enforcement measures ordered by the BNB under section 65 of the Act are not subject to judicial review (section 65(4) of the Banks Act of 1997); neither are its decisions to revoke a bank’s licence (section 21(5) of the Banks Act of 1997), or to appoint or replace special administrators at a bank (sections 65(4) and 69(4) of the Banks Act of 1997). 57. The Administrative Procedure Act of 1979 governs the procedure for issuing administrative decisions and for judicial review of such decisions. An application for judicial review must be lodged within a specified timelimit, which varies depending on whether the administrative decision was express or implied and on whether there has been an appeal to a higher administrative authority (section 37(1), read in conjunction with sections 22, 29 and 31 of the Act). The only circumstance in which no timelimit will apply is if it is alleged that the administrative decision is null and void (section 37(2) of the Act). 58. On 14 November 1997 the Constitutional Court delivered judgment (реш. № 18 от 14 ноември 1997 г. по конституционно дело № 12 от 1997 г., обн., ДВ брой 110 от 25 ноември 1997 г.) in proceedings that had been brought by fiftyone members of Parliament who considered, inter alia, that sections 21(5) and 65(4) of the Banks Act of 1997 should be declared contrary to Article 120 § 2 of the Constitution. 59. The Constitutional Court dismissed the complaint in the following terms: “[This] court has already clearly and categorically expressed the view that ‘judicial review of administrative decisions is a constitutive element of the rule of law’... The court is of the view that the question of the judicial review of administrative decisions may be resolved only in accordance with the express wording of Article 120 § 2 of the Constitution. According to that provision, judicial review of administrative decisions may be limited only by statute. In the case at hand this means the Banks Act [of 1997]. In view of the wording of Article 120 § 2 in fine of the Constitution, the court may not come up with an interpretation providing exceptions to the exception. Only the legislature has the power, by statute, to exclude certain administrative decisions from judicial review. [Article 120 § 2] does not lay down any criteria limiting the legislature’s powers in this respect. This is a question falling within the legislature’s competence... At the same time the court deems it necessary to point out that the legislature’s right to exclude certain categories of administrative decisions from judicial review is not absolute. In exercising that right the National Assembly must have regard to the main constitutional principles relating to the rule of law and the protection of the fundamental human rights. The power granted to the National Assembly by Article 120 § 2 in fine is an exception and has to be construed and applied restrictively. The character of this exception requires the National Assembly to use its powers in this respect only when it has good and compelling reasons to do so. To hold otherwise would render the principle of judicial review meaningless. For this reason [this court] has jurisdiction to assess in each specific case whether the legislature’s discretion has been exercised within the limits laid down in the Constitution... An analysis of the decisions excluded from judicial review by the Banks Act [of 1997] indicates that the legislature has remained within the bounds of its constitutional discretion in protecting the public interest and the interests of depositors. These are mainly acts of banking supervision, an area in which the competence of the supervisory body cannot be supplanted by judicial decision. ... In all cases where the administrative decisions that are not subject to review affect the rights and legal interests of individual citizens, there are no obstacles to their seeking redress in a civil action and claiming compensation for the alleged damage. In addition, the Court considers it necessary to emphasise that the rule set out in Article 120 § 2 in fine of the Constitution does not preclude the courts from ruling incidentally on the nullity of administrative decisions. To hold otherwise would mean that vitiated administrative decisions, such as decisions issued ultra vires, would be less easy to challenge than a statute, whose unconstitutionality can be established in proceedings before the Constitutional Court. In this sense the restriction on reviewing administrative decisions is not absolute.” 60. Before 1 July 1997 bank insolvency was regulated by the Banks and Credit Business Act of 1992. From that date onward the newly adopted Banks Act of 1997 became applicable to such proceedings (until December 2002, when its provisions relating to bank insolvency were superseded by the Bank Insolvency Act of 2002 – see paragraph 54 above). 61. The regime of bank insolvency set forth in the Banks Act of 1997 (and largely followed by the Bank Insolvency Act of 2002) contained a number of special features. Only the BNB, not creditors or the bank itself, could petition for a winding-up order against a bank (former section 79(2) of the Banks Act of 1997). The BNB had a statutory obligation to lodge such a petition after revoking a bank’s licence on the ground of insolvency (former section 79(1) of the Banks Act of 1997). The petition needed only specify the grounds on which the bank’s licence had been revoked under section 21(2) of the Banks Act of 1997 (former section 79(3) of the Banks Act of 1997). A certified copy of the BNB’s decision to revoke the licence had to be enclosed with the petition (ibid.). The petition was examined by the competent court at a hearing in the presence of a prosecutor from which the public was excluded (former section 81 of the Banks Act of 1997). The court had no power to make an order for the restructuring of the bank (former section 91 of the Banks Act of 1997). The bank was divested of the right to administer and dispose of its assets (former section 82(6) of the Banks Act of 1997), and, when granting the petition, the court was also required to immediately order the sale of the bank’s assets and the distribution of the proceeds to its creditors (former section 82(7) of the Banks Act of 1997). The court divested the bank’s decision-making bodies (such as the general meeting of shareholders and the board of directors) of their powers (former section 82(4) of the Banks Act of 1997) and appointed liquidators („синдици“ – former section 82(8) of the Banks Act of 1997) in whom most of these powers, including the right to represent the bank in court, were vested (former section 84(3) of the Banks Act of 1997, in conjunction with section 658(1) of the Trade Act of 1991 („Търговски закон“)). 62. The decision-making bodies of a company in liquidation continue, however, to exist and may act on its behalf in certain limited circumstances; for instance, when there is a conflict of interest between the company and the liquidators. Thus, in a decision of 19 July 1999 (опред. № 234 от 19 юли 1999 г. по гр.д. № 52/1999 г. на ВКС, петчленен състав) the Supreme Court of Cassation held that the insolvent company, not the liquidator, had standing to appeal against the winding-up order. The rationale adopted by the court was that the liquidator might have a conflict of interest with the company. However, section 16(1) of the Bank Insolvency Act of 2002 now provides that it is the BNBappointed special administrators (see paragraph 50 above) who may appeal against a court order putting a bank into compulsory liquidation. 63. The court could appoint liquidators only from a panel of qualified persons named on a list drawn up by the BNB (former section 84(1) of the Banks Act of 1997). If a liquidator was subsequently struck off that list by the BNB, the court was bound to discharge him or her (former section 84(2) of the Banks Act of 1997). In a decision of 29 October 1997 the Supreme Court of Cassation held that the insolvency court could not review a decision by the BNB to remove a person from that list, because the court had no discretion in this respect (опред. № 1712 от 29 октомври 1997 г. по гр.д. № 1631/1997 г., на ВКС, V г.о.). 64. The Trade Act of 1991 was applicable mutatis mutandis and insofar as the Banks Act of 1997 did not contain special rules (former section 97 of the Banks Act of 1997). Section 634 of the Trade Act of 1991, which thus appears to have been applicable, provides that a court order declaring a debtor insolvent and requiring it to be wound up is immediately enforceable (see also section 13(2) of the Bank Insolvency Act of 2002). 65. A winding-up order has the effect of automatically staying all pending enforcement proceedings against property forming part of the insolvent entity’s estate (section 638(1) of the Trade Act of 1991, as applicable until superseded in December 2002 in respect of banks by section 21(1) of the Bank (Insolvency) Act of 2002, which provides for such proceedings to be stayed even earlier, namely when the BNB’s decision revoking the bank’s licence is published in the State Gazette). 66. Creditors of the bank were required to submit their proofs of debt to the liquidators within one month after the publication of the winding-up order (former section 86(1) of the Banks Act of 1997). The liquidators then examined the claims, drew up a list of agreed claims, and informed the creditors thereof by a notice published in, inter alia, the State Gazette (former section 87(1) of the Banks Act of 1997). The creditors and shareholders of the bank owning at least 25% of the voting shares were entitled to lodge objections to the list with the liquidators (former section 87(2) of the Banks Act of 1997). The liquidators were required to examine the objections within fourteen days in the presence of the debtor, the creditor whose claim was challenged, and the person who had made the objection (section 690(2) of the Trade Act of 1991, as in force at the material time). The liquidators then submitted the original or the amended list, as appropriate, to the insolvency court for approval. Any of the above persons could then repeat its objection before the court, which had a duty to examine it at a public hearing (section 692(1), (2) and (3) of the Trade Act of 1991, as in force at the material time). An appeal lay against the court’s judgment to the Supreme Court of Cassation (former section 90(1) of the Banks Act of 1997, as in force at the material time). If no objections were made before the court, it examined the list in private and approved it in a final judgment (section 692(5) of the Trade Act of 1991, as in force at the material time). The court’s judgment was binding on the insolvent bank, the liquidator, and all the creditors (former section 90(6) of the Banks Act of 1997, as in force at the material time). 67. The insolvent bank’s assets may be sold off individually at auction and the proceeds then distributed among the creditors whose claims have been allowed (former sections 92, 94a and 95 of the Banks Act of 1997, in conjunction with sections 71632 of the Trade Act of 1991, superseded in December 2002 by sections 7290 and 93104 of the Bank Insolvency Act of 2002). Alternatively, the liquidators may try to sell the bank’s entire undertaking to another licensed bank, with the permission of the body responsible for overseeing the winding up of banks, the Bank Deposits Guarantee Fund (sections 91 and 92 of the Bank Insolvency Act of 2002; see also former sections 93 and 94 of the Banks Act of 1997). 68. A bank’s paidup capital on incorporation must not be less than BGL 10,000,000,000 (BGN 10,000,000 after the currency revalorization of 5 July 1999) (section 23(2) of the Banks Act of 1997). All payments made by the shareholders for subscribed shares must be in cash, until this minimum capital is attained (section 23(3) of the Banks Act of 1997). The bank’s capital must at all times surpass this amount (section 2(2) of the BNB’s Regulation no. 8 of 5 August 1997 on the capital adequacy of banks, superseded on 1 July 2005 by section 2(2) of the BNB’s Regulation no. 8 of 23 December 2004 on the capital adequacy of banks). 69. Also, a bank’s capital adequacy: the ratio between its capital base – defined as its primary, or tierone, capital (including paidup shares plus premiums and statutory and other reserves minus intangible assets, losses, and treasury shares – section 9 of Regulation no. 8 of 5 August 1997), plus supplementary capital elements, or tiertwo, capital (including retained earnings, special reserves, hybrid capital instruments, subordinated debt – section 10 of Regulation no. 8 of 5 August 1997) – and its riskweighted assets and offbalancesheet items may not be less than 12% (section 23(3) of Regulation no. 8 of 5 August 1997; see also section 8(6) of the BNB’s Regulation no. 8 of 23 December 2004 on the capital adequacy of banks). 70. Under Bulgarian law banks are jointstock companies („акционерно дружество“ – section 1(1) of the Banks Act of 1997). The capital of jointstock companies may be increased by, inter alia, issuing new shares (section 192(1) of the Trade Act of 1991). Once these shares have been subscribed, the subscriber is under an obligation to pay cash or to provide noncash consideration for the shares (section 188(1) of the Trade Act of 1991). The manner and conditions for providing noncash consideration are laid down in sections 72 and 73 of the Trade Act of 1991 (see also new sections 73b and 73c of the Trade Act of 1991). 71. If a bank decides to increase its capital by issuing shares for noncash consideration, it has to obtain the prior written approval of the BNB (section 19(2)(5), now section 19(4)(5), of the Banks Act of 1997). Any increase made without such approval is null and void (section 19(6), now section 19(9), of the Banks Act of 1997). 72. At the relevant time section 120(2) of the Trade Act of 1991 prohibited any set-off between the obligation of a member of a limited liability company („дружество с ограничена отговорност“) to pay up his or her shares against debt due by that company to the member. At the time it was unclear whether this prohibition also applied to jointstock companies in the absence of any express provision. Although expressed obiter, the Supreme Court of Cassation’s view appears to have been that it did (опред. № 51 от 26 февруари 1999 г. по гр.д. № 41/1999 г. на ВКС, V г.о.). In 2000 the legislature clarified the issue by introducing a new section 73a of the Trade Act of 1991, whereby the proscription was explicitly expanded to both limited liability companies and jointstock companies. 73. Section 1(1) of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage flowing from unlawful decisions may be claimed after the decisions concerned have annulled in prior proceedings. The court examining the claim for compensation cannot inquire into the validity of a voidable decision; it may merely examine whether a decision is null and void. Only natural persons, not juristic persons, may claim compensation under the Act (реш. № 1307 от 21 октомври 2003 г. по гр.д. № 2136/2002 г., на ВКС, V г.о.). Persons seeking redress for damage occasioned in circumstances falling within the scope of the Act have no claim under the general law of tort, as the Act is a lex specialis and excludes the application of the general regime (section 8(1); реш. № 1370/1992 г. от 16 декември 1992 г. по гр.д. № 1181/1992 г. на ВС, ІV г.о.; реш. от 29 юли 2002 г. по гр.д. № 169/2002 г. на СГС, ГК, ІVб отд.).

dev

001-98814

ENG

HUN

CHAMBER

CASE OF ENGEL v. HUNGARY

Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

5. The applicant was born in 1962 and lived in Szeged. 6. On 13 May 2003 the applicant was caught in the act of committing armed robbery. In the ensuing exchange of shots, he killed a police officer and wounded another. He was also injured in his spine, as a consequence of which he became paralysed in both his legs from the waist down. Ever since, he has also been suffering from incontinence. He is now 100% disabled, only capable of moving in a wheelchair; moreover, he has to use diapers. 7. The applicant was sentenced to life imprisonment. Between 25 February 2005 and 15 December 2006 he was detained in Szeged Prison. 8. The applicant described the conditions in Szeged Prison as follows: Since he was unable to fulfil the obligations incumbent on healthy inmates, he needed to sleep in his clothes in an undone bed and use his jacket as a blanket in order to avoid being sanctioned for violating the daily routine of making the bed on time. With no assistance from staff, he could wash or relieve himself only if his cellmates helped him do so. He was not provided with a proper bath chair; instead, he was given a wooden toilet-seat which – unfit for the purposes of bathing – rotted away fast and on one occasion, broke under him. Because of harassment from fellow inmates on account of his disability and incontinence, he did not participate in the daily open-air stays. Classified as a 'Grade 4' security-level prisoner, he was transported with his hands handcuffed to his belt at all times. While being transported in this posture in a van without a safety belt, he could keep himself in his wheelchair only by supporting his body by leaning his head against the door of the transport cabin. As a consequence, he regularly suffered swellings on his head. When entering or exiting the transport van, staff dragged him by his belt, sometimes on the floor causing him bruises; an incident of this kind took place on 12 June 2006. On other occasions, his wheelchair – with the applicant, weighing 110 kilograms, sitting in it – was rolled down the van's steps. 9. The applicant's complaint about the above conditions to the Csongrád County Chief Public Prosecutor's Office was to no avail. 10. According to the prison's medical service, the applicant suffered inter alia from high blood pressure, overweight, paraplegia and a neurogenic bladder. His transfer to a specialised penitentiary was recommended but not taken up by the prison administration. Upon the applicant's complaint, the National Prison Administration investigated his situation. Its findings included the following: “The applicant's cell is located on the ground floor ..., next to the medical consultancy room. It is suitable for accommodating four inmates, but only two or three inmates, including the applicant, are actually placed in it. The furniture is refurbished and adjusted to the applicant's health needs: the table is elevated, the beds are single rather than bunk beds, the wardrobe and the mirror are placed at a height reachable by the applicant, entrance obstacles have been removed and a handrail has been fitted next to the toilet. A cellmate has voluntarily undertaken the task of keeping the cell tidy and helping the applicant perform his everyday duties. The applicant has never been reproached for a violation of the prison cell order. A hot water shower (bath) has been provided to the applicant on a daily basis. A hand shower and a bath chair are available to him. ... A cellmate has voluntarily undertaken to help the applicant wash himself. ... ... In order to prevent harassment by fellow inmates, the applicant has been granted the opportunity to have daily open-air stays in a [protected] courtyard ... The applicant, however, does not wish to make use of this possibility. Upon the applicant's complaints ... on 30 May 2006 the warden ordered the transport van [in question] to be equipped with a safety belt and informed the applicant thereof ... as well as of the fact that, in the light of medical opinion, his transportation in an ambulance car ... was not justified. According to the findings of the investigation, the applicant suffered light scratches and bruises [while in transport] in December 2004 and June 2006. Therefore the prison management instructed staff to proceed with special care in respect of the applicant. According to the opinion of the competent health organ, the applicant's transport did not require the participation of medical staff. On 21 April 2006 the applicant requested to be transferred to Nagyfa Prison. His request was dismissed by the ... National Prison Administration on 9 June 2006 on the ground that he was serving his sentence in a penitentiary institution whose strictness was commensurate with the offence he had committed and with the regime imposed on him; where his nursing and medical supervision was resolved and where physical obstacles had been removed in order to ensure his free movement in a wheelchair. The applicant filed a complaint against the decision. The complaint was dismissed by the National Commander on 26 July 2006 and his transfer was not authorised. According to the reasoning of the decision, '[the applicant did] not require permanent nursing or medical supervision. At his present place of detention, alterations had been made in the building, as required by his disability. Medical treatment, as appropriate in his present state, can be provided for him at his present place of detention, where the circumstances have been adjusted to his needs ...'” 11. The applicant submitted that the transport van was not equipped with a safety belt until the end of August 2006. Concerning open-air stays, he explained that the surface of the courtyard in question was uneven and therefore unsuitable for a wheelchair. 12. Given that other criminal proceedings were pending against him, the applicant had to be regularly transported to Budapest to stand trial. In a complaint dated 5 September 2006 and addressed to the head of the Transportation Department of Budapest Prison, the applicant submitted that on Monday, 4 September 2006 he had been placed in an admission cell in which he had had to spend five hours with no access to water and without any possibility to change his diapers. He also submitted that during the transport he had been placed in a one-person box of the van where he had suffered bruises: in a road curve, he had fallen out of his wheelchair and had been travelling on the floor of the van, handcuffed to his belt, with his arms under his body. He furthermore submitted that the following day, when he had requested a medical check-up, the nurse had informed him that no medical examination was available until the next weekly consultation to be held on the following Monday. 13. In the course of the ensuing investigation, on 18 September 2006 a medical report was drawn up but no external sign of injury was detected. In the absence of evidence, on 3 October 2006 the warden of Budapest Prison dismissed the applicant's complaint. 14. Upon the applicant's criminal complaint, an investigation was opened by the Szeged Military Public Prosecutor's Office against unknown persons for abuse of administrative authority, but was discontinued on 12 December 2006 by the Szeged Military Public Prosecutor's Office for want of evidence. 15. In a letter dated 27 October 2006 and addressed to the National Commander, the applicant complained about injuries allegedly suffered during his transport and the malfunction of his wheelchair. The ensuing investigation did not support the applicant's allegations about the injuries, but his wheelchair was subsequently repaired. 16. On 15 December 2006 the applicant was transferred to Sopronkőhida Prison where he was placed in a single cell specially designed for disabled inmates. On 18 December 2006 he was examined by a forensic medical expert. In his opinion the expert stated: “... [In respect of standing up] the inmate ... partly or wholly exaggerates his pains... [He is] 100% disabled ... [but is] nevertheless, not totally unable to care for himself. His compulsive eating, together with his reluctance to accept painkillers ..., is a serious psychological obstacle to enhancing his mobility. At the same time ... the very existence of pain cannot be proven beyond doubt. From a forensic medical point of view, it can be established that ... the inmate has received all the medical, nursing and caring help he needs.” 17. Decree No. 6/1996 (VII.12.) of the Minister of Justice on the Rules of the Execution of Imprisonment and Pre-trial Detention provides as follows: “Such inmates shall be classified as 'Grade 4 security' prisoners as are expected with good reason to commit an act severely violating the order of the penitentiary, to escape or to endanger his/her own life or limb or that of others, or as have already committed such acts, and whose safe detention may only be guaranteed by guarding or – exceptionally – by surveillance.” 18. The CPT's Report to the Hungarian Government after its visit to Hungary from 5 to 16 December 1999 provides, insofar as relevant, as follows: “96. Under the prisoner grading system operated in Hungary, remand or sentenced prisoners who are considered as dangerous are placed in Grade 4 (Decree No. 6/1996 (VII.12.) of the Minister of Justice). Allocation is made either by the prosecutor, the court or the reception committee of the establishment. The CPT was informed that courts and prosecutors tend to attribute this grade to prisoners accused or convicted of serious crimes (especially persons involved in organised crime activities) and the prison reception committees, to persons with a previous record of ill discipline (including those prone to escape or those who have attempted suicide) or with a military background. The status of Grade 4 prisoners is reviewed every six months. However, it would appear that the reasons underlying the decision for placement/prolongation of a Grade 4 measure are not disclosed to the prisoner concerned. 97. It is axiomatic that a prisoner should not be held in a special security regime any longer than the risk which he presents makes necessary. This calls for regular reviews of the placement decision. Further, prisoners should as far as possible be kept fully informed of the reasons for their placement and, if necessary, its renewal; this will inter alia enable them to make effective use of avenues for challenging that measure.” 19. The CPT's Report to the Hungarian Government after its visit to Hungary from 30 March to 8 April 2005 provides, insofar as relevant, as follows: “64. Concerning the legal safeguards applicable to prisoners placed in Grade 4, their status is now reviewed every three months (at the time of the 1999 visit, the frequency of reviews was every six months); the CPT welcomes this change. However, the other long-standing recommendations of the CPT – concerning the provision to the inmates concerned of written information on the reasons for the measure and offering them an opportunity to express their views on the matter – had not been implemented. Many Grade 4 prisoners interviewed by the delegation complained that they had not been informed of the reasons for the measure, had had no involvement in the review procedure and had received no information on the possibilities to contest it. Further, it was generally felt that the periodic review of the Grade 4 status was a pure formality. The examination of relevant documentation and interviews with inmates led the delegation to conclude that the determining factors in retaining the Grade 4 status were historical ones, like the violent nature of the crime committed (often many years before), rather than an assessment of the inmate's current dangerousness or propensity to act again in an unacceptable way. ...” “184. During the 2005 visit, close attention was given to the situation of prisoners placed under a special security regime. The CPT has welcomed the fact that the status of prisoners classified as Grade 4 is now reviewed every three months; at the same time, it has called upon the Hungarian authorities to implement its previous recommendations concerning the provision to such prisoners of written information on the reasons for the measure as well as the opportunity to express their views on the matter. More generally, the Committee has recommended that the system of classifying prisoners as Grade 4 be reviewed and refined, with a view to ensuring that this grade is only applied – and retained – vis-à-vis prisoners who genuinely require to be accorded such a status. The policy as regards the application of means of restraint to Grade 4 prisoners - already strongly criticised in the past by the CPT - remains unsatisfactory; the Committee has called upon the Hungarian authorities to review that policy without further delay. ...”

dev

001-101469

ENG

LVA

CHAMBER

CASE OF MARINA v. LATVIA

Violation of Art. 6-1;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in 1938 and lives in Rīga. From an unspecified date, the applicant, together with her partner V.M., made use of a plot of land in Carnikava parish. The rights to use the land were allocated to the latter by a decision of the Carnikava Municipality. The property consisted of a dwelling house with an extension, greenhouses and a garden. After the death of the applicant's partner in 2000 and the applicant's subsequent eviction from an apartment in Rīga, she continued to reside in the property in Carnikava parish and to gain an income by selling the products cultivated there. In July 2005 the applicant found out that the dwelling house, greenhouses and the garden had been destroyed. She requested that criminal proceedings be instituted against the alleged perpetrator, P., who did not contest the allegations. On 9 September 2005, having examined the applicant's complaints, the police officer of the Saulkrasti Police Department refused to institute criminal proceedings on the grounds that the rights to use the aforementioned property had passed to J.M. (the son of the late V.M.) and no complaints whatsoever had been received from him regarding the alleged destruction of the property. From 2005 onwards the applicant has been repeatedly considered as a “low-income person” (maznodrošināta persona), as the amount of her old-age retirement benefit did not exceed 125 % of the established minimum monthly salary in the Republic of Latvia. From September 2004 to the present day the applicant has been renting an apartment in a social building where the monthly utilities charges have averaged LVL 25 (EUR 36) in the winter and, around LVL 12 (EUR 17) in the summer. Apart from receiving an old-age retirement pension in the amount of LVL 75.60 (EUR 107) (the amount at the material time), in 2006 and 2007, at the time of bringing the civil proceedings the applicant was also in receipt of the following municipality assistance: a housing allowance averaging LVL 3 (EUR 5) per month; two lump-sum payments together totalling LVL 50 (EUR 71) assigned to cover housing and utilities expenses; health insurance in the amount of LVL 45 (EUR 64) and a lump sum in the amount of LVL 20 (EUR 29) to improve the condition of her health. On 29 September 2005 the applicant lodged a claim for damages against P. in the amount of LVL 171,110 (EUR 244,443) and asked the court for exemption from the court fee (also referred to as a State fee) in the amount of LVL 1,503.33 (EUR 2,148) owing to her poor financial situation. In support of her application, the applicant attached thereto a certificate confirming her low-income status. On 3 October 2005, by a decision of the Rīga Regional Court, the applicant's claim for damages was dismissed on the grounds that she had failed to demonstrate that she had the right to use the aforementioned property. On 8 November 2005, on the applicant's appeal, the Civil Chamber of the Supreme Court revoked the above decision and forwarded the matter for examination once again ,finding that: “The Civil Law grants to everyone a right to claim damages. [I]n a situation where damage has been inflicted, everyone is entitled to come before a court in order to protect their infringed rights. [Thus], the applicant has a right to claim damages, and this should not be linked to her rights to [...] use the [property]”. On 25 November 2005 the Rīga Regional Court partly upheld the applicant's request and reduced the amount of the court fee to LVL 100 (EUR 143). On 1 March 2006 the Civil Chamber of the Supreme Court dismissed the applicant's ancillary complaint whereby she requested a further reduction in the court fee. The court noted that the claim concerned material damages and that there was no ground for a further reduction. It noted inter alia: “Pursuant to section 43 § 4 of the Law of Civil Procedure the applicant can ask to postpone payment of the court costs allocated to State revenue, or divide payment thereof into instalments.” Subsequently the applicant asked for postponement of payment of the fee until the court adopted a decision concerning her claim. On 12 April 2006 the Rīga Regional Court dismissed the applicant's request, noting: “Section 43 § 4 of the Law of Civil Procedure authorises the court to postpone or divide into instalments only those court costs which had been allocated to State revenues, [and it does not authorise] the postponement of [the paying of] State fees at the time of lodging a claim”. On 7 September 2006 the Civil Chamber of the Supreme Court dismissed the applicant's complaint and upheld the lower court's decision. On 12 January 2007 the applicant lodged an identical claim for damages and asked to be exempted from payment of the court fee. She argued that her financial situation was poor, that her property had been destroyed, and her only income was an old-age pension. On 17 January 2007, the Rīga Regional Court partly upheld the applicant's request and again reduced the fee to LVL 100 (EUR 143), taking account of the reasoning underpinning the decision adopted on 25 November 2005 by the Rīga Regional Court in identical circumstances. In an ancillary complaint, the applicant appealed against the partial reduction of the court fee and explained that her monthly old-age pension was about LVL 75.60 (EUR 107), from which she had to clear the rent and utilities arrears for the apartment she had been evicted from. On 5 March 2007 the Civil Chamber of the Supreme Court, in a final decision, upheld the decision of the lower court, noting that there were no grounds for a further reduction of the State fee or complete exemption. It stated inter alia that: “Pursuant to section 43 § 4 of the Law of Civil Procedure the applicant can ask to postpone payment of court costs as allocated to State revenues, or divide payment thereof into instalments.” The court subsequently set a time-limit of 7 May 2007 by which the applicant was obliged to rectify the deficiencies of her claim, i.e. add proof of payment of the court fee. According to the Government, the decision was served on the applicant not later than 12 March 2007. According to the applicant, she received the above decision on 14 May 2007. Section 33 Costs of adjudication: Section 34 State (court) fees: (1) For each statement of claim – original claims or counterclaims, applications of a third person statement of claim with an independent claim regarding the subject-matter of the dispute, submitted in a procedure which has already commenced, applications in special adjudication procedure matters, and other claims applications provided for in this Section submitted to the court – a State fee shall be paid in the amount set out as follows: Section 43 Exceptions from general provisions regarding court costs: (4) A court or a judge, upon considering the material situation of a natural person, shall exempt him or her partly or fully from the payment of court costs into State revenues, as well as postpone payment of court costs allocated to State revenues, or divide payment thereof into instalments. Section 56¹ provides that in a situation where court documents are sent by post, it ought to be assumed that a document will reach the recipient within seven days following the day on which it was posted. Section 133 § 5 provides that when a civil claim has not been allowed, the applicant bringing the claim is not prevented from repeatedly submitting an identical claim in compliance with the general procedures prescribed in this Law. According to paragraph 3.1., a “low-income status” is, inter alia, that granted to an individual who receives an old-age pension, resides alone, and whose monthly income does not exceed 125% of the minimum salary as prescribed by law. Besides, in order to be granted low-income status, the person has to prove that she or he does not own a property that could be used to generate income and that she or he has no debts and is not owed money.

dev

001-100094

ENG

ARM

ADMISSIBILITY

PAPYAN AND DAVTYAN v. ARMENIA

Inadmissible

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

1. The applicants, Mr Hayk Papyan, Mr Samvel Papyan, Ms Satenik Davtyan and Ms Lilit Papyan, are Armenian nationals who were born in 1971, 1942, 1949 and 1978 respectively and live in Yerevan. They were represented before the Court by Mr T. Atanesyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants are a family who resided in a house situated at 11 Byuzand Street, Yerevan, which had allegedly belonged to their family since 1926. It appears that the house in question was situated on public land and had been built without permission. 4. It appears that in 1995 and 1997 the applicants Hayk Papyan and Samvel Papyan (hereafter, the first and the second applicant respectively) applied to the relevant public authority to have the house privatised in the framework of the privatisation scheme. According to the applicants, no decision was taken on their applications. 5. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. 6. On 28 October and 21 November 2003 the first applicant applied to the Real Estate Registry, seeking to have his ownership right registered in respect of the house. 7. By letters of 30 October and 25 November 2003 the Real Estate Registry refused the first applicant's request. 8. On 3 December 2003 the first applicant applied to Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան), seeking to establish a fact of legal significance, namely to have his ownership in respect of the house recognised by virtue of adverse possession. He submitted, in particular, that he had been using the house as his own property since 1989. 9. On 17 June 2004 the Government decided to contract out the construction of one of the sections of Byuzand Street – which was to be renamed Main Avenue – to a private company, Glendale Hills CJSC. 10. On 28 July 2004 Glendale Hills CJSC and the Yerevan Mayor's Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property. 11. By a letter of 18 August 2004 Glendale Hills CJSC informed the applicant Satenik Davtyan (hereafter, the third applicant) that the house in question was situated within the expropriation zone of the Main Avenue area and was to be taken for State needs. The third applicant was offered 2,000 United States dollars (USD) as financial assistance payable under the relevant governmental decree to registered persons, since the house was an unauthorised construction and she was only registered in it. 12. It appears that a similar offer was made to the other applicants. It further appears that none of the applicants responded to the offer, not being satisfied with the amount of compensation proposed. 13. On 27 September 2004 Glendale Hills CJSC instituted proceedings on behalf of the State against the applicants, seeking to oblige them to accept the offer and to have them evicted, with reference to Government Decree No. 1151-N. 14. On 3 March 2005 the Kentron and Nork-Marash District Court of Yerevan examined jointly the first applicant's application of 3 December 2003 and the claim of Glendale Hills CJSC. The court decided to grant the latter, finding that the house was situated in an expropriation zone as identified by the Government and was to be taken for State needs. The court awarded each applicant compensation payable to persons registered in unauthorised constructions, namely USD 2,000. The court further decided to dismiss the first applicant's application as unsubstantiated. 15. On 18 March 2005 the first applicant lodged an appeal. In his appeal, he argued that the court, in dismissing his application, had incorrectly interpreted various provisions of the Civil Code, the Housing Code and the Land Code. In support of his arguments the first applicant relied on evidence which allegedly substantiated his ownership claim in respect of the house. He further argued that, even if his ownership was not formally recognised, the amount of compensation awarded to him was inadequate. He finally claimed that as a user of the expropriated property he was entitled under the law to receive other property in its place. 16. On 14 April 2005 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) granted the claim of Glendale Hills CJSC and dismissed the first applicant's application on the same grounds as the District Court. 17. On 29 April 2005 the first applicant lodged an appeal on points of law. In his appeal, he argued that the Court of Appeal's judgment was unreasoned and was not based on the evidence in the case. The Court of Appeal had ignored and incorrectly applied various provisions of the Civil Code and the Housing Code, and had failed to establish correctly the facts. He further argued that, regardless of the formal status of the property in question, he should have received adequate compensation or a plot of land or another flat instead. He finally claimed that the house was ownerless and the court should have recognised his ownership in its respect by virtue of adverse possession. 18. On 27 May 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the first applicant's appeal. 19. For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23-43, 23 June 2009).

dev

001-91203

ENG

MDA

ADMISSIBILITY

NEDELCOV v. MOLDOVA

Inadmissible

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant, Mr Ion Nedelcov, is a Moldovan national who was born in 1933 and lives in Chişinău. He was represented before the Court by Mr R. Zadoinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a member of a gardening association and, on account of his membership, occupied a parcel of land on which he cultivated fruit and vegetables for the needs of his family. On an unspecified date he was excluded from the association on grounds which are not known to the Court. According to the statute of the association, disputes between the association and its members were to be resolved by the Chişinău Municipal Council. The applicant lodged an application with the Chişinău Municipal Council and challenged the decision of the association; however, his application was rejected on procedural grounds. The applicant contested the Municipal Council’s decision and on 19 May 2004 obtained a final judgment ordering the Municipal Council to examine his application on the merits. An enforcement warrant was issued on 1 June 2004 and the judgment was enforced on 27 April 2005, when the Chişinău Municipal Council examined the applicant’s application on the merits and adopted a decision in his favour. The applicant received the Municipal Council’s decision by mail on 19 September 2005. The applicant did not inform the Court about the enforcement of the judgment in his favour and it was only through the Government’s observations that the Court learned about the enforcement of the judgment.

dev

001-60329

ENG

ITA

GRANDCHAMBER

CASE OF CALVELLI AND CIGLIO v. ITALY

Preliminary objections rejected (victim);No violation of Art. 2;No violation of Art. 6-1

Luzius Wildhaber;Paul Mahoney

9. Immediately following its birth in a private clinic, “La Madonnina”, in Cosenza the applicant's new-born baby was admitted to the intensive care unit of Cosenza Hospital suffering from serious respiratory and neurological post-asphyxia syndrome induced by the position in which it had become lodged during delivery. The baby died on 9 February 1987, two days after birth. 10. On 10 February 1987 the applicants lodged a complaint. The Cosenza public prosecutor's office started an investigation that same day. 11. On 12 February 1987 Ms Ciglio was questioned as a witness. A team of three expert witnesses was named. 12. As nothing further happened in the proceedings, the applicants made several requests, notably on 16 October 1987, and 12 April and 30 June 1988, for the investigation to be expedited. On 16 November 1988 the public prosecutor's office itself requested the expert witnesses to lodge their report. 13. On 19 June 1989 the applicants were informed that at the request of the public prosecutor's office, the investigating judge had notified E.C. – the doctor responsible for delivering the baby and the joint owner of the clinic – that charges would be brought against him. 14. Subsequently, the scheduled questioning of certain witnesses on 18 July 1989 did not take place, as the judge dealing with the case was on holiday. 15. Meanwhile, on 7 July 1989, the applicants were joined to the proceedings as civil parties. 16. On 19 January 1990 the prosecution applied for the complaint to be filed away without further action. That application was dismissed on 24 May 1990. 17. On 3 October 1990 the investigating judge instructed the public prosecutor's office to make further inquiries. Consequently, on 29 November 1990 the deputy public prosecutor ordered forensic tests. The results were made available on 5 January 1991. 18. On 12 June 1991 E.C. was committed for trial before the Cosenza Criminal Court on a charge of involuntary manslaughter and the applicants renewed their application to be joined to the proceedings as civil parties. 19. The first hearing was set down for 2 July 1992 but had to be adjourned because of a lawyers' strike. The next hearing on 15 October 1992 was also adjourned due to a delay in service of a summons on the accused to appear. 20. A new hearing date was fixed for 15 January 1993. On that date an order was made for the accused's trial in absentia. The trial did not begin, however, until 19 March 1993, as meanwhile the accused had changed lawyers. The hearing scheduled for 29 April 1993 was adjourned until 3 June 1993 as the composition of the bench was not the same as that to which the case had been allocated. The trial thereafter continued with hearings on 27 May, and 10 and 17 June (the latter hearing being adjourned as one of the expert witnesses appointed by the court had to be replaced). A hearing on 15 July 1993 was adjourned to 16 September 1993, again owing to the fact that the composition of the bench was not the same as that to which the case had been allocated. There were further hearings on 14 and 26 October 1993. On the latter date the order for the accused's trial in absentia was revoked, but the hearing had to be adjourned as the expert witnesses failed to attend without due cause (they were ordered to pay a fine and to attend the next hearing on 14 December). A final hearing took place on 17 December 1993. The accused, who had attended the hearings on 26 October and 14 December 1993, was not present at that hearing. 21. At the hearing on 17 December the Cosenza Criminal Court found the accused guilty in absentia of involuntary manslaughter. Its judgment was lodged with the registry on 19 February 1994. The Criminal Court sentenced the accused to one year's imprisonment and ordered him to pay the civil parties' costs together with compensation to be assessed at a later date. 22. It found firstly that the accused knew that the birth had to be regarded as high risk since the mother was a level-A diabetic and had a past history of confinements that had been equally difficult because of the size of the foetus. The risks inherent in deliveries in such circumstances, which the expert witnesses appointed by the Criminal Court described as readily foreseeable, meant that precautionary measures should have been taken and that the doctor in charge should have been present. The Criminal Court found, however, that E.C., whom the applicant had consulted during the pregnancy, had made no arrangements for precautionary measures, such as an external examination of the mother, to assess whether the foetus was too large for a natural birth. Above all, he had absented himself during the birth. When the complications had occurred, it had taken the nursing staff six or seven minutes to locate E.C., who was busy seeing patients in another part of the clinic. The intervening delay before E.C. was able to perform the manipulation necessary to extract the foetus had significantly reduced the new-born's chances of survival. 23. The Criminal Court nevertheless suspended the sentence and ordered that the conviction should not appear on E.C.'s criminal record. In addition, it dismissed the civil parties' application for a provisional award of compensation. 24. On 17 March 1994 E.C. appealed to the Catanzaro Court of Appeal. 25. In a judgment of 3 August 1994, which was delivered in absentia and lodged with the registry on 17 August 1994, the Court of Appeal declared the appeal inadmissible. Noting that he had been tried in absentia at first instance, the Court of Appeal held that E.C. had failed to give his lawyer the authority to act required under the rules applicable in such cases. It ordered him to reimburse the costs incurred by the civil parties in the proceedings. 26. On 7 October 1994 E.C. appealed to the Court of Cassation. In a judgment of 22 December 1994, which was lodged with the registry on 23 January 1995, the Court of Cassation overturned the decision of the Catanzaro Court of Appeal, to which it remitted the case for a retrial. It held that the Court of Appeal had erred in treating E.C. as being absent, as he had been present at the start of the trial and had accordingly to be regarded as having left the court during the trial and not as liable to trial in absentia. 27. In a judgment of 3 July 1995, which was lodged with the registry on 10 July 1995, the Catanzaro Court of Appeal ruled that the prosecution of the offence was time-barred. 28. In so doing, it noted that the limitation period for the offence of which E.C. was accused had expired on 9 August 1994, in other words, even before the Court of Cassation had delivered its judgment. 29. Following E.C.'s conviction at first instance by the Cosenza Criminal Court on 19 February 1994 (see paragraphs 21-22 above), the applicants served a summons requiring E.C. to appear before the civil court of that town. 30. However, on 27 April 1995 the applicants entered into an agreement with the insurers of the doctor and the clinic under which the insurers were to pay 95,000,000 Italian lire (ITL) for any damage sustained by the applicants. Of that sum, ITL 15,000,000 were designated as reparation for the special loss sustained by Ms Ciglio. At that time, the criminal proceedings were pending in the Catanzaro Court of Appeal following the Court of Cassation's judgment of 22 December 1994 (see paragraph 26 above). 31. Subsequently, as the parties failed to attend a hearing on 16 November 1995, the case was struck out of the civil court's list. At that stage, the criminal proceedings had only just ended, the Court of Appeal's ruling that the prosecution of the offence was time-barred having become final on 17 October 1995. 32. Article 112 of the Italian Constitution provides: “The public prosecutor's office has a duty to prosecute.” 33. Article 589 of the Criminal Code lays down that the penalty for involuntary manslaughter is imprisonment of between six months and five years. 34. Furthermore, Article 157 § 1, sub-paragraph 4, of the Criminal Code provides that the limitation period for involuntary manslaughter is five years. That period may be extended by one half as a result of any interlocutory matters arising, but may under no circumstances exceed seven and a half years from the date of the offence. 35. Lastly, Article 120 of the Code of Civil Procedure provides: “In cases in which publishing the decision on the merits may contribute to providing reparation for the damage, the court may, on application by an interested party, order the losing party to publish the decision at its own expense in one or more newspapers determined by the court. If the decision is not published within the period fixed by the court, the interested party may arrange for publication and shall retain the right to recover the costs from the losing party.” 36. In the resolution cited above, adopted on 18 September 1975, the Committee of Ministers of the Council of Europe recommended that in their internal legislation and practice the governments of the member States be guided by the following principles: “1. Criminal proceedings should not be instituted or, if appropriate, sanctions shall not be imposed for manslaughter or accidental bodily injury resulting from a minor traffic offence, that is to say, a driving offence that was not such that its author must have been aware of the danger to which he exposed himself or others; 2. The same should apply, subject to the inexcusable character of the fault committed, in respect of a person who has caused manslaughter or accidental bodily injury if he himself or someone dear to him has been so badly injured that a sanction would be pointless, if not inhuman; 3. Application of the above-mentioned recommendations should in no way prejudice the rights of the victims to obtain compensation.”

dev

001-67415

ENG

ITA

CHAMBER

CASE OF SEJDOVIC v. ITALY

Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (national proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

Christos Rozakis

7. The applicant was born in 1972 and lives in Hamburg (Germany). 8. On 8 September 1992 a Mr S. was fatally injured by a shot fired at a Gypsy encampment in Rome. The initial statements taken by the police from witnesses indicated that the applicant had been responsible for the killing. 9. On 15 October 1992 the Rome investigating judge made an order for the applicant's detention pending trial. However, the order could not be enforced as the applicant had become untraceable. As a result, the Italian authorities considered that he had deliberately evaded justice and on 14 November 1992 declared him to be a “fugitive” (latitante). The applicant was identified as Cloce (or Kroce) Sejdovic (or Sajdovic), probably born in Titograd on 5 August 1972, the son of Jusuf Sejdovic (or Sajdovic) and the brother of Zaim (ou Zain) Sejdovic (or Sajdovic). 10. As the Italian authorities had not managed to contact the applicant to invite him to select his own defence counsel, they assigned him a lawyer, who was informed that his client and four other persons had been committed for trial on a specified date in the Rome Assize Court. 11. The lawyer attended the hearing, but the applicant did not. 12. In a judgment of 2 July 1996, the text of which was deposited with the registry on 30 September 1996, the Rome Assize Court convicted the applicant of manslaughter and illegally carrying a weapon and sentenced him to twenty-one years and eight months' imprisonment. One of the applicant's co-defendants was sentenced to fifteen years and eight months' imprisonment for the same offences, while the three others were acquitted. 13. The applicant's lawyer was informed that the Assize Court's judgment had been deposited with the registry. He decided not to avail himself of his right of appeal under Italian law. The applicant's conviction accordingly became final on 22 January 1997. 14. On 22 September 1999 the applicant was arrested in Hamburg by the German police under an arrest warrant issued by the Rome public prosecutor's office. On 30 September 1999 the Italian Minister of Justice requested the applicant's extradition. He added that, once he had been extradited to Italy, the applicant would be entitled to apply under Article 175 of the Code of Criminal Procedure (“the CCP”) for leave to appeal out of time against the Rome Assize Court's judgment. 15. At the request of the German authorities, the Rome public prosecutor's office stated that it did not appear from the evidence that the applicant had been officially notified of the charges against him. The public prosecutor's office was not in a position to say whether the applicant had contacted the lawyer assigned to represent him. In any event, the lawyer had attended the hearing and had played an active role in conducting his client's defence, having called a large number of witnesses. Furthermore, the Rome Assize Court had clearly established that the applicant, who had been identified by numerous witness as Mr S.'s killer, was guilty. In the opinion of the public prosecutor's office, the applicant had absconded immediately after Mr S.'s death precisely to avoid being arrested and tried. Lastly, the public prosecutor's office stated: “A person who is to be extradited may seek leave to appeal against the judgment. However, for a court to agree to re-examine the case it has to be proved that the accused was wrongly deemed to be a 'fugitive'. To sum up, a new trial, even in the form of an appeal (during which new evidence may be submitted), is not granted automatically.” 16. On 6 December 1999 the German authorities refused the Italian Government's extradition request on the ground that the requesting country's domestic legislation did not guarantee with sufficient certainty that the applicant would have the opportunity of having his trial reopened. 17. In the meantime, the applicant had been released on 22 November 1999. 18. The relevant parts of Article 175 §§ 2 and 3 of the CCP provide: “A person convicted in absentia ... may apply for leave to appeal out of time against the judgment where he is able to prove that he was not effectively notified [of the judgment] ... [and] on condition that there has been no negligence on his part or, if the judgment delivered in absentia has been served ... on his lawyer ..., that he has not deliberately refused to apprise himself of the steps taken in the proceedings. An application for leave to appeal out of time must be lodged within ten days of the date ... on which the accused learned [of the judgment], failing which it shall be inadmissible.”

dev

001-69886

ENG

DEU

ADMISSIBILITY

ELLERSIEK v. GERMANY

Inadmissible

The applicants, Mrs Bärbel Ellersiek, Mr Dietrich Ellersiek and Ireen Ellersiek, are German nationals who were born in 1948, 1946 and 1993 respectively. The second and the third applicants live in Enger in Germany. The first applicant passed away on 11 February 2004. By letter of 26 August 2004 the second applicant informed the Court that he wished to pursue the application also on her behalf, with the consent of the first applicant's heirs. The applicants are represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld. The first two applicants are the third applicant's paternal grandparents. The parents of the third applicant and of her brother D., born in 1994, were not able to provide steady care for their children because of their drug addiction. During the first months of their life, the children were raised by their parents, their maternal grandparents and by the first two applicants. On 19 June 1995 the Youth Office requested the Bielefeld District Court (Amtsgericht) to take appropriate measures with respect to the children's care. On 18 July 1995, during a first hearing, the children's parents and the Youth Office agreed that the children should live with their father, who was at that time undergoing therapy. Accordingly, the District Court abstained from taking measures with respect to the children's guardianship. On 7 September 1995 the Youth Office informed the District Court that the children's father had dropped out of therapy and that both children had been placed in the care of a foster family. On 5 October 1995 the District Court heard the children's parents and grandparents. Both parents expressed the wish that the children should be raised by the first and the second applicants. On 4 December 1995 the court-appointed expert K. submitted an expert opinion. He noted that both children had lacked steady relationships and care during their first years. As a result, the third applicant had developed behavioural disorders. While there was no doubt that the first and the second applicant would entertain a loving relationship with the children, the expert feared that they might have difficulties to cope with both children. The expert also noted that the first and second applicant had not demonstrated that they acknowledged their own contribution to their son's (the children's father's) drug addiction. They had stated, on the contrary, that the educational counsellors had assured them that they had done “everything right”. On 24 January 1996 the Bielefeld District Court, following the expert opinion, withdrew the parents' custody rights and appointed the Youth Office as guardian. On 9 February 1996 the first two applicants lodged a complaint with a view to being appointed guardians themselves. On 28 February 1996 the third applicant's father lodged a complaint in support of the first and the second applicants' request. On 11 March 1996 the applicants submitted further pleadings and requested the Bielefeld Regional Court (Landgericht) to issue an interim order assuring that the siblings remained in their current foster family, alternatively that they were not separated, further alternatively to revoke the Youth Office's right to decide on the children's residence. On 1 April 1996 the Regional Court asked the Youth Office whether the siblings were still staying with the same foster family. On 9 April 1996 the first two applicants informed the Regional Court that they had entered into negotiations with the Youth Office with the aim of reaching a friendly settlement. Accordingly, the Regional Court was asked not to pass a decision on the request for interim measures. On 26 April 1996 the third applicant's father withdrew his complaint. On 4 September 1996 the Regional Court asked the first and second applicants' counsel whether an agreement had been reached. On 26 September 1996 the Regional Court judge had telephone conversations with the Youth Office and the applicants' counsel. He noted that the first and the second applicant did not yet wish to withdraw their complaint and that their counsel proposed to suspend the proceedings. On 15 April 1997 the Regional Court asked the first and second applicant's counsel on how they wished to proceed with their complaint. The presiding judge noted that a further suspension of the proceedings could not be justified. In May 1997 D. was placed in the first two applicants' household, while the third applicant remained in a foster family. By letter of 12 May 1997 the first two applicants informed the Regional Court that the endeavours to reach a friendly settlement had failed and that the third applicant had been given into the care of another foster family. They requested the Court to continue the proceedings and to grant them a time-limit to submit further reasoning by 4 June 1997, which they later requested to be extended until 20 June 1997. By letter of 3 July 1997 the first two applicants submitted further pleadings. They submitted an expert opinion, according to which there was no indication that the first two applicants would have difficulties to cope with the task of raising both children. They further declared that they did not pursue anymore their main request for an interim measure of 11 March 1996 and the first alternative request. On 9 July 1997 the District Court requested the Youth Office to comment on the applicants' submissions within a time-limit of three weeks. On 29 July 1997 the Youth Office stated that the third applicant should remain in the foster family. On 21 August 1997 the first two applicants requested the Regional Court to accelerate the proceedings. They further complained that the Youth Office did not comply with its obligation to supervise the visiting rights. On 23 September 1997 the Judge Rapporteur heard the third applicant within her foster family. On 12 November 1997 the Judge Rapporteur heard the first two applicants and the siblings' maternal grandparents. On 20 November and 11 December 1997 the first two applicants requested to be granted leave to submit further comments. On 2 January 1998 the Regional Court decided that the Judge Rapporteur should hear the third applicant's mother, who was at the time serving a sentence in Bielefeld prison. This was carried out on 6 March 1998. On 30 March 1998 the first two applicants submitted their comments on the mother's hearing. On 24 April 1998 the Youth Office submitted further comments. On 28 April 1998 the first two applicants requested the Regional Court to accelerate the proceedings. On 7 May 1998 the Regional Court requested the case-file from the District Court, which reached the Regional Court by 29 May 1998. On 24 June 1998 the first two applicants informed the Regional Court that their rights of access to the third applicant had been extended from once every six weeks to once every four weeks. Further access rights had been denied. In view of the fact that a further lapse of time could actually weaken the applicants' position, they requested the Regional Court to accelerate the proceedings. By decision of 20 July 1998 the Regional Court discharged the Youth Office as D.'s guardian and appointed the second applicant as his guardian. It rejected however the first and second applicants' complaint with respect to the third applicant's guardianship. The Regional Court found that the first and the second applicant were well suited to raise D. However, it would not be in the third applicant's best interests to be deprived of her current foster family. The passages regarding the third applicant's development read as follows: “According to the expert K.'s opinion, which concurs with the content of the casefile, Ireen had not been able to build steady and supportive relationships during the first three years of her life. She had been taken care of by continuously changing attachment figures, including her mother, her maternal grandparents, her father, her paternal grandparents, and finally the first foster parents. When examined by the expert, she already showed considerable behavioural disorders, such as a lack of distance (Distanzlosigkeit), an inability to bond (Bindungsschwäche) and an inability to adjust (fehlende Einordnung). As [the first two applicants] had told the expert, she walked up to anybody and would not accept to be told anything. This had been confirmed by the maternal grandparents and [the first foster mother]. The latter added that Ireen did not show any inhibitions concerning her contact with men, that she followed and even kissed them. At the beginning of her stay with the foster family, she had shown distinct rocking motions, could not accept limits, put everything into her mouth and had a phase of spitting. During the subsequent time she intensively smeared around with excrement. She was also very jealous of her brother. Both children lacked a daily routine and had to learn how to play. After Ireen had stayed for 8.5 months in the care of the [first] foster family, a new change of attachment figure occurred by her placement in the [second] foster family. As [the second foster mother] reported on the occasion of Ireen's hearing, Ireen continued to show considerable behavioural disorders. She appeared mask-like, was “just a friendly child”, did not show sorrow or pain and lacked any sense of distance. Furthermore, she was hyperactive and unable to adjust. She fell down on straight paths, which, as [the foster mother] supposed, was owed to the fact that her mind was so restless that she was unable to control her movements. Ireen had a totally disordered day and night rhythm. She was temporarily very restless and demanded permanent attention, but also to be set limits. She was now able to abide by simple rules. Ireen suffers from neurodermatitis, which – according to [the second foster mother] had been aggravated in situations of stress. The statements of [the second foster mother] show that the behavioural disorders which had been found by the expert K., who attributed them to her unsteady socialisation, persisted after she was taken into the household of [the second foster family]. Ireen's behaviour during her hearing showed that she had since developed positively and in particular that she had learned to adjust. She followed [the foster mother's] requests and propositions without opposing to them. She did not try to raise special attention...The hearing and observation of the child made it clear that she had settled well into the foster family and that she had obviously bonded with her foster parents...” The Regional Court concluded that, given the third applicant's lack of socialisation during the first three years of her life and her positive development in the second foster family, where she had stayed for two years, it could not be justified to deprive her of this stable environment. On 10 August 1998 the first two applicants lodged a further complaint with the Hamm Court of Appeal (Oberlandesgericht) with a view to being granted guardianship of the third applicant. They argued that the Regional Court had failed to hear expert opinion, to hear the interested parties before the whole chamber and to appoint a curator ad litem (Verfahrenspfleger) to represent the third applicant during proceedings. They further requested the Court of Appeal to pass an interim order granting them the right to determine the third applicant's residence. On 17 August 1998 the first two applicants submitted thirty additional pages of reasoning and requested the Court of Appeal to establish that the Regional Court had failed to respect their right to a trial within a reasonable time. On 23 October 1998 the first two applicants requested the Court of Appeal to accelerate proceedings and to pass a decision on their request for an interim order. On 9 November 1998 the Court of Appeal rejected the request for an interim order on the grounds that it would soon pass a decision in the main proceedings and that a change of the third applicant's attachment figures would be contrary to the child's best interests. On 1 December 1998 the Court of Appeal quashed the decision of 20 July 1998 and remitted the case to the Regional Court. It found that the Regional Court had failed to raise evidence by expert opinion on the relationship between the third applicant and her foster parents. The Court of Appeal rejected the applicants' request of 17 August 1997 to establish the allegedly undue length of proceedings for lack of a legal basis. It further ordered the Regional Court to appoint a curator ad litem (Verfahrenspfleger), to safeguard the third applicant's interests during proceedings. On 4 January and 17 March 1999 the first two applicants requested a swift processing of the proceedings in view of the fact that the third applicant still remained with a foster family. On 16 April 1999 the Regional Court decided to hear expert opinion and appointed a curator ad litem to represent the third applicant. On 27 July 1999 the expert informed the court that she had agreed with the first two applicants and with the foster parents that the third applicant should also be examined with respect to her behaviour during and after a three weeks' holiday which she would spend with the first two applicants. Accordingly, she would submit her expert opinion by the end of September 1999. On 3 October 1999 the expert submitted her expert opinion. She found that the foster family, especially the foster mother, had succeeded to help the third applicant to develop from a disturbed, mentally disordered child, who had been unable to build relationships, into a healthy, self-confident six year old girl. This positive development was owed to the foster mother's high qualification as a trained social pedagogue and the additional support offered by a professional institution devoted to the welfare of children. In spite of the fact that the third applicant was very much attached to her foster family, she nevertheless expressed the strong wish to live with the first two applicants. With regard to the fact that the child felt torn between the two families, the expert recommended to postpone a final decision for one year until the third applicant's entrance into primary school. However, if a decision had to be taken earlier, the expert found that the first and the second applicant were very well able to raise both grandchildren, and that they were willing to seek professional assistance if this should appear necessary. Considering the third applicant's strong wish to live with her grandparents, the expert recommended to place her into the care of the first and the second applicants. On 14 October 1999 the expert opinion was served on the parties for comments within two weeks. On 4 November 1999 the first two applicants submitted their comments and requested the Regional Court to schedule a hearing. On 11 November 1999 the foster family organisation submitted their comments, according to which the third applicant should remain within the foster family, while maintaining regular contact with the first two applicants. On 12 November 1999 the third applicant's curator ad litem submitted her comments, according to which the expert had not sufficiently explored the first two applicants' ability to raise the third applicant. She further found that, while the child's own wishes were not to be neglected, a child of six years was not able to reach an autonomous decision on its circumstances of life. On 15 November 1999 the curator ad litem asked that the expert should be heard by the court. On 16 November 1999 the District Court served the comments to the applicants for further comments within two weeks. On 1 December 2001 the first two applicants submitted comments drafted by a psychological expert, which supported the court-appointed expert's conclusions. On 6 January and 11 February 2000 the applicants requested the Regional Court to promote the proceedings and to schedule a hearing. On 8 January 2000 the curator ad litem asked to be granted one week's leave for further comments. On 10 February 2000 the Regional Court informed the applicants about its intention to schedule a hearing for 1 March 2000, which could not take place because of the expert's illness. Should the expert be able to attend a hearing on 15 March 2000, the hearing would be scheduled accordingly. On 28 February 2000 the expert informed the Court that she could appear on 15 March 2000. On 29 February 2000 the Regional Court scheduled a hearing for 15 March 2000. On 13 March 2000 the first two applicants submitted further comments. On 15 March the Regional Court held a hearing, in which it heard the foster parents, the first two applicants, the expert and the curator ad litem. By decision of 20 March 2000 the Regional Court discharged the Youth Office and appointed the first and the second applicants as the third applicant's guardians. In its reasoning, the Regional Court referred to the expert's finding that the first two applicants were well suited to raise the third applicant and that the latter had expressed a strong wish to live with them. On 26 April 2000 the first and second applicant lodged a further complaint against the decision of 15 March 2000 with the aim to be granted legal aid and to establish that the length of the proceedings before the Regional Court had violated their rights under the Basic Law and under Articles 6 § 1, 8 § 1 and 13 of the Convention. On 25 September 2000 the Hamm Court of Appeal refused to grant legal aid and rejected the complaint as inadmissible, maintaining that there was no provision in the procedural law which allowed establishing that proceedings had lasted too long. On 3 November 2000 the first and second applicant raised an objection (Gegenvorstellung) against the refusal to grant them legal aid, which was rejected on 5 December 2000. On 11 January 1999 the first and second applicant lodged a constitutional complaint in which they complained about the length of the proceedings before the Regional Court and about the decision of the Hamm Court of Appeal of 1 December 1998. On 6 November 2000 all three applicants lodged a constitutional complaint complaining about the length of the proceedings before the Regional Court, about the decisions of the Regional Court of 20 July 1998 and 20 March 2000 and about the decisions of the Hamm Court of Appeal of 1 December 1998 and 25 September 2000. On 9 November 2000 the applicants requested the Constitutional Court to grant them adequate compensation for the length of proceedings. On 15 December 2000 the applicants lodged a complaint in which they complained about the Court of Appeal's decisions of 25 September and 5 December 2000 to deny them legal aid. On 25 January 2001 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicants' complaints as being inadmissible. That Court further found that there was no legal basis to grant the applicants compensation. This decision was served on the applicants on 5 February 2001.

dev

001-69790

ENG

RUS

CHAMBER

CASE OF RYTSAREV v. RUSSIA

Preliminary objection allowed (victim)

9. The applicant was born in 1956 and lives in the village of Zhdimir in the Oryol Region of Russia. 10. On 8 July 2000 the applicant was arrested and detained on suspicion of having committed theft of aluminium wire. He was placed in a cell intended for the detention of administrative offenders (“KAZ”) at the Znamenskiy district police station in the village of Znamenskoye. 11. On 9 July 2000 the applicant lodged a complaint with an investigator of the Znamenskiy District Police Department of the Oryol Region, seeking to have the lawfulness of his arrest and detention challenged before the Znamenskiy District Court of the Oryol Region and requesting that he be released. The complaint was never sent to the court. 12. On 11 July 2000 the applicant was charged with theft. On the same day an order for his pre-trial detention was issued by the investigator and confirmed by the prosecutor of the Znamenskiy District of the Oryol Region. 13. On 13 July 2000 the applicant was transferred to detention facility no. 1 (Investigatory Isolation Ward no. 1) in the town of Oryol. 14. On 27 July and 9 August 2000 the applicant again complained about the unlawfulness of his arrest and detention, this time to the Sovetskiy District Court of Oryol. The complaints reached the court on 7 and 16 August 2000 respectively. 15. On 17 August 2000 the Sovetskiy District Court asked to be sent the case file for examination and scheduled a hearing for 23 August 2000. The hearing was not held, since the case file had not been communicated and the applicant had not been brought to court. 16. On 22 August 2000 the applicant's counsel wrote to the prosecutor of the Znamenskiy District of the Oryol Region, complaining about the investigator's failure to transfer the applicant's complaint of 9 July 2000, alleging unlawful detention, to a court. The prosecutor did not react. 17. On 5 September 2000 the Sovetskiy District Court held a hearing. The court found that the applicant's arrest and detention were unlawful and ordered that he be released directly from the courtroom. 18. On 18 December 2001 the Khotynetskiy District Court of the Oryol Region remitted the criminal case against the applicant on a charge of theft to the public prosecutor of the Znamenskiy District of the Oryol Region for further investigation. 19. By a decision of 12 September 2003 the Znamenskiy District Court of the Oryol Region discontinued criminal proceedings in view of the fact that the prosecution service had dropped the charges against the applicant. 20. The applicant brought proceedings for non-pecuniary damage caused as a result of his detention. 21. On 23 April 2004 the Zheleznodorozhniy District Court of Oryol held: “...the court has come to the conclusion that the plaintiff Rytsarev was unlawfully held in custody during the preliminary investigation for a total of over 56 days..., which caused him moral and physical suffering. Furthermore, with regard to compensation for non-pecuniary damage, the court takes into account that, while detained in the KAZ of the Znamenskiy District of Oryol Region from 8 July to 12 July 2000 inclusive, Rytsarev was not given food since, according to the report for the period from 6 to 15 July 2000 by the public catering enterprise “Znamenskoye”, which supplies meals for persons detained in the Znamenskiy district police department's KAZ, food was not delivered to the district police department from 6 to 13 July 2000... In that connection, the court cannot account of two applications from the head of the district police department ... requesting two meals for detainees, since one is undated and the other is dated 11 July 2000, in other words four days after Rytsarev was detained, and they do not indicate for whom the meals were ordered... Equally, it follows from the application by ... Rytsarev's brother ... that food parcels ... [for Rytsarev] were not accepted from him or other relatives [by the Znamenskiy district police department's KAZ]. Only water and tea were accepted...” 22. The court awarded the applicant 30,000 Russian roubles (RUR) for nonpecuniary damage. The judgment came into force on 2 June 2004. 23. According to the Government, the sum awarded was paid to the applicant on 25 October 2004 in execution of the judgment. This was not denied by the applicant. 24. According to the applicant, he was given no water or food during his detention in the Znamenskiy district police station's KAZ from 8 to 12 July 2000 inclusive. His relatives were allowed to pass him only water and tea in two 1.5 l bottles on 9 July 2000. He was not taken out for exercise or permitted to go to a lavatory, which was located outside the building, as frequently as he needed. 25. Records of the applicant's questioning on 9 July 2000 contain a statement by him to the effect that he had not eaten anything since the previous day and had not been given water. Similarly, records of his questioning on 12 July 2000 contain statements that he had not been given anything to eat and drink, that he had been brought water by his brothers and that the investigator had offered to give him food in exchange for a guilty plea. 26. The applicant's complaint of 22 August 2000 about the conditions of his detention was dismissed on 23 August 2000 as illfounded by the Znamenskiy District prosecutor's office. However, the prosecutor noted that there had been no courtyard suitable for detainees' exercise on account of repair work. 27. In their observations of 3 October 2003 the Government submitted that daily meals had been served to detainees at lunchtime by the only catering enterprise in the village. The detainees had been served only tea for breakfast and dinner. Food from relatives was accepted without restrictions. According to police officers from the Znamenskiy district police station, the applicant refused meals provided by the police. However he received daily food parcels from his relatives, without restrictions. There were no limitations on drinking water. He did not complain about the shortage of water or food. Thus, when questioned by the district prosecutor on 11 July 2000 he made no complaints about his detention conditions. He asked only that a doctor be called since he felt unwell, and that request was granted. The applicant was regularly taken out to a lavatory. He was not tortured and no degrading acts were performed against him. 28. The Code of Criminal Procedure of 1960, in force at the material time, provided as follows: “... The accused may ... appeal to a court against the unlawfulness and groundlessness of detention...” “... When a prison administration receives a detainee's [appeal to a court against pre-trial detention], it must pass the [appeal] to the relevant court immediately, and, at any rate, not later than 24 hours after its receipt, having informed a public prosecutor... If the appeal was lodged via the prison administration, the prosecutor must send [the documents confirming the lawfulness and validity of the detention as a measure of restraint] to the court within 24 hours of receipt of the prison administration's notification that the person concerned has lodged an appeal...” “... A judge must review the lawfulness of the detention ... within three days of receipt of documents confirming the lawfulness and validity of the detention as a measure of restraint...”

dev

001-71654

ENG

RUS

ADMISSIBILITY

LAZAREV AND LAZAREV v. RUSSIA

Inadmissible

Christos Rozakis

The applicants, Mr Vladimir Ivanovich Lazarev and Mr Pavel Vladimirovich Lazarev, are Russian nationals who were born in 1955 and 1992 respectively and live in Moscow. The first applicant is the father and legal representative of the second applicant. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. Both applicants live, together with the second applicant’s mother and his elder brother Vladimir (born in 1983), in a flat in Moscow which is not the subject of the present application (“the old flat”). Under the terms of a private ownership certificate dated 26 October 1998, the second applicant is the sole legal owner of the old flat. In March 1999 the first applicant invested money in the construction of a block of flats in Moscow. Once the work was completed, the first applicant registered title to a flat in that block (“the new flat”) in his own name and those of his two sons, Pavel (the second applicant) and Vladimir, in equal shares. In 2001 the applicant decided to sell the new flat and applied for clearance of the transaction to the guardianship and wardship department of Lefortovo District Council in south-eastern Moscow (отдел опеки и попечительства районной управы «Лефортово» ЮВАО г. Москвы, “the guardianship authority”). On 9 January 2002 a deputy head of Lefortovo District Council informed the applicant that clearance would not be given because the sale “would result in a reduction of your underage son’s property” and it would therefore be “not in the interests of the minor”. The applicant appealed to a court. On 17 April 2002 the Lefortovskiy District Court of Moscow gave judgment. It found that Article 60 § 3 of the Family Code did not apply because the new flat had not been (formally) donated to the second applicant, nor had it been inherited by him or acquired at his expense. The new flat had been purchased by the first applicant, who had invested his and his wife’s savings. Having regard to the fact that the second applicant was also the legal owner of the flat where the applicants’ family lived, the court found that the refusal by the guardianship authority had not been justified. On 10 May 2002 the Moscow City Court, on an appeal by the guardianship authority, quashed the judgment and remitted the case to the District Court. It pointed out that an interest in the new flat had been duly registered in the second applicant’s name and that the District Court had failed to verify what compensation would be made available to the second applicant following the sale of his share. On 21 October 2002 the Lefortovskiy District Court of Moscow delivered a new judgment and dismissed the complaint on the following grounds: “[The first applicant] confirmed before the court that onethird of [the new flat] had been transferred to [the second applicant] voluntarily. Accordingly, the sale of the flat, including [the second applicant’s share], would result in a reduction of his property. The court cannot take into account the [first applicant’s] argument that the sale of [the new flat] would not impair the minor’s rights because the minor is the legal owner of the [old flat]. The minor had acquired the right of ownership over the [old flat] in 1998, and in 2000 he acquired the right of ownership to onethird of the [new flat]. As by that time he already had title to the [old flat], the sale of onethird of the [new flat] would entail a reduction of the minor’s property, which is not permitted under the applicable legislation. Pursuant to Article 37 of the Civil Code and Article 60 of the Family Code, the underage child’s property may be disposed of only in his interests. Pursuant to letter no. 244/26-5 sent by the Ministry of Education (on 9 June 1999), the sale of residential premises must in all cases be accompanied by the purchase of residential premises in the minor’s name, if he is to lose his share of the property. [The first applicant] did not produce any evidence showing how [the second applicant] would be compensated for the loss of onethird of the [new flat].” On 18 November 2002 the Moscow City Court upheld the judgment of 21 October 2002. It endorsed the same line of reasoning: the transaction would result in a reduction in the minor’s property and was therefore not in the minor’s interests. Article 60 § 3 provides that a child acquires title to, inter alia, the property donated to him, inherited by him or acquired at his expense. The child’s rights to dispose of his property are governed by Articles 26 and 28 of the Civil Code. The parents may dispose of the child’s property in accordance with the rules set out in Article 37 of the Civil Code. Article 60 § 4 provides that the child’s parents have no title to the child’s property. Article 26 provides that, with certain exceptions concerning smallscale, routine transactions, transactions entered into by minors aged 14 to 18 are valid only if approved by their legal representatives, in other words their parents, adoptive parents or guardians. Article 28 provides that transactions on behalf of a minor under fourteen years of age must be carried out by his or her parents, adoptive parents or guardians. Transactions carried out by legal representatives of the minor in respect of the minor’s property are governed by Article 37 §§ 2 and 3. Article 37 § 2 provides that a guardian may not alienate his charge’s property or perform any transaction resulting in a reduction of the charge’s property without obtaining preliminary clearance of the planned transaction from the guardianship and wardship authority. Article 34 § 1 designates the local self-government bodies which are responsible for guardianship and wardship matters. On 9 June 1999 the Ministry of Education of the Russian Federation sent a letter (no. 244/26-5) entitled “On additional measures for the protection of minors’ right to housing” to all guardianship and wardship departments. The relevant part of the letter reads as follows: “If a guardianship and wardship authority issues advance clearance of a transaction which involves the sale of a flat followed by the subsequent purchase of a flat, the operative part of the clearance (resolution) must either specify that the transaction is to be carried out subject to the condition that the new flat will be purchased in the minor’s name if the minor loses his interest in the [sold] property, or indicate the address where the minor is to live if the minor is simply a member of the legal owner’s family.”

dev

001-83100

ENG

SVN

ADMISSIBILITY

SINKOVIC v. SLOVENIA

Inadmissible

Corneliu Bîrsan;David Thór Björgvinsson

The applicant, Mr Giuliano Sinkovič, is a Slovenian national who was born in 1949 and lives in Piran. He was represented before the Court by Mr E. Dokič, a lawyer practising in Piran. In 1992 a company, HIT, published in a local newspaper an invitation to submit proposals for the name of a new casino. A reward of 100,000 Slovenian tolars (approximately 415 euros) was promised to the person whose proposal was chosen. The applicant sent a list of 107 proposals in the prescribed period. On 21 August 1992 HIT informed the applicant about the two chosen proposals, neither of which had been picked out of the applicant’s list. It appears that the name that the new casino was finally given was not one of the chosen ones, but one from the applicant’s list. Therefore, in 1994 the applicant, relying on the provisions of the Copyright and Related Rights Act (Zakon o avtorski in sorodnih pravicah), requested the Ljubljana District Court to disallow further use of the casino’s name and to order HIT to remove all visible signs containing it. The company would have been exempted from this obligation if it had paid the applicant the amount of 20,000,000 Slovenian tolars (approximately 83,330 euros). On 25 September 2000 the court rejected the applicant’s claim. It held that the term from the applicant’s list, finally used to name the casino, did not constitute the work of an author and was therefore not protected by copyright. It concluded that the applicant could have claimed the promised reward (see above), but had failed to do so. On an unspecified date the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani). On 20 December 2000 the court dismissed the applicant’s appeal. On 22 March 2001 the applicant, not represented by a lawyer, lodged a constitutional appeal. On 18 December 2002 the Constitutional Court (Ustavno sodišče) dismissed the applicant’s appeal. The applicant did not indicate the date on which this decision was served on him. The applicant dated his first letter to the Court 23 June 2003. The applicant posted it, as a registered letter, at 7.05 p.m. on 24 June 2003 at the post office in Piran. On 27 July 2004 the applicant lodged a duly completed application form, nearly a year after receiving the Court’s letter advising him to do so. Section 25 - Just satisfaction for damage sustained prior to implementation of this Act “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ... ...”

dev

001-96165

ENG

TUR

CHAMBER

CASE OF NARIN v. TURKEY

Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Alvina Gyulumyan;Elisabet Fura;Josep Casadevall;Luis López Guerra

5. The applicants were born in 1948, 1978, 1968, 1976, 1980, 1981, 1983, 1984, 1985 and 1986 respectively and live in Diyarbakır. 6. On 3 October 1992, at 10:30 a.m., clashes occurred in the district of Kulp in the province of Diyarbakır, between the PKK (the Workers' Party of Kurdistan, an illegal organisation) and the security forces, subsequent to the killing of two gendarmes and grave injury of two other gendarmes in a military vehicle by PKK militants. At that time the applicant, Hakan Narin and his father, Abduvahit Narin, were in the Narin Hotel, which belonged to them. During the clash some other individuals from the town and hotel customers joined them in the basement of the hotel to seek shelter from the clash. There were a total of thirty-five people hiding in the basement of the hotel. 7. According to the applicants' version of events, at around 4 p.m. the security forces raided the hotel and gathered the people on the ground floor. They singled out Adulvahit Narin from the crowd and took him into the hotel director's office. After a while the applicant, Hakan Narin, heard gunshots coming from the office. The security forces then allegedly poured petrol on the floor and set the hotel on fire. 8. On 4 October 1992 two incident reports describing the events in question were prepared and signed by a number of gendarme officers who took part in the clashes. According to this report, on 3 October 1992, at around 10.30 a.m., PKK militants opened fire on a military vehicle on a main street in Kulp. As a result, two gendarmes died and two were severely injured. Hearing the gunfire, security forces arrived on the scene. PKK militants also fired at them and the security forces returned fire. The clashes, which lasted until 5 p.m., caused the destruction of a number of vehicles and some buildings. It was understood that the real aim of the PKK members was to take control of the Kulp Gendarmerie Station and to seize the weapons therein. Some of the PKK militants hid in the Narin Hotel and opened fire on the security forces. When leaving the town they set the hotel and a number of other buildings on fire. When they were informed that there was a burned body at the hotel, a team of security forces arrived at the hotel in the morning of 4 October 1992. They found an unidentifiable burned body, a Kalashnikov rifle and sixty-four empty cartridges there. The security forces noted that all the furniture in the hotel had been burned, there were a number of bullet holes in the walls and gas cannisters found in the kitchen had exploded as a result of the fire and had caused massive damage to the building. A sketch map describing the state of the hotel and location of the body was also drawn up by a gendarme officer. 9. On 4 October 1992, at 3:50 p.m., the Kulp Public Prosecutor arrived at the Narin Hotel with a doctor. They conducted a classical autopsy and an on-site investigation. The on-site investigation report noted that a burned body was lying in one of the ground-floor rooms of the hotel. The report also contained Hakan Narin's testimony that two expert sergeants, whose names he did not know but whom he could identify if shown, took his father to the director's office. He then heard gunshots coming from that direction, and saw the security forces throw grenades into the room. He further stated that M.Y., A.Y., M.A., and the teachers A.A., M.Y., H.S. and F.A., who were in the hotel at the time, also witnessed the incident. The report noted that five discharged bullet cartridges were found twenty or thirty metres from the body. Neither Hakan Narin nor the deceased's wife Perinaz Narin could determine whether the burned body was that of Abdulvahit Narin. 10. The Kulp Public Prosecutor took statements from two gendarmes who were injured in the course of the clashes. They stated that they had come to Kulp from Diyarbakır Regional Gendarmerie Command in order to ensure security. When they arrived in Kulp they were attacked by members of the PKK and wounded as a result of the gunfire. 11. On 6 October 1992 the Kulp Public Prosecutor issued a decision of non-jurisdiction and referred the case to the Chief Public Prosecutor's office at the Diyarbakır State Security Court. 12. On 8 October 1992 the Diyarbakır Chief Public Prosecutor's Office issued a decision to join the investigation files concerning the killing of two gendarmes and Abdulvahit Narin, since both had occurred in the course of the events in Kulp. 13. On 25 June 1993 the public prosecutor at the State Security Court took statements from the deceased's two sons and two persons who had witnessed the events. The applicant Hakan Narin repeated the statement he had made to the public prosecutor during the on-site investigation. He further stated the following: “During the events in question, I was with the deceased (Abdulvahit Narin). The hotel was under gun and rocket fire. I locked the doors of the hotel and went down to the basement together with the customers for safety reasons. They (the soldiers) broke down the door and entered the hotel. My father was alive and holding my hand. Two expert sergeants who work in Kulp, namely N.T. and L.B., hit my hand and took my father to the director's room. I heard a sound of gunfire from the director's room. They had already locked down the basement when they took my father to the director's room. When the gunfire ended, they took us to the lounge and told us to take off our jackets. We took off our jackets. They poured petrol on us. However, they did not burn us. They then carried the jackets into the director's room. They poured petrol on my father and burned him. They left three hand grenades in the director's room. These bombs exploded one after the other. They burned everything in the hotel. The expert sergeants whom I have mentioned above caused the death of my father. There were thirty-five customers who witnessed this event. I request that criminal charges be brought against [the expert sergeants]...” 14. Azattin Narin, who is another of the sons of the deceased, stated that he had been in Istanbul at the time of the events. He had also heard that two expert sergeants, N.T. and L.B., had caused the death of his father. Mehmet Yıldırım and Aladdin Yıldırım, who were customers at the Narin Hotel at the time of the events, gave statements in line with Hakan Narin's. They added that the security forces took them to the station after the incident, but released them without taking statements from them. 15. In addition to the above statements, the applicants' representative submitted to the Court statements given by another witness, Nihat Ezer, on 13 August 2001. According to this witness, who sought shelter in the Narin Hotel during the clashes, Abdulvahit Narin was separated from the rest of the group and taken to the director's room in the hotel. The witness then heard gunshots coming from that room. The soldiers threw three hand grenades and the hotel caught fire. The witness was taken to the gendarme station together with other people and released afterwards. 16. On 12 May 1994 and 10 June 1994 the Diyarbakır Public Prosecutor took statements from N.T. and L.B. in relation to the allegations concerning the killing of Abdulvahit Narin. N.T. and L.B. denied the allegations that they had been involved in the killing of Abdulvahit Narin and claimed that they had taken part in the clashes against the PKK in order to ensure security in Kulp. They had seen that the Narin Hotel and a number of other buildings had caught fire and stated that they had gone back to their barracks when the clashes were over. 17. In a letter dated 28 July 1994 the Kulp Public Prosecutor requested the Gendarmerie Command in Kulp to provide information concerning the location of and duties assigned L.B. and N.T. on 3 October 1992. 18. In a report dated 14 November 1994, signed by a gendarme sergeant and two gendarmes, it was stated that the location of and duties assigned to L.B. and N.T. on 3 October 1992 were unknown, since there was no record. 19. It transpires from the documents submitted by the parties that since 1994 no further steps have been taken to identify the perpetrators of the killing of Abdulvahit Narin. 20. On 24 November 1992, one of the sons of Abdulvahit Narin applied to the Kulp Civil Court of First Instance for an assessment report of the damage caused to the hotel in order to lodge actions for compensation. 21. On 28 September 1993 the applicants applied to the Ministry of the Interior (“the Ministry”) for compensation for the loss they had suffered as a result of the death of their relative and the damage done to the hotel. The Ministry rejected the request. 22. On 4 April 1994 the applicants brought an action for compensation in the Diyarbakır Administrative Court against the Ministry, for the damage they had suffered in respect of the death of their relative (“first set of proceedings”). In their application to the court the applicants noted that the perpetrators of the killing of Abdulvahit Narin were unknown. Although the officials claimed that he had been killed and that his hotel had been burned down by members of the PKK during the clashes, the witnesses stated Abdulvahit Narin had been killed by the security forces. Notwithstanding who killed the victim, the State was responsible for the death of the victim and was obliged to compensate for the damage resulting from his death and the destruction of the hotel. 23. On 12 July 1994 the applicants brought a second action against the Ministry, claiming compensation in respect of the material damage caused to the hotel (“second set of proceedings”). 24. By decisions of 17 November and 20 November 1995 the Diyarbakır Administrative Court decided that it had no jurisdiction over the cases. 25. On 6 November 1997 and 4 December 1997 the Supreme Administrative Court set aside the Diyarbakır Administrative Court's decisions of non-jurisdiction and remitted the cases to it for examination. 26. On 18 June 1999 the Diyarbakır Administrative Court partly accepted the applicants' request and awarded them 523,200,000 Turkish liras (TRL, approximately 1,223 euros (EUR) at the material time) in compensation for the pecuniary damage caused to the hotel. 27. On 21 June 2000 the Diyarbakır Administrative Court, relying on the State's strict liability and “the social risk theory”, awarded the applicants a further TRL 738,107,475 (approximately EUR 1,264 at the material time) in compensation for the pecuniary and non-pecuniary damage they had suffered in respect of the death of their relative. This judgment was upheld by the Supreme Administrative Court on 13 December 2001. 28. On 16 June 2001 the Supreme Administrative Court upheld the judgment of the Diyarbakır Administrative Court concerning the damage caused to the hotel. 29. On 18 January 2002, the administration paid the applicants the sum of TRL 2,091,892,880 (approximately EUR 1,732 at the material time) in compensation for the death of their relative and damage done to the hotel. 30. In March 2002, the applicants applied to the Public Prosecutor's office at the Diyarbakır State Security Court requesting information about the outcome of the criminal investigation into the death of their relative. 31. On 11 March 2002 the Public Prosecutor informed the applicants that the investigation was still pending. Following this response, on 9 April 2002 the applicants lodged their application with the European Court. 32. According to the Diyarbakır Chief Public Prosecutor's report of 28 October 2008, the investigation into the killing of Abdulvahit Narin and the two gendarmes is still pending. 33. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation. If the claim is rejected in whole or in part, or if no reply is received within six days, the victim may bring administrative proceedings. 34. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decision of the authorities are subject to judicial review... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” 35. That provision established the State's strict liability, which comes into play if it is shown that, in the circumstances of a particular case, the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to prove a tortuous act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.

dev

001-77054

ENG

RUS

CHAMBER

CASE OF ANDANDONSKIY v. RUSSIA

No violation of Art. 6

David Thór Björgvinsson

7. The applicant was born in 1937 and currently lives in the village of Veshenskaya, Sholokhovskiy District, Rostov Region. 8. On 13 June 2000 the Moskovskiy district prosecutor's office of St Petersburg brought criminal proceedings against the applicant on suspicion of the attempted murder of N. on 7 April 2000. 9. On 31 January 2002 the Moskovskiy District Court of St Petersburg examined the case in an open hearing in the presence of the applicant, his counsel and a public prosecutor. It convicted the applicant of intentionally inflicting grievous bodily harm on N. and sentenced him to two years' imprisonment. Under an amnesty law enacted on 26 May 2000, the court ordered that the applicant be discharged. It further ordered that he should pay pecuniary and non-pecuniary damages to the victim. 10. The court established the facts as follows. On 7 April 2000 at about 8 p.m., in the course of a quarrel with N., the applicant attacked N., knocked him off his feet, sat on him, grabbed his head and hit it several times against the asphalt pavement. As a result of the applicant's actions N. sustained head injuries including fractures to both parietal bones and a haematoma and a graze in the right parietooccipital region (fractures to the calvarium), a brain contusion, a haematoma in the region of the left eye and grazes to the face. The fractures to both parietal bones and the haematoma and the graze in the right parietooccipital region were assessed as severe injuries and the remaining injuries as moderately severe. 11. The applicant's version of events was as follows. He had been out walking with his one-year-old grandson when a man (N.) and a woman (B., N.'s wife), previously unknown to him, had approached them and rebuked him for not looking after the child properly. In the course of the quarrel which broke out between them N., who was in a state of inebriation, had insulted him and attempted to kick him. The applicant had managed to grab N.'s leg. N. had fallen and the applicant had fallen on top of him, resulting in N.'s head injuries. He had not hit N.'s head against the pavement. 12. It is clear from the judgment that the court based its findings on statements by the victim N. and his wife B., the record of a confrontation between the applicant and B. during the preliminary investigation, statements by witnesses E. and K., and the conclusions of the forensic medical examination. 13. Thus, N. stated before the court that when out walking with his wife he had seen a child and had called out, saying that the child could hurt himself. The applicant had then attacked him from behind. He did not remember what had happened next. 14. B. asserted at the hearing that she and her husband N. had seen the child and tried to attract someone's attention to the situation. They had then been approached by the applicant who was in a drunken state. He had insulted them using abusive language and had tried to hit her husband. They had carried on walking. The applicant had then attacked her husband, knocked him off his feet, sat on him, grabbed his head and hit it about five times against the pavement. He had then jumped to his feet and run away. An ambulance had been called and her husband had been taken quickly to hospital. 15. On 2 October 2000 during the preliminary investigation the applicant confronted B. In the course of the confrontation B. insisted that it was the applicant who had brought about the conflict and that he had knocked her husband off his feet, sat on him, grabbed his head and hit it about five times against the pavement. 16. Witness E., who was summoned to the court, failed to appear. On 23 January 2001 she wrote to the court as follows: “I am writing to inform you that I cannot appear in court in the case [of Andandonskiy] because of my state of health and my age. My statements in the case and my passport details are with a district police officer from police station no. 68 who recorded statements made by me. I confirm those statements again.” Her letter was received by the court on 29 January 2001. 17. According to the record of the hearing before the Moskovskiy District Court on 10 October 2001, submitted by the Government, the applicant and his lawyer did not object to the court's examination of the case (судебное следствие) being started in the absence of witness E., who had not yet been examined at the trial. When, at the end of that hearing, they were asked by the judge about the possibility of concluding the examination of the case in the absence of E., who was not able to attend for health reasons, and N., who had failed to appear due to his illness and authorised his wife to represent him at the trial, they replied: “[We leave this decision] to the discretion of the court.” Having then heard evidence from the victim B. and the prosecutor, the court ordered that the case be adjourned and that the victim N. should submit for the next hearing a written request for examination of the case in his absence. 18. According to the record of the hearing before the Moskovskiy District Court on 19 November 2001, submitted by the Government, the applicant and his lawyer did not object to the court's examination of the case being started in the absence of witness E. The record also shows that at that hearing the court read out, in accordance with Article 286 of the Code of Criminal Procedure, the statements which E. had given on 6 July 2000 during the preliminary investigation, as she was unable to attend the hearing for health reasons. No questions or additions followed from the applicant or his lawyer. In reply to a question by the judge, the applicant and his lawyer then expressly stated that they did not object to the examination of the case being concluded in E.'s absence. Having heard evidence from the victim B. and the prosecutor, the court ordered that the examination of evidence be concluded. The applicant and his lawyer made no comments in response. The court then proceeded to the pleadings. 19. In her statements made on 6 July 2000 during the preliminary investigation, which the court read out at the hearing on 19 November 2001, E. stated that she had seen the applicant knock the victim N. off his feet, hit his head at least five times against the pavement and run away. Being a doctor, she had examined the victim. She had seen that he was becoming unconscious and had explained what had happened to some people who were at a meeting of the residents of an adjacent block of flats. An ambulance had then been called. 20. The court heard evidence from witness K., who stated that she had been at a meeting of the residents of a block of flats when E. had run in and said that the applicant had killed a man. Everyone had run out into the street and seen a man (N.) sitting on a bench. There was blood on his head. She had not noticed whether he was in a state of inebriation. He had been taken quickly to hospital in an ambulance. She had learned from E. that the applicant had hit the victim's head against the pavement. 21. According to the report drawn up following the forensic medical examination which established the victim's head injuries, the blunt injury to the head (the fractures to the calvarium) “could have been caused by blows from the hand and/or by being hit against the pavement”. 22. The court considered that the applicant had denied beating the victim's head against the pavement in an attempt to mitigate his responsibility. 23. The court examined the medical expert's conclusion to the effect that the possibility of N.'s having sustained the injury in the parietooccipital region as a result of falling down onto the pavement could not be ruled out. In assessing that conclusion the court stated as follows: “...the court takes into account that this conclusion was made on the basis of the statements by the defendant Andandonskiy, the assessment of which the court has already made above. Furthermore, the victim also had other head injuries which could not have been caused solely by falling from a standing position (see case file, pp. ...). Therefore, the aforesaid expert conclusion (see case file, p. ...) did not refute the statements by the victims [N.] and [B.] and the witness [E.].” 24. The court also examined statements by three witnesses, who testified that the fight between the applicant and the victim and his wife had been brought about by the latter who, being drunk, had behaved offensively, and that the applicant had not beaten the victim's head against the pavement. Two further witnesses stated that the victim and his wife had been in an inebriated state. The court considered that the above statements were aimed at helping the applicant to avoid responsibility for what he had done. Another witness, a member of the ambulance team who had examined the victim at the scene of the accident and taken him to hospital, testified that the victim N. had appeared to be in a state of inebriation. The court found that those statements were unreliable as there was no other corroborating evidence, for example blood-test results. 25. The Moskovskiy District Court of St Petersburg held: “...in view of the nature of the defendant's actions – intentional beating of the victim's head against the pavement – and in view of the gravity of the injuries received by N., the court considers it necessary to classify the defendant Andandonskiy's actions as intentional infliction of grievous bodily harm, causing danger to human life, under Article 111 § 1 of the Criminal Code of the Russian Federation.” 26. The applicant appealed against the judgment on the ground, inter alia, that it had been based on statements by witness E., who had not been examined at the trial. He claimed that he had acted in self-defence and in defence of the child. 27. On 19 March 2002 the St Petersburg City Court upheld the judgment on appeal. It heard submissions from the applicant and his counsel, the victim's wife B. and the prosecutor. It stated, in particular, that the statements by witness E., who was born in 1920, had been read out at the trial in accordance with Article 286 of the Code of Criminal Procedure, since the trial court had lawfully found, on the basis of witness E.'s letter in which she referred to her age and poor health, that her appearance at the trial had been impossible. The trial court had taken account of the fact that B. and E., previously unknown to each other, had consistently asserted that the defendant had beaten the victim's head against the pavement more than once. Their statements had been corroborated by the conclusions of the forensic medical examination, and the fact that the victim N. had injuries to his face which, as the expert report confirmed, could not have been caused solely by falling and could have occurred before the fracture of the parietal bones. The City Court held that in those circumstances the judgment had been correctly based on the statements by B. and E., which were corroborated by the expert's conclusions. 28. Subsequent applications lodged by the applicant for supervisory review proceedings to be initiated were unsuccessful. 29. Pursuant to Article 240 of the 1960 Code of Criminal Procedure, in force at the material time, a first-instance court, in considering a case, must directly examine the evidence. In particular, it must question defendants, victims, witnesses and experts. 30. Under Article 286 of the Code, reading out at trial statements made by a witness at the preliminary investigation stage is allowed if the witness is absent from the hearing for reasons which make his or her appearance in court impossible. 31. Pursuant to Article 301 of the Code, the court must base its judgment only on the evidence which has been examined at the court hearing. 32. Article 264 of the Code regulates the keeping of a trial record in the first instance court. It does not require a verbatim record of the trial to be kept, but “a detailed record of the submissions”. In practice, if a verbatim record exists, it is not attached to the official trial record. A party to the proceedings may challenge the accuracy of the official record within three days after having received a copy of it.

dev

001-70522

ENG

SVK

CHAMBER

CASE OF CIBULKOVA v. SLOVAKIA

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

4. The applicant was born in 1957 and lives in Bratislava. 5. On 29 March 1993 the applicant brought an action against the Bratislava II Housing Cooperative (Stavebné bytové družstvo), of which she had formerly been a member, in the Bratislava II District Court (at that time Obvodný súd, at present Okresný súd). She challenged a decision of the defendant of 26 October 1992 concerning her entitlement to a new flat and the procedure applied by the defendant in dealing with her appeal against it. 6. On 16 December 1993 the District Court held a hearing at which the applicant provided further particulars of her action in that she was seeking a ruling declaring that she had the right to the new flat. 7. On 13 January 1994 the District Court ruled that the applicant had a right to the new flat in question. The defendant challenged the judgment by an appeal (odvolanie). 8. On 13 October 1994 the Bratislava Regional Court (at that time Mestský súd, at present Krajský súd) held a hearing of the appeal and invited the defendant to submit further evidence which the defendant did on 27 October 1994. 9. On 26 January 1995, following another hearing of the appeal held on the same day, the Regional Court overturned the judgment of 13 January 1994 and dismissed the action. 10. On 20 April 1995 the applicant challenged the judgment of 24 January 1995 by an appeal on points of law (dovolanie). 11. On 21 November 1995 the applicant’s lawyer informed the District Court that he was no longer representing her. As legal representation in appeals on points of law was mandatory, the District Court invited the applicant to identify her new representative on 14 December 1995 and, in the absence of a reply, again on 26 March 1996. The applicant finally replied on 25 April 1996. The appeal on points of law was then submitted to the Supreme Court (Najvyšší súd) for a determination. 12. On 4 October 1996 the Supreme Court returned the casefile to the District Court without a decision, on the ground that the power of attorney for the applicant’s legal representation did not state expressly that it applied to proceedings on appeals on points of law as was required under the applicable procedural rules. 13. On 11 December 1996 and repeatedly on 21 April 1997 the District Court requested that the applicant’s lawyer correct the power of attorney, which he did on 15 July 1997. 14. On 28 October 1997 the Supreme Court quashed the judgments of 13 January 1994 and 26 January 1995, finding that the lower courts had determined the action in a manner in which it had never actually been formulated. As the action fell to be determined at first instance by the Regional Court, it was remitted to it. 15. Between 28 March and 17 October 2000 the Regional Court held 6 hearings. 16. On 23 October 2000, following another hearing held on the same day, the Regional Court dismissed the action. The applicant challenged the judgment by an appeal. 17. On 19 December 2001, following a hearing of the appeal held on the same day, the Supreme Court upheld the judgment of 23 October 2000.

dev

001-92183

ENG

FIN

ADMISSIBILITY

LEINO v. FINLAND

Inadmissible

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Martti Leino, is a Finnish national who was born in 1937 and lives in Espoo. He was represented before the Court by Mr P. Kavonius, a lawyer practising in Lohja. The respondent Government were represented by their agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The applicant had a voluntary pension insurance from 1988 until 2001 into which he paid in total 16,902.72 euros (EUR). From April 2001 his employer was responsible for paying contributions to the insurance policy and in November 2001 it paid one instalment of EUR 4,940.25. By a decision of 20 August 2002 the Social Insurance Institution (kansaneläkelaitos - KELA, folkpensionsanstalten – FPA, hereafter “KELA”) granted the applicant an old-age pension (kansaneläke, folkspension) of EUR 154.85 per month as from 1 October 2002. The occupational pension (työeläke, arbetspension) paid to the applicant by a life insurance company was taken into consideration in calculating the amount of his old-age pension. On 5 June 2003 an insurance company granted the applicant a pension based on his voluntary pension insurance retroactively as from 1 October 2002. As a result of this new pension decision the KELA informed the applicant by letter of 10 June 2003 that there had been an error in the previous decision of 20 August 2002 and that his old-age pension would diminish as a result of the pending rectification. The applicant was invited to inform the KELA of his opinion on the rectification by 30 June 2003. A form to this effect was attached to the letter. The applicant did not reply to the letter. On 30 June 2003 the KELA made a decision to cease the payment of the applicant’s old-age pension as of 1 July 2003 due to the increase in his other pensions. The applicant did not appeal against this decision which thus became final. By a letter dated 1 July 2003 the KELA informed the applicant that the old-age pension he had received in the period between 1 October 2002 and 30 June 2003, in total EUR 1,404.81, was in fact in excess due to the new calculations and that he should let the KELA know his opinion on the matter by 12 July 2003. The applicant did not reply to the letter. On 22 August 2003 the KELA decided to recover the entire old-age pension paid. The applicant was given two months to pay. On 17 September 2003 the applicant appealed to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden) against the decision of 22 August 2003. He claimed that the entire voluntary pension was regarded by the KELA as one paid by his employer whereas he himself, the tax authorities and his insurance company considered the main part of that pension as being paid by the applicant. On 26 August 2004 the Appellate Board dismissed his appeal, stating that there were no reasons for making an exception to the rule that pension payments to which the recipient was not entitled should be paid back. On 13 October 2004 the applicant appealed to the Insurance Court, which dismissed his appeal on 23 February 2006 without elaborating on the reasons or addressing the specific circumstances of the applicant’s pension. On 17 March 2006 the KELA requested the applicant to contact them regarding the schedule of repayments. Subsequently the insurance company’s lawyer contacted the KELA and provided additional clarifications, to no avail. On 11 May 2006 a payment order was sent to the applicant.

dev

001-59514

ENG

SVN

CHAMBER

CASE OF TRICKOVIC v. SLOVENIA

No violation of Art. 6-1

Elisabeth Palm;Gaukur Jörundsson

9. The applicant is a Slovenian national of Serbian origin. He was born in 1944 and lives in Ljubljana. He was employed as a medical technician in the Yugoslav People’s Army. In the summer of 1991, after Slovenia became independent following the dissolution of the former Yugoslavia, the applicant worked in the Federal Army Hospital in Ljubljana. 10. As the Federal Army withdrew from Slovenia in October 1991, the applicant, who had been declared disabled, applied for an invalidity pension. In December 1991 the Federal Military Social Security Fund in Belgrade granted him the right to retire on grounds of invalidity and paid him a pension until April 1992. 11. Following the dissolution of the former Yugoslavia and in the absence of an agreement on the succession or any relevant bilateral treaty, the Government of the Republic of Slovenia decided to provide for an advance payment of military pensions, since the Belgrade fund had ceased to pay former servicemen living in Slovenia. The purpose of this regulation was to find a temporary solution for retired military personnel and some other categories of military benefiting from the scheme, until the issues of the State succession had been settled. 12. The proceedings in question in the present case concern the applicant’s claim for an advance on his military pension. 13. On 5 June 1992 the applicant applied for an advance on his military pension under the Advance on Payment of Military Pensions Decree (Official Gazette no. 4/92 of 25 January 1992). 14. On 9 July 1992 the Pension and Invalidity Insurance Fund (Skupnost pokojninskega in invalidskega zavarovanja) found that the applicant had no right to advance payments. On 3 November 1992 the Pension and Invalidity Insurance Fund dismissed the applicant’s appeal. The applicant sought judicial review of those decisions. 15. On 2 March 1993 the Labour and Social Court in Ljubljana (Sodišče združenega dela pokojninskega in invalidskega zavarovanja Slovenije) dismissed the applicant’s action. On 7 July 1994 the Higher Labour and Social Court (Višje delovno in socialno sodišče) in Ljubljana upheld the lower court’s decision. The second-instance decision was served on 30 July 1994. 16. On 29 August 1994 the applicant lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče) alleging breaches of his constitutional rights in the aforementioned proceedings. 17. On 23 May 1995 the Constitutional Court invited the applicant to complete his appeal. The Ljubljana Labour and Social Court and the Pension and Invalidity Insurance Fund were requested to submit records. The applicant filed supplementary submissions on 6 June 1995 but the Constitutional Court did not receive them until 13 June 1995. 18. On 6 October and 20 December 1995 a panel of three judges considered the case in the preliminary proceedings. On 20 December 1995 the Constitutional Court declared the applicant’s constitutional appeal admissible. 19. On 21 December 1995 the Constitutional Court asked the Higher Labour and Social Court to submit a statement, which was supplied on 17 January 1996. 20. On 5 December 1996 the plenary court began consideration of the merits of the applicant’s case. 21. In addition, the Pension and Invalidity Insurance Fund was asked on 6 December 1996 to submit its opinion. They complied with the request on 3 January 1997. 22. On 20 March, 10 April and 17 April 1997 the plenary Court held further deliberations. 23. On 17 April 1997 the Constitutional Court, by a majority, rejected the constitutional appeal as being manifestly ill-founded. The decision was served on 17 May 1997. 24. On 12 February 1999 the applicant applied for a pension under general pension and invalidity insurance regulations. 25. On 14 February 2000 the Pension and Invalidity Insurance Fund granted the applicant the right to his pension from 1 September 1998 onwards. 26. Article 160 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads, so far as it is relevant: ...on constitutional appeals of violation of human rights and fundamental freedoms by specific acts; ... Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.” “Proceedings before the Constitutional Court shall be regulated by law. The law shall determine who may require proceedings to be instituted before the Constitutional Court. Anyone who demonstrates a legal interest may request the institution of proceedings before the Constitutional Court. The Constitutional Court shall decide on a majority vote of all its judges unless otherwise provided for in individual cases by the Constitution or by statute. The Constitutional Court may decide whether to institute proceedings following a constitutional appeal with such lesser number of judges as may be provided by statute.” 27. The Constitutional Court Act (Zakon o Ustavnem sodišču) governs the composition and functioning of the Constitutional Court. “The Constitutional Court is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms… Decisions of the Constitutional Court are legally binding.” Sections 50 to 60 of that Act concern constitutional appeals by individuals (see paragraph 26 above). “Any one who believes that his or her human rights and basic freedoms have been violated by a particular act of a state body, local community body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...” “A constitutional appeal may be lodged only after all legal remedies have been exhausted. Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and if certain irreparable consequences for the appellant would occur as a result of the implementation of a particular act.” “A constitutional appeal shall be lodged within sixty days after the date of the decision against which the constitutional appeal lies. ... In specially founded cases the Constitutional Court may exceptionally hear a constitutional appeal lodged after the expiry of the time-limit stated in the first paragraph of this section.” “The constitutional appeal must indicate the particular act which is the subjectmatter of the appeal and the facts that give rise to the allegation of a violation of human rights and basic freedoms on which the appeal is based. A constitutional appeal shall be lodged in writing. There shall be enclosed with it a copy of the particular act that is the subject-matter of the appeal and all documents forming the basis of the appeal. The appeal and annexed documents shall be lodged in triplicate.” Sections 54 and 55 govern the preliminary procedure. “A decision on whether a constitutional appeal is admissible and to institute proceedings shall be taken in private by a committee of three judges of the Constitutional Court. If the appeal is incomplete or if the Constitutional Court is unable to examine it because it does not contain all the required information or documents referred to in the preceding section of this act, the Constitutional Court shall require the appellant to complete the appeal within a specified time.” 28. Sections 56 to 60 set out the procedure for the adjudication of the constitutional appeal and provide: “If the constitutional appeal is found to be admissible, it shall be sent to the body which issued the act and against which the constitutional appeal has been lodged, so that it may reply to the constitutional appeal within a determined period.” “If a constitutional appeal is admissible, it shall be examined by the Constitutional Court in private unless the Constitutional Court decides to hold a public hearing.” “The Constitutional Court shall issue a decision declaring that the appeal was unfounded or shall accept the appeal and quash the act that was the subject of the appeal or declare it null and void in whole or in part, and return the matter to the competent body. ...” 29. Section 60 concerns the Constitutional Court’s decision if the appeal is upheld and reads: “If the Constitutional Court quashes an individual act, it may also decide a contested right or freedom if such procedure is necessary in order to put an end to consequences that have already occurred as a result of that act or if such is the nature of the constitutional right or freedom and provided that a decision can be reached on the basis of information in the record.”

dev

001-4904

ENG

AUT

ADMISSIBILITY

WEBORA v. AUSTRIA

Inadmissible

The applicant, born in 1952, is an Austrian national residing in Vienna. In the proceedings before the Court he is represented by Mr. G. Grone, a lawyer practising in Vienna. A. On 23 March 1995 officers of the Vienna Federal Police Authority (Bundespolizeidirektion) searched the applicant’s home on the suspicion that he owned and distributed pornographic material involving minors. They informed the applicant that the investigating judge had issued a search warrant orally. A written copy of the search warrant was not served on the applicant until 16 November 1995. On 24 April 1995 the applicant lodged a complaint with the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat). He submitted that it was not clear in the circumstances whether a search warrant had been issued as claimed by the police officers. Thus, the search of his premises lacked a legal basis and violated his right to respect for his home. On 21 August 1995 the Vienna Independent Administrative Panel rejected the applicant’s complaint as being inadmissible. It found that the police had acted upon an oral search warrant from the investigating judge and the search of the applicant’s premises was, thus, attributable to the court. Consequently, the review of its lawfulness did not fall within the competence of the Independent Administrative Panel. On 9 October 1995 the applicant lodged a complaint with the Review Chamber (Ratskammer) of the Vienna Regional Criminal Court (Landesgericht für Strafsachen), claiming that the search of his premises violated his right to respect for his home. He submitted in particular that no written copy of the search warrant had been served on him within the statutory twenty-four hour time-limit. On 21 December 1995 the Review Chamber of the Regional Criminal Court dismissed the applicant’s complaint as being unfounded. It noted that the court had conducted criminal proceedings against a number of persons on suspicion of sexual abuse of minors. In the course of these proceedings a letter was seized which proved that a certain M. dealt with pornographic material involving minors. Subsequently, since the applicant was identified as the person using the cover name M. Thereupon, the investigating judge issued a search warrant for the applicant’s premises. At the time, a written copy of the search warrant was not issued and, thus, was not served on the applicant. The Review Chamber further noted that the search was carried out in the presence of the applicant who was first informed of the suspicion and was requested to hand over any pornographic material in his possession. As he refused to do so, the search was carried out and extensive pornographic material as well as business correspondence was seized. Having regard to its above findings, the Review Chamber concluded that there was a reasonable suspicion, as required by S. 139 of the Code of Criminal Procedure (Strafprozessordnung), that objects which were of importance for specific criminal proceedings were to be found on the applicant’s premises. Moreover, the search had, in accordance with S. 140 of the said Code, been ordered by a judicial search warrant. The failure to serve a written copy of the search warrant on the applicant, though contrary to the law, did not affect the lawfulness of the search itself. On 29 April 1996 this decision was served on the applicant’s counsel. B. Relevant domestic law 1862 Protection of the Home Act (Gesetz zum Schutz des Hausrechts 1862) S. 1 of the 1862 Act provides that a search of premises may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge. The search warrant has to be served on the person concerned either immediately or within twenty-four hours. Code of Criminal Procedure (Strafprozessordnung) S. 139 § 1 of the Code of Criminal Procedure provides that a search of premises may only be carried out if there is a reasonable suspicion that a person suspected of having committed a criminal offence is hiding in the premises concerned, or that there are objects the possession or examination of which is relevant for a particular criminal investigation. According to S. 140 § 1 a search may, as a rule, only be carried out after the person concerned has been questioned, and if the objects sought are not voluntarily handed over. S. 140 § 3 states that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge. The search warrant has to be served on the person concerned either immediately or within twenty-four hours.

dev

001-79134

ENG

RUS

CHAMBER

CASE OF KOT v. RUSSIA

Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Christos Rozakis

5. The applicant, Mr Anatoliy Yefimovich Kot was born in 1937 and lives in Tambov. In 1987 he took part in the emergency operations at the site of the Chernobyl nuclear plant accident. On 3 November 2000 he was diagnosed with after-effects of radioactive emissions and granted monthly compensation for the damage to his health. 6. On 30 November 2000 the applicant sued the Military Service Commission of the Tambov Region (Военный комиссариат Тамбовской области, hereinafter the “Commission”) for an increase of the compensation to take account of the inflation. 7. On 21 February 2001 and 5 March 2001 the Oktyabrskiy District Court of Tambov granted his claim and ordered the Commission to increase the future monthly payments to 12,051.48 Russian roubles (“RUR”) and also to pay him RUR 31,579.74 in respect of the previous period. 8. On 4 June 2001 the Tambov Regional Court quashed those judgments on appeal, finding that the first-instance court had not taken account of the changes introduced into the Chernobyl Victims Act by the Federal Law № 5 of 12 February 2001. The claim was remitted for a fresh examination. 9. The Oktyabrskiy District Court pronounced a new judgment on 13 August 2001. It assessed future monthly payments at RUR 10,000 and the lump sum in respect of the previous period at RUR 60,365. 10. On 10 September 2001 the Tambov Regional Court quashed that judgment on appeal on the ground that the first-instance court had incorrectly applied the substantive law and remitted the case for a fresh examination. 11. By judgment of 27 November 2002, the Oktyabrskiy District Court awarded the applicant RUR 18,077.21 in monthly payments as from 1 December 2002 and RUR 281,437.32 in respect of the previous period. 12. On 20 January 2003 the Tambov Regional Court upheld that judgment on appeal, and the judgment became enforceable. 13. On 23 January 2003 the Commission filed an application for supervisory review. It claimed that the first-instance and appeal courts had erroneously applied civil-law provisions relating to calculation of the minimal wages for the purposes of adjusting the applicant's compensation in line with inflation. 14. On 28 January 2003 the President of the Tambov Regional Court stayed the execution of the judgment of 27 November 2002. 15. On 26 June 2003 the Presidium of the Tambov Regional Court held a supervisory-review hearing. It determined that the lower courts had erred in applying the substantive law by not having taken into account the amendments introduced into the Chernobyl Victims Act by the Federal Law № 5 of 12 February 2001. On that ground it quashed the judgment of 27 November 2002, as upheld on 20 January 2003, and remitted the matter for a fresh examination. 16. On 7 August 2003 the Oktyabrskiy District Court issued a new judgment, by which the applicant was awarded RUR 6,327.35 in future monthly payments and RUR 18,578.34 in respect of the preceding period. The judgment was not appealed against and became final on 18 August 2003. 17. The Code of Civil Procedure of the Russian Federation was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure from 1 February 2003. It provides as follows: “1. The grounds for quashing or altering judicial decisions by appeal courts are: ... (4) a violation or incorrect application of substantive or procedural law.” “1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” “1. Having examined the case by way of supervisory review, the court may... (2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if the substantive law has been erroneously applied or interpreted.” 18. Interim Resolution ResDH (2006) concerning the violations of the principle of legal certainty through the supervisory review procedure (“nadzor”) in civil proceedings in the Russian Federation, adopted by the Committee of Ministers on 8 February 2006, reads, in its relevant parts, as follows: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention... Welcoming the reforms of the supervisory review (“nadzor”) procedure introduced by the new Code of Civil Procedure entered into force on 1 February 2003; Noting with satisfaction, in particular, that some of the problems at the basis of the violations found in these cases have thus been remedied... Expressing, however, particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “nadzor” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts' judgments in a single set of proceedings so that subsequent recourse to “nadzor” becomes truly exceptional, if necessary at all; Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances, while under the current “nadzor” procedure such a judgment may be quashed for any material or procedural violation; Emphasising that in an efficient judicial system, errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable, thus avoiding the subsequent risk of frustrating parties' right to rely on binding judicial decisions; Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand-in-hand with improvement of the court structure and of the quality of justice, so as to limit the need for correcting judicial errors currently achieved through the “nadzor” procedure... CALLS UPON the Russian authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the Convention, as interpreted by the Court's judgments; ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final... ENCOURAGES the authorities, pending the adoption of this comprehensive reform, to consider adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular: - continue to restrict progressively the use of the “nadzor” procedure, in particular through stricter time-limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law... - to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case; - to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law; - to adopt measures inducing the parties adequately to use, as much as possible, the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable...”

dev

001-84339

ENG

FRA

CHAMBER

CASE OF KEARNS v. FRANCE

No violation of Art. 8;Remainder inadmissible

Alvina Gyulumyan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa

7. The applicant was born in 1966 and lives in Dublin. She is married to T. 8. On 8 February 2002 she went to Seclin Hospital, in France, together with her mother and a French lawyer, to request anonymous registration of the forthcoming birth of her child (accouchement sous X). 9. She was admitted to the maternity ward on 17 February 2002, and on 18 February 2002 she gave birth to a girl, K., from an extramarital relationship with Mr Byrski. 10. On 19 February 2002 she had an interview lasting half a day with the social services, in the presence of her mother and a nurse who had been asked to act as an interpreter by the hospital. On the same day she signed a record of the child’s placement in State care in accordance with Article L. 224-5 of the Social Action and Families Code, handing over a folder intended for the child, which contained a letter, photographs and administrative documents. 11. In the record she indicated that she wished to have the child taken into State care, to request secrecy and to give her consent to adoption under Article 348-3 of the Civil Code. She stated that the child was born out of wedlock and was not recognised by the father. 12. The section entitled “Reasons for the placement” contained the following details: “[The applicant] wishes to keep secret the reasons why she is giving her child up for adoption. She would prefer to hand us the attached documents, which will be released to the child at her request on reaching the age of majority (letter, photos, official documents). Secrecy has been requested purely to ‘protect her baby’ from the violent and unbalanced biological father.” 13. The section entitled “Information on the placement” stated: “We have informed her of the following: ... (3) Time-limits and conditions for return of the child: – a child who is claimed back within a period of two months by the parent who entrusted the child to the Child Welfare Service will be returned to that parent without any further formalities (Article L. 224-6, paragraph 2, of the Social Action and Families Code). – if the child has a second parent who did not entrust him or her to the service and who claims the child back within a period of six months, the child will be returned to that parent without any further formalities (same Article). – once these periods have expired (two months if the sole parent or both parents entrusted the child to the service; six months if the second parent did not entrust the child to the service), an application for judicial review of the child’s placement in State care may be lodged, within thirty days from the date of the formal registration, with the tribunal de grande instance (Article L. 224-8 of the Social Action and Families Code). – beyond these time-limits: * if the child has been placed for adoption, any application to have the child returned will be inadmissible (Article 352 of the Civil Code) ... (6) Conditions for withdrawal of consent to adoption (Article 348-3, paragraphs 2 and 3, of the Civil Code) We have given her the following: – a notice setting out the effects of placement in State care and of consent to adoption and the conditions for recovery of the child and withdrawal of consent; – a model letter requesting the return of the child and/or withdrawing consent to adoption, if consent has been given.” 14. On the same day (19 February 2002) the applicant gave her consent to the child’s adoption. The form of consent stated, inter alia: “I ... certify that I have been informed: ... 2. about the effects of consent to adoption, namely: – that the placement is secret, – that I forfeit all my rights over the child, – that placement for adoption constitutes a bar to any recognition, declaration of filiation or application for recovery. 3. that this document will become FINAL after a period of TWO MONTHS, on 20 April 2002, and that during this period the child may be returned to me in accordance with the prescribed procedures for withdrawal of consent (Article 348-3, paragraphs 2 and 3, of the Civil Code). I hereby declare that I formally consent to the adoption of my child ..., leaving the choice of the adopter to the Child Welfare Service. I acknowledge that I have received: – a notice setting out the time-limits and conditions for the return of my child, – a model letter for withdrawal of consent to adoption and to the record of the child’s placement in State care.” 15. On 20 February 2002 the applicant had a further interview lasting half a day with the social services, in the presence of a doctor acting as an interpreter, during which, at her request, various matters relating to the record signed the previous day were discussed. 16. On 7 May 2002, after approval had been given by the Family Council, the chairman of the Nord département council, as the official guardian of children in State care, placed K. in the care of Mr and Mrs L.-B. with effect from that date with a view to her full adoption. 17. In the meantime, Mr Byrski, the child’s biological father, had applied to the Dublin Circuit Family Court for recognition of his rights over the child. In decisions of 19 July and 14 and 28 August 2002 the Circuit Family Court directed that the adoption process in France should not proceed any further, that the name and a photograph of the child were to be sent to Mr Byrski and that its decisions were to be forwarded to the Nord département council and the French social services. 18. On 25 and 26 July 2002 the applicant went to the hospital’s maternity ward and subsequently to the French social services, seeking the return of the child. According to a note drawn up by the social services, her request was based on two reasons: firstly, the biological father had learned of the child’s birth in the meantime and had brought an action in Ireland, and secondly, she had managed to persuade her husband to recognise the child. Her request was refused because the two-month time-limit for withdrawing consent had expired. 19. The applicant then applied to the Lille tribunal de grande instance, seeking the annulment of the decision to give the child up and an order for her return. She submitted that the consent she had given on 19 February 2002 had been invalid on account of the family pressure exerted on her and because she had not realised the consequences of registering the birth anonymously, since the process had been explained to her without an interpreter being present. She argued that French law contravened Articles 13 and 14 of the Convention. 20. The child’s biological father, Mr Byrski, intervened in the proceedings. 21. In a judgment of 31 October 2002 the court dismissed the applicant’s claims, holding as follows: “In support of her application for the annulment of the decision to give up the child born on 18 February 2002 and for the child’s return, Ms Kearns alleges that an error was committed as to the meaning and scope of the document of 19 February 2002. Ms Kearns, an Irish national living and working in Dublin, came to the maternity ward in Seclin to give birth on 18 February 2002. On that occasion she expressed the wish for her admission and her identity to be kept secret. The exercise by any woman of this right, which is enshrined in Article 341-1 of the Civil Code and which the legislature has to date had no intention of reconsidering, is governed by the provisions of Article L. 222-6 of the Social Action and Families Code, as amended by the Act of 22 January 2002. It appears from the evidence before the court ... that at least two lengthy interviews were held in order to explain to this woman the conditions and effects of anonymous registration of a birth. These interviews took place in the presence of English speakers, and Ms Kearns, who chose to come to France to give birth, cannot expect the social services to have offered anything more in this respect, particularly not the presence of an official interpreter, which is not provided for or required by any statutory instrument. Furthermore, it appears from the proceedings ... and from the written submissions summarising her counsel’s address ... that Ms Kearns was taken to hospital by a lawyer; she had therefore clearly sought legal advice prior to the birth. Accordingly, no matter what psychological state the applicant may have been in, like any woman opting to give birth in these circumstances, it appears that Ms Kearns was nevertheless fully aware of both the immediate and the future implications of her actions and decisions. She thus acted quite consciously in having the birth registered anonymously and giving the child up to the social services to be taken into State care, and there are no grounds for arguing that her intellectual faculties were impaired or that the consent was invalid in any way; moreover, the question of consent is not applicable from a civil-status perspective. In addition, as regards the formal propriety of the document of 19 February 2002, once a child is entrusted to the social services, the latter assume a number of obligations, including the provision of information ... It appears from the record of the child’s placement, which contains entries whose existence is not disputed, that the social services fulfilled their obligation to provide information on a child’s placement in State care and the ensuing legal effects. Such information was, moreover, provided in English, and the notice and model letter requesting the return of the child were indeed given to Ms Kearns. Furthermore, Ms Kearns fully understood the meaning and scope of this information since she left documents for the child in the event that the latter expressed the wish to discover her origins at a future date. Ms Kearns clearly expressed her wish that the child should never be able to have legal ties to her. Moreover, she did not withdraw her consent within the two-month period. It should be noted in this connection that this right is strictly personal; accordingly, no action by a third person may be treated as an action to withdraw consent, that being the sole prerogative of the mother, or interrupt the relevant period. Accordingly, there are no grounds for declaring null and void the record of 19 February 2002, which served as an entirely valid basis for the placement in State care (first provisionally and later with final effect) of the child born on 18 February 2002 with no established parentage ... Since the mother did not apply for the return of the child within two months after giving her up, the child, who has no legally established parentage, was able to be placed with foster parents by the State authorities with a view to her adoption under Article 351 of the Civil Code. Such placement for adoption, by virtue of the provisions of Article 352 of the Civil Code, constitutes a bar not only to the return of the child to the mother but also to any declaration of filiation or recognition. The first ground of appeal must therefore be declared ineffective. Ms Kearns further alleges a violation of Articles 13 and 14 of the European Convention on Human Rights. As stated above, Ms Kearns gave birth ... while wishing to keep the birth and her identity secret, a right enshrined in Article 341-1 of the Civil Code and given effect by the Social Action and Families Code. More generally, these Articles govern the conditions for giving up a child, for consent to adoption or for anonymous registration of a birth, as well as the conditions and procedures applicable in the event of repudiation and/or withdrawal of any of these measures. They strike a delicate balance between the rights of a mother, which the legislature has to date had no intention of reconsidering, to give birth anonymously with the consequences that entails, and the rights of the foster parents and of the child, whose rights are now framed in such a way as to allow him or her access to more information, if he or she so desires, but in whose interests stability and certainty, both psychological and legal, must be sought, if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures. The instant case thus cannot be said to involve any discrimination or deprivation of the enjoyment of a right secured to the mother or the child by the European Convention on Human Rights, or indeed our national law, within the meaning of Article 14 of the Convention. Similarly, no matter how short they are, time-limits do exist in French law for bringing an action in the ordinary courts, constituting, within the meaning of Article 13 of the Convention ..., an effective remedy before a national authority independent of the administrative authority that may be required to rule on an application for the return of a child or to approve an adoption.” 22. The applicant appealed. In a judgment of 22 September 2003 the Douai Court of Appeal set aside the first-instance judgment. After reiterating the content of the record of 19 February 2002, and in particular the information it provided, the court held: “Paragraph 3 of the section on information thus expressly mentions the existence of two time-limits for the child’s return without any further formalities, one being two months (the only possible limit that could apply in the instant case), the other being six months, where the second parent has not entrusted the child to the social services. This six-month time-limit is mentioned on two further occasions, firstly in relation to the right to have the child returned to the second parent and secondly in indicating that even after the expiry of the two-month and six-month periods, a court action may still be brought. This information could have misled Ms Kearns ... since in reality the six-month time-limit applicable under Article L. 224-6 of the Social Action and Families Code in the circumstances referred to in Article L. 224-4 did not apply in the instant case, there being no established paternity as the mother had registered the birth anonymously, and the placement therefore came under point (1) of Article L. 224-4. Ms Kearns, an Irish national who is a native English speaker and does not speak French, could not have known the consequences in French law of anonymous registration of the birth, in terms of her rights and those of the biological father, and the information given was in no way capable of enlightening her in a clear and precise manner. Having been informed of the existence of a six-month time-limit where ‘the child has a second parent who did not entrust him or her to the service’, she may legitimately have thought, in the light of the information set out in the record, that this time-limit was applicable in her case since she had on several occasions notified the local health and social services department of the existence of a biological father who had not been informed of the placement procedure. It will be observed that there is no mention in the record that an interpreter was present when it was signed and that it has not been disputed that a member of the maternity ward staff assisted with the translation and the explanation in English of the information given in French to Ms Kearns ... However, a translation of this nature, which was provided by a person who used English only occasionally and did not have specific legal knowledge, and which, moreover, was based on particularly ambiguous information as to the time-limits, did not enable Ms Kearns ... to have access to proper information about her rights regarding the procedures for withdrawing consent. It therefore appears that the information provided to the appellant concerning the right to have the child returned was inaccurate or at least particularly ambiguous, and was set out in a pre-printed document not specially adapted to the procedure of anonymous birth registration but designed for use in any of the circumstances covered by Article L. 224-4 of the Social Action and Families Code for the taking of a child into State care; that reference was made to a six-month time-limit not applicable in her case; and that, moreover, being an native English speaker, the mother was not effectively informed of the procedures for the return of her child and of the strict two-month time-limit that applied in her case. Furthermore, it has not been shown in any way that Ms Kearns ... otherwise received any clear information before the record was signed as to her right to recover the child. The note by Ms F. – who also drew up the record in issue – besides having no evidential value, since it was written by a party to the proceedings, does not contain any clarification as to the information given to Ms Kearns ... about the time-limit for withdrawing consent. Similarly, the fact that Ms Kearns ... was in contact with a French lawyer prior to the birth does not mean that she received precise information from him about the exclusive nature of the two-month time-limit ... Ms Kearns’ belief ... in the possibility of recovering the child within a six-month period is corroborated by the request she made in person on 25 and 26 July 2002 to the Nord health and social services department, citing this time-limit, and by the subsequent letters from her lawyer, which also state that his client thought that she could take her child back within such a period. Having regard to all these considerations, it appears that Ms Kearns ... placed her child in State care while believing – legitimately, in view of the ambiguous information she had received when signing the record of the placement – that she could take her back within a period of six months and that this time-limit also applied to Mr B., who had, moreover, instituted proceedings in Ireland on 9 April 2002. This error as to the time-limit for the return of the child concerns a significant element of her consent to the child’s placement in State care, especially as the provisions of Article L. 224-5 of the Social Action and Families Code require precise information on the subject to be given to the mother. In these circumstances, the application for the record of the child’s placement of 19 February 2002 to be declared null and void must be allowed. ... seeing that the handing over of the child to the State authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on 19 February 2002, the child’s placement in State care is to be retrospectively annulled and cannot therefore have any legal effect. Accordingly, the application for the child to be returned to Ms Kearns ... should be allowed, without there being any need to address the subsidiary arguments she submitted in support of that application. Pursuant to Article 334-8 of the Civil Code, parental ties shall be established between Ms Kearns ... and the child to whom she gave birth in the maternity ward of Seclin Hospital on 18 February 2002 and a reference to this judgment shall be entered in the register of births, deaths and marriages for the town of Seclin.” 23. In a letter of 24 September 2003 the applicant’s lawyer asked the prefect to enforce the judgment and to return the child to her mother. No action was taken on this request. 24. The prefect for the département of Nord appealed on points of law, arguing that in the absence of recognition by the mother of the child to whom she had given birth anonymously, it was not necessary to obtain her consent for the child to be taken into State care. 25. In a judgment of 6 April 2004 the Court of Cassation allowed the appeal, holding as follows: “[Article L. 224-4, point (1), of the Social Action and Families Code] provides that children whose parentage has not been established or is unknown and who have been entrusted to the Child Welfare Service for more than two months are deemed to have been taken into State care. On 18 February 2002 Mrs T. (née Kearns) gave birth anonymously. On 19 February 2002 a record of the child’s placement in State care with the Child Welfare Service was drawn up in accordance with Article L. 224-5 of the Social Action and Families Code. On 7 May 2002 the child was placed for adoption after the Family Council for Children in State Care had given its approval on 25 April 2002. On 25 July 2002 Mrs T. unsuccessfully sought to have the child returned to her. In applications of 22 August and 10 September 2002 she brought proceedings against the prefect of the département of Nord, seeking the return of the child. In allowing her claim, the Court of Appeal held that the child’s placement with the State authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on 19 February 2002, seeing that when the record was signed Mrs T. had received only ambiguous information about the period within which she could take her child back. In so holding, despite the fact that in the absence of recognition, the child’s parentage was not established, such that Mrs T.’s consent was not required when the child was taken into care ..., the Court of Appeal breached the provision cited above.” 26. The Court of Cassation therefore quashed and annulled the Court of Appeal’s judgment in its entirety and, applying Article 627, paragraph 2, of the New Code of Civil Procedure (by which it may put an end to the dispute by applying the appropriate legal rule), dismissed the applicant’s claims. 27. The full adoption procedure, which had been suspended, was resumed by Mr and Mrs L.-B. In a judgment of 17 June 2004 the Lille tribunal de grande instance allowed their application and made a full adoption order in respect of the child. 28. The history and development of the system of anonymous registration of births in France is set out in Odièvre v. France ([GC], no. 42326/98, §§ 15-16, ECHR 2003III). 29. The following provisions of the Social Action and Families Code are relevant to the present case: “The following shall be taken into State care: (1) children whose parentage is not established or is uncertain and who have been entrusted to the Child Welfare Service for more than two months; ...” “Where a child is entrusted to the Child Welfare Service in the circumstances referred to in Article L. 224-4, points (1), (2), (3) and (4), a record shall be drawn up. It shall mention that the parents in respect of whom the child’s filiation has been established, the child’s natural mother or natural father or the person handing the child over have been informed about: (1) the measures introduced, in particular by the State, the local authorities and the social-security bodies, to help parents to raise their children themselves; (2) the rules governing placement in State care in accordance with this Chapter; (3) the time-limits and conditions subject to which the child may be taken back by the father or mother; (4) the possibility of leaving behind any information concerning the health of the father and mother, the child’s origins and the reasons for which and circumstances in which the child was placed with the Child Welfare Service. Furthermore, where the child is entrusted to the service by the father or mother in accordance with points (2) or (3) of Article L. 224-4, the parent or parents concerned must be asked to consent to the child’s adoption; such consent shall be noted in the record, which must also mention that the parents have been informed of the time-limits and conditions in which they may withdraw their consent, in accordance with the second and third paragraphs of Article 348-3 of the Civil Code.” “The child shall be deemed to have been provisionally taken into State care on the date on which the record referred to in Article L. 224-5 is drawn up. Guardianship arrangements shall be made with effect from the date of such declaration. However, within a period of two months from the date of the provisional placement in State care, the child may be returned immediately and without any further formalities to whichever of the parents entrusted him or her to the service. This period shall be extended to six months, in the circumstances specified in Article L. 224-4, point (3), for whichever parent did not entrust the child to the service. Beyond these periods, the decision to agree to or refuse the return of a child in State care shall, subject to the provisions of Article 352 of the Civil Code, be taken by the official guardian, with the agreement of the Family Council. In the event of a refusal, the persons concerned may apply to the tribunal de grande instance.” 30. The relevant provisions of the Civil Code are worded as follows: “The following may be adopted: (1) children in respect of whom the mother and father or the Family Council have validly consented to adoption; (2) children in State care; (3) children declared abandoned in the circumstances provided in Article 350.” “Consent to adoption shall be given before the senior registrar of the district court within whose jurisdiction the home or place of residence of the person giving the consent is situated, or before a French or a foreign notary, or before French diplomatic or consular officials. It may also be received by the Child Welfare Service if the child has been entrusted to the service. Consent to adoption may be withdrawn within a period of two months. Withdrawal of consent shall be effected by means of a registered letter with recorded delivery, addressed to the person or the service that received the consent. The handing over of the child to the parents on request, even a verbal request, shall also be treated as proof that consent has been withdrawn. If, on the expiry of the two-month period, consent has not been withdrawn, the parents may still request the return of the child, provided that the child has not been placed for adoption. If the person who has received the child refuses to give him or her back, the parents may apply to the court, which shall determine, having regard to the child’s interests, whether the return of the child should be ordered. The child’s return shall invalidate the consent to adoption.” 31. The Court of Cassation takes the position that, where a mother gives birth anonymously, there are no established parental ties between her and the child and that, accordingly, her consent to adoption is not required. 32. Thus, in a judgment of 5 November 1996 (Bulletin 1996 I no. 368, p. 259) in a case concerning a request for the return of an anonymously registered child born to a minor, the Court of Cassation quashed the judgment of the Court of Appeal, which had annulled the record of the child’s placement with the social services on the ground that the mother was under age and had not been assisted by a person exercising parental responsibility. It held as follows: “In so holding, despite the fact that in the absence of recognition, parental ties had not been established, so that it was not necessary to obtain Ms Y’s consent when the child was entrusted to the Child Welfare Service, the Court of Appeal breached the provision cited above [Article 61, point (1), of the Family and Welfare Code].” 33. Conversely, in a recent case in which the mother had given birth anonymously but the biological father had recognised the child before the birth, the Court of Cassation, relying in particular on the New York Convention on the Rights of the Child, quashed and annulled the judgment of the Court of Appeal, which had declared inadmissible the father’s application for the return of the child. It gave the following reasons: “... in so holding, despite the fact that, since the child had been identified by Mr X ... on a date prior to the consent to adoption, the child’s paternity had been established with effect from the date of the birth as a result of this prenatal recognition, so that the Family Council for Children in State Care, which had been informed of the recognition, could no longer ... validly consent to the child’s adoption, consent being the sole prerogative of the biological father, the Court of Appeal, disregarding the child’s right to know its declared father, breached the provisions cited above.” (Court of Cassation, First Civil Division, 7 April 2006, Petites affiches 14-17 July 2006) 34. Article 21 of this Convention provides: “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.” 35. This convention, which is not directly applicable to the present case since it concerns inter-country adoption, provides in Article 4 that the persons whose consent is necessary for adoption must “have been counselled as may be necessary and duly informed of the effects of their consent”, and that such consent must have been given freely and expressed or evidenced in writing and must not have been withdrawn. In addition, the consent of the mother, where required, must have been given only after the birth of the child. 36. This Council of Europe convention came into force on 24 April 1968. France has signed it but has not ratified it. Article 5 provides: “1. Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: (a) the consent of the mother ... 4. A mother’s consent to the adoption of her child shall not be accepted unless it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.” 37. According to the explanatory report, the object of paragraph 4 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored. 38. The convention is currently undergoing a revision. Article 5 of the draft revised convention is worded as follows: “1. Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: a. the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place; ... 2. The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing. ... 5. A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.” The explanatory report states the following: “33. Paragraph 2 emphasises that it is essential that the person giving consent has been well informed in advance of the consequences of doing so and that consent is given freely and in writing. ... 38. The object of paragraph 5 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored after the child’s birth. 39. Paragraph 6 contains a definition of the terms ‘father’ and ‘mother’. Given this definition, the consent provided for in this article does not apply to parents of origin when legal affiliation has not been established.” 39. Most European legal systems provide that consent must be obtained by a judge or notary independently of the placement process. Some countries allow the parents’ consent to be obtained by the social services responsible for the child, by the director of the institution in whose care the child is placed or by the supervisory authority. 40. As regards the provision of information to the biological parents, some national regulations require adoption agencies to provide information on the legal effects of adoption, the adoption process and the other means of assistance available to them. In other countries this obligation falls directly to the judge, who must inform the parents of the legal effects of adoption and of their right to withdraw consent. 41. In order to ensure that the biological parents give their free and informed consent, most European legal systems have introduced a statutory period of reflection after the birth. In a similar manner to Article 5 § 4 of the European Convention on the Adoption of Children (see paragraphs 30-32 above), most legal systems envisage a period of not less than six weeks, sometimes extending to as much as three months. 42. Some countries simply make the validity of consent subject to “the recovery of the mother after giving birth” or to the condition that it is given after the birth. Lastly, the legislation in other countries makes no provision for a period of reflection, but “prenatal” consent remains prohibited by law in the vast majority of legal systems. 43. Some countries have instituted a period within which the biological parents may revoke their consent. There is considerable diversity in the legislation of the member States that have provided for this possibility; some systems allow consent to be withdrawn until the adoption order is issued and others until the adoption process has been initiated, whereas others lay down fixed periods whose length varies from country to country. Lastly, in some countries the biological parents’ consent is irrevocable. 44. The effects of withdrawal of consent likewise vary from one State to another. In countries such as France or Switzerland, where consent may be revoked during a specified period, the withdrawal has an absolute effect in that it puts an end to the adoption process and opens up the possibility of the child’s return. Conversely, in systems where consent may be withdrawn until the adoption order is issued, the withdrawal does not automatically end the process and the courts are required to make a decision on the child’s return on the basis of the child’s best interests.

dev

001-57796

ENG

FRA

CHAMBER

CASE OF TOMASI v. FRANCE

Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);Violation of Art. 5-3;Questions of procedure accepted;Violation of Art. 3;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

C. Russo;N. Valticos

7. Mr Félix Tomasi, a French national born in 1952, resides at Bastia (Haute-Corse). He is both a shopkeeper and a salaried accountant. At the time of his arrest, he was an active member of a Corsican political organisation, which put up candidates for the local elections and of which he was the treasurer. 8. On 23 March 1983 the police apprehended him in his shop and placed him in police custody until 25 March at Bastia central police station. They suspected him of having taken part in an attack at Sorbo-Ocagnano (Haute-Corse) in the evening of 11 February 1982 against the rest centre of the Foreign Legion, which was unoccupied at that time of the year. Senior Corporal Rossi and Private Steinte, who, unarmed, were responsible for maintaining and guarding the centre, had been shot at and wounded, the former fatally and the latter very severely. The attack had been carried out by a commando of several persons wearing balaclava helmets to conceal their features. The following day the "ex-FLNC" (the Corsican National Liberation Front), a movement seeking independence which had been dissolved by decree, had claimed responsibility for the attack and for twenty-four other bomb attacks which had been perpetrated the same night. 9. On 12 February 1982 the Bastia tribunal de grande instance had opened an investigation relating to charges of murder, attempted murder and the carrying of category 1 and category 4 weapons and ammunition. The same day the investigating judge had issued instructions for evidence to be taken on commission (commission rogatoire) to the Regional Criminal Investigation Department (SRPJ) of Ajaccio. 10. On 25 March 1983 Mr Pancrazi, investigating judge at Bastia, charged Mr Tomasi and remanded him in custody following the latter’s first appearance before him; he took the same measures in respect of a certain Mr Pieri. On 8 April he questioned Mr Tomasi on his alleged involvement in the offences. 11. He took evidence from witnesses on 28, 29 and 31 March, 14 and 29 April, 19 and 30 May and 2 June 1983. On 19 May he questioned Mr Pieri and on 26 May another co-accused, Mr Moracchini, who had been held on remand since 24 March 1983. He organised confrontations between them on 30 and 31 May, and then on 1 June. In addition he issued formal instructions for evidence to be taken on 26 May and 27 October 1983. 12. The recapitulatory examination of Mr Tomasi and Mr Pieri was conducted on 18 October 1983, and that of Mr Moracchini on 21 November. On 26 October 1983 the investigating judge visited the scene of the crime. 13. The case was transferred to another investigating judge, Mr Huber, with effect from 2 January 1984. Mr Pieri escaped from prison on 22 January 1984; he was recaptured on 1 July 1987. Between 4 May 1984 and 10 January 1985, Mr Huber issued several orders for the inclusion of documents in the file and for their transmission to the prosecuting authorities. On 24 January 1985 he rejected a request by the applicant for documents to be added to the file. 14. Mr Tomasi submitted eleven applications for release. 15. The investigating judge rejected them by orders of 3 May, 14 June and 24 October 1983, 2 January 1984, 24 January, 20 March, 5 April, 18 April, 24 April, 3 May and 7 May 1985. On 6 June 1984 he issued instructions that the applicant be interviewed in Marseille on the conditions of his detention on remand. That interview took place on 18 June. 16. The applicant challenged the orders of 14 June 1983, 2 January 1984, 24 January and 20 March 1985, but the indictments division (chambre d’accusation) of the Bastia Court of Appeal upheld them on 7 July 1983, 26 June 1984, and 20 February and 17 April 1985. In its judgment of 20 February 1985 it stated that it was necessary to continue the detention in order to avoid pressure being brought to bear on the witnesses, to prevent unlawful collusion between the accomplices, to protect public order (ordre public) from the prejudice caused by the offence and to ensure that Mr Tomasi remained at the disposal of the judicial authorities. 17. On 10 January 1985 the Bastia public prosecutor applied to the principal public prosecutor of that town for jurisdiction to be transferred on the ground of the climate of intimidation which reigned in the island. 18. On 25 March the principal public prosecutor at the Court of Cassation referred the matter to the Court of Cassation (criminal division), which gave its decision on 22 May; it transferred the case to the Bordeaux investigating judge "in the interests of the proper administration of justice" (Article 662 of the Code of Criminal Procedure). 19. On 5 September 1985 Mr Nicod, investigating judge at Bordeaux, interviewed Mr Tomasi for the first and last time. He questioned Mr Moracchini on 1 October 1985 and 13 January 1986, and Mr Satti - another co-accused - on 15 November 1985. In addition, he organised a confrontation between them on 13 December 1985. 20. On 14 January 1986 the investigating judge made an order transmitting the documents to the prosecuting authorities. On 14 February 1986 the Bordeaux public prosecutor decided to forward the case-file to the principal public prosecutor’s office. From mid-March to mid-April 1986, the investigating judge added various documents to the file. On 17 April he made a further order transmitting the case-file to the prosecuting authorities, endorsed by the Bordeaux public prosecutor’s office. The case-file was forwarded to the principal public prosecutor’s office by a decision dated 22 April 1986. 21. Mr Tomasi submitted seven applications for his release. The investigating judge dismissed his applications on 31 May, 7 June, 29 June, 13 August, 10 September and 8 October 1985 and 14 January 1986. 22. On appeals against various of the investigating judge’s orders, the indictments division of the Bordeaux Court of Appeal upheld them by decisions of 3 September and 29 October 1985. The first such decision referred to the particular gravity of the offences, the existence of "precise and convincing evidence", the risk of pressure being brought to bear and of unlawful collusion and the need to maintain public order and to ensure that the applicant appeared for trial. The second decision contained the following reasoning: "It is plain that the offences of which the appellant is accused are particularly serious ones and profoundly prejudiced public order; without disregarding the pertinent observations of the accused’s counsel concerning the length of the proceedings, it appears nevertheless that, as the investigating judge decided, Tomasi’s continued detention is necessary to protect public order from the prejudice caused by the offences in question and also to avoid pressure being brought to bear or unlawful collusion and to ensure that the accused appears for trial;" 23. The two decisions gave rise to appeals on points of law by the applicant, which were dismissed by the criminal division of the Court of Cassation on 3 December 1985 and 22 January 1986. The latter decision was based on the following reasons: "In the light of the available evidence the Court of Cassation is satisfied that the indictments division ordered the continuation of the applicant’s detention by a decision which set out the reasons on which it was based with reference to the particular circumstances and which was made under the conditions, and for cases, specified in Article 144 of the Code of Criminal Procedure; it may also be seen from the grounds of the decision that there is in this case, as is required under Article 5 para. 1 (c) (art. 5-1-c) of the Convention, ... reasonable suspicion that the accused has committed an offence; it follows moreover that, having regard to the specific circumstances of the case and the proceedings, the duration of the detention appears reasonable;" 24. On 27 May 1986 the indictments division of the Bordeaux Court of Appeal indicted Mr Tomasi and Mr Pieri for murder with premeditation, attempted murder with premeditation and carrying category 1 and category 4 weapons, together with the corresponding ammunition; it committed them - as well as Mr Moracchini and Mr Satti - for trial at the Gironde assize court. 25. On 13 September 1986 the criminal division of the Court of Cassation allowed the appeal lodged by the applicant on 27 June 1986 on the ground that defence counsel had not been allowed to speak last at the hearing on 27 May. It remitted the case to the indictments division of the Poitiers Court of Appeal, instructing that court to commit the accused for trial at the Gironde assize court if there were grounds for indicting him (Article 611 of the Code of Criminal Procedure). 26. On 9 December 1986 the Poitiers indictments division committed Mr Tomasi for trial at the Gironde assize court. This decision did not give rise to an appeal on points of law. 27. On 3 February 1987 the indictments division of the Bordeaux Court of Appeal ruled that it lacked jurisdiction to commit the applicant - but not his three co-accused - for trial at the specially constituted Gironde assize court, in other words the assize court sitting without a jury. The principal public prosecutor’s office had requested it to apply the provisions of Law no. 86-1020 of 9 September 1986, according to which persons accused of acts of terrorism must be tried before such a judicial body. 28. On 7 May 1987 the criminal division of the Court of Cassation dismissed the appeal on this issue filed by the principal public prosecutor at the Bordeaux Court of Appeal. 29. On 16 June 1987 the Poitiers indictments division allowed an application lodged on 20 May 1987 by the prosecuting authority and committed the applicant for trial at the specially constituted Gironde assize court. It thereby acknowledged that the offences of which Mr Tomasi was accused were "related to an individual or collective undertaking aimed at seriously prejudicing public order by intimidation or terror" (Article 706-16 of the Code of Criminal Procedure). 30. On 24 September 1987 the criminal division of the Court of Cassation dismissed a further appeal by the applicant. 31. By a decision of 27 May 1986 (see paragraph 24 above), the Bordeaux indictments division dismissed an application for release which Mr Tomasi had submitted on 6 May. It gave the following grounds: "The detention on remand, which started on 25 March 1983, has certainly lasted a very long time. However, the explanation for this lies in the systematic attitude adopted by the accused and the considerable difficulties encountered by the investigating judge. The period of detention, although long, does not in itself constitute a violation of the European Convention on Human Rights. On the contrary, in this particular case continued detention appears to be essential, given the exceptional gravity of the offences and the fact that Tomasi would not hesitate to abscond if he were released." 32. The applicant filed an appeal on points of law, but the criminal division of the Court of Cassation rejected the submission based on the violation of Article 5 para. 3 (art. 5-3) of the Convention. On this issue its judgment of 13 September 1986 stated as follows: "In the light of the available evidence the Court of Cassation is satisfied that the applicant’s continued detention was properly ordered in accordance with the conditions laid down in Article 148-1 of the [Code of Criminal Procedure], by a decision setting out specific reasons, having regard to the features of the case as is required under Article 145 of that Code and for cases exhaustively listed in Article 144; In addition the indictments division discussed the complexity and the length of the proceedings, carrying out an unfettered appraisal of the facts, which was sufficient and free of contradictions and from which it concluded that the length of the detention on remand had not exceeded a reasonable time [; it follows] that the submission must fail ..." 33. Mr Tomasi submitted a new application for release on 19 January 1987. By a decision of 3 February 1987 (see paragraph 27 above) the Bordeaux indictments division found that it lacked jurisdiction as the committal had been decided by the Poitiers indictments division. 34. On 17 April 1987 the applicant lodged a further application for his release. On 28 April the Bordeaux indictments division dismissed his application on the ground that the committal had been based on precise and detailed reasons, the offences were extremely serious ones and the detention was necessary to protect public order from the prejudice to which they had given rise. 35. The applicant lodged a further application for release on 22 May 1987 with the indictments division of the Poitiers Court of Appeal, which dismissed it on 2 June for the following reasons: "A campaign of intimidation against the witnesses, policemen and judges has been waged in the course of the investigation; A mere recital ... of the offences which led to Tomasi being charged is sufficient, besides the fact that the said offences seriously prejudiced public order, to justify the accused’s continued detention; there is a grave danger that if he were to be released he would enter into contact with members of the FLNC, who would no doubt be only too pleased to help him evade trial; it does not appear that his continued detention is, in the circumstances, such as to infringe the provisions of the Convention ..." 36. On 6 November 1987 the applicant once again applied to the Bordeaux indictments division for his release. On 13 November his application was dismissed on account of the extreme gravity of the alleged offences and the need to protect public order from the prejudice created thereby. 37. He then filed an appeal on points of law, which the criminal division of the Court of Cassation dismissed on 2 March 1988. 38. On 22 January 1988 the President of the Bordeaux Court of Appeal had directed that the session of the assize court was to open on 16 May 1988. On 28 April the President decided to postpone the opening of the session until 17 October 1988, following an exchange of correspondence in March and April between the principal public prosecutor’s office and counsel for Mr Tomasi and Mr Pieri. On 15 July and 23 September he altered the composition of the trial court. 39. The trial took place from 17 to 22 October 1988. On that last date, the applicant was acquitted and immediately released. His three co-accused were given suspended sentences of one year’s imprisonment for carrying or possession - as the case may be - of a category 1 weapon. 40. On 18 April 1989 Mr Tomasi lodged a claim with the Compensation Board at the Court of Cassation under Article 149 of the Code of Criminal Procedure. According to this provision, "... compensation may be accorded to a person who has been held in detention on remand during proceedings terminated by a decision finding that he has no case to answer (non-lieu) or acquitting him, when that decision has become final, where such detention has caused him damage of a clearly exceptional and particularly serious nature". 41. On 5 June 1991 the principal public prosecutor (procureur général) at the Court of Cassation made the following submissions to the Compensation Board: "... IN THE MATTER OF THE DETENTION During his detention, Tomasi lodged twenty applications for release, eleven applications to the Bastia investigating judge and nine to the investigating judge and the indictments division in Bordeaux. Six judgments confirming decisions were given, four by the Bastia indictments division and two by that of Bordeaux. Finally, two decisions of the criminal division of the Court of Cassation, of 17 October and 2 March 1988, dismissed Tomasi’s appeals from the two decisions of the Bordeaux indictments division. In their decisions rejecting the applications for release the investigating judges and the indictments division gave their reasons as being the exceptional gravity of the offences, the prejudice caused to public order, the need to ensure that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses. DISCUSSION 1. The length of the proceedings . From 12 February 1982, the date on which the investigation was opened, to 25 March 1983, Tomasi was not yet implicated. . From 25 March 1983, the date on which Tomasi was charged, to 18 October 1983, the date of his recapitulatory examination, the proceedings progressed at a normal pace and there were no delays. . From November 1983 to May 1984 the proceedings slowed down and consisted of measures which could have been taken previously if the commissions rogatoires or the orders relating to them had been issued earlier. Thus the result of the commission rogatoire concerning the victim’s spectacles was not communicated until March 1984; it had not been issued until 27 October 1983 ..., whereas it could have been right at the beginning of the investigation. Similarly the commission rogatoire giving instructions inter alia for an inquiry into the victims and into the Sorbo-Ocagnano camp and for a study and plans to be made of the premises was not issued until 26 May 1983... The evidence obtained under that commission rogatoire was produced only in the course of the months of March and April 1984, which undeniably prolonged the proceedings. . The lack of progress in the proceedings between May 1984 and January 1985 is incomprehensible. Thus nearly three months elapsed between the order of 4 May 1984 transmitting the papers to the prosecuting authority and the additional prosecution submissions of 31 July 1984 calling for a ballistic examination, which had already taken place. Yet it was not until the following 15 November, three and a half months later, that the investigating judge gave his order dismissing that request for an expert examination. . From January 1985 to May 1985, the time taken for the transmission of documents to the indictments division and then the Court of Cassation and the return of the file to Bordeaux seems normal. . On the other hand it was not until 5 September 1985, more than three months after the case had been referred to him, that the Bordeaux investigating judge carried out his first substantive investigative measure by interviewing Tomasi, after having dismissed the latter’s applications for release on four occasions. This lapse of time appears excessive in view of the fact that an investigating judge must give priority to a case concerning a person held in detention on remand; he has a duty to familiarise himself with it and proceed with the investigation as quickly as possible. . From September 1985 to 14 January 1986 the interrogations and confrontations were continued at the rate of one investigative measure per month. Interviews held at shorter intervals would have made it possible to reduce the duration of the proceedings significantly. . From January 1986 to May 1986 the time taken to complete the file and transmit it to the assize court appears normal. . On the other hand, from May 1986 to March/April 1988 there was a delay in the proceedings which can under no circumstances be justified by the appeals filed by the accused in pursuance of their statutory rights. . Finally, it should be noted that the decision in the course of March and April 1988 to renounce holding the May session and to replace it by a session fixed for 17 October 1988 was taken by mutual agreement between the prosecuting authorities and the defence. In conclusion, in view of the significance and the complexity of the case the investigation was bound to last longer than average. However, it could have been considerably shortened without the various delays noted above. 2. The necessity of keeping Tomasi in detention during the proceedings Given the nature and the gravity of the offences and the results of the police investigation, Tomasi’s detention was at first justified, up until his recapitulatory examination of 18 October 1983. Moreover, until that date, Tomasi had not filed an application for release. However, by 18 October 1983 the witnesses had already been interviewed and the confrontations carried out. The measures taken after that date, in particular the commissions rogatoires and the expert examinations, did not concern Tomasi directly, except the expert medical examinations ordered following his declarations regarding the conditions of his police custody, which clearly could not justify his continued detention. It should moreover be stressed that between 18 October 1983, the date of the recapitulatory record, and 17 October 1988, the date on which the assize court session opened, in other words for five years, Tomasi was questioned only once, on 5 September 1985, and at his request. The decisions rejecting his various applications for release were based on the exceptional gravity of the offences, the prejudice caused to public order, the necessity of ensuring that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses. The gravity, even of an exceptional nature, of offences may constitute a ground for detention only if there is sufficient evidence against the person held. In this case, charges had been preferred against Tomasi, who had always protested his innocence and had been on hunger strike several times, exclusively on the basis of Moracchini’s statements, which were far from being as precise as they were claimed to be throughout the proceedings. In fact, according to various documents from the proceedings, and in particular: - the report of the public prosecutor to the Bastia principal public prosecutor of 11 April 1983 ..., - the memorandum from the SRPJ of Ajaccio of 8 June 1983 ..., - the application by the Bastia investigating judge for a transfer of jurisdiction of 10 January 1985 ..., Moracchini stated that Tomasi had suggested that he take part in the `nuit bleue’ (night of terrorist outrages) of 11 to 12 February 1982, and specifically carry out an attack against the Foreign Legion camp of Sorbo-Ocagnano. Yet if all Moracchini’s statements are read carefully it may be seen that although he did state that Tomasi had suggested that he participate in the `nuit bleue’, at no time did he mention an attack against the Foreign Legion camp ... Quite the contrary, Moracchini always claimed that he had learned of the attack for the first time the day after the events. Thus, for example, in the course of his interrogation at his first appearance before the investigating judge ... Moracchini stated as follows: ‘I was aware that Pieri knew Félix Tomasi. The latter had indeed suggested a few days earlier that I should take part in a `nuit bleue’. I had refused, but at no time did he say what attack I would have been expected to carry out. As for me, I only heard about the legionaries through the newspapers, on the morning of 12 February.’ Furthermore, it should be observed that all the witnesses who confirmed Moracchini’s statements merely reported what he had told them. None of them was a direct witness to the events. In addition, it does not seem that the release of Tomasi, who could provide sound guarantees that he would appear for trial and who had no previous convictions, could have represented a risk of pressure being brought to bear on witnesses or on Moracchini, a co-accused who was free. In fact, Tomasi, like Pieri and Moracchini, was not remanded in custody until more than a year after the events and Pieri, implicated by the same witnesses as Tomasi, had escaped from prison on 22 January 1984 and remained free for three and a half years until his arrest on 1 July 1987, apparently without any pressure being brought to bear on the witnesses. Finally, it should be noted that on 10 March 1987 Félix Tomasi lodged an application with the European Commission of Human Rights under Article 25 (art. 25) of the European Convention for the Protection of Human Rights, making the following complaints: - excessive duration of his detention on remand (violation of Article 5 para. 3 of the Convention) (art. 5-3); - inhuman and degrading treatment during his police custody (violation of Article 3 of the Convention) (art. 3); - excessive duration of the investigation proceedings opened following a complaint accompanied by a civil claim (violation of Article 6 para. 1 of the Convention) (art. 6-1). This application was the subject of a report by the European Commission of Human Rights adopted on 11 December 1990, in which the Commission declared the application admissible and expressed the opinion by twelve votes to two that there had been, in the case under review, a violation of Article 3 (art. 3) of the Convention, by thirteen votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention and, unanimously, that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention. IN CONCLUSION In the light of the various considerations set out above, and the particularly distressing conditions of his detention, Félix Tomasi, who spent five years and nearly seven months in detention and in respect of whom the investigation produced only weak and insufficient evidence, suffered considerable damage on this account. For all these reasons I call upon the Board to award appropriate compensation." 42. By a decision of 8 November 1991, which contained no statement of the reasons on which it was based, the Compensation Board awarded the applicant 300,000 French francs. 43. Mr Tomasi was apprehended on 23 March 1983 at 9 a.m. (see paragraph 8 above). He remained in police custody until 9 a.m. on 25 March, in other words forty-eight hours, Judge Pancrazi having granted the police an extension of twenty-four hours at 6 a.m. on 24 March. 44. During this period, the applicant: (a) had been present at a search of his home on 23 March from 9.15 a.m. to 12.50 p.m.; (b) had undergone several interrogations: - on 23 March from 1.15 p.m. to 2.30 p.m., from 5.30 p.m. to 8 p.m. and from 8.40 p.m. to 10.15 p.m., a total of five hours and twenty minutes; - on 24 March from 1.30 a.m. to 2 a.m., from 4 a.m. to 4.45 a.m., from 11 a.m. to 1 p.m., from 3.40 p.m. to 8 p.m. and from 8.30 p.m. to 9.20 p.m., a total of eight hours and twenty-five minutes; - on 25 March from 4.30 a.m. to 4.50 a.m., twenty minutes; (c) had been examined on 24 March at 11 a.m. by a doctor, who had concluded that his state of health was compatible with the extension of the police custody. The applicant signed the recapitulatory record drawn up at the end of his police custody, but refused to sign that of his last interrogation. 45. On 25 March 1983, when he first appeared before the investigating judge (see paragraph 10 above), he made the following statement: "I note the charges of which you have informed me. I am a declared member of the CCN [Cunsulta di i cumitati naziunalisti]. I am not a member of the FLNC. I will make a statement later in the presence of my lawyer, Mr Stagnara. I should like to add, however, that I was struck during my police custody by police-officers; I do not wish to give their names. I was not allowed any rest. I had to ask the doctor who visited me for something to eat because I was left without food and all I had to eat was one sandwich. This morning, I was left naked in front of an open window for two or three hours. I was then dressed and beaten up. This went on continuously throughout the police custody. I can show you bruises on my chest and a red patch under my left ear." The judge had the words "seen, correct" entered at the end of this statement. 46. On 29 March 1983 Mr Tomasi laid a complaint against persons unknown together with an application to join the proceedings as a civil party (constitution de partie civile), "for assault committed by officials in the performance of their duties and abuse of an official position". The following day the senior investigating judge ordered that the applicant lodge a deposit set at 1,200 francs and communicated the file to the public prosecutor’s office. 47. On 29 March Mr Pancrazi, the investigating judge, interviewed as a witness Dr Bereni, Senior Medical Officer at Bastia Prison. He stated as follows: "I am a medical officer in the Prison Service and I examined Charles Pieri on his arrival at the prison and Félix Tomasi, as I do with all the inmates. ... In Félix Tomasi’s case, I observed behind the left ear a haematoma which had spread slightly towards the cheek. I noted slight superficial scratches on the chest. In addition, Tomasi reported pain in his head and neck, as well as in his legs, arms and back, but, as I have already stated, I was unable to find objective evidence to support these claims. In both cases the injuries were very slight with no serious features and could not lead to incapacity for work." 48. On 25 March 1983 the same judge had instructed a Dr Rovere, an expert attached to the Bastia Court of Appeal, to carry out the following tasks: "1. Effect an examination of the victim’s injuries, illnesses or disabilities, describe them, specify their likely sequelae and give an opinion as to their causes; 2. Describe the extent of the incapacity and assess its probable duration." The doctor, who had examined Mr Tomasi on 26 March 1983 at 12 noon in the prison, in the presence of the investigating judge, lodged his report on 30 March. The report stated as follows: "III. CURRENT CONDITION (1) Symptoms complained of Mr Félix Tomasi complained of . acute otalgia in the left ear . acute parietal and bilateral cephalalgia . slight back pain . pains in the upper abdomen No other symptom was complained of. (2) Clinical examination ... (a) General examination: . Weight: 60kg; height: 1m65 (estimation). Blood pressure: 11,5/7. Pulse rate: 84 beats to the minute. Cardiopulmonary examination: normal. (b) Cranio-facial segment: - Two barely visible abrasions, one on the right temple and the other above the right eyebrow - Small horizontal bruise to the upper part of the left eyelid, measuring 2cm in length, colour purplish-red - Pains complained of on palpation of the right parietal region of the skull - Conjunctival redness in both eyes (the patient states that he had this condition before his police custody), non- traumatic in origin - Neurological examination: . Pupils equal size, regular and contractile. No nystagmus . Romberg negative. No asymmetry, no dysdiadochokinesis . Tendon reflexes - normal. No deviation in the index finger test and the blind walk test - Left ear:. A dark-red-coloured bruise, warm and allegedly painful on palpation, in the helix and the anthelix . The external auditory meatus and the eardrum show no sign of a traumatic injury. (c) Cervical rachis: - No apparent trace of traumatism. Pressure on the processus spinosis of the cervical vertebrae C1 and C2 allegedly painful. Unrestricted neck movement, cracking sounds in articulations could be heard on side movements of the head (commonplace after the age of thirty). No muscular contraction. (d) Thorax and abdomen: - Ecchymotic striae (vibices) located as follows:. one at the level of the praesternum . one at the level of the metasternum . three others at the level of the epigastric region . one at the level of the right hypochondrium. These marks are red in colour, surrounded by a purplish halo, visible in non-artificial light and allegedly painful on palpation. - No hepatomegaly - No splenomegaly (enlarged spleen) - Slight abdominal distension. (e) Lumbar region: - No apparent trace of traumatism. No restriction on scope of trunk movement. No paravertebral muscular contraction. (f) Left arm: On the upper third of the postero-internal face of the arm there is a bruise which is red in colour, with a purplish periphery in its lower part, measuring 8cm in length and 4cm in width, claimed to be painful on palpation. Below this bruise, two others may be seen, of a circular shape, measuring 1.5cm in diameter, less highly coloured. IV. DISCUSSION AND CONCLUSION Mr Félix Tomasi has the following symptoms, as observed in the examination of 26 March 1983: - Superficial bruising to the left upper eyelid, the front of the chest, in the epigastric region and that of the right hypochondrium, on the left arm and the left ear - Two barely visible cutaneous abrasions on the right temple. The red colouring of the bruises with a peripheral purple halo makes it possible to fix the date of their origin as between two and four days before the examination on 26 March 1983. The simultaneous presence of abrasions and bruises makes it possible to affirm that these injuries are traumatic in origin; however, biological tests could be carried out in order to eliminate another medical cause. Their extent and form offer no indications of how they first occurred; they are thus consistent with Mr Tomasi’s declarations but could equally have a different traumatic origin. These injuries entail temporary total incapacity of three days." 49. On 24 June 1983 Judge Pancrazi interviewed Mr Tomasi as an accused. After the expert medical reports concerning the victims of the attack of 12 February 1982 had been read out to the applicant and his co-accused, the applicant stated: "The injuries which were noted during the examinations made firstly by Dr Rovere and then by Drs Rocca and Ansaldi, were the result of the acts of Superintendent [D.], his deputy [A.] and some of the other officers of the criminal investigation department. I was beaten for forty hours non-stop. I didn’t have a moment’s rest. I was left without food and drink. A police-officer, whom I would be able to recognise, held a loaded pistol to my temple and to my mouth, to make me talk. I was spat upon in the face several times. I was left undressed for a part of the night, in an office, with the doors and windows open. It was in March. I spent almost all the time in police custody standing, hands handcuffed behind the back. They knocked my head against the wall, hit me in the stomach using forearm blows and I was slapped and kicked continuously. When I fell to the ground I was kicked or slapped to make me get up. They also threatened to kill me, Superintendent [D.] and officer [A.] told me that if I managed to get off they would kill me. They also said that they would kill my parents. They said that there had been an attack at Lumio where there had been a person injured and that the same thing would happen to my parents, that they would use explosives to kill them. I would like to say in connection with the injuries to my left ear that, in addition to the bruise noted by Dr Rovere, I bled, to be more precise my ear was bleeding, as I realised when I put a cotton bud in my ear. This lasted for a fortnight. I asked if I could see a specialist and Dr Vellutini told me that I had a perforated eardrum. I also realised afterwards that I had a broken tooth. I was therefore not able to tell this to the experts. Drs Rocca and Ansaldi stated that the bruise to the left upper eyelid could suggest the shape of spectacles; but my spectacles are worn on the nose and although they may leave marks on the nose, they cannot under any circumstances mark the upper part of the eye." 50. Following the lodging of Mr Tomasi’s complaint and at the request of the public prosecutor, the President of the Bastia tribunal de grande instance appointed another investigating judge, Mr N’Guyen, on 2 June 1983. Without waiting for the outcome of the application for an order designating the competent court (see paragraph 55 below), Mr N’Guyen had already appointed two experts of the Bastia Court of Appeal, Dr Rocca and Dr Ansaldi, who had examined the applicant on 29 March 1983 at the prison and submitted their report on 1 April. This document was worded as follows: "SUMMARY OF THE FACTS: The patient states as follows: `On 23 and 24 March 1983 I was beaten up for a period of about thirty-six hours. I was repeatedly punched and kicked mainly in the abdomen, on the head and on the face.’ SYMPTOMS COMPLAINED OF AT THIS TIME: The patient complains of the following symptoms: - pain in the left ear; - buzzing in the ears; - headache; - pain in the lumbar region; - abdominal pain; - [illegible]. CLINICAL EXAMINATION CARRIED OUT ON TODAY’S DATE - Weight: 60kg - Height: 1m65 - Blood pressure: 13/8 - Pulse: 72 beats a minute. 1. Examination of the face and the skull: Mr Tomasi wears corrective lenses for myopia. On examining him we noted the following: - a slight bruising of the upper left eyelid, purplish in colour, 2cm in length; - minor abrasions 3mm in diameter: 1 - at the level of the right temple, 2 - above the right eyebrow. On continuing the examination of the face we observed: - the area of the masticatory muscles was particularly sensitive on palpation, especially on the right; - elsewhere, the ocular autokinesis was normal; - the examination of the surface sensitivity of the face was normal; - facial motility was normal. Further examination revealed: - pronounced, diffuse erythema in the auricle of the left ear; - auditory capacity appeared normal, tested by the ticking of a watch and whispering. 2. Thoraco-abdominal examination: Examination showed: - a number of cutaneous abrasions a few millimetres in diameter, located in the area of the right hypochondrium, the epigastrium, the right lower thoracic region and the left parasternal region, close to the metasternum; - otherwise, pulmonary auscultation, palpation and percussion of thorax normal; - likewise examination of the abdomen revealed a supple stomach, no pain; - examination of the external genital organs showed no bruising, no haematoma, no scar, no trace of traumatism. 3. Examination of the upper members: - On the left arm, postero-internal face, at the middle part of the arm, a bruise 8cm in length, 4cm in width, oval- shaped. This bruise was a yellowish colour in the middle and greenish at the periphery. - There were in addition two small bruises near to the first bruise, of a circular shape, about 4mm in diameter, also of a greenish colour. 4. Examination of the lower members: Examination entirely normal. 5. Neurological examination: - Romberg test: negative - No deviation of index finger - Muscular strength [illegible] intact - Tendon reflexes present and symmetrical - Sensitivity: normal - Co-ordination: normal. DISCUSSION AND CONCLUSION After questioning and carrying out a full clinical examination of Mr Félix Tomasi, we noted the following injuries: - two bruises, a small one on the left eyelid and a larger one on the left arm; - in addition, there were abrasions spread out over the thoracic and parasternal region and on the left temple and right eyebrow. These abrasions were of minimal size. The pains and buzzing in the ear require an opinion from an ear, nose and throat specialist. The colouring of the bruises makes it possible to fix the date of the originating traumatism at between four and eight days previously. The bruise on the left arm could be the result of strong manual and digital pressure. The bruise to the left upper eyelid might suggest the shape of the upper frame of the spectacles worn by Mr Tomasi. The cutaneous abrasions noted do not indicate a specific traumatic origin. We did not find any scar, any burn mark, or any other injury capable of suggesting that acts of torture had been committed." 51. On 21 April 1983, at the investigating judge’s request, the two doctors filed a further expert opinion. In this they concluded: "Mr Félix Tomasi qualifies for temporary total incapacity of two days". 52. On 1 July 1983 Judge N’Guyen interviewed the applicant in his capacity as a civil party in criminal proceedings. Mr Tomasi made the following statement: "- ... I think that we arrived at the police station at around midday. They began to question me and typed the first record. I said that I was an active member of the CCN. They asked me if I knew why I was there. I replied that it was not the first time that they had detained members of the CCN. - It was at that moment that they began to hit me; Superintendent [D.] slapped me repeatedly. Each time he came into the office he egged his men on. He said that they had to make me talk and that they had to use every means of doing so. He hit me throughout the two days of police custody. - His deputy [A.] also hit me. He used forearm blows to the stomach, saying that that left no mark. He pulled me by the hair and knocked my head against the wall. There were others there but I don’t know their names: there was a small, dark-haired man, who I think was called [G.]. He slapped me and punched me. I can also give you the name of [L.] because he told me his name. There were others too, but I cannot name them. These men hit me continuously except when I was speaking. As soon as I stopped speaking they hit me. - I’d like to make clear that I had my hands handcuffed behind my back and I had to remain standing fifty centimetres from the wall. That started at the beginning of the police custody. The body search was not carried out on the ground floor but on the second floor. - I remember that there was also a man who was with [A.], of the same height, balding. He too hit me throughout the police custody. He took my head and knocked it against the wall. - I had no rest the first night or the second. - I was questioned by about fifteen police-officers who took it in turns. Sometimes they were three; often they were between ten and fifteen. I spent almost forty-eight hours in the same office. - I was taken down again on 25 March around six in the morning. Until then I had no rest, I had neither eaten nor had anything to drink. - The first evening I asked for food and drink. The policemen gave me nothing. The following day, as I had asked to see a doctor, he came. I told him that I had been beaten continuously for more than twenty-four hours, that I had not eaten or drunk and that I was being dealt with by torturers. I made him note the marks of the blows to my stomach and face. He did not reply. He took my blood pressure. He told the policemen that I could stand up to it. Indeed I have written to the medical association on this point. When I told him that I had had nothing to eat, he looked at the policemen. The policemen looked embarrassed and asked me what I wanted. I said that I would like a cup of coffee and a sandwich. They refused to give me the coffee and told me that I would have it if I talked. The sandwich was thrown into the dustbin. It was not until the following morning that the municipal police-officers (l’Urbaine) gave me three or four coffees with croissants and chocolate rolls. That is why when I arrived at the court house I was in a very agitated state. - I should also like to say that police-officer [L.] took his pistol out of his belt; it was loaded, and held it to my temple and my mouth. He told me to talk. I replied that I couldn’t make things up. He read me the records of the interrogations of the others. He told me that I should say the same thing. - After that, [G.] spat at me about ten times in the face and slapped me. - The torturer [D.] often came into the office and asked several times `you haven’t undressed him yet?’ - At nightfall they took me into another office. It was still on the second floor but couldn’t be seen into from outside. There I was completely stripped. This happened during the second night. I was completely naked, in my socks. [D.] arrived; he asked me why they hadn’t taken off my socks. He slapped me and continued to question me like that with the doors and windows open. It was a cold March night. I repeat that in the room where I had been put I couldn’t be seen from the outside. In the other room, they were careful to lower the metal blind when they turned the light on. - At one moment I was allowed to sit down. That is when [B.] arrived. He took me by the shirt or jacket and pushed me. He had the handcuffs with which my hands were bound behind my back taken off and made me sit down. He told all the police-officers and the superintendent to leave. He asked me if I wanted anything. I told him that I would like to go to the lavatory and wash myself. He let me go; he then spoke to me for an hour. We spoke together as we are speaking today. - That happened on the 24th at around 8 or 10 o’clock in the evening. [B.] left. They put back the handcuffs and continued to hit me. - I should also say that my arms and legs were numb. I was sometimes hit so much that I fell to the ground. The policemen made me get up by kicking me and hitting my head against the wall. - There were also threats to my family. They threatened to blow up the flat where my parents live. They told me about a woman from Lumio who had been blown up and who had been injured and said that they would do the same thing to my parents to kill them. They also told me that they would kill the families of my brother and my sister. - Police-officer [L.] told me that he would make me close the shop. That it would be French people who would buy it. He told me that he would make all the Corsicans leave. He told me that he would also blow up the shop. - They made threats against me too. The torturers threatened to kill me. They told me that they would take me to the Legion camp at Calvi and that they would leave me to the legionaries. Many other things happened but in one hour it is impossible to recount everything that happened over forty hours. [A.] called me a left-winger. He said that he was sure that I had voted for Mitterrand and that this was the result. They also said that they were about fifteen police- officers who were reliable and that I had better not lay a complaint. They told me that it wasn’t the same for the municipal police-officers because there were sympathisers among them and they weren’t sure of them. I would like to say that if I am released, because I am innocent, if something happens to me, it won’t be necessary to look any farther. They told me that if I were freed, they would deal with me." 53. By a letter of 3 July 1983 the applicant’s lawyer requested the investigating judge to organise a confrontation between his client and the officers who had taken part in the interrogations; he also suggested that the judge should take evidence from the four persons who had been held in custody at the same time because "they could have heard or seen some of the ill-treatment inflicted at Bastia police station", as well as Dr Vellutini "who was asked to examine Mr Tomasi, who had complained of having problems with his ears". In addition, he asked that the record of the applicant’s first appearance before Judge Pancrazi be included in the case-file. 54. The participants in the proceedings did not supply either the Commission or the Court with information regarding any investigative measures which may have been taken between 1 July 1983 and 15 January 1985. 55. On 31 March 1983 the Bastia public prosecutor submitted an application to the criminal division of the Court of Cassation requesting that the "court responsible for the investigation or trial of the case" be designated. He was acting pursuant to Article 687 of the Code of Criminal Procedure, which concerns cases in which "an officer of the police investigation department is liable to be charged with a criminal offence, allegedly committed in the area in which he performs his duties, whether or not in the performance of those duties". 56. On 27 April 1983 the Court of Cassation rejected the application, because it did not specify either the names or the position of the persons who were liable to be prosecuted as a result of Mr Tomasi’s complaint. 57. On 15 January 1985 the Bastia public prosecutor again applied to the criminal division, seeking the designation of the competent court. 58. On 20 March 1985 the Court of Cassation gave its decision. It declared void the investigative measures carried out after 1 July 1983, the date on which the applicant as the civil party in criminal proceedings had identified the persons whom he accused. In addition, it instructed the Bordeaux investigating judge to conduct the investigation into the applicant’s complaint. 59. On 23 April 1985 the Bordeaux public prosecutor lodged an application for the opening of an investigation and the President of the Bordeaux tribunal de grande instance appointed an investigating judge, Mr Nicod. 60. The latter interviewed Mr Tomasi on only one occasion, on 5 September 1985. On 24 September he added to the file the certified copies of several documents from the file opened in Bastia, in particular the records of the police custody and of the first appearance before the investigating judge as well as the expert medical reports. By a letter addressed to the judge on 4 October, the applicant requested a confrontation with the police-officers who had interrogated him. On 13 December 1985 and 13 January 1986 the investigating judge interviewed as witnesses persons who had been held in police custody on the same premises and at the same time as the applicant. Mr Moracchini stated that he had seen the applicant on the fourth day at Bastia Prison and had noted that he had marks on his abdomen and that an ear was running. 61. Mr Nicod was appointed to a new post and the President of the Bordeaux tribunal de grande instance replaced him on 7 January 1987 by another judge, Mr Lebehot. 62. On 13 January 1987 the latter issued a commission rogatoire to the Director of the General Inspectorate of the National Police instructing it to undertake a thorough investigation. Fifteen police-officers who had taken part in the arrests, searches and interrogations were interviewed between 3 and 24 February 1987. None of them admitted having assaulted the persons held in police custody and none of them was confronted with Mr Tomasi. The results of the commission rogatoire reached the court on 6 March 1987. 63. On 23 June 1987 the investigating judge issued an order finding that there was no case to answer. He cited the same grounds as those set out in the submissions made the previous day by the Bordeaux public prosecutor: "... in view of the formal and precise denials by the officers concerned, the accusations made by the complainant, even if they are supported by a few objective medical observations, cannot in themselves constitute serious and concurring indications of guilt such as could justify one or several persons being charged." 64. By a letter of 26 June 1987 Mr Tomasi appealed from the order finding that there was no case to answer to the indictments division of the Bordeaux Court of Appeal. He complained among other things that there had been no confrontation with the police-officers and that the sequelae of his police custody had not been taken into account, in particular the fact that his eardrum had been perforated as was shown by subsequent examinations. On 12 October he wrote to the President requesting that a confrontation be organised. 65. The indictments division gave its decision on 3 November 1987. It allowed the applicant’s appeal and, before ruling on the merits, ordered further inquiries. On 19 January 1988 the judge with responsibility for these inquiries issued a commission rogatoire to the Director of the General Inspectorate of the National Police. Three other police- officers were thus interviewed, as well as four persons - including Mr Filippi - who had been in police custody at the same time as Mr Tomasi, and the ear, nose and throat specialist - Dr Vellutini - who had examined him in April 1983. On 28 January 1988 Mr Filippi stated that he had seen the applicant on the morning of 25 March 1983. Mr Tomasi’s face had been "bruised and swollen", his hair had been "dishevelled", he had had "bruises on the chest, on the abdomen and under his right armpit"; he had complained that he had been "beaten all the time" and he had "even taken a tooth out of his pocket". On 25 February 1988 Dr Vellutini made the following statement: "... I carried out a medical examination of Mr Félix Tomasi as an outpatient at Bastia Hospital. I cannot specify the date, but it was in 1983. I treated him for an ear infection and possibly a perforated eardrum. I examined him once or twice, no more than that. I have already told this to the investigating Judge N’Guyen in his chambers. My examination was part of an ordinary consultation and I never issue a medical certificate in those circumstances; I merely treat the patients who are brought to me. ..." On 18 April 1988 the judge submitted the results of the further inquiries. 66. On 12 July 1988 the indictments division upheld the order finding that there was no case to answer, on the following grounds: "... There is no doubt that Antoine Filippi, who was held in police custody at the same time as Tomasi, maintained that he had noticed in the hall of the police station that the latter’s face had been `bruised and swollen’ and that subsequently he had `personally seen that he had bruises on the chest, abdomen and under the right armpit’; His co-accused Joseph Moracchini had for his part stated that Tomasi `had all his chest grazed and that there was liquid running from an ear’; These statements add somewhat to the observations made by the investigating judge himself when Tomasi came to his chambers, namely the presence of bruises on his chest and a redness under the left ear, as well as those of the doctors designated at various stages in the proceedings; During the police custody, on 24 March 1983 at 11 a.m., Doctor Gherardi examined Tomasi, who complained to him that he had been beaten, but he did not personally observe anything at that stage. When he arrived at the prison, on 25 March 1983, Tomasi was seen, as part of the systematic check-ups of detainees, by the Senior Medical Officer, Dr Bereni, who noted the presence of a haematoma behind the left ear spreading slightly down towards the cheek and slight superficial scratches on the chest and took note that the applicant reported pain in the head, the neck, the legs, the arms and back, without any objective symptoms. An expert, Dr Rovere, appointed by the investigating judge, examined Tomasi on 26 March 1983 at 12 noon and noted that he had superficial bruising on the left upper eyelid, on the front of the chest and in the epigastric region and that of the right hypochondrium, on the left arm and the left ear, as well as two cutaneous abrasions, barely visible, on the right temple; the expert stated that the red colouring of the bruises with a purple peripheral halo made it possible to fix the date of their occurrence as between two and four days before the examination and stressed that the fact that abrasions and bruises were present simultaneously gave grounds for affirming their traumatic nature but did not indicate the actual cause of the traumatism; he fixed at three days the duration of the temporary total incapacity. The expert report which was entrusted to Dr Rocca and Dr Ansaldi, in connection with the investigation opened against persons unknown ... [see paragraph 46 above], revealed in the course of the examination carried out on 29 March the presence of two bruises, one a small one on the left eyelid capable of suggesting the shape of the upper frame of the applicant’s spectacles and the other, larger, on the left arm, being possibly the result of very strong manual and digital pressure, as well as abrasions spread out about the thoracic and parasternal regions, on the right temple and the right eyebrow, which did not indicate any specific traumatic cause. The possibility that the applicant had a perforated eardrum and a bleeding ear was not expressly confirmed by Dr Vellutini, an ear, nose and throat specialist, and was expressly denied by Drs Rovere and Bereni. In any event a comparative study of the various observations made by several doctors and experts shortly after the supposed date of the acts of violence of which Tomasi complained showed that there was a real discrepancy between such violence (punches and kicks; forearm blows; head hit against the wall for nearly forty hours) and the slight nature of the traumatisms the origin of which is in dispute and cannot be determined. The officers of the criminal investigation police concerned expressly deny the accusations. Any confrontation appears at this stage pointless. There is doubt as to the truth of Tomasi’s accusations." 67. On 21 July 1988 Mr Tomasi filed an appeal on points of law which the criminal division of the Court of Cassation declared inadmissible on 6 February 1989 on the following grounds: "On the basis of the grounds given in the contested judgment the Court of Cassation is satisfied that, in upholding the order in question, the indictments division, after having analysed the facts contained in the complaint, set out the grounds from which it inferred that there was not sufficient evidence against anyone of having committed the offence of assault by officials in the performance of their duties; The appeal submission, in so far as it amounts to contesting the grounds of fact and law relied on by the judges, does not contain any of the complaints which, under Article 575 [of the Code of Criminal Procedure], a civil party in criminal proceedings is authorised to formulate in support of an appeal on points of law against a decision that there is no case to answer by the indictments division where no such appeal has been filed by the prosecuting authorities." 68. At Mr Tomasi’s request, Dr Bereni, who was still the Chief Medical Officer at Bastia Prison, drew up a certificate on 4 July 1989, which he gave to the applicant in person "for the appropriate legal purposes". This document was worded as follows: "I, the undersigned, Dr Jean Bereni, ... hereby certify that I examined the X-rays taken of Mr Tomasi at Toga Bastia Hospital on 2 April 1983. The X-rays of the left temple show a thickening of the external auditory meatus with a perforation of the eardrum and the presence of a haematoma behind the eardrum. The special-angle X-rays (Hitz) of the facial structure show, at the level of the bite of the upper left maxillary, the absence of the first molar. Following these examinations Dr Vellutini, the senior consultant in the ear, nose and throat department, prescribed ear drops (Otipax) and I myself prescribed painkillers and sleeping-pills." 69. In reply to a letter of 26 August 1991, the Director of Bastia Regional Hospital communicated to the applicant the following details: "(a) The additional investigations carried out have not revealed any new information of a medical nature in addition to that mentioned in my attestation of 4 July 1989 as regards your visit to Bastia General Hospital as an outpatient in the ear, nose and throat department, probably on 1 April 1983. (b) At the time of your visit the former Toga Hospital did not have a structured system for dealing with outpatient consultations in the specialised departments; in these circumstances, in the case of mere visits without hospitalisation for an examination by a specialist, a medical record was not systematically drawn up (Dr Vellutini, who at the time was an ear, nose and throat specialist at the hospital, when contacted by my department in connection with your case, was not able to provide any further information which he might have remembered). (c) In fact it is highly probable that the X-ray or X-rays concerning you were (as continues to be the practice in respect of detainees who are not hospitalised) immediately handed over to the persons accompanying you to be given to the medical service of the prison, without a copy being kept at the hospital. (d) Moreover - in the unlikely event of medical documents concerning you having been filed - the move to new premises of the former hospital and the opening of a new hospital, in 1985, involved the multiple transportation of a considerable volume of files and documents, which could inevitably have resulted in the files being disturbed. (e) The search for documents concerning Mr Moracchini and Mr Pieri was likewise fruitless. In any event I find it hard to see how an action which, as you suggest, might be brought against Bastia Hospital, either in the form of an application for an interlocutory injunction or on the merits, would make it possible to discover medical documents, whose presence in the archives is, to say the least, highly improbable and which have been the subject of thorough, albeit unsuccessful, searches."

dev

001-83390

ENG

SRB

CHAMBER

CASE OF POPOVIC v. SERBIA

Violation of Art. 6-1

4. The applicant was born in 1939 and lives in Bijela Brda. 5. On 9 April 1984 the applicant brought a civil action in the Beograd Third Municipal Court against a certain N.D., seeking repayment of a loan. 6. Having heard the applicant in person at a hearing on 20 June 2002, on 5 November 2002 the court gave a judgment accepting the applicant's claim. On 26 November 2003 the Beograd District Court quashed that judgment for factual shortcomings and remitted the case. In its decision, the District Court instructed the first-instance court to hear and confront the parties, as well as to hear the other witnesses proposed by the applicant with a view to establishing, inter alia, whether the loan had been made to N.D. or to his father, whether a part of it had in the meantime been repaid and whether the claim was time-barred. 7. In the resumed proceedings, the court held a hearing on 16 November 2004, which the applicant did not attend although duly summoned. On that occasion, his lawyer informed the court that the applicant was in poor health and needed surgery. Therefore, the applicant would not be able to attend court hearings, but maintained all his claims, as previously stated in his oral and written submissions to the court. 8. On 1 April 2005 the applicant submitted a medical certificate, stating that he suffered from paranoid psychosis with signs of hypochondria, and that he was unable to attend court hearings. 9. The court appears to have held further hearings on 17 June and 7 October 2005, both attended by the applicant's lawyer. It also obtained an expert opinion on 27 May 2005. 10. The court subsequently ordered the applicant's lawyer to inform it of the exact date and place where the applicant would be medically treated. It further contacted the medical institution which had issued the certificate of 1 April 2005, requesting its opinion on whether the applicant's health allowed him to be a party to the proceedings. It would appear that none of the court orders has ever been complied with. 11. At the hearing held on 26 September 2006 the applicant's lawyer specified the claim, whereas the respondent submitted that, if the applicant was ill, the court could not continue the proceedings. 12. The proceedings are still pending before the first-instance court. 13. The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 70-72, 13 March 2007). 14. The relevant provisions of this Act (hereafter referred to as the “CPA”) provide as follows: “During the course of the proceedings, the court shall ex officio verify whether the person appearing as a party may be party to the proceedings and whether he or she has the capacity to act...” “Should the court establish that the person appearing as party cannot be party to the proceedings, and that this obstacle cannot be eliminated, it will invite the plaintiff to undertake the necessary amendments to the claim...” “1. Relevant facts may also be established by hearing the parties. 2. The court shall decide to hear the parties when there is no other evidence or when, despite the presentation of other evidence, the court deems it necessary with a view to establishing relevant facts.” “... 2. The court may decide to hear only one of the parties, if the other party refuses to give a statement or does not appear [at the hearing] despite the court summons. 3. If a party dies in the course of the proceedings, or his or her repeated examination becomes impossible for some other reason, the court will read the minutes containing that party's statement.” “The party may be heard through another court only if he or she cannot come to the court in person due to obstacles which cannot be eliminated or at extremely high costs.” “1. The court may not use any compelling measures in respect of the party which did not appear at the scheduled court hearing [for the examination of the parties], nor can a party be forced to give a statement. 's failure to appear or refusal to give a statement.” “If a hearing is held before a new formation [of judges], the main hearing must recommence, but the chamber may, having consulted the parties, decide not to hear witnesses and expert witnesses or hold an on-site inspection again, but instead read the minutes of the evidence already taken.” 15. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006). 16. Sections 242, 243 and 245 of this Code define “abuse of office” (zloupotreba službenog položaja), “judicial malfeasance” (kršenje zakona od strane sudije) and “official malfeasance” (nesavestan rad u službi) as separate criminal offences. 17. Article 25 of the Serbian Constitution (Ustav Republike Srbije), published in the Official Gazette of the Socialist Republic of Serbia (OG SRS - no. 1/90), provided as follows: “Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law. Such damages shall be met by the Republic of Serbia or the public authority [in question].” 18. This Constitution was repealed on 8 November 2006, which is when the “new” Constitution (published in OG RS no. 98/06) entered into force. 19. The substance of Article 35 § 2 of the new Constitution corresponds, in its relevant part, to the above-cited text of the previous Article 25. 20. Article 170 of the new Constitution provides that a constitutional complaint may be lodged against the acts of public entities violating human and minority rights and liberties guaranteed by the Constitution. 21. Section 9 of the Constitutional Act on the Implementation of the Constitution (OG RS 98/06) provides that the election of Constitutional Court judges shall be finalised before the end of the first National Assembly.

dev

001-99391

ENG

TUR

CHAMBER

CASE OF KÖKSAL AND DURDU v. TURKEY

Violation of Art. 6-1

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

3. The applicants were born in 1973 and 1965, respectively, and live in Samsun and Ankara. 4. On 17 October 2001 the applicant was discharged from his civil service post following his previous criminal conviction by a martial law court. The conviction had been finalised by the Military Court of Cassation's decision of 11 November 1997. 5. On 4 January 2002 the applicant brought an action before the Samsun Administrative Court to annul the discharge order. 6. On 5 June 2002 the Samsun Administrative Court rejected the applicant's request. 7. On 7 February 2005 the Supreme Administrative Court upheld the judgment of the Samsun Administrative Court. The written opinions of the public prosecutor and of the judge rapporteur (“tetkik hakimi”) concerning his appeal request were not communicated to the applicant. 8. On 31 December 2007 the Supreme Administrative Court dismissed the applicant's request for rectification of its previous decision. 9. On 11 January 2002 the applicant was discharged from his civil service post after a disciplinary decision. Criminal proceedings were also commenced against the applicant on the same grounds as those which had led to his discharge. 10. On 15 March 2002 the applicant brought an action before the Ankara Administrative Court to annul the discharge order. 11. On 25 June 2002 the Ankara Assize Court acquitted the applicant of the offences with which he had been charged. On 22 March 2004 the Court of Cassation upheld the applicant's acquittal. 12. In the meantime, on 31 March 2003 the Ankara Administrative Court refused the applicant's request to annul the discharge order. Relying on Section 131 of the Law on Civil Servants (Law no. 657), the administrative court held that the applicant's acquittal of the criminal charges did not absolve him from the disciplinary sanction. 13. On 26 April 2005 the Supreme Administrative Court upheld the judgment of the Ankara Administrative Court. The written opinions of the public prosecutor and of the judge rapporteur concerning his appeal request were not communicated to the applicant. 14. On 23 January 2008 the Supreme Administrative Court dismissed the applicant's rectification request. The final decision was served on the applicant on 4 March 2008. 15. A description of the relevant domestic law can be found in the case of Meral v. Turkey (no. 33446/02, §§ 22-26, 27 November 2007).

dev

001-71045

ENG

FIN

ADMISSIBILITY

KAIPILA v. FINLAND

Inadmissible

Nicolas Bratza

The applicant, Mr Markku Kaipila, is a Finnish national who was born in 1959 and lives in Vammala. He is represented before the Court by Mr Pirkka Lappalainen, a lawyer practising in Nokia. The Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows. On 11 January 1998 the chief physician at the health care centre referred the applicant for observation (tarkkailulähete, observationsremiss). He was admitted to the local hospital on the same day. He however left the hospital in the evening. On 14 January 1998 a physician at the psychiatric clinic of the same hospital referred the applicant anew for observation. On 16 January 1998 another physician at the hospital issued a medical statement finding that the conditions for involuntary treatment were met (tarkkailulausunto, observationsutlåtande). Later that day the applicant was committed to involuntary psychiatric treatment (hoito tahdosta riippumatta, vård oberoende av patientens vilja) by a decision of the chief physician, X, of the psychiatric clinic at the local hospital. According to the decision, the applicant was in need of treatment for a mental illness, which if not treated would considerably worsen or severely endanger his health or safety or the health or safety of others. No other mental health services were considered applicable or adequate. On 24 January 1998 the applicant left the hospital without authorisation. As the police were unable to find him, he was discharged from the hospital on 4 February 1998. On 28 January 1998 the applicant, represented by counsel, appealed against the decision to commit him to treatment to the then County Administrative Court (lääninoikeus, länsrätten) of Turku and Pori, arguing in essence that he was not mentally ill. Nor was he a danger to himself or others. He did not request an oral hearing. The next day the court requested X to produce a fresh medical opinion and other documents, which were subsequently communicated to the applicant. In his submission of 27 February 1998 the applicant, represented by counsel, considered the findings in the medical opinion unfounded and unproven. He did not request a hearing at this point, either. On 19 March 1998 the County Administrative Court rejected the appeal, finding that the applicant’s mental state at the time of the impugned decision had justified the involuntary psychiatric treatment. It granted him cost-free proceedings and free legal assistance. It did not hold an oral hearing of its own motion. The applicant appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting an oral hearing during which he and the doctors who had treated him should be heard. He contested the diagnosis on which his detention had been based. On 12 November 1998 the Supreme Administrative Court, having received X’s submission and communicated it to the applicant, rejected the appeal. It refused the request for a hearing as unnecessary as it found that the case turned on an assessment of medical evidence. On 19 February 1998 the applicant was charged with, inter alia, aggravated drunken driving, committed on 12 November 1997. The District Court (käräjäoikeus, tingsrätten) of Ikaalinen granted him cost-free proceedings but rejected the requested free legal assistance. On 24 February 1998 he was convicted as charged and sentenced to three months’ imprisonment. The applicant appealed, claiming that he had driven the vehicle under emergency conditions escaping a violent attack by a third person. On 11 September 1998 the Turku Court of Appeal (hovioikeus, hovrätten) rejected the appeal. The applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, claiming that the presiding judge in the District Court had not taken into account any of his arguments concerning the alleged act of emergency and that the judge had not allowed him to put forward any arguments for his defence. He also claimed that his representative, who had not been present at the District Court hearing but merely drafted his writ of appeal to the Court of Appeal, had not been able to comment on the judge’s behaviour in the writ of appeal as he was reluctant to raise any unpleasant issues at a court where he worked daily as a representative. On 8 December 1998 the Supreme Court, having granted the applicant free legal assistance, refused leave to appeal. The Mental Health Act (mielenterveyslaki, mentalvårdslagen; 1116/1990) provides that involuntary treatment in a psychiatric hospital can be ordered only if the adult patient is diagnosed as mentally ill and needs treatment for the mental illness which, if untreated, would considerably worsen or severely endanger his or her health or safety or the health or safety of others and if other mental health services are inapplicable or inadequate (section 8). For the purposes of establishing whether these conditions are met, the patient may be admitted to hospital for observation. Prior to such a referral, a physician must examine the patient and issue a written and reasoned referral for observation (section 9). The physician in charge of the observation shall produce a written statement no later than four days after the admission of the patient. It shall include a well-founded opinion on whether the conditions are met for ordering the patient to undergo involuntary treatment. If those conditions cease to exist during the observation period, the observation shall be discontinued immediately and the patient shall be discharged if he or she so wishes (section 10). The referral for observation and the observation are two separate measures which are taken independently of one another. Further, the doctor deciding on admission for observation is not bound by the referral for observation but must independently assess whether the conditions for ordering the patient to undergo treatment are likely to be met. The patient’s opinion shall be found out before he or she is ordered to undergo treatment. The relevant decision is made by the chief physician in charge of psychiatric care. It must be reasoned and be in writing, it must be based on the referral for observation, the statement on observation and the case history, and it must be produced no later than four days after the admission for observation (section 11). Accordingly, there are at least three doctors involved in the process. The order for treatment can be appealed to the County Administrative Board. A further appeal lies to the Supreme Administrative Court. The Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; 586/1996) provides that an oral hearing shall be conducted when necessary for the purposes of establishing the facts of the case. The parties, witnesses and experts, inter alia, may be heard and other evidence received in the hearing. The hearing may be limited to only a part of the matter, to clarify the opinions of the parties or to receive oral evidence, or in another comparable manner (section 37). An administrative court shall hold an oral hearing if a private party so requests. The same applies to the Supreme Administrative Court where it is considering an appeal against the decision of an administrative authority. A hearing need not be held if the claim is dismissed without considering its merits or immediately rejected or if an oral hearing is manifestly unnecessary in view of the nature of the matter or for any other reason. If a party requests an oral hearing, he or she shall state why it is necessary and what evidence will be presented in the hearing (section 38).

dev

001-76762

ENG

GBR

CHAMBER

CASE OF PEARSON v. THE UNITED KINGDOM

No violation of Art. 14+P1-1

Josep Casadevall;Nicolas Bratza

7. The applicant was born in 1942 and lives in Birmingham. 8. The applicant, aged sixty three, would not become eligible for a State pension until he was sixty five, whereas a woman could claim a State pension from age sixty. He was currently unemployed but if he returned to work he and any potential employer would be liable to make national insurance contributions. 9. On 4 February 2002, the applicant issued proceedings for damages in the High Court against the Benefits Agency, alleging inter alia that the refusal to pay him a pension from the age of sixty was discriminatory. On 2 October 2002, the applicant’s claim was struck out on the basis that the particulars of claim disclosed no reasonable grounds for bringing the claim (Civil Procedure Rule 3.4.2.). On 27 February 2003, permission to appeal was refused. 10. Section 122 of the Social Security Contributions and Benefits Act 1992 defines “pensionable age” as: “(a) the age of 65, in the case of a man; and (b) the age of 60, in the case of a woman”. 11. Section 126 of the Pensions Act 1995 provides for the equalisation of State pension ages for men and women to the age of 65. The State pension age for women will increase gradually from 2010 and the equalisation will be complete in 2020. At the same time, the age until which women are liable to pay national insurance contributions will gradually increase in line with the increase in the State pension age. 12. Council Directive 79/7/EEC of 19 December 1978 provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security. However, in Article 7(1)(a) the Directive provides for derogation in the matter of “the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences therefore for other benefits”. 13. In Case C-9/91 The Queen v. Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR 1-4297 (“the EOC case” concerning a reference for a preliminary ruling from the High Court), the European Court of Justice found that: Article 7(1)a had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old-age and retirement pensions and also forms of discrimination which are necessarily linked to that difference; Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where, having regard to the financial equilibrium of the national pension system in the context in which it appears, it cannot be dissociated from a difference in pensionable age; In view of the advantages allowed to women by national pension systems, in particular as regards statutory pensionable age and length of contribution periods, and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from one day to the next in respect of those periods, the Community legislature intended to authorise the progressive implementation of that principle by the member States and that progressive nature could not be ensured if the scope of the derogation authorised by Article 7(1)a were to be interpreted restrictively.

dev

001-22151

ENG

ESP

ADMISSIBILITY

SANLES SANLES v. SPAIN

Inadmissible

Georg Ress

The applicant is a Spanish national. She was born in 1936 and lives in Porto do Son, Corunna (Spain). She was represented before the Court by Mr Jorge Arroyo Martínez and Mr José Luis Mazón Costa, of the Barcelona and Murcia Bars respectively. On 12 January 1998 Mr Ramón Sampedro Cameán (“Mr Sampedro”), who had been tetraplegic since the age of twenty-five following an accident on 23 August 1968, died a voluntary and painless death after having sought recognition from the Spanish courts since April 1993 of his right not to have the State interfere with his decision to end his life in that way. Those proceedings, which he had instituted in the Barcelona civil courts, ended with a decision of the Constitutional Court of 18 July 1994 dismissing his amparo appeal on the ground that the remedies in the ordinary courts had not been properly used because the applicant had failed to bring his case in the courts with territorial jurisdiction. That decision was examined by the Commission, which declared the application (no. 25949/94) inadmissible on 17 May 1995 for non-exhaustion of domestic remedies. The applicant, Mr Sampedro’s sister-in-law, is the heir legally appointed by him to continue the proceedings which he had instituted while he was alive. On 12 July 1995 Mr Sampedro brought an action (jurisdicción voluntaria) in the Court of First Instance of Noia (Corunna) requesting: “... that my general practitioner be authorised to prescribe me the medication necessary to relieve me of the pain, anxiety and distress caused by my condition without that act being considered under the criminal law to be assisting suicide or to be an offence of any kind; I fully accept the risk that such medication might entail and hope thus to be able, at the appropriate time, to die in dignity.” In a judgment of 9 October 1995 the Barcelona Court of First Instance refused Mr Sampedro’s request, holding that Article 143 of the Criminal Code did not allow a court to authorise a third party to help a person to die or to bring about that person’s death. Mr Sampedro appealed. In a decision (auto) of 19 November 1996, the Corunna Audiencia provincial upheld the judgment on the basis of Article 15 of the Constitution and the Constitutional Court’s interpretation of that Article (see Relevant domestic law and practice, below), Articles 17 and 3 of the Civil Code, Article 409 of the former Criminal Code, and Article 143 of the new Criminal Code. Mr Sampedro then lodged an amparo appeal with the Constitutional Court on the basis of the rights to human dignity and the free development of the personality, to life and to physical and psychological integrity, and to a fair trial (Articles 10, 15 and 24 of the Constitution). The appeal was registered on 16 December 1996. On 10 March 1997 Mr Sampedro was given twenty days in which to submit his final observations. In the early hours of 12 January 1998 Mr Sampedro died, assisted by one or more anonymous persons. Criminal proceedings were instituted against a person or persons unknown for aiding and abetting suicide. After Mr Sampedro’s death, the applicant informed the Constitutional Court on 7 April 1998 that she intended to continue the proceedings instituted by Mr Sampedro in her capacity as his heir. On 4 May 1998 the applicant reworded as follows the grounds of appeal submitted by Mr Sampedro in support of his amparo appeal in order to adapt them to the new situation arising as a result of his death: “[that] the Audiencia [provincial] should have acknowledged [Mr Sampedro’s] right for his general practitioner to be authorised to administer him the medication necessary...”. In a decision of 11 November 1998 the Constitutional Court discontinued the proceedings and refused the applicant the right, in her capacity as Mr Sampedro’s heir, to continue the proceedings brought by him. It did not rule, however, on the applicant’s allegation regarding the excessive length of the proceedings in the Constitutional Court, which had still been pending at the time of Mr Sampedro’s death. The following is an extract from the court’s judgment: “It must be acknowledged that our legal system allows continuity in the exercise of actions for the recognition and protection of certain personal rights by heirs and other persons after the death of the person bringing the action. Such is the case for actions concerning civil status, such as establishing descent ... and those concerning civil protection of the right to honour, personal and family privacy and personal image (section 6(2) of Institutional Law 1/1982 of 5 May 1982). Those substantive legal conditions do not suffice, however, to justify Mrs Sanles’s request to continue the proceedings merely on the basis of the declaration contained in Article 661 of the Civil Code... . There are two aspects to the right granted under that provision to continue legal proceedings: (a) it concerns legal rights and relations that are not exhausted in themselves but are projected onto the family group, extending beyond the holder of the right to other persons affected by the court decision recognising or remedying the right infringed, and, essentially, (b) ... not successors to legal proceedings under succession law, but successors ope legis, in so far as expressly provided for by law. That said, in the case of the right to die in dignity by euthanasia without the intervention by a third party constituting a criminal offence, which was the right in respect of which Mr Sampedro lodged his amparo appeal, the above conditions are not met. There is no explicit legal provision to that effect (Article 661 of the Civil Code being limited to indicating the time at which succession takes effect) and the case does not concern rights such as a personal honour, reputation, image or privacy, the effects of which are not confined to the holder of the right but extend to his family circle or relatives. On the contrary, it is here a request of a “strictly personal” nature and inextricably linked to the person exercising it as “an act of will concerning that person alone” (Constitutional Court Judgment (“CCJ”) 120/1990, seventh ground, and CCJ 137/1990, fifth ground). ... In the light of the foregoing, the request to continue the proceedings must be rejected. The applicant’s claim lapsed from the moment at which Mr Sampedro Cameán, the appellant, died and his heir, Mrs Manuela Sanles Sanles, cannot continue to rely on it in the constitutional proceedings. Our conclusion is further supported by the nature of an amparo appeal in constitutional proceedings, which has been established for the purpose of challenging actual and effective breaches of fundamental rights. As stated in the CCJ 114/1995, an amparo appeal “is not a proper remedy for requesting and obtaining an abstract and generic decision determining declarative claims which concern allegedly erroneous interpretations or incorrect applications of constitutional provisions, but only and exclusively those claims which are intended to re-establish or protect fundamental rights in the event of an actual and effective breach” (second ground).” “Heirs shall inherit all the rights and obligations of the deceased by the fact of his death alone.” “Anyone who helps or encourages another to commit suicide shall be liable to a prison sentence [of six to twelve years]; if he assists to such an extent that he causes the death, he shall be liable to a prison sentence of twelve to twenty years.” “... 2. Anyone who performs an act necessary to assist another to commit suicide shall be liable to a prison sentence of two to five years. 3. If that assistance causes the death, the person providing it shall be liable to a prison sentence of six to ten years. 4. Anyone who, at the express, genuine and unequivocal request of a person suffering from a serious terminal illness or one causing him serious permanent and intolerable suffering, causes that person’s death or actively performs an act necessary to assist him to die shall be liable to a sentence in the first or second category below the one provided for in paragraphs 2 and 3 of this Article”. “1. Where the holder of the infringed right dies without having been able to bring, either himself or through his legal representative, an action under this Act, on account of the circumstances in which the infringement occurred, the action may be brought by the persons referred to in section 4 [the person designated in the will or, failing that, the spouse, descendants, ascendants and brothers...] 2. Those persons may continue an action previously instituted by the holder of the infringed right when he dies.” “... The right to life is, accordingly, an inherently positive and protective one which cannot therefore be considered as a right of freedom encompassing the right to die. It is not, however, inconsistent with that principle to acknowledge that, in so far as life is a personal asset forming an integral part of a person’s freedom, an individual can dispose of his own life. However, such an example of “licence to act” (agere licere), in the sense of taking one’s own life or accepting one’s own death, is an act permissible by law but not in any way a subjective right allowing an individual to solicit support from the public authorities to overcome resistance to his desire to die; still less is it a fundamental subjective right in respect of which that possibility would extend over and above even legislative resistance, which cannot reduce the essential content of a fundamental subjective right. Accordingly, Article 15 of the Constitution, as in force, cannot be construed to guarantee the individual a right to his own death...”

dev

001-100778

ENG

DEU

ADMISSIBILITY

ROSE v. GERMANY

Inadmissible

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Hans-Jürgen Rose, is a German national who was born in 1958 and lives in Munich. He was represented before the Court by Mr J. Arnold and Mr W. Kaleck, lawyers practising in Pfaffenweiler and Berlin, respectively. The applicant is a military officer of the German Bundeswehr holding the rank of a Lieutenant Colonel (Oberstleutnant). On 27 May 2006 the applicant published an article in the journal “Ossietzky”. “Ossietzky” is a journal for politics, culture and economy which is published bi-weekly with a print run of 2,000 copies per issue. It is available in selected bookshops, by subscription and on the internet. The article was titled “Spirit or evil spirit of the general officers” (“Geist oder Ungeist der Generalität”) and criticised the process of coming to terms with the army's past and the German generals' role in the Iraq conflict. Extracts of the article read as follows: “It can be ruled out that the general officers, for reasons of intellectual deficiency, could not realise what was going on. (...) As stupidity can thus be ruled out, only the second alternative remains as an explanation, which is: opportunism, cowardice, unscrupulousness. (...) If the German generals had just one spark of sense of honour, justice and morals, the Inspector General and the generals of the different services would have refused to obey the Federal coalition Government's orders which breached international law and were unconstitutional.” The journal mentioned the applicant's military rank with the addition that the article exclusively contained the author's personal views. On 24 July 2006 the applicant's supervising officer imposed a disciplinary fine of 750 euros on the applicant for having published statements which were suited to debase his superior generals in a defamatory way. On 18 August 2006 the applicant's disciplinary appeal was rejected. On 12 December 2006 the Southern Military Tribunal (Truppendienstgericht Süd) rejected the applicant's further appeal. That court considered that the applicant had the right publicly to express his opinion even in an exaggerated and polemic way. However, this right had to cede if the statement infringed on another person's human dignity. The Military Tribunal found that the applicant's statements did not fall within the ambit of the right to freedom of expression (Article 5 of the Basic Law, see “relevant domestic law”, below), because they infringed on the concerned generals' human dignity. It followed that the applicant had disrespected his duties to exercise self-restraint, to respect the dignity, the honour and the rights of his comrades, to maintain discipline and to respect his superiors' rank even when off duty (Articles 10 §§ 1 and 6, 12 (2) and 17 § 1 (2) of the Military Code of Justice (Soldatengesetz), see “relevant domestic law”, below). On 28 April 2007 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication for lack of prospect of success. Contrary to the Military Tribunal's finding, the Federal Constitutional Court did not consider that the impugned statements infringed on the concerned generals' human dignity; neither did they amount to abusive insult (Schmähkritik). The right to freedom of expression protected value judgment and statements of facts as a prerequisite to form one's opinion. The statements made by the applicant were an expression of opinion which clearly fell within the ambit of that right. It followed that the courts had to balance the competing interests in the light of the aim pursued by the relevant provisions of the Military Code of Justice, which was to preserve the proper functioning of the Bundeswehr. This aim had to be preserved by the military officers both in their professional and in their private conduct. The functioning of the Bundeswehr could be jeopardised by private statements which were suited to demoralise and undermine discipline within the army. Under these circumstances, the right to freedom of expression had to cede. According to the Federal Constitutional Court, the Military Tribunal had respected these principles when applying the relevant provisions of the Military Code of Justice. The Military Tribunal had assumed that the applicant had violated his duty to exercise self-restraint with regard to the impugned statements. This could lead to undermining the applicant's own authority and put into question his loyalty. The applicant's statements, in which he denied the generals any sense of honour, justice and morals, were suited to debase the generals and to expose them to derision. This could jeopardise military cooperation, mutual trust and the readiness to stand by one another. Furthermore, the applicant had breached his legal obligation to preserve his superiors' authority, as the terms employed exceeded any form of rational criticism. To preserve the superiors' authority was necessary for the Bundeswehr's internal order. The Federal Constitutional Court considered that this weighing of interests was not objectionable from a constitutional point of view. There was no doubt that the manner the applicant chose for expressing his opinion, in particular the personal attacks, was suited severely to disturb the Bundeswehr's functioning. It did not violate the right to freedom of expression if such behaviour was not permitted, but was treated as a disciplinary offence. This decision was served on the applicant's counsel on 10 May 2007. Article 5 of the German Basic Law (Grundgesetz), insofar as relevant, reads as follows: “(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour. ...)” Article 17a of the Basic Law provides: Article 17a [Restriction of certain basic rights by laws respecting defence and alternative service] “(1) Laws respecting military and alternative service may provide that the basic right of members of the Armed Forces and of alternative service freely to express and disseminate their opinions in speech, writing, and pictures (first clause of paragraph (1) of Article 5)... be restricted during their period of military or alternative service.” The relevant provisions of the Military Code of Justice (Soldatengesetz) read as follows: Article 10 (duties of a superior) “(1) The superior shall serve as an example both in his actions and in the performance of his duties. (...) (6) When making statements on or off duty, officers have the duty to exercise self-restraint in order to maintain confidence in their position as a superior.” Article 12 (camaraderie) “The Bundeswehr's unity considerably depends on camaraderie. It obliges all soldiers to respect their comrades' dignity, honour and rights and to stand by them in case of danger and need. This includes mutual respect and the acceptance of other opinions.” Article 17 (behaviour on and off duty) “(1) The soldier has the duty to maintain discipline and to respect his superior's position both on and off duty. (2) His conduct has to comply with the Bundeswehr's reputation and with the respect and confidence necessary for the service as a soldier. When off duty, the soldier has to behave outside the army accommodations and premises in a way that does not seriously impair the Bundeswehr's reputation and the confidence which is necessary for his official standing.” Article 23 (disciplinary offence) “(1) A soldier who intentionally breaches his duties commits a disciplinary offence.”

dev

001-96339

ENG

RUS

CHAMBER

CASE OF DENIS VASILYEV v. RUSSIA

Remainder inadmissible;Violations of Art. 3;Violation of Art. 13;No violation of Art. 34;Pecuniary and non-pecuniary damage - awards

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni

6. The applicant was born in 1983 and lives in Moscow. 7. On 29 June 2001 the applicant and his school friend Mr N. were spending the evening together. At about 11.30 p.m. they went to Mr N.’s place as Mr N., who is a diabetic, needed an insulin injection. After that they took a taxi to the applicant’s place. 8. While walking through the courtyard they were assaulted, near house no. 16/18 on Shcherbakovskaya Street in the Eastern Administrative District of Moscow. The attacker called out to them from behind and, before they could turn round, they received strong blows to their heads, fainted and collapsed on the ground. A considerable sum of money, a gold bracelet and a cell phone were stolen from them. 9. Neighbours called the Sokolinaya Gora police station. At 1.40 a.m. on 30 June 2001 the police officers Mr Zharov and Mr Volkov arrived at the scene. They served in the 2nd police battalion of the Eastern Administrative District of Moscow, whose main task was to provide security to businesses and private property under commercial contracts. In addition to that, they acted as neighbourhood patrol officers. 10. According to their statements, they saw two young men on the road whom they believed to be drunk. One of them was sitting, the other lay still. Some vomit could be seen. The policemen claimed that they reported the situation to the officer at the Sokolinaya Gora police station and told him that an ambulance or specialists from a sobering-up centre should be called. 11. The policemen then dragged the unconscious applicant and his friend away from the road into the courtyard of house no. 16/18. According to the Government, the policemen left the applicant and N. “on a grass plot”; the applicant claimed that they had been put “in the rubbish dump”. At that moment the private security co-ordinator (дежурный по отделу вневедомственной охраны) informed the officers that an alarm had gone off and instructed them to check it out. They reported it to the officer at the police station and left the scene. 12. At about 7 a.m. janitors Ms E. and Mr B. spotted two young men some three or four metres away from the rubbish bins and attempted to wake them up. However, both were unconscious, the dark-haired one (Mr N.) mumbled incoherently. They called for an ambulance. 13. At 8 a.m. Doctor P. arrived in the first ambulance. On seeing two victims, he called for another ambulance and began attending to Mr N. who had an abrasion and haematoma on his left cheek. When Mr N. regained consciousness, Doctor P. helped him climb into the van and took him to Moscow City Hospital no. 1. 14. In the meantime, a second ambulance arrived with Doctor Ch. He loaded the still unconscious applicant into the van and took him to Moscow City Hospital no. 33. 15. Upon arrival at the hospital at 9.05 a.m. the applicant was diagnosed with alcohol intoxication. Injuries and abrasions on his wrists and forehead were noted. Two hours later he was examined by a neurosurgeon. 16. Until 5 p.m. on 1 July 2001 the applicant remained, still unconscious and also undressed, on a trolley in the hospital corridor. 17. At 6.30 p.m. emergency surgery – bilateral trepanation of the skull – was performed on him. 18. On 8 July 2001 the applicant’s mother invited a private doctor to examine her son. The doctor determined that the applicant was in a life-threatening condition. An ambulance transferred the applicant in a state of coma to the Burdenko Military Hospital in Moscow. 19. From 9 July to 27 July 2001 the applicant was in a coma. On 25 July 2001 tracheotomy (creation of a surgical airway in the cervical trachea) was performed and a cannula was inserted. 20. After he woke up from the coma, he was transferred to the neurosurgery unit where he stayed in a critical state until 10 August. 21. Until the removal of the cannula in October 2001 and then in December 2002, the applicant underwent several operative procedures for osteomyelitis of the skull. 22. On 1 October 2001 a medical panel recognised the applicant as having disability of the second category. 23. In 2002 the applicant developed post-traumatic convulsive disorder. On 13 June 2003 he had a seizure and fainted. He was taken to Burdenko Hospital and operated upon for a pus abscess in the skull. 24. On 30 June and 1 July 2001 the Sokolinaya Gora police station received from Hospitals nos. 1 and 33 reports on bodily injuries concerning the applicant and Mr N. The head of the inquiries section of the police station asked the operational officer Mr Yermakov to check the reports. Subsequently the internal inquiry (see below) revealed that Mr Yermakov had not taken any measures for the purpose of inspecting the crime scene, identifying witnesses or interviewing the victims. 25. On 6 July 2001 Mr Yermakov forwarded the materials to the Investigations Department where the case was assigned to the operational officer Mr Abdryayev. Mr Abdryayev did not take any procedural decision regarding the materials until 17 July 2001. 26. On 18 July 2001 the head of the Sokolinaya Gora police station launched an internal inquiry which revealed that nothing had been done with regard to the injury reports. Both Mr Yermakov and Mr Abdryayev were disciplined. On the same day the crime scene was examined for the first time. On 20 July 2001 a criminal investigation into the assault on the applicant and Mr N. was opened. 27. On 20 September 2001 the investigator Mr Drozdov issued a decision to discontinue the proceedings because the perpetrator of the assault could not be identified. The only items of evidence referred to in the decision were statements by the police officers Volkov and Zharov, by the ambulance doctor and by Mr N. 28. On 16 October 2001 the investigator Mr Solomkin decided to re-open the investigation. 29. By letter of 29 October 2001, a deputy to the Presidential Envoy in the Central Federal Region wrote to the applicant’s mother that her complaint about the prolonged investigation had been examined by the Internal Security Department of the Ministry of the Interior. It had been established that the inquiry had not been properly conducted, that no one had visited or examined the crime scene, and that no other investigative steps had been taken. Operational police officers Mr Yermakov and Mr Abramov had been reprimanded. 30. On 16 November 2001, 6 January, 19 April, 13 June and 15 August 2002, decisions to suspend the proceedings were issued because the perpetrator(s) could not be identified. Supervising prosecutors set these decisions aside and instructed the investigator to take additional investigative measures, such as interviewing caretakers in the neighbouring buildings and the night watchman in the Korona café and examining the list of calls made from the stolen cell phone. 31. On 12 September 2003 the case was transferred to the Main Investigations Department of the Moscow City Police. 32. In a letter of 27 February 2004 the Investigations Committee of the Ministry of the Interior acknowledged that the investigation of cases nos. 073041 and 1056 (see below) had been improper, noting as follows: “Thus, it has been established that at the initial stage the investigation of case no. 73041 was carried out at a low professional level and in breach of the rules of criminal procedure. On many occasions proceedings were prematurely suspended on the ground that the persons responsible could not be identified. Certain officers of the Sokolinaya Gora police station of the Eastern Administrative District in Moscow were disciplined for violations of the rules of criminal procedure and inadequate management of the investigation. Investigation of case no. 1056 [medical negligence] was also held back because of significant failures. Having regard to deficiencies in the investigation and in compliance with the directions of the Moscow city prosecutor’s office, additional investigative steps and operational measures are now being carried out in the above cases with a view to examining the events in a comprehensive and thorough fashion and establishing the criminal liability of those responsible.” 33. On 2 April and 13 May 2004 public prosecutors reversed further police decisions suspending the investigation and ordered that specific investigative measures be taken. 34. On 4 June 2004 the case was referred to the Eastern Administrative District prosecutor’s office and assigned to the investigator Mr Volk, who was in charge of particularly important cases. On 20 July 2004, 30 January, 18 August and 5 October 2005, and 27 March 2006 Mr Volk suspended the investigation on the ground that the perpetrator(s) of the assault could not be identified. Those decisions were reversed by supervising prosecutors. 35. The most recent decision by Mr Volk on suspending the investigation which has been made available to the Court is dated 17 July 2006. It took stock of the evidence that had been collected in the case. 36. The decisions indicated that the statements had been taken from both victims – the applicant and N. – who had not remembered the attacker, their friends who had not seen the attack, and also the police officers, janitors and doctors who had seen the victims after the attack. The forensic experts had established that the applicant had sustained “serious bodily injuries” and N. “light bodily injuries”. 37. The applicant’s mother told the investigator that shortly after the crime she had visited the Sokolinaya Gora police station. One of the police officers who had curly hair and the nickname “Pushkin”, had described to her that the victims had been found near the Korona café. The applicant’s mother had gone to the café and talked to the employees who had told her that on the night of 29 to 30 July 2001 three police officers nicknamed “Sasha”, “Sidor”, and “Kostya” had been heavily drinking in the café and had been aggressive to the point of seeking a fight with the bartender. However, they had not witnessed any fights between the officers and her son or Mr N. The investigator also took testimony from seven officers from the Sokolinaya Gora police station who claimed they were unable to remember visiting the café on that particular night and did not know anyone nicknamed “Sidor” or “Pushkin”. Three of them denied that they had ever been to the Korona café and the other four acknowledged that they had gone there from time to time. 38. Mr N.’s mother stated to the investigator that in the hospital her half-conscious son had mumbled incoherently about “cops” hitting him on the head. When she came to visit him two days later, she stumbled upon two men in civilian clothing by her son’s bed, one of them was shaking her son and asking him whether he had remembered the “cops” who had beaten him. She loudly protested and they all went out into the corridor where the men produced their badges and introduced themselves as the police officers from the Sokolinaya Gora police station, Mr Drozhzhin and Mr Konovalenko. Between themselves, they called each other “Pushkin” and “Dimon”. They told her that they were investigating the assault on her son. The investigator interviewed Mr Drozhzhin, who denied that he had ever visited Mr N. in hospital. Mr Konovalenko was not available for questioning. 39. The investigator found that it was impossible to identify the persons responsible for the assault. On 30 November 2006 a supervising prosecutor annulled that decision and instructed Mr Volk to elucidate discrepancies in the testimony by organising confrontations and to locate and examine former police officers from the Sokolinaya Gora police station. 40. On 6 January 2002, following on the applicant’s mother’s complaint about an improper performance of their duties by the police officers Mr Zharov and Mr Volkov and by Doctor K., who had not rendered assistance to the applicant that was appropriate for his condition, certain material was severed from the main criminal case for a separate inquiry. 41. On 13 March 2002 an investigator with the Izmaylovskiy District prosecutor’s office, on the basis of statements by Mr N., the applicant’s mother, Doctors P., Ch. and K., and the officers Zharov and Volkov, decided that there was no indication of a criminal act because Doctor K. had correctly diagnosed the applicant and had taken all the required measures, and because the officers had “erred in good faith as to Mr Vasilyev’s and Mr N.’s capacity to take care of themselves”. 42. On 15 March 2002 a supervising prosecutor quashed that decision. She found that the conclusion about the police officers’ good-faith error contradicted the facts of the case, as the applicant had been unconscious when they had arrived. She decided on the institution of criminal proceedings under Article 293 § 2 of the Criminal Code (criminal negligence leading to the victim’s death or grave injury). The investigation was assigned to the Izmaylovskiy District prosecutor. 43. On 15 June and 26 July 2002 the investigation was discontinued for a lack of indications of a criminal offence. These decisions were set aside by higher-ranking prosecutors. 44. On an unspecified date the officers Zharov and Volkov were formally charged with abandonment of the applicant and N. in danger, an offence under Article 125 of the Criminal Code. 45. On 5 September 2002 the applicant was granted the status of a victim in the proceedings. 46. On 27 November 2002 the applicant asked the investigator to amend the legal characterisation of the officers’ actions. He pointed out that the officers had been on duty and had acted in breach of requirements of the Police Act. For that reason they should have been charged with criminal negligence leading to grave consequences, an offence under Article 293 § 2 of the Criminal Code. On the same date the applicant asked the investigator to recognise his status as a civil party. His application bore a handwritten acknowledgement of receipt by the investigator, dated 28 November 2002. It is not clear what response the investigator gave to the applicant’s requests. 47. On 29 November 2002 the bill of indictment was served on Mr Volkov and Mr Zharov. The prosecution’s case under Article 125 of the Criminal Code was that they had been the patrolling police officers on duty when they had arrived at the scene and found two unconscious men. Being aware that the men had been helpless and unable to care for themselves, Volkov and Zharov had not fulfilled their legal duty, under the Police Act, the Regulation on Police Patrols and the internal instructions, to protect victims of offences or accidents, intoxicated persons unable to move, and other vulnerable individuals. Even though they had a realistic possibility of providing assistance, they had failed to examine or identify the victims, call an ambulance, administer first aid or take them to a hospital, locate witnesses or secure the crime scene. Instead, they had moved the victims to the side and had falsely reported to the officer at the Sokolinaya Gora police station that all the required measures had been taken. 48. On 24 January 2003 the Izmaylovskiy District Court of Moscow scheduled the opening of the trial for 7 February 2003. The judge allegedly told the applicant that his request to join the proceedings as a civil party would be examined at a later stage. 49. Hearings were held on 20 February, 25 March, 30 April, 23 June, 28 July and 24 September 2003. 50. The trial court took testimony from a neighbourhood resident, the janitors Ms E. and Mr B., ambulance doctors P. and Ch., who described the circumstances in which they had discovered the applicant and Mr N. The senior operational officer Mr K., who had been on duty at the Sokolinaya Gora police station on the night of 29 to 30 June 2001, stated that no telephone call concerning two young men on the Shcherbakovskaya Street had been recorded in the log. However, he had been replaced for one hour by the officer Mr Vancharin. He also testified that the police officers serving in the private-security department (отдел вневедомственной охраны) had to give priority to the orders of the security co-ordinator rather than the orders of the officer-on-duty at the police station. 51. The officer Mr Vancharin confirmed that he had taken a call concerning the young men but had not recorded it in the log because it had not been placed through the emergency line. He had radioed to the patrol officers from the private-security department and told them to verify the information. They reported back that they had found two drunk men and that the situation was under control. In response, he instructed them to continue patrolling. The security co-ordinator testified to the court that at 1.44 a.m. he had received an alarm signal and had dispatched the officers Volkov and Zharov to check it out. 52. On 29 September 2003 the District Court acquitted both police officers, having made the following assessment of the evidence: “...[T]he court considers that it has not been shown that the defendants Volkov and Zharov acted in the knowledge of the fact that [the applicant and his friend] were in a state that was dangerous for their life and health because they could not know it, as they only spent a few minutes on the scene in the night time and as no injuries were visible. They decided that [the applicant and his friend] were in a state of alcohol or drug intoxication... In support of their claim that Mr Volkov and Mr Zharov made a false report [to the officer-on-duty] the prosecution referred only to the testimony by the witness Mr Vancharin, who was a police officer but who was not authorised to take any reports. However, he was replacing the officer-on-duty, in breach of the regulations of the Sokolinaya Gora police station... Upon receipt of such information, an officer-on-duty has an obligation to record it in the registration log, to check it and to record the results of the check. The court considers that the officer-on-duty, upon receiving information from Volkov and Zharov that the situation was under control, was required to verify it and obtain credible information about the situation. Mr Vancharin, however, did not do that and did not relay that information or the results of the check to the actual officer-on-duty... The court therefore lends credence to the testimony by Mr Volkov and Mr Zharov... because in these circumstances Mr Vancharin had no interest in telling the truth.” 53. On 17 February 2004 the Moscow City Court upheld the judgment on appeal in a summary fashion. 54. On 14 August 2001 the chief medical officer of the emergency care unit informed the applicant’s mother that an internal inquiry had established that the ambulance doctor had diagnosed the applicant on the basis of his friend’s statements. As a result, he had underestimated the gravity of his condition. The doctor had been severely disciplined. 55. On 8 November 2001 and 8 February and 2 August 2002 the public prosecutors at various levels informed the applicant’s mother that the doctors of Hospital no. 33 had committed no prosecutable offence and refused to institute criminal proceedings. 56. By letter of 4 January 2002, the deputy head of the Moscow Health Protection Committee confirmed that a review of the medical care administered to the applicant at Hospital no. 33 had not identified any defects or shortcomings. 57. Further to a complaint by the applicant’s mother, on 5 March 2003 the first deputy to the Moscow City prosecutor cancelled the decision of 2 August 2002, by which the institution of criminal proceedings had been refused, and instructed the Preobrazhenskiy District prosecutor to open a criminal investigation into the offence under Article 124 § 2 of the Criminal Code (failure to render medical assistance to a patient resulting in grave damage to his health). 58. On 15 June 2003 a composite medical study was commissioned for the purpose of determining whether the applicant’s health could have been harmed by belated and inadequate medical treatment at Hospital no. 33. 59. On 7 July 2003 a panel of six experts from the 111th Centre for Forensic Medicine of the Ministry of Defence began their work. 60. On 4 September 2003 the investigator Mr Kirichevskiy suspended proceedings because the person responsible could not be identified. 61. On 1 December 2003 the experts’ panel returned their findings based on the applicant’s medical record (no. 23304) from Hospital no. 33, materials of the criminal case and information from attending physicians. The experts found, in particular, that an incomplete and contradictory description of the applicant’s injuries upon his arrival at Hospital no. 33 made it impossible to determine the exact origin, time and cause of his injuries. It could only be established that he had been hit on the head with a heavy blunt object. Moreover, a subsequent examination at Burdenko Hospital revealed two broken thoracic vertebrae which had gone unnoticed at Hospital no. 33, where an X-ray examination had been indicated but never carried out. 62. The experts determined that, given the grave condition in which the applicant had been admitted, he should have been examined immediately by a neurosurgeon and other specialists for differential diagnosis of craniocerebral injury and intoxication and for decisions on urgent treatment. However, a neurosurgeon examined the applicant more than two hours later upon his arrival and in the following thirty-two hours no specialists saw him and no medical tests, not even the basic blood and urine tests, were carried out. Even the applicant’s temperature was not taken. The experts determined as follows: “From the moment of arrival (at 9.05 a.m. on 30 June 2001) and until the beginning of preparation for surgery (at 5.30 p.m. on 1 July 2001) the [applicant] was not adequately and objectively examined, the real clinical diagnosis was not made... and appropriate medical treatment was not indicated... Prolonged passive observation of the [applicant] not accompanied by clinical examination led to drastic deterioration of his condition and, as a consequence, to belated surgical intervention not based on clinical and lab tests which resulted in markedly negative post-traumatic and post-surgery complications for the [applicant]... In the post-surgery period antibacterial treatment was indicated but given inconsistently and without appropriate supervision which, most likely, pre-determined subsequent development of suppurative inflammation of post-operative wounds, arachnoid membranes and medullary substances, osteomyelitis of the right parietal bone, etc...” 63. The experts also noted that there had been no objective basis for diagnosing the applicant with alcohol intoxication. Neither the ambulance doctor in his notes nor his colleagues in subsequent entries in the medical record mentioned alcohol breath. A reference to alcohol breath appeared for the first time in the partly illegible and incomplete report of a medical examination of 30 June 2001. However, that examination was carried out in breach of the applicable regulations. No treatment for intoxication was indicated and the intoxication diagnosis did not feature in any other documents. The credibility of the intoxication diagnosis was further undermined by the fact that the amount of alcohol allegedly found in the applicant’s blood would have been lethal. 64. The experts concluded as follows: “The extent of damage resulting from the [applicant’s] prolonged stay in a medical institution without adequate medical assistance cannot be fully ascertained. It can only be asserted that his condition gravely deteriorated during that period and that irreversible brain changes progressed to the point where emergency surgery was required by life-saving indications... The present study identified a number of defects in the medical care dispensed to [the applicant] at Hospital no. 33 of Moscow – in particular, unjustified conservative treatment, incomplete examination, belated and incomplete diagnosis, belated surgical intervention, inadequate medical measures – which failed to arrest development of the grave post-traumatic process and contributed to an unfavourable outcome and the [applicant’s] disability. However, it is not possible to measure the extent to which these defects affected the outcome because appropriate measurement methods do not exist.” 65. At some point in 2003 it transpired that the applicant’s medical record from Hospital no. 33 was lost. It had been removed by the investigator Mr Solomkin from the hospital in 2001 and produced to the experts for examination. It was then returned to the investigators, who were no longer able to locate it. 66. On 12 January 2004 a deputy Moscow City prosecutor reversed the decision suspending the proceedings and asked that those responsible for delays and procedural violations be disciplined. On 17 February 2004 an internal inquiry established that the investigator Mr Kirichevskiy had unlawfully decided to discontinue the proceedings before the medical examination had been completed. The investigator received a reprimand and his superior was demoted. 67. On 3 February 2004 the investigator Mr Shakhov from the Investigations Department of the Eastern Administrative District Police took up the case. He wrote to the applicant’s mother that those responsible for the loss of the medical record had been disciplined. 68. On 20 April 2004 the investigator Mr Shakhov commissioned a new medical study by the same experts and with the same questions. The previous study was considered inadmissible because it had been completed at the time when the proceedings had been suspended. On 17 May 2004 the new study was completed. The experts returned the same findings. They also noted that their task had been hampered by numerous corrections of entries, in particular dates and times, in the medical records from Hospital no. 33 and because of inexplicable contradictions in those entries. 69. On 20 May 2004 the investigator Mr Shakhov issued a decision suspending the proceedings on the ground that the authorised investigation period had expired. On 19 June 2004 the decision was annulled by a supervising prosecutor. 70. The investigation was transferred to Mr Buvin who suspended the proceedings on the same ground on 1 September and 19 November 2004. A public prosecutor set aside his decisions on 13 October and 18 December 2004. 71. On 18 January 2005 the investigator noted that the initial forensic examination had not determined the extent of correlation between the deficiencies in the medical assistance provided to the applicant at Hospital no. 33 and the damage to his health. He appointed a new medical examination by the experts from the Health Protection Department of the Moscow Government and suspended the proceedings in the case. 72. On 30 May 2005 the experts returned their findings which were based, in the absence of the original medical records, on the materials of the case file and extensive quotations from the original records in the text of the initial expert examination. The experts found that the applicant had suffered from a vascular pathology which had resulted in a subdural hematoma against the backdrop of a head trauma and alcohol intoxication. In their view, at the moment of the applicant’s admission to Hospital no. 33, no urgent surgery was required. The hematoma was allowed to grow over a period of time under constant supervision by medical specialists who awaited the most propitious moment for brain surgery. The experts concluded that the findings of the initial examination had been “objectively untenable” and that the diagnosis and surgery had been carried out in a timely and precise fashion. On the same day the public prosecutor ordered the proceedings to be resumed. 73. Further decisions concerning the discontinuance of the proceedings on various procedural grounds were issued on 18 January 2005 (annulled on 30 May) and 31 May 2005 (annulled on 24 June). 74. On 15 August 2005 the investigator decided to commission a further forensic examination with a view to eliminating the discrepancies between the findings of the first and second experts’ reports. It was entrusted to the Russian Centre for Forensic Medicine at the Federal Agency for Health Protection and Social Development. However, the Centre refused to conduct the examination in the absence of the original medical records. The director of the Centre’s First Department stated to the investigator that an examination on the basis of the case-file materials and previous findings by other experts would be “methodologically incorrect and in breach of the existing practice of expert examinations”. 75. On 6 September 2005 the investigator granted the applicant the status of a victim in the proceedings and recognised his mother as his legal representative. 76. On 28 April and 19 July 2006 the investigator Mr Volk decided to discontinue the proceedings on the ground that no offence had been committed. The decisions were set aside by supervising prosecutors. 77. The most recent decision on discontinuance of criminal proceedings, which the Court has in its possession, was made by the investigator Mr Volk on 29 November 2006. He took stock of the existing evidence, including the testimony by the doctors Mr K., Mr Ts. and Mr B. from Hospital no. 33, the ambulance doctors, the applicant’s friend Mr N., the applicant’s mother, and the applicant himself. The findings of the first and second forensic studies were extensively quoted, as were the reasons given by the federal centre for forensic examination for refusing to conduct a “conciliatory” study in the absence of the original documents. The investigator reached the following conclusion: “Despite the existence of substantial discrepancies in the above-mentioned findings by two experts’ commissions as to the origins and development of [the applicant’s] disease and the professional level of treatment that was administered to him, neither commission could state that there was a link of causality between the treatment administered to [the applicant] and the consequences in the form of serious damage to the victim’s health. In these circumstances, the investigation finds that there are no objectively verifiable factual indications that Doctors K., Ts, and B. from Hospital no. 33 failed to render medical assistance to [the applicant] without valid reasons, thus resulting in serious damage to his health, that is, that they committed the offence under Article 124 § 2 of the Criminal Code.” 78. On the same date a supervising prosecutor quashed that decision and instructed Mr Volk to remedy the shortcomings in the investigation and, in particular, to locate the original medical documents. 79. Article 124 of the Criminal Code defines the offence of non-provision of medical assistance to a patient as failure to provide medical assistance, without valid reasons, by the person who had a legal obligation to render such assistance. Paragraph 2 of the Article concerns the situation in which such failure resulted in the patient’s death or grave damage to his health. 80. Article 125 concerns the offence of abandonment in a life-threatening situation, which is defined as the deliberate act of abandoning without assistance a person who finds himself or herself in a situation that endangers his or her life or limb and who is incapable of taking measures for self-preservation because of his or her young or old age, illness or helplessness, provided that the offender had the possibility of rendering assistance to that person and also a duty to take care of him or her. 81. Article 293 defines the offence of professional negligence as non-performance or improper performance of professional duties entailing a substantial violation of the rights and legitimate interests of citizens. 82. Section 10 provides that the police have, in particular, the duty to render assistance to victims of criminal and administrative offences and accidents, and to persons in a helpless state or in a state that is dangerous for their life or limb. 83. On arrival at the crime scene, a police patrol must render assistance to the victims, call an ambulance if necessary, identify possible witnesses and eye-witnesses to the crime, secure the site, report to the officer-on-duty and proceed in accordance with his instructions (paragraph 135). 84. While administering first aid or transferring the victim to a medical institution, the police officer must examine the victim’s clothing and exposed areas of the body with a view, in particular, to identifying him or her. If the victim shows no visible signs of life, the officer must firstly ascertain whether he is alive or not, without altering his position or that of surrounding objects (paragraph 141). 85. Private-security departments attached to the police force are created for the protection of private property (paragraph 1). Private-security forces comprise police officers as well as technical and support staff (paragraph 4). Officers of private-security departments are recruited by the Ministry of Internal Affairs (paragraph 9) and they have the same rights as those conferred on the police officers under the Police Act, including the right to carry weapons and the right to arrest offenders (paragraph 8). 86. Before 10 July 2003 the Code of Criminal Procedure provided that a civil claim could be lodged after the institution of the criminal proceedings but before the end of the pre-trial investigation (Article 44 § 2). After the amendments introduced by Federal Law no. 92-FZ of 4 July 2003, the time period for lodging a civil claim was extended up to the beginning of final pleadings in the first-instance court.

dev

001-85804

ENG

GBR

ADMISSIBILITY

BROOKS v. THE UNITED KINGDOM

Inadmissible

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant, Mr Christopher Brooks, is a British national who was born in 1938 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 30 May 2000. On 3 September 2000, the applicant made a claim for widows’ benefits. On 5 September 2000, the applicant was informed that his claim had been disallowed as he was not a woman. On 15 September 2000 the applicant made a request for reconsideration. On 19 September 2000 his claim was reconsidered but the decision remained unchanged. On an unspecified date the applicant appealed. On 6 November 2000 the appeal tribunal confirmed the previous decision. The applicant applied for a further reconsideration and on 13 July 2001 he was advised that he was not entitled to widows’ benefits. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

dev

001-71897

ENG

SWE

ADMISSIBILITY

DEJBAKHSH AND MAHMOUD ZADEH v. SWEDEN

Inadmissible

The applicants, Ms Faradokht Dejbakhsh (“D”) and Ms Nagmeh Mahmoud Zadeh (“M”), are Iranian nationals who were born in 1950 and 1978 respectively. They are mother and daughter. They are represented before the Court by Mr P. Stadig, a lawyer practising in Stockholm. The respondent Government are represented by Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants arrived in Sweden on 16 March 2002 and applied for asylum on 5 April the same year. They presented genuine passports, valid until 6 September 2002 and 20 September 2002 respectively, as well as visas valid from 31 February to 1 April 2002, issued by the Swedish Embassy in Teheran on 4 February 2002. The applicants had previously been granted visas to Sweden on two separate occasions; D in 1997 and M in 1998, both for the purpose of visiting relatives. D’s mother (M’s grandmother) had been a permanent resident of this country since the 1980s, as had three sisters and a brother of D. The Migration Board (Migrationsverket) conducted an initial interview with the applicants on 5 April 2002. D essentially stated the following: Her mother had died on 2 February 2002. She applied for asylum in Sweden solely because of the problems she had experienced with her husband in Iran (henceforth referred to as “H”). They had married in 1967 and since then he had repeatedly subjected her to harassment and physical assault. They had two children together, M and a son born in 1971. H had also assaulted the son. The assaults had occurred when H, an alcoholic, was drunk and had caused D injuries such as a broken jaw. At one point, D had been in surgery for a navel rupture. Before the wound had healed, H had stabbed her in the stomach with a knife so that she had to be operated again. D had not reported any of the incidents of assault to the Iranian authorities because they would not offer her any protection anyway. Furthermore, H was an influential person. He was retired but had worked in the military, where he had held the rank of colonel. She believed that he worked for the revolutionary committee; he had done so previously. The stabbing incident had been automatically reported to the police, but she had told them that she had fainted and could not remember what had happened. The police had not pursued the matter any further. She had not divorced H, because this was not possible for her, being a woman. However, they had been living apart since 1992, when he had thrown her and the children out of their home. Prior to that they had lived apart from time to time, but this time the separation had been definite. D had moved with the children into her mother’s home in Teheran and, after the son had married, D and M had lived there alone. However, H had continued to harass the applicants, claiming that they were women of no morals. He had asserted that M must marry a man he had chosen for her in order to restore her father’s honour. If M would disobey him, he had threatened to cut her throat. Despite the discords, H had given his permission for D to apply for a passport. This passport had been issued on 6 September 1997. This time she had left Iran without his knowledge. The additional consent he had given her to travel outside Iran in 1997 still applied. Since the separation in 1992, D had worked as a hairdresser and, in addition to an inheritance from her father, she had received financial support from her mother and family. At the interview on 5 April 2002, M essentially stated the following: She had left Iran because of her father. She and D had lived in her grandmother’s home in Teheran for the past 11 years but had also stayed with H intermittently. However, they had not returned to him since their last visit to Sweden. She had studied at the university in Zanjan between 1996 and 2000 and was currently working at a private pharmaceutical company. While she had still been studying, she had been interrogated by the security forces several times, the last time in the winter of 2000. H had friends in the security forces. She had been interrogated because of his claim that she was a girl of bad morals. He had not been able to take her from the university because she had already paid the entrance fee. The man he wanted her to marry was already married. The Migration Board conducted a second interview with D and M on 8 May 2002. On this occasion D essentially added the following: Her mother had been buried in Iran on 10 February 2002. D’s siblings had brought the remains from Sweden to Iran. H had tried to ruin the funeral. He had taken M to a physician in forensic medicine to ascertain whether she was still a virgin. D had not lived with H since 1992 but had visited him at times when he had been ill. He had allowed her and the children to live on their own so that he would be free to get drunk and would not have to pay for them. After the revolution he had worked in the revolutionary court for three to four years. Just before retiring in 1985-86, he had been in command over Iraqi prisoners of war. Since then he had worked secretly for the revolutionary committee but she did not know exactly for whom. The committee was part of the security forces (Niruha-ye-Entezami) and its task was to ensure that people followed rules of dress and behaviour. There were several committees named after geographical areas. H knew that she and M had left Iran, but she did not know whether he had reported her to some authority. H had disapproved of M’s studies and had physically assaulted M two or three times when he had come to visit her at her student residence. With regard to the stabbing incident, D first stated that the operation for the navel rupture had been carried out in November/December 2000 and that H had come to see her while she had still been in bed recovering. She later stated that the operation, which had allegedly occurred on 22 January 2001, had not been well performed. H had asked what she had done wrong against God, since she had not yet recovered, and had stabbed her. She had first thought that her stitches had come undone. When she had opened her eyes she was in hospital. The police had arrived and told her that H had stabbed her. When asked by the interviewer why the police had come to the hospital, D said that hospitals were obliged to report knife and bullet injuries to the police. She further stated that when she had regained consciousness she had told the police what had happened. They had also talked with the nurse and the doctors. She had not contacted the police to find out what had happened with the investigation, and assumed that it had been dropped since no one had contacted her about it. During the second interview on 8 May 2002, M essentially added the following: H had come to the university more than 20 times during the four years she had studied there. He had been rude and had always given her a smack on the face. On most occasions he had been accompanied by some of his friends from the committee in Teheran, which was a group of people belonging to the Basij (a paramilitary volunteer force operating in Iran). They made sure that people followed strict moral rules. The last time M and her mother had stayed with H had been in September 1998 when they had returned from Sweden. They had stayed with him for three weeks. They had moved away from him for the first time in 1991/1992 and had moved back and forth a number of times until 1998. Since September 1998 they had not returned to him. In submissions of 6 June 2002 to the Migration Board, counsel for the applicants stated the following: The son of the family had recently told the applicants that H had threatened and blamed him for their departure from Iran. H had further stated that he intended to put them on trial in order to have them sentenced to stoning when they returned to Iran. As to what extent the applicants had lived with him, it was submitted that the applicants had returned to him on some occasions between 1992 and 1998 because it had been difficult to live without him and because he had repeatedly promised to give up drinking and stop battering D. However, he had never kept his promise and they had not lived with him since a few weeks after returning from Sweden in 1998. To the submission of 6 June 2002 were appended three documents, seemingly drafted by Iranian authorities: a “statement” issued by the “Madanis legal complex” on 3 April 2002, apparently based on a report made by H, and two summonses instructing the applicants to appear at the complex on 23 May 2002. The applicants also invoked a marriage licence between D and H. On 16 July 2002 the Migration Board rejected the applicants’ request for a residence permit and ordered that they be deported to Iran. The Board questioned the veracity of the applicants’ statements concerning the alleged actions and controlling influence of H, as the applicants had lived on their own since 1992, as M had been able to study in another town between 1996 and 2000, and as they had been able to leave for Sweden in 1997/98 and in 2002. Noting that H was retired, the Board also found that the applicants had not shown that he was a man of great influence in Iranian society or that he was involved with the security forces. The Board also found it remarkable that the applicants had waited three weeks after their arrival in Sweden to apply for asylum. The fact that D’s mother had died could not explain this delay, as she had died and had been buried in Iran before the applicants left for Sweden. The Board further noted that D had given conflicting information on her reporting the stabbing incident to the police. It also took into account that the applicants had not turned to the police to report H’s alleged threats and harassment, and that D had not filed for divorce. In conclusion, the Board did not find the applicants’ statements credible. The applicants appealed to the Aliens Appeals Board (Utlännings-nämnden) on 6 August 2002. In the appeal they submitted that they had applied for asylum while their visas were still valid and that they were staying legally in Sweden. The reason why they had not applied for asylum earlier was that they had been busy with different mourning ceremonies among relatives and friends and that D had been in a bad mental state due to her mother’s death. It was furthermore submitted that D’s operation for the navel rupture had taken place at the end of 2001, and that H had stabbed her on 22 January 2002. In this respect the applicants invoked an operation report sheet and a note of medical records. They also invoked an ID card to confirm their claim that H was employed by the Basij. Further submissions were made to the Appeals Board on 13 October 2003. Appended to the submissions was a summons (“warning”) directed at D to appear before the family court in Teheran on 31 August 2003 in order to respond to a report made against her by H. The applicants stated that the son had sent the summons to Sweden by fax and that, according to the summons, there was further documentation in the case, the content of which D was not aware, and which she did not know how to access unless she was to appear in person before the court. D submitted that a summons to the family court could be very serious because the various religious authorities cooperated closely with that court, which she believed to be the case here. On 24 November 2003 the applicants made yet another submission to the Appeals Board. They claimed that the report filed by H against D had turned out to concern adultery and had resulted in D being sentenced in her absence by an Iranian court to death by stoning. The son had allegedly obtained the report and the judgment by bribing court officials. As it appears, the report had been filed on 20 July 2003, the hearing held on 31 August 2003 and the judgment issued the same day. In final submissions of 18 February 2004, the applicants claimed that the circumstances that had led to the judgment against D gave strong reason to believe that M would face a similar charge and conviction. On 22 March 2004, the Aliens Appeals Board rejected the applicants’ appeal. It generally agreed with the Migration Board’s assessment and added the following: It noted that the medical documents concerning D’s operation for stabbing wounds were dated 22 January 2001 and not 22 January 2002, as alleged by D. Although D had stated that she had been operated for a navel rupture before the alleged stabbing, the documents did not mention any such operation. In regard to the alleged judgment and death sentence against D, the Appeals Board found it remarkable that she had been sentenced in absentia, having regard to the evidence requirements under the hodûd rules of the Iranian criminal law. The Board also noted that the judgment submitted by the applicants stated that it was final, whereas Iranian death sentences were subject to appeal. Following the Court’s indications under Rule 39 of the Rules of Court, the Migration Board decided, by decisions of 8 July, 13 August and 27 September 2004, to stay the enforcement of the deportation order against the applicants, on the latter occasion without a time-limit.

dev

001-57974

ENG

GBR

GRANDCHAMBER

CASE OF GOODWIN v. THE UNITED KINGDOM

Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

C. Russo;John Freeland;N. Valticos;R. Pekkanen

10. Mr William Goodwin, a British national, is a journalist and lives in London. 11. On 3 August 1989 the applicant joined the staff of The Engineer, published by Morgan-Grampian (Publishers) Ltd ("the publishers"), as a trainee journalist. He was employed by Morgan Grampian PLC ("the employer"). On 2 November 1989 the applicant was telephoned by a person who, according to the applicant, had previously supplied him with information on the activities of various companies. The source gave him information about Tetra Ltd ("Tetra"), to the effect that the company was in the process of raising a £5 million loan and had financial problems as a result of an expected loss of £2.1 million for 1989 on a turnover of £20.3 million. The information was unsolicited and was not given in exchange for any payment. It was provided on an unattributable basis. The applicant maintained that he had no reason to believe that the information derived from a stolen or confidential document. On 6 and 7 November 1989, intending to write an article about Tetra, he telephoned the company to check the facts and seek its comments on the information. The information derived from a draft of Tetra’s confidential corporate plan. On 1 November 1989 there had been eight numbered copies of the most recent draft. Five had been in the possession of senior employees of Tetra, one with its accountants, one with a bank and one with an outside consultant. Each had been in a ring binder and was marked "Strictly Confidential". The accountants’ file had last been seen at about 3 p.m. on 1 November in a room they had been using at Tetra’s premises. The room had been left unattended between 3 p.m. and 4 p.m. and during that period the file had disappeared. 12. On 7 November 1989 Mr Justice Hoffmann of the High Court of Justice (Chancery Division) granted an application by Tetra of the same date for an ex parte interim injunction restraining the publishers of The Engineer from publishing any information derived from the corporate plan. The company informed all the national newspapers and relevant journals of the injunction on 16 November. 13. In an affidavit to the High Court dated 8 November 1989, Tetra stated that if the plan were to be made public it could result in a complete loss of confidence in the company on the part of its actual and potential creditors, its customers and in particular its suppliers, with a risk of loss of orders and of a refusal to supply the company with goods and services. This would inevitably lead to problems with Tetra’s refinancing negotiations. If the company went into liquidation, there would be approximately four hundred redundancies. 14. On 14 November 1989 Mr Justice Hoffmann, on an application by Tetra, ordered the publishers, under section 10 of the Contempt of Court Act 1981 ("the 1981 Act"; see paragraph 20 below), to disclose by 3 p.m. on 15 November the applicant’s notes from the above telephone conversation identifying his source. On the latter date, the publishers having failed to comply with the order, Mr Justice Hoffmann granted Tetra leave to join the applicant’s employer and the applicant himself to the proceedings and gave the defendants until 3 p.m. on the following day to produce the notes. On 17 November 1989 the High Court made a further order to the effect that the applicant represented all persons who had received the plan or information derived from it without authority and that such persons should deliver up any copies of the plan in their possession. The motion was then adjourned for the applicant to bring this order to the attention of his source. However, the applicant declined to do so. 15. On 22 November 1989 Mr Justice Hoffmann ordered the applicant to disclose by 3 p.m. on 23 November his notes on the grounds that it was necessary "in the interests of justice", within the meaning of section 10 of the 1981 Act (see paragraph 20 below), for the source’s identity to be disclosed in order to enable Tetra to bring proceedings against the source to recover the document, obtain an injunction preventing further publication or seek damages for the expenses to which it had been put. The judge concluded: "There is strong prima facie evidence that it has suffered aserious wrong by the theft of its confidential file. Thereis similar evidence that it would suffer serious commercialdamage from the publication of the information in the fileduring the near future. It is true that the source may notbe the person who stole the file. He may have had theinformation second hand, although this is less likely. Ineither case, however, he was trying to secure damagingpublication of information which he must have known to besensitive and confidential. According to the respondent,having given him the information he telephoned again a fewdays later to ask how the article was getting on. The plaintiff wishes to bring proceedings against the source forrecovery of the document, an injunction against furtherpublication and damages for the expense to which it has beenput. But it cannot obtain any of those remedies because itdoes not know whom to sue. In the circumstance of this case,in which a remedy against the source is urgently needed, Ithink that disclosure is necessary in the interests ofjustice. ... There is no doubt on the evidence that the respondent wasan innocent recipient of the information but the NorwichPharmacal case shows that this does not matter. The questionis whether he had become mixed up in the wrongdoing ... The respondent has sworn an affidavit expressing the viewthat the public interest requires publication of theplaintiff’s confidential commercial information. Counsel forthe respondent says that the plaintiff’s previous publishedresults showed it as a prosperous expanding company andtherefore the public was entitled to know that it was nowexperiencing difficulties. I reject this submission. Thereis nothing to suggest that the information in the draftbusiness plan falsifies anything which has been previouslymade public or that the plaintiff was under any obligation,whether in law or commercial morality, to make thatinformation available to its customers, suppliers andcompetitors. On the contrary, it seems to me that businesscould not function properly if such information could not be kept confidential." 16. On the same date the Court of Appeal rejected an application by the applicant for a stay of execution of the High Court’s order, but substituted an order requiring the applicant either to disclose his notes to Tetra or to deliver them to the Court of Appeal in a sealed envelope with accompanying affidavit. The applicant did not comply with this order. 17. On 23 November 1989 the applicant lodged an appeal with the Court of Appeal from Mr Justice Hoffmann’s order of 22 November 1989. He argued that disclosure of his notes was not "necessary in the interests of justice" within the meaning of section 10 of the 1981 Act; the public interest in publication outweighed the interest in preserving confidentiality; and, since he had not facilitated any breach of confidence, the disclosure order against him was invalid. The Court of Appeal dismissed the appeal on 12 December 1989. Lord Donaldson held: "The existence of someone with access to highly confidentialinformation belonging to the plaintiffs who was prepared tobreak his obligations of confidentiality in this way was apermanent threat to the plaintiffs which could only beeliminated by discovering his identity. The injunctionswould no doubt be effective to prevent publication in thepress, but they certainly would not effectively preventpublication to the plaintiffs’ customers or competitors. ... ... I am loath in a judgment given in open court to give adetailed explanation of why this is a case in which, if thefull facts were known and the courts had to say that theycould give the plaintiffs no assistance, there would, Ithink, be a significant lessening in public confidence in theadministration of justice generally. Suffice it to say thatthe plaintiffs are a, and perhaps the, leader in their veryimportant field, which I deliberately do not identify, withnational and international customers and competitors. They are faced with a situation which is in part the result oftheir own success. They have reached a point at which theyhave to refinance and expand or go under with the loss notonly of money, but of a significant number of jobs. This isnot the situation in which the court should be or be seen tobe impotent in the absence of compelling reasons. The plaintiffs are continuing with their refinancing discussionsmenaced by the source (or the source’s source) ticking awaybeneath them like a time bomb. Prima facie they are entitledto assistance in identifying, locating and defusing it. That I should have concluded that the disclosure of Mr Goodwin’s source is necessary in the interests of justiceis not determinative of this appeal. It does, however, meanthat I have to undertake a balancing exercise. On the onehand there is the general public interest in maintaining theconfidentiality of journalistic sources, which is the reasonwhy section 10 was enacted. On the other is, in my judgment,a particular case in which disclosure is necessary in thegeneral interests of the administration of justice. If thesetwo factors stood alone, the case for ordering disclosurewould be made out, because the parliamentary intention mustbe that, other things being equal, the necessity fordisclosure on any of the four grounds should prevail. Were it otherwise, there would be no point in having these doorways. But other things would not be equal if, on the particular facts of the case, there was some additional reason formaintaining the confidentiality of a journalistic source. It might, for example, have been the case that the information disclosed what, on the authorities, is quaintly called `iniquity’. Or the plaintiffs might have been a publiccompany whose shareholders were unjustifiably being kept inignorance of information vital to their making a sensibledecision on whether or not to sell their shares. Such afeature would erode the public interest in maintaining theconfidentiality of the leaked information and correspondingly enhance the public interest in maintaining theconfidentiality of journalistic sources. Equally, onparticular facts such as that the identification of thesource was necessary in order to support or refute a defenceof alibi in a major criminal trial, the necessity fordisclosure `in the interests of justice’ might be enhancedand overreach the threshold of the statutory doorway requiring some vastly increased need for the protection ofthe source if it was to be counterbalanced. Once the[plaintiffs] can get through a doorway, the balancing exercise comes into play. On the facts of this case, nothing is to be added to eitherside of the equation. The test of the needs of justice ismet, but not in superabundance. The general public interestin maintaining the confidentiality of journalistic sourcesexists, but the facts of this particular case add absolutelynothing to it. No `iniquity’ has been shown. No shareholders have been kept in the dark. Indeed the publichas no legitimate interest in the business of the plaintiffswho, although corporate in form, are in truth to becategorised as private individuals. This is in reality apiece of wholly unjustified intrusion into privacy. Accordingly, I am left in no doubt that, notwithstanding thegeneral need to protect journalistic sources, this is a casein which the balance comes down in favour of disclosure. Iwould dismiss the companies’ appeals. I can see no reason injustice for doing otherwise with regard to Mr Goodwin’sappeals." Lord Justice McCowan stated that the applicant must have been "amazingly naïve" if it had not occurred to him that the source had been at the very least guilty of breach of confidence. The Court of Appeal granted the applicant leave to appeal to the House of Lords. 18. The House of Lords upheld the Court of Appeal’s decision on 4 April 1990, applying the principle expounded by Lord Reid in Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] Appeal Cases 133, a previous leading case: "if through no fault of his own a person gets mixed up in thetortious acts of others so as to facilitate their wrongdoinghe may incur no personal liability but he comes under a dutyto assist the person who has been wronged by giving him fullinformation and disclosing the identity of the wrongdoers." Lord Bridge, in the first of the five separate speeches given in the applicant’s case, underlined that in applying section 10 it was necessary to carry out a balancing exercise between the need to protect sources and, inter alia, the "interests of justice". He referred to a number of other cases in relation to how the balancing exercise should be conducted (in particular Secretary of State for Defence v. Guardian Newspapers Ltd [1985] Appeal Cases 339) and continued: "... the question whether disclosure is necessary in theinterests of justice gives rise to a more difficult problemof weighing one public interest against another. A questionarising under this part of section 10 has not previously comebefore your Lordships’ House for decision. In discussing thesection generally Lord Diplock said in Secretary of State forDefence v. Guardian Newspapers Ltd [1985] Appeal Cases 339,350: `The exceptions include no reference to "the public interest"generally and I would add that in my view the expression"justice", the interests of which are entitled to protection,is not used in a general sense as the antonym of "injustice"but in the technical sense of the administration of justicein the course of legal proceedings in a court of law, or, byreason of the extended definition of "court" in section 19 ofthe Act of 1981 before a tribunal or body exercising thejudicial power of the state.’ I agree entirely with the first half of this dictum. To construe `justice’ as the antonym of `injustice’ insection 10 would be far too wide. But to confine it to the`technical sense of the administration of justice in thecourse of legal proceedings in a court of law’ seems to me,with all respect due to any dictum of the late Lord Diplock,to be too narrow. It is, in my opinion, `in the interests of justice’, in the sense in which this phrase is used insection 10, that persons should be enabled to exerciseimportant legal rights and to protect themselves from seriouslegal wrongs whether or not resort to legal proceedings in acourt of law will be necessary to attain these objectives.Thus, to take a very obvious example, if an employer of alarge staff is suffering grave damage from the activities ofan unidentified disloyal servant, it is undoubtedly in theinterests of justice that he should be able to identify himin order to terminate his contract of employment,notwithstanding that no legal proceedings may be necessary to achieve that end. Construing the phrase `in the interests of justice’ in thissense immediately emphasises the importance of the balancingexercise. It will not be sufficient, per se, for a partyseeking disclosure of a source protected by section 10 toshow merely that he will be unable without disclosure toexercise the legal right or avert the threatened legal wrongon which he bases his claim in order to establish thenecessity of disclosure. The judge’s task will always be toweigh in the scales the importance of enabling the ends ofjustice to be attained in the circumstances of the particularcase on the one hand against the importance of protecting thesource on the other hand. In this balancing exercise it isonly if the judge is satisfied that disclosure in theinterests of justice is of such preponderating importance asto override the statutory privilege against disclosure thatthe threshold of necessity will be reached. Whether the necessity of disclosure in this sense is established is certainly a question of fact rather than anissue calling for the exercise of the judge’s discretion,but, like many other questions of fact, such as the questionof whether somebody has acted reasonably in givencircumstances, it will call for the exercise of adiscriminating and sometimes difficult value judgment. Inestimating the weight to be attached to the importance ofdisclosure in pursuance of the policy which underliessection 10 on the other hand, many factors will be relevanton both sides of the scale. It would be foolish to attempt to give a comprehensive guidance as to how the balancing exercise should be carriedout. But it may not be out of place to indicate the kind offactors which will require consideration. In estimating theimportance to be given to the case in favour of disclosurethere will be a wide spectrum within which the particularcase must be located. If the party seeking disclosure shows,for example, that his very livelihood depends upon it, thiswill put the case near one end of the spectrum. If he showsno more than that what he seeks to protect is a minorinterest in property, this will put the case at or near theother end. On the other side the importance of protecting asource from disclosure in pursuance of the policy underlyingthe statute will also vary within a spectrum. One importantfactor will be the nature of the information obtained fromthe source. The greater the legitimate interest in theinformation which the source has given to the publisher orintended publisher, the greater will be the importance ofprotecting the source. But another and perhaps moresignificant factor which will very much affect the importanceof protecting the source will be the manner in which theinformation was itself obtained by the source. If it appearsto the court that the information was obtained legitimatelythis will enhance the importance of protecting the source.Conversely, if it appears that the information was obtainedillegally, this will diminish the importance of protectingthe source unless, of course, this factor is counterbalancedby a clear public interest in publication of the information,as in the classic case where the source has acted for thepurpose of exposing iniquity. I draw attention to theseconsiderations by way of illustration only and I emphasiseonce again that they are in no way intended to be read as acode ... In the circumstances of the instant case, I have no doubtthat [the High Court] and the Court of Appeal were right infinding that the necessity for disclosure of Mr Goodwin’snotes in the interests of justice was established. Theimportance to the plaintiffs of obtaining disclosure lies inthe threat of severe damage to their business, andconsequentially to the livelihood of their employees, whichwould arise from disclosure of the information contained intheir corporate plan while their refinancing negotiations arestill continuing. This threat ... can only be defused ifthey can identify the source either as himself the thief ofthe stolen copy of the plan or as a means to lead to theidentification of the thief and thus put themselves in aposition to institute proceedings for the recovery of themissing document. The importance of protecting the source onthe other hand is much diminished by the source’s complicity,at the very least, in a gross breach of confidentiality whichis not counterbalanced by any legitimate interest whichpublication of the information was calculated to serve.Disclosure in the interests of justice is, on this view ofthe balance, clearly of preponderating importance so as tooverride the policy underlying the statutory protection ofsources and the test of necessity for disclosure is satisfied..." Lord Templeman added that the applicant should have "recognised that [the information] was both confidential and damaging". 19. In the meantime, on 23 November 1989, the applicant had been served with a motion seeking his committal for contempt of court, an offence which was punishable by an unlimited fine or up to two years’ imprisonment (section 14 of the 1981 Act). On 24 November, at a hearing in the High Court, counsel for the applicant had conceded that he had been in contempt but the motion was adjourned pending the appeal. Following the House of Lord’s dismissal of the appeal, the High Court, on 10 April 1990, fined the applicant £5,000 for contempt of court. 20. Section 10 of the Contempt of Court Act 1981 provides: "No court may require a person to disclose, nor is a personguilty of contempt of court for refusing to disclose thesource of information contained in the publication for whichhe is responsible, unless it be established to thesatisfaction of the court that disclosure is necessary in theinterests of justice or national security or for theprevention of disorder or crime." 21. Section 14 reads: "In any case where a court has power to commit a person toprison for contempt of court and (apart from this provision)no limitation applies to the period of committal, thecommittal shall (without prejudice to the power of the courtto order his earlier discharge) be for a fixed term, and thatterm shall not on any occasion exceed two years in the caseof committal by a superior court, or one month in the case ofcommittal by an inferior court." 22. In Secretary of State for Defence v. Guardian Newspapers Lord Diplock considered the expression "interests of justice" in section 10 of the 1981 Act: "The exceptions include no reference to the ‘public interest’generally and I would add that in my view the expression’justice’, the interests of which are entitled to protection,is not used in a general sense as the antonym of ‘injustice’but in a technical sense of the administration of justice inthe course of legal proceedings in a court of law ... [The expression `interests of justice’] ... refers to theadministration of justice in particular legal proceedingsalready in existence or, in the type of `bill of discovery’case ... exemplified by the Norwich Pharmacal Co. v. Customsand Excise Commissioners ... a particular civil action whichit is proposed to bring against a wrongdoer whose identityhas not yet been ascertained. I find it difficult toenvisage a civil action in which section 10 of the [1981] Actwould be relevant other than one of defamation or fordetention of goods where the goods, as in the instant caseand in British Steel Corporation v. Granada Television ...consist of or include documents that have been supplied tothe media in breach of confidence."

dev

001-103530

ENG

MKD

CHAMBER

CASE OF ATANASOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 6-1

Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

5. The applicant was born in 1959 and lives in Negotino. 6. On 22 November 2001 the public prosecutor requested an investigating judge of the Negotino Court of First Instance (“the trial court”) to open an investigation against the applicant on the count of forgery of a notice convening a meeting of shareholders of a company, N., in which he was also a shareholder (“the notice”). The applicant was accused of having deceived a considerable number of shareholders into signing the notice by misleading them in the belief that there would be only one item on the agenda, instead of eight, as was actually the case. The investigating judge heard the applicant and 47 witnesses. After the investigation had been completed, on 29 May 2002 the public prosecutor lodged an indictment against the applicant. 7. The trial court fixed twelve hearings, including that of 6 May 2004, which the applicant did not attend, although he had been summoned properly. During the trial, the court again heard oral evidence from the applicant, who had a court-appointed lawyer, and the 47 witnesses and admitted other documentary evidence. On 31 May 2005, in the presence of the applicant's lawyer only, the trial court convicted the applicant and sentenced him to four months' imprisonment suspended for one year. It did not rely on the statements made by the witnesses before the company's management denying that they had been informed about the remaining items on the agenda. The court rejected the applicant's defence as self-serving and the testimony of 6 defence witnesses as inconsistent and implausible. 8. On 13 July 2005 the applicant who, at the relevant time, was not represented by counsel, appealed against that decision. He did not request to be notified of the date of the session (седница) of the Court of Appeal. 9. On 2 November 2005 the Skopje Court of Appeal dismissed the applicant's appeal and upheld the trial court's decision. The court decided in private. The public prosecutor was present, but not the applicant. The court addressed the public prosecutor's written submission of 17 October 2005 and her oral pleadings requesting that the applicant's appeal be dismissed. 10. The decision was served on the applicant on 21 November 2005. 11. On 19 January 2006 the public prosecutor informed the applicant that there were no grounds for lodging a request with the Supreme Court for the protection of legality (“legality review request”). 12. Under section 361 (1) and (3) of the Criminal Proceedings Act (“the Act”) (Закон за кривична постапка), the chairman of the adjudicating panel of the Court of Appeal will appoint a judge rapporteur. The latter, in cases involving offences automatically subject to prosecution by the State, will forward the case file to the public prosecutor, who will examine and return it without delay. After receiving the case file, the chairman will fix a date for the session (седница) of the adjudicating panel. The public prosecutor will be notified thereof. 13. Section 362 (1) and (3) of the Act provides for notification of the date of session to be given, inter alia, to the defendant and his lawyer, the victim (as a plaintiff, тужител) and the private prosecutor (приватен тужител) if, within the period prescribed for the appeal or reply to the appeal, they so request or propose that a hearing (section 364 of the Act) be held before the second-instance court. Such notification may be given to parties who have not made such a request if their attendance would contribute to establishing the facts. The session starts with the presentation of a report prepared by a judge rapporteur. The panel may seek additional explanations from the parties attending the session. Parties can propose, with the aim of supplementing the report, that some documents from the case-file are read. They can also specify their arguments submitted in the appeal or reply to the appeal. 14. Section 364 (1) and (2) of the Act provides that the second-instance court will hold a hearing (претрес) only if new evidence needs to be produced or evidence re-produced, or if the case does not need to be remitted for fresh consideration. The defendant and his or her counsel, the public prosecutor, the victim and any witnesses or experts to be heard are summoned to attend the hearing before the second-instance court. 15. Under sections 403-410, the public prosecutor can submit a legality review request in respect of a final decision. The public prosecutor is always apprised of the session of the Supreme Court, which decides the legality review request. If the court accepts the legality review request submitted in favour of a person convicted, it cannot amend the final decision to his or her significant disadvantage in respect of the legal qualification of the crime and penalty imposed. If the legality review request is lodged against the person convicted, the court can only acknowledge the violation without amending the final decision.

dev

001-92665

ENG

POL

CHAMBER

CASE OF KORDOS v. POLAND

Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

5. The applicant was born in 1937 and lives in Śrem. 6. In 1995 the applicant’s husband died on a pedestrian crossing after being hit by a car. The car was being driven by a certain B.M. 7. On 20 July 1998 the applicant filed a claim against B.M. and the “Warta” Insurance Company with the Poznań Regional Court, seeking compensation in the amount of 50,000 Polish zlotys (PLN). At the same time the applicant requested the court to give her a full exemption from the costs of the proceedings. She submitted that she received only a small pension and that her health had significantly deteriorated. 8. On 21 June 1998 the Regional Court partly granted the applicant’s request. It exempted her from the court fee for processing her claim (wpis od pozwu). 9. On 25 November 1999 the Śrem District Court in the course of criminal proceedings convicted B.M. of having caused a traffic accident which resulted in a fatality and sentenced him, inter alia, to a suspended prison term. 10. In January 2001 the applicant filed her amended claim with the Regional Court. She sought an award of PLN 130,000 in compensation and PLN 500 as a supplementary monthly allowance. 11. On 28 December 2001 the Poznań Regional Court awarded the applicant PLN 20,000 to be paid jointly and severally by the defendants and dismissed her further claims. The applicant was ordered to pay the costs of the defendants in the amount of PLN 3,726.10. 12. On 18 January 2002 the applicant lodged an appeal against the firstinstance judgment. On the same day the Regional Court ordered the applicant to pay PLN 7,100 in court fees for proceeding with her appeal. 13. On 29 January 2002 the applicant asked the Regional Court for an exemption from the relevant fees. She submitted that her income consisted only of a monthly pension in the amount of PLN 800 and that she did not have any property or valuable movables. She also claimed that her health had significantly deteriorated since her husband’s death. 14. On 5 February 2002 the Poznań Regional Court dismissed her request. It considered, in so far as relevant: “(...) It should be underlined that the obligation to demonstrate the preconditions for an exemption from the costs rests with the claimant. Examining the claimant’s request, the court considers that it cannot be granted. The claimant did not demonstrate that she was unable to bear the [relevant] costs without entailing a substantial reduction in her and her family’s standard of living. A person requesting exemption from costs should submit a declaration of means that she is unable to pay the costs, including detailed information about her family status, her assets and her income, which have to be supported by relevant documents. In a case where a person seeking exemption from costs has a representative who is an advocate, that representative has an obligation to inform his client about the requirements attached to a declaration of means and the necessary information which must be included therein. In that case, the court is not required to summon the representative of a party seeking exemption from costs to submit an additional declaration. For these reasons, considering that the claimant’s request did not contain the required declaration of means, which implies that there is no information enabling [the court] to examine the merits of the request, the court, pursuant to Article 113 § 1 of the Code of Civil Procedure, held as in the operative part of the decision.” 15. The applicant appealed. She relied on the same arguments as before the Regional Court. 16. On 23 April 2002 the Poznań Court of Appeal dismissed her interlocutory appeal. It found, in so far as relevant: “... The Court of Appeal considers that the grounds of appeal do not justify a departure from the findings of the first-instance court in respect of the appellant’s ability to pay the [relevant] costs. The Court of Appeal draws attention to the fact that the claimant received the whole amount of compensation awarded [by the first-instance court]. Thus, there were no grounds to hold that she was unable to bear the costs without a reduction in her own necessary support. ...” 17. As a result, the applicant was prevented from lodging an appeal against the judgment of the Poznań Regional Court of 28 December 2001. 18. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01), §§ 29-39).

dev

001-110871

ENG

SWE

ADMISSIBILITY

R.W. AND OTHERS v. SWEDEN

Inadmissible

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicants, Ms R.W. and her twin daughters, are Kenyan nationals who were born in 1986 and 2009. They were represented before the Court by Mr J. Nyström, a lawyer practising in Skellefteå. The first applicant arrived in Sweden from Nairobi, Kenya on 9 July 2008 and applied for asylum on the same day. She submitted before the Migration Board (Migrationsverket) that she had been subjected to an attempted female genital mutilation (FGM) or possibly to an initiation to the Mungiki sect by friends of her former boyfriend. In January 2008 the applicant had allegedly run away from home to marry her boyfriend, with whom she had been in a relationship for approximately one year. The boyfriend, who belonged to the Mungiki sect, had taken her to see an old man who had performed some sort of ritual. She did not know if the ritual had been performed in order for them to get married or if it had been an initiation to the Mungiki group. After the ritual her boyfriend had taken her to a friend’s home and subsequently left the house. His friends had told her that they were going to perform FGM on her. When she refused to cooperate, they had beaten and raped her. They had been interrupted by neighbours who had heard her scream, but the perpetrators had told her that she would not get away. After the incident she had returned to her family home and told her mother about the incident. Her mother had urged her to report the perpetrators, but she had been afraid to do so as the boyfriend’s clan had great influence on the police and authorities. Instead she had moved to a friend’s home in Kakamega shortly after the incident and had subsequently left the country, due to her fear of being found by her boyfriend. She feared that she would be killed or persecuted by her boyfriend or other members of the Mungiki group as she had refused FGM and had run away. Shortly after her arrival in Sweden, the applicant met a man and became pregnant. The man, who was later deported from Sweden, did not want to take any responsibility for the applicant or his children. On 9 September 2009 the Migration Board questioned the applicant’s credibility and rejected the request for asylum. The Board noted that FGM was prohibited by law in Kenya, but was still practised, inter alia, by the Mungiki sect. It further noted that women at risk of being subjected to FGM often did not receive sufficient protection. However, the applicant had stated that her mother opposed female genital mutilation, and that she had urged the applicant to report the perpetrators to the police. Furthermore, the applicant had not known the purpose of the ritual to which she had been subjected and it was therefore found unlikely to have been an initiation to the Mungiki sect. It was noted that the applicant’s boyfriend had not searched for her, despite her claim that he knew where she was. The Board found that the applicant would be able to seek protection from the Kenyan authorities and her own family. According to her own information, FGM was no longer practised by her people, the Kikuyu. On 14 September 2009 the second and third applicants were born. The applicant appealed against the Board’s decision to the Migration Court (Migrationsdomstolen) and added that she had given birth to two children out of wedlock and would be regarded as a prostitute in Kenya. She submitted that she was no longer in contact with her mother, and did not know how her mother would react to the applicant having children. She had travelled to Sweden by plane via another European country, but did not know which. She had not carried a passport. On 25 March 2010 the Migration Court rejected the applicant’s appeal and upheld the Board’s decision. The court found reason to question the applicant’s story, in particular with regard to her identity and her travel route to Sweden. This affected her overall credibility. Her account of the alleged incident was considered vague. She had not known whether the alleged ritual was an initiation or a wedding ceremony, and her description of the ritual contradicted country information. The court considered that it was not likely that the applicant had been married or initiated through the alleged ritual. She was considered to have been subjected to a criminal offence performed by private actors and such criminal activity was predominantly an issue for the Kenyan authorities. Referring to relevant country information, the court found that the police were taking measures to control the Mungiki sect. The applicant had failed to demonstrate that the domestic authorities were not willing or able to protect her. It was furthermore noted that FGM was not performed by her people, and that her family opposed the tradition. On 6 May 2010 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal. An application for asylum was also submitted on behalf of the second and third applicants. It referred to their mother’s involvement with the Mungiki sect and stated that they were at risk of FGM if deported to Kenya. It was also submitted that they would be at risk of ill-treatment as they had been born out of wedlock. On 15 July 2010 the Migration Board rejected the second and third applicants’ request for asylum. The Board referred to its decision regarding the first applicant and found that it was not plausible that they would be at risk of FGM and ill-treatment on return to Kenya. On 29 October 2010 the Migration Court rejected the second and third applicants’ appeal and upheld the Board’s decision. On 23 March 2011 the Migration Court of Appeal refused leave to appeal. The provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716). Chapter 5, section 1 of the Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1 the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, membership of a particular social group, religious or political beliefs, grounds of gender, sexual orientation and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). Norwegian country information (Norwegian Landinfo, Report Kenya: Mungiki – Abusers or abused?, 29 January 2010) describes the Mungiki group as follows. “[T]he Mungiki movement [is] the largest and best known of the organised armed criminal, political and religious groups in Kenya, with a large following among the Kikuyus. Mungiki operates primarily in the Nairobi slums, in the Central Province and in the Rift Valley. Although Mungiki offers poor residents in slum areas protection and social services, extortion and violence tend to constitute their mode of operation. Gross human rights violations perpetrated against civilians, adversaries and defecting members are attributed to them. The Kenyan authorities have not succeeded in their attempts to limit Mungiki’s influence or abuses, despite recent crack downs...” The Mungiki movement is also reportedly “encouraging, demanding and enforcing female genital mutilation practices upon girls and women in its communities”, including partners and family members of those who have joined the movement. Members who defect are at serious risk of being killed or harassed. In a report on female genital mutilation, UNICEF states that the prevalence of the practice in Kenya has decreased in recent years. Throughout Kenya, 27% of all women have been mutilated. Among Kikuyus, 21% of all women aged 15-49 are said to have been mutilated (United Nations Children’s Fund, The Dynamics of Social Change. Towards the Abandonment of Female Genital Mutilation/Cutting in Five African Countries, October 2010). More recently, the U.K. Home Office (Operational Guidance Note – Kenya, 2 February 2012) stated the following: “3.6.5 The Government of Kenya has taken a clear position on the abandonment of FGM and other harmful tribal practices. It is illegal to carry out FGM on females aged 18 or younger, although no similar protection currently exists for women over the age of 18... 3.6.7 The available evidence suggests that the ability and willingness of the authorities to protect women from the imposition of FGM is slowly increasing. The number of churches, NGOs and other organisations actively working to protect women and girls from FGM and to end the practice is also steadily increasing. However, the accessibility of such protection is variable, geographically and in terms of the circumstances of individual women. It is easier for women to access protection in areas where FGM is less culturally prevalent... 3.6.9. There are particular concerns for applicants whose FGM claim includes fear of the Mungiki. The Mungiki have been criticised for encouraging, demanding and enforcing FGM practices upon girls and women in its communities, on the grounds that it is a traditional African practice. The Mungiki are known to force their female family members to undergo FGM. There is no evidence to suggest either that the condition of being married is any protection to women, or that single women are at greater risk. FGM may also be forced upon the wives of Mungiki defectors. Anti-FGM legislation provides protection to children and girls below the age of 18; it does not address the protection needs of adult women. However, there are community centres, particularly in the southern areas of the Rift Valley, that now provide sanctuary to young women and girls who have escaped forced FGM... 3.6.10...The authorities actively take measures to prevent FGM, although there have been relatively few prosecutions. Accordingly, those in fear of being forced to seek FGM for their child should be able to seek the protection of the state. Those in fear of undergoing FGM may, in general, seek the protection of the authorities. 3.6.11 Caseowners should consider cases in which there is no Mungiki element within the context of the AIT guidance on internal relocation...In general internal relocation is likely to be a viable option in such cases. 3.6.12 For cases where there is a Mungiki element, caseowners should consider cases on their individual merits...Given the increasing efforts of the Kenyan authorities to crack down on suspected Mungiki members, and also that Kenya has an area of 224,081 square miles, with a population of approximately 40,000,000 people, internal relocation may be feasible in individual cases.”

dev

001-4911

ENG

POL

ADMISSIBILITY

JANUSZEWSKI AND WICHERKIEWICZ v. POLAND

Inadmissible

Matti Pellonpää

The applicants are Polish nationals. The first applicant was born in 1942, the second applicant was born in 1950. They both live in Warsaw. They are represented before the Court by Mr Ireneusz Zieliński, a lawyer practising in Warsaw. A. s, may be summarised as follows: The applicants are two businessmen running a non-commercial partnership (spółka cywilna). On an unspecified date in 1993 a trustee of an estate of a certain insolvent company sued the applicants in the Rzeszów Regional Court (Commercial Division) (Sąd Wojewódzki - Wydział Gospodarczy) for payment of a debt. On a further unspecified date the applicants filed a counter-claim. On 9 June 1994 the court held a hearing. During the hearing the applicants requested the court to fix a new hearing date for the end of the fruit season. The court granted their request and listed the next hearing for 8 September 1994, which was duly recorded in the minutes. Subsequently, during the same hearing, the applicants also requested the court to synchronise this hearing with a hearing before the same court, which was to be held in another case to which the applicants were parties. On 8 September 1994 the applicants were not present at the hearing as they considered that a summons should be served on them in order to confirm the hearing date. On 22 September 1994 the court gave judgment ordering the applicants to pay the sum sought by the plaintiff. It rejected their counter-claim. A copy of the judgment was not served on the applicants. They became aware of the judgment and its content as late as 11 October 1994. On this date they filed an appeal and a request to grant them retrospective leave to appeal out of time. They submitted that, to their understanding, on 9 June 1994 the court had not definitely fixed a new hearing date and therefore they had waited for a formal notification. The applicants also requested the court to rectify the minutes of the hearing of 9 June 1994 by inserting the following paragraph: “The court revises its order concerning the date of the next hearing and it will fix the date ex officio, synchronising it with a hearing in a case no. ... . The court shall notify the parties of that date.” On 29 November 1994 the Rzeszów Regional Court dismissed the applicants' request for leave to appeal out of time. The court found that the minutes of the hearing had unambiguously indicated that the date of the next hearing had been fixed for 8 September 1994 and the court had correctly considered that the applicants had been duly notified of the hearing. The court also took into account the fact that the plaintiff had had no doubts as to the date of the hearing in question. Moreover, the applicants had been represented by a lawyer and any potential misunderstanding could have not been considered as a plausible justification for their failure to appeal within the prescribed time-limit. The applicants appealed against this decision. On 28 April 1995 the Rzeszów Court of Appeal (Sąd Apelacyjny) upheld the contested decision. The court observed that a party to the proceedings was expected to act with all due diligence and if the applicants had had any doubts as to the definite hearing date, they could easily have verified them. On 28 February 1995 a single judge, sitting as the Rzeszów Regional Court dismissed the applicants' request to rectify the minutes of the hearing. The court based its decision on the same grounds as those contained in the decision dismissing the applicants' request for leave to appeal out of time. On 10 April 1995 the applicants' further appeal was dismissed by the same court, sitting as a panel of three judges. Subsequently, the applicants unsuccessfully requested the Minister of Justice for leave to file an extraordinary appeal. In letters of 19 January 1995 and of 17 March 1995 the Minister informed them that he would not examine the requests as both the proceedings concerning their request for leave to appeal out of time and the proceedings relating to their request for rectification of the minutes were still pending. In a letter of 31 October 1995 the Minister informed them that he could not rule on their request for leave to file an extraordinary appeal in respect of the judgment of 22 September 1994 because such a leave could not be granted in a commercial case after the expiry of six months from the date on which the judgment had become final. In respect of the second decision, the Minister found that there was no basis for granting the applicants leave to file an extraordinary appeal. B. Relevant domestic law and practice Section 149 § 2 of the Code of Civil Procedure reads, insofar as relevant: “The parties and the [other] persons concerned shall be notified of a hearing date; such notification is effected either by service of a summons or [in case of an adjournment of a hearing] by fixing a date during the hearing. A summons shall always be served on the party which has been absent at the hearing ... .” Section 168 § 1 of the Code of Civil Procedure reads, insofar as relevant: “If the party to proceedings fails to comply with the prescribed time-limit without its fault, the court shall, on that party's request, grant leave to appeal out of time ... .”

dev

001-23963

ENG

AZE

ADMISSIBILITY

BABAYEV v. AZERBAIJAN

Inadmissible

Christos Rozakis

The applicant, Mr Hasan Babayev, is an Azerbaijani national, who was born in 1944 and lives in Baku. He was represented before the Court by Mrs L. Madatova, a lawyer practising in Baku. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant's father, before his death, owned a part of a non-residential building used as a garage. At the material time, according to the applicant, the garage was used by T.B. under a lease agreement. In 1995, the applicant's father died and the applicant formally registered his ownership rights to the part of the garage he inherited from his father. According to the applicant, the remaining parts of the property were open for inheritance by his relatives, but none of them formalized their rights. In 2002 T.B. filed a lawsuit before the Nasimi District Court, claiming ownership rights to the garage based on a de facto sale and purchase agreement allegedly concluded in 1969 with some of the applicant's relatives, who had then been the owners of the garage. The applicant counterclaimed, asking the court to order T.B.'s eviction from the garage. He denied T.B.'s allegations that the garage had been de facto sold in 1969, arguing that there were no proper documents verifying that such a sale had ever taken place. He claimed that the garage had remained in the ownership of his family until his father's death and that, thereafter, he had rightfully inherited his father's share of the property and properly formalized his ownership rights. On 4 June 2002 the Nasimi District Court upheld T.B.'s claim in full and rejected the applicant's counterclaim. The applicant appealed, alleging that the district court had wrongfully assessed the facts. On 13 August 2002 the Court of Appeal set aside the district court's judgment and ruled in the applicant's favour. Following T.B.'s cassation appeal, on 4 December 2002 the Supreme Court held that the Court of Appeal improperly applied the relevant provisions of the domestic law to the facts of the case. The Supreme Court modified the Court of Appeal's decision and declared that the disputed property was in T.B.'s ownership. The Supreme Court's decision became final and enforceable upon its delivery. On 27 January 2003 the applicant filed an “additional cassation” appeal with the President of the Supreme Court, asking for the reopening of the proceedings and quashing the Supreme Court's decision of 4 December 2002 by the Plenum of the Supreme Court (Azərbaycan Respublikası Ali Məhkəməsinin Plenumu). By a letter of 23 April 2003, the President of the Supreme Court rejected the applicant's request, finding no grounds for the reopening of the proceedings. 1. Law On Courts and Judges of 1997 “[T]he Supreme Court shall be the highest judicial authority with regard to civil ..., criminal, administrative and other disputes falling within the jurisdiction of the general and specialized courts. The Supreme Court [is] a court of cassation instance ...” “The Plenum of the Supreme Court shall be composed of the President, Vice Presidents and judges of the Supreme Court, the President of the Economic Court, the President of the Court of Appeal and the President of the Supreme Court of the Nakhchivan Autonomous Republic. ... The Plenum of the Supreme Court ... shall, in the manner established by law, review cases under the procedure of additional cassation, on submission of the President of the Supreme Court, or pursuant to a protest by the Chief Prosecutor or an appeal by the defendant ...” “The President of the Supreme Court ... shall, in cases and under the procedure provided by law, submit cassation instance decisions for the review of the Plenum of the Supreme Court ...” 2. Code of Civil Procedure of the Republic of Azerbaijan of 2000 “The decision [of the cassation instance court] shall enter into legal force from the moment of its delivery.” “Submissions, appeals or protests concerning decisions of the Supreme Court of the Republic of Azerbaijan ... may be reviewed by the Plenum of the Supreme Court of the Republic of Azerbaijan under the procedure of additional cassation.” “A submission concerning a decision of the Supreme Court of the Republic of Azerbaijan ... may be made by the President of the Supreme Court on the basis of an application by persons non-parties to the case whose interests were affected by the judicial acts. An appeal may be filed by a party to the case who has been represented by an advocate. [A protest may be filed by the Chief Prosecutor in certain specified circumstances.]” “The Plenum shall consider cases exclusively on the points of law.” Article 424 § 2 lists the grounds which merit the reconsideration of the Supreme Court's cassation instance decision by the Plenum of the Supreme Court. These grounds are present if, inter alia, the Supreme Court's decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision, or was based on a legal norm declared as unconstitutional by the Constitutional Court, or if the Supreme Court's ruling infringed the rights and obligations of persons who were not a party to the case. “If appropriate grounds exist, the President [of the Supreme Court] shall transmit the submission, appeal or protest, together with the case file, to the Plenum of the Supreme Court.” 3. Relevant domestic practice Any additional cassation proceedings in the Plenum of the Supreme Court can be reopened only at the discretion of the President of the Supreme Court, following a motion by the relevant party (e.g., an additional cassation appeal or Chief Prosecutor's protest). The Plenum itself does not take a decision on the reopening of the proceedings or on the admissibility of additional cassation appeals. An additional cassation appeal is first submitted to the President of the Supreme Court. The President, in his or her sole discretion and without holding any formal judicial hearing, decides if there are any grounds to reopen the case and transmit the appeal to the Plenum. If the President decides that the proceedings should be reopened, he or she then transmits the additional cassation appeal, together with the case file, for the in-substance review of the Plenum at its next sitting. Meanwhile, if necessary, the President may issue an order suspending the execution of the final judgment pending the review of the case by the Plenum. However, if the President deems that there are no grounds for additional cassation review, he or she simply sends a rejection letter to the applicant, briefly describing the reasons for the refusal to reopen the proceedings and transmit the appeal to the Plenum. The recent practice shows that the President of the Supreme Court routinely denies additional cassation review in the majority of domestic cases, due to the absence of the relevant grounds.

dev

001-93134

ENG

SWE

ADMISSIBILITY

PLAT ROR OCH SVETS SERVICE I NORDEN AB v. SWEDEN

Inadmissible

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

1. The first applicant (the applicant company) is a Swedish limited liability company, Plåt Rör och Svets Service i Norden AB. The other applicants, Mr P. Ernmark (the second applicant), Mr C. Hedberg (the third applicant), Mrs L. Brandtler (the fourth applicant) and Mrs A. Bergqvist (the fifth applicant), all of whom are Swedish nationals and live in the south of Sweden, are the owners of the applicant company. The applicants are represented before the Court by the second applicant. 2. The second applicant has also made some separate complaints. He is, regarding these complaints, represented before the Court by Mr. P. Friis, a lawyer practising in Malmö. 3 4. In January 2003 the Tax Authority decided to perform a tax audit of the applicant company. On 12 March 2003 a preliminary audit report (förhandspromemoria) was drawn up. 5. In March 2003, on the basis of the findings of the preliminary audit report, the Tax Authority requested the County Administrative Court (länsrätten) of the County of Skåne to sequestrate (belägga med betalningssäkring) the applicant company’s assets to the amount of 3,341,097 Swedish kronor (SEK) which corresponded to the company’s tax debt, including tax surcharges, as estimated at that time. The Tax Authority further requested that the decision be taken without the applicant company having been heard or informed of the request. 6. The Tax Authority submitted that it had discovered invoices that appeared false (osanna), in that they gave the incorrect impression that the applicant company had hired labour from subcontractors (under-entreprenörer) in order to make deductions for costs and ingoing value-added tax (VAT), thereby avoiding paying employer’s contributions (arbetsgivaravgifter) for its own employees. Furthermore, the Tax Authority pointed out several defects in the invoices, for example, that they lacked information proving the amount of hours worked and who the customer was. The Tax Authority further claimed, inter alia, that most of the subcontractors had not, during the time they were supposedly supplying the applicant company with labour, accounted for any salaries paid to employees. 7. On 28 March 2003 the County Administrative Court rejected the request for sequestration as it found that the Tax Authority had not, to a sufficient degree, proven that the applicant company had the alleged tax debt. 8. The Tax Authority appealed against the judgment to the Administrative Court of Appeal (kammarrätten) in Göteborg, maintaining its claim but no longer requesting that the decision be taken without the applicant company having been heard or informed of it. In particular, the Tax Authority stressed that a representative of one of the subcontractors who had been heard during the preliminary criminal investigation (see § 15 below) initiated by the National Economic Crimes Bureau (Ekobrottsmyndigheten – hereafter “the Bureau”) had denied any knowledge of the applicant company and had denied that he had issued any invoices to it. 9. On 9 May 2003, on the applicant company’s request, an oral hearing was held before the Administrative Court of Appeal. At the hearing the Tax Authority referred to some interrogation reports (förhörsprotokoll) held with four persons during the Bureau’s preliminary criminal investigation. These reports had, prior to the oral hearing, not been referred to by the Tax Authority. The Administrative Court of Appeal adjourned the hearing for 25 minutes to give the applicant company’s representative time to consider the new material. When the hearing resumed, the applicant company objected to the fact that the Tax Authority had been allowed to refer to selected parts of the very extensive body of information to which only the Tax Authority had access. 10. At the conclusion of the hearing the applicant company was afforded one week to supplement the grounds for its plea. 11. The applicant company demanded that the Administrative Court of Appeal reject the Tax Authority’s appeal and that the court grant it access to all the information in the Bureau’s criminal investigation. It submitted that the invoices corresponded to services ordered and paid for and that it had verified that all subcontractors had certificates proving that they were responsible for paying taxes and contributions for their businesses (Fskattebevis) and who their legal representatives were. 12. On 17 September 2003 the Administrative Court of Appeal rendered its judgment in the case. It found that the merits of the case were such as to make it probable that the applicant company would not be allowed to deduct the ingoing VAT. It further considered there to be an obvious risk that the applicant company would try to shirk responsibility for the debt. Therefore, and since the court did not find it disproportionate, it granted the Tax Authority’s request as regards the VAT. However, the court found that it would be in breach of Article 6 of the Convention to sequester the applicant company’s assets corresponding to the estimated tax surcharges. The court, therefore, rejected the Tax Authority’s appeal in that part. The court also found that it could not, within the instant case, try the applicant company’s request to grant it access to all the information in the Bureau’s criminal investigation. Therefore, it dismissed that request. 13. Both parties appealed against the judgment. The Tax Authority requested the Supreme Administrative Court (Regeringsrätten) to sequester an additional part of the applicant company’s assets, corresponding to the debt regarding tax surcharges, whereas the applicant company requested the court to quash the Administrative Court of Appeal’s judgment. In its appeal, the applicant company complained, inter alia, that the Tax Authority had been allowed to use selected information from the criminal investigation and that the applicant company had not been allowed access to the entire investigation. 14. On 19 December 2003 the Supreme Administrative Court granted the Tax Authority leave to appeal and, on 22 September 2004, it found that the sequestration of assets to cover tax debts concerning tax surcharges would not be in violation of the Convention, as long as the principle of proportionality and the limitations set out in the Law on sequestration for taxes, tolls and fees (lagen om betalningssäkring för skatter, tullar och avgifter) were respected. The court then noted that the tax debt, including the tax surcharges, had at the time of its judgment been confirmed by the Tax Authority. After having observed that the tax debt concerned a substantial amount, the court found that there was a considerable risk that the applicant company would try to shirk responsibility for the debt. Therefore, and since the court did not find it disproportionate, it granted the Tax Authority’s appeal and sequestrated additional property corresponding to the tax surcharges. In the same judgment, the Supreme Administrative Court refused leave to appeal in all other parts of the case. 15. At some point the Bureau had initiated a criminal investigation regarding aggravated tax crimes and aggravated book-keeping crimes against several people involved with the applicant company, including the second applicant. In April 2003 the Bureau conducted a search of the applicant company’s premises, questioned several people and seized part of the applicant company’s books. However, on 30 December 2004 the Bureau dropped the criminal investigation against the second applicant, since it considered that it would not be able to prove that he had committed any criminal acts. In January 2006 the criminal investigation was dropped against the other suspects. 16. On 15 December 2003, the applicant company was declared bankrupt, as it was unable to pay its tax debts (other than the ones concerned in this case) and therefore found to be insolvent. 17. On 14 January 2004 the Tax Authority decided that the applicant company was not entitled to certain deductions claimed by it in its VAT declarations for the period July-December 2002. Therefore, it refused the applicant company VAT deductions amounting to SEK 2,812,174 and, in addition, found the applicant company liable to pay SEK 562,432 in tax surcharges (skattetillägg), as it was considered to have supplied incorrect information in its VAT declarations. This decision was based on the results of the tax audit of the applicant company that had been carried out by the Tax Authority between January and December 2003 and which had resulted in an audit report (revisionspromemoria) of 2 December 2003. 18. The Tax Authority’s decision was not appealed against by the applicant company or any of its representatives. 19. Some time during 2004 the Tax Authority requested the County Administrative Court of the County of Skåne, in accordance with the rules on personal responsibility for representatives of corporations (företrädar-ansvar), to oblige the second applicant to pay SEK 517,711 with interest to the State. The Tax Authority claimed that the applicant company, according to the audit report, had issued false invoices to cover up payment of salaries to the applicant company’s own employees. By making deductions for the ingoing VAT in the invoices, the applicant company had, inter alia, wrongfully been awarded repayment of a surplus of ingoing VAT to the amount of SEK 517,711. The Tax Authority further submitted that the second applicant, who owned shares in the applicant company and who had been its only board member and sole representative, had with intent or through gross negligence supplied the authorities with false information which had led to the applicant company being wrongfully awarded repayment of a surplus of ingoing VAT. Moreover, the Tax Authority noted that it had decided in accordance with the information in the tax audit and that neither the applicant company nor the second applicant had appealed against its decision, despite the fact that such a possibility existed before as well as after the Tax Authority had petitioned the County Administrative Court in the present case. Therefore, the Tax Authority argued, no examination of the validity of the underlying tax decision should be made in the present case. 20. The second applicant contested the claim. He submitted, inter alia, that the applicant company had not been wrongfully awarded repayment of ingoing VAT and that the Tax Authority had not been able to prove that the invoices were false. The applicant company had not appealed against the Tax Authority’s decision of 14 January 2004 because it had by then been declared bankrupt. Furthermore, he submitted that he had not acted with intent or gross negligence. He had come into an already on-going business and the actual administration of the company had been handled by two other persons who had been responsible for all invoices. The invoices had also been inspected by the applicant company’s accounting consultant, who had made no criticism of the invoices or how the company was run. The second applicant himself had made sure that all the subcontractors had certificates proving that they were responsible for paying taxes and contributions for their businesses and that the companies had complete boards of directors. Therefore, he had had no reason to believe that the invoices were false and no criticism could be made of his management of the company’s administration. Moreover, the second applicant claimed that there were special reasons to remit liability, in full or at least partly, because his influence and involvement in the company’s business had been limited and very brief. 21. On 30 May 2006, after having held an oral hearing, the County Administrative Court rendered its judgment. It first noted that the second applicant had been a shareholder and the sole member of the board in the applicant company during the time when the incorrect information had been given and that he had signed the tax declarations which had contained the incorrect information. The court further considered that the second applicant had had an obligation to ensure that the applicant company promptly and correctly paid its taxes and fees. In its view, none of his objections were such as to call into question the validity of the underlying tax decision. In any event, the court observed that the second applicant had had the overall responsibility for the management of the company and that he could not relinquish this responsibility to his colleagues. Lastly, it stressed that he had been responsible for ensuring that the information given in the tax declarations was correct. Thus, the court found that the second applicant’s insufficient control over the management of the applicant company amounted to gross negligence. Therefore, and since there were no reasons to remit liability, the court granted the Tax Authority’s request. 22. The second applicant appealed against the judgment to the Administrative Court of Appeal in Göteborg, requesting, in the first place, that the court reject the Tax Authority’s petition. In the alternative, he requested that the liability be remitted in full or lowered. He maintained his claims and stressed, inter alia, that, despite a lengthy investigation into the applicant company by the Bureau, no one had been charged with any criminal acts. 23. The Tax Authority disputed the appeal and submitted that the Bureau had dropped the criminal investigation because it had not deemed it possible to prove whether the acts had been committed by the second applicant or another person involved with the company. 24. On 27 December 2006, after having held an oral hearing, the Administrative Court of Appeal rendered its judgment. It first noted that the case before it had come to concern mainly the question of the significance of the underlying tax decision of 14 January 2004. In this respect, it noted that there had been no appeal against the tax decision and that the second applicant had not requested that the decision be tried in accordance with Chapter 22, section 15 of the Tax Payment Act (skattebetalningslagen). Hence, the court found that, because of the existing possibilities for the second applicant to have the underlying tax decision tried, before as well as after the Tax Authority had petitioned the County Administrative Court in the present case, the validity of the underlying tax decision could not be tried within the instant proceedings. The court then considered that the second applicant’s management of the applicant company had been lacking to such an extent he had to be considered grossly negligent. Therefore, and since there were no special reasons to remit liability, the second applicant’s appeal was rejected. 25. The second applicant appealed against the judgment to the Supreme Administrative Court where he maintained his claims. He also complained about the fact that the Administrative Court of Appeal had refused to try the validity of the underlying tax decision within the instant proceedings. Furthermore, he stressed that the criminal investigation against all persons involved in the applicant company had been dropped, for which reason the Tax Authority should not have been allowed to refer to the allegedly false invoices. He further claimed that the courts had violated the presumption of innocence when they based their judgments on criminal acts which had not been proven. 26. On 10 May 2007 the Supreme Administrative Court refused leave to appeal. 27. The Law on sequestration for taxes, tolls and fees (lagen om betalningssäkring för skatter, tullar och avgifter, SFS 1978:880 – hereafter “the 1978 Act”) contains provisions that give the State a possibility to sequester property to ensure payment for a claim for taxes, tolls, or fees in situations where it is feared that the debtor might otherwise try to shirk payment. The provisions roughly correspond to the provisions on provisional attachment (kvarstad) possible in civil or criminal cases and their purpose is to secure temporarily payment of the State’s claims until voluntary payment of the debt is made or it can be secured through attachment (indrivning). 28. Section 1 of the 1978 Act states that a debtor’s property may be sequestered to cover the State’s claim for taxes, tolls or fees. If the claim has not yet been confirmed (fastställd), sequestration may be utilised only if there is probable cause (sannolika skäl) to believe that the claim will be confirmed and only to the expected amount of the confirmed claim. 29. From section 2 of the 1978 Act it follows that sequestration may be used also as regards claims for VAT and tax surcharges. 30. According to section 4 of the 1978 Act, sequestration may be used only if there is a considerable risk that the debtor will try to shirk payment of the debt and the debt concerns considerable amounts. Furthermore, sequestration may only be used if the reasons for sequestration outweigh the encroachment or harm suffered by the debtor or any other opposing interest. 31. The Tax Payment Act (skattebetalningslagen, SFS 1997:483 – hereafter “the 1997 Act”) contains, inter alia, provisions regulating how to account for and how to pay one’s preliminary and final tax and VAT. It also prescribes responsibility regarding payment of taxes that can be levied on representatives of corporations. 32. Chapter 12, section 6 (a) of the 1997 Act states that if a representative of a corporation, with intent or by gross negligence, has supplied incorrect information which has led to the corporation being wrongfully awarded a surplus of ingoing VAT, the representative is responsible for the repayment of the amount with interest, together with the corporation. 33. If there are special reasons (särskilda skäl) the liability for the representative may, according to Chapter 12, section 6 (b) of the 1997 Act be remitted, fully or in part. 34. Chapter 22, section 15 of the 1997 Act states that a representative of a corporation, against whom proceedings in accordance with Chapter 6, section 6 (a) have been instituted, may institute proceedings before a court to have the validity of the underlying tax decision tried.

dev

001-59204

ENG

AUT

CHAMBER

CASE OF BEER v. AUSTRIA

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

6. On 2 December 1994 the applicant filed an action with the Vienna Labour and Social Court (Arbeits- und Sozialgericht) against her employer, the General Accident Insurance Company (Allgemeine Unfallversicherungsanstalt). She requested the Court to order her employer to annul her transfer from one department of the hospital where she was working as a nurse to another department. 7. On 15 May 1995 the Social and Labour Court granted the applicant's action by a judgment in default (Versäumungsurteil) and ordered the defendant to reimburse the applicant's costs, i.e. 33,658 Austrian Schillings (ATS). 8. On 31 May 1995 the General Accident Insurance Company filed an appeal against the costs order (Kostenrekurs). It submitted that the costs had not been calculated correctly under the Act on Lawyers' Fees (Rechtsanwaltstarifgesetz) and requested their reduction. This appeal was not transmitted to the applicant. 9. On 19 July 1995 the Vienna Court of Appeal (Oberlandesgericht), sitting in camera, granted the appeal, recalculated the costs to be reimbursed and reduced them to ATS 14,754.

dev

001-22775

ENG

SVK

ADMISSIBILITY

BENACKOVA v. SLOVAKIA

Inadmissible

Nicolas Bratza

The applicant, Ms Jozefína Beňačková, is a Slovakian national, who was born in 1912 and lives in Bánovce nad Bebravou. The facts of the case, as submitted by the applicant, may be summarised as follows. On 28 November 1997 the applicant filed a claim for damages with the Topoľčany District Court. She claimed compensation under the State Liability Act of 1969 on the ground that the sum of 3,091 Slovakian korunas (SKK) had been unlawfully withheld from her old-age pension between 20 February 1996 and 1 July 1997. The applicant relied on a decision of 30 April 1997, delivered by the Nitra Regional Court, according to which the decision to withhold a part of the applicant’s pension with a view to recovering a sum of money due by her had been erroneous. The applicant appointed her daughter to represent her in the proceedings. On 25 February 1998 the Ministry of Justice proposed in writing that the court take relevant evidence and decide on its basis. On 11 March 1998 the applicant submitted further arguments to the District Court. On 9 October 1998 the Topoľčany District Court adjourned the case with a view to hearing a representative of the defendant and studying the case-file concerning the withholding of the sum in question. On 22 December 1998 and on 16 April 1999 the president of the Topoľčany District Court dismissed the applicant’s complaints about the length of the proceedings. The applicant was informed that the case could not be proceeded with as the relevant case-file was being examined by the Trenčín Regional Court in the context of a different set of proceedings. The applicant objected that her case could be proceeded with as she had submitted all relevant information and evidence. On 13 October 1999 the president of the Topoľčany District Court informed the applicant that the examination of the case-file concerning the enforcement in question was necessary before proceeding with the applicant’s action, and that that case file was still with the Trenčín Regional Court. On 25 February 2000 the Bratislava II District Court heard the representative of the defendant Ministry at the request of the Topoľčany District Court. The representative of the defendant stated that the Ministry had no objection to the applicant’s claim being granted in accordance with the relevant provisions of the State Liability Act of 1969. On 21 March 2000 the Topoľčany District Court ordered the defendant to pay SKK 1,377 to the applicant in compensation for damage which she had suffered as a result of the above erroneous enforcement. The damages granted comprised the statutory default interest in respect of the sum which had been withheld between 20 February 1996 and 1 July 1997 and the expenses incurred by the applicant in the context of the enforcement. The court noted that the sum erroneously withheld had already been returned to the applicant. The Topoľčany District Court further granted SKK 381 to the applicant in compensation for her representative’s travelling costs and other expenses incurred in the context of the proceedings concerning her claim for damages. The District Court dismissed the applicant’s claim for compensation for the time which her representative had spent travelling to the court hearings. The decision stated, with reference to Regulation No. 240/1990, that such compensation was only payable to advocates. The judgment became final on 19 April 2000. Section 1 (1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (“the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings. In accordance with the courts’ practice, the State Liability Act does not permit granting compensation for damage of non-pecuniary nature with the exception of compensation for damage caused to a person’s health which is governed by Regulation No. 32/1965. Regulation No. 240/1990 governs the payment of advocates’ fees and expenses. Section 20 provides that advocates are entitled to compensation for travel time outside the place of their residence in the context of representing their clients.

dev

001-103301

ENG

GBR

ADMISSIBILITY

TUCKA v. THE UNITED KINGDOM (NO. 1)

Inadmissible

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

1. The applicant, Mr Paul Tucka, is a British national who was born in 1964 and lives in Evesham. 2. 3. In 2006 the applicant was arrested and charged with gross indecency. He was subsequently also charged with rape. The charge of rape related to an incident alleged to have occurred while the complainant was between ten and eleven years of age. It was not reported to the police until she was 21 years old. 4. On 12 June 2007 the applicant was convicted of one count of rape and thirteen counts of gross indecency. He was sentenced to twenty years’ imprisonment, including fifteen years for the rape count. 5. The applicant appealed against conviction and sentence. On 29 September 2008 the Court of Appeal rejected his appeal against conviction. However, it reduced the sentence of imprisonment in respect of the rape count to ten years. His total sentence was therefore one of fifteen years’ imprisonment. 6. The applicant immediately applied to the Criminal Cases Review Commission (“CCRC” – see below) to have his case referred to the Court of Appeal. No copy of the application has been provided to the Court and the grounds for the request to the CCRC are unknown. 7. On 10 May 2010, the CCRC notified the applicant that it had decided not to refer his case to the Court of Appeal. The decision of the CCRC has not been provided to the Court, despite specific requests on 7 October 2010 and 10 November 2010. 8. Section 9 of the Criminal Appeal Act 1995 (“the 1995 Act”) sets out the power of the CCRC to refer a case to the Court of Appeal and provides: “(1) Where a person has been convicted of an offence on indictment in England and Wales, the Commission— (a) may at any time refer the conviction to the Court of Appeal, and (b) (whether or not they refer the conviction) may at any time refer to the Court of Appeal any sentence (not being a sentence fixed by law) imposed on, or in subsequent proceedings relating to, the conviction.” 9. Section 13 of the 1995 Act provides: “1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless— (a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made, (b) the Commission so consider— (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or (ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused. (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.”

dev

001-80502

ENG

MDA

CHAMBER

CASE OF MAZEPA v. MOLDOVA

Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1

Nicolas Bratza

5. The applicant was born in 1953 and lives in Chişinău. She is a second degree invalid. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant owns part of a house in which her neighbour (V.) owns another part. V. re-constructed her part of the house without the prior agreement of the applicant and the applicant's part of the house was seriously damaged as a result. 8. On 11 February 1998 the applicant initiated court proceedings claiming damages from V. Relying on an expert's assessment of the damage caused to the applicant's house, on 27 May 1999 the Buiucani District Court awarded her 12,635 Moldovan lei (MDL) (the equivalent of 1,054 euros (EUR) at the time). No appeal was made and the judgment became final and enforceable 15 days later. 9. According to the applicant, she wrote to various State authorities requesting the enforcement of the award but it was not enforced. On 10 July 2000 she informed the Buiucani District Court that the judgment of 27 May 1999 had not been enforced and asked it to change the manner of enforcing the judgment by transferring V.'s part of the house to the applicant. She emphasised that her own part of the house had been severely damaged and that the damage had been aggravated with the passage of time, causing a real threat to her life. The applicant relied, inter alia, on Article 359 of the Code of Civil Procedure (see paragraph 24 below). 10. On 13 April 2001 the Buiucani District Court accepted the claim. The new enforcement warrant was submitted to the court on 4 July 2001, following which the bailiff requested V. to comply with the judgment. 11. The applicant also requested the Supreme Court of Justice to transfer the examination of her cases against V., including the enforcement of the judgment of 27 May 1999, to another court in view of the inactivity of the Buiucani District Court. On 7 February 2001 the Supreme Court of Justice rejected that request as unfounded. 12. On 7 May 2001 the Buiucani District Court adopted an additional judgment, awarding the applicant damages (MDL 6,558) against V. for the late enforcement of the judgment of 27 May 1999. V. appealed. On 12 September 2001 the Chişinău Regional Court quashed that judgment and ordered a full re-hearing. 13. On 11 January 2002 the bailiff organised an auction for the sale of the part of the house belonging to V. but nobody offered the minimum asking price set. He then proposed that the court accept the applicant's request to be given title to that part of the house on account of V.'s debt to her. 14. On 29 January 2002 the District Court accepted that request. 15. In parallel to all the proceedings mentioned above, the applicant initiated administrative proceedings for the annulment of a municipality's decision adopted in 1996 confirming the lawfulness of V.'s re-construction of the house. On 17 November 1999 the Buiucani District Court accepted that request and on 5 July 2000 the Chişinău Regional Court upheld that judgment. On 28 September 2000 the Court of Appeal quashed the two judgments and adopted a new one, rejecting the applicant's claims. 16. V. lodged a request for the revision of judgments of 27 May 1999 and 29 January 2002 because the expert report on the damage had been signed by an expert lacking the required training and the District Court had based its judgment of 27 May 1999 on that report. The report stated the level of training of its author, who was registered by the Chamber of Commerce as that of a 1st (highest) degree expert with 23 years' work experience. On 25 April 2001 the Buiucani District Court rejected V.'s request. 17. On 25 April 2002 the Chişinău Regional Court accepted V.'s request and quashed the judgment of 27 May 1999 and the decision of 13 April 2001 (see paragraphs 8 and 10 above), ordering a full re-examination of the case in view of the expert's lack of adequate training. The court accepted V.'s claim that she had only found out about the expert's lack of training in December 2000 and had thus not exceeded the three-month time-limit for lodging the revision request. The applicant informed the Court about the quashing in a letter of 3 March 2003. 18. On 12 November 2002 the Buiucani District Court ordered an expert report to be made. On an unspecified date in 2003 the Republican Centre for Research and Regulation of Constructions (“CERCON”, a State institution) submitted its report to the court. It confirmed that, following the reconstruction of V.'s part of the house in serious violation of building regulations, the applicant's part of the house had suffered a major deterioration and had become uninhabitable. New cracks appeared in the wall after a repair, which meant that the process had not yet stabilised. A part of V.'s house created a particular danger during earthquakes and the applicant's house had lost all of its resistance to earthquakes. CERCON assessed the damage caused to the applicant's house at MDL 109,920 (EUR 7,266). 19. According to a statement by the judge in charge of the applicant's case regarding the proceedings after the revision of 25 April 2002, the hearings had to be adjourned (by one month on each occasion) due mainly to the applicant's representative's absence on the following dates: 1 September 2003 (the first hearing in the re-opened proceedings), 7 November 2003, 8 December 2003, 17 February 2005, 17 March 2005, 9 June 2005 and 25 August 2005. 20. Three more one-month adjournments had to be ordered at V.'s request: on 6 October 2003, 9 December 2004 and 30 January 2006. 21. On 5 February 2004 the applicant requested a new expert report to be drawn up in respect of the damage caused to her part of the house. V. supported this request. On 9 February 2004 the questions for the experts were formulated and on 20 February 2004 the court ordered the parties to bear equally the experts' costs. The expert report was sent to the court by the Republican Institute for Judicial Expertise and Criminalistics (“IREJC”, a State institution) on 8 November 2004, following a visit to the applicant's part of the house on 26 October 2004. The report largely confirmed the findings of the two previous expert reports and assessed the damage caused to the applicant's house at MDL 125,174 (EUR 7,784). It also found that the process of the deformation of the house had not yet stopped and new cracks had appeared after minor repairs had been undertaken. On 15 April 2005 the court accepted V.'s objections to the expert report and ordered a new report to be drawn up by IREJC. On 13 May 2005 IREJC sent the case file back to the court without drawing up the report. On 19 May 2005 the experts charged with drawing up the report were summoned, but they failed to appear on 5 July 2005. On 29 November 2005 V. requested another expert report. On 6 December 2005 the court sent IREJC a request for a new expert report, but on 19 December 2005 the IREJC returned the case file since V. had failed to pay IREJC its costs, as ordered by the court. The applicant stated that she did not want another report since the previous one had confirmed her position. On 30 January 2006 the court ordered the parties to each bear IREJC's costs and ordered a new report to be drawn up. In their observations of September 2006 the Government informed the Court that IREJC had not yet drawn up its report and asked for permission to submit it to the Court when it was ready. No such report has been submitted to date. 22. The proceedings are still pending before the Buiucani District Court. 23. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)). 24. In addition, the relevant provisions of the Code of Civil Procedure, applicable at the relevant time, read as follows: “Article 5. Examination of civil actions by the court. The court shall begin the examination of a civil case: ... 3) at the request of the natural or legal person who asks for the protection of his or its rights or interests protected by law; ... TITLE FIVE EXECUTION OF COURT JUDGMENTS Article 336. Court judgments and decisions of other authorities, which shall be executed. The following shall be executed in accordance with the rules in the present Title of this Code: 1) judgments ... adopted by courts in civil cases: ... Article 337. Documents of forced execution. The following are considered documents of forced execution: 1) execution warrants ... adopted by courts...; Article 338. Issuance of an execution warrant. Execution warrants shall be issued by the court to the creditor after the decision becomes final... Execution warrants shall be issued directly to the creditor or, at his or her request, shall be sent for enforcement directly by the court to the territorial subdivision of the Decisions' Enforcement Department within the Ministry of Justice. Article 343. Submission of the document of forced execution. The bailiff shall begin the enforcement of court judgments at the request of the persons mentioned in Article 5 of the present Code ... Article 349. Verification of the execution of the judgment. The judge shall verify the correct and timely execution of the judgment. Article 359. Measures of forced execution. The following shall be the measures of forced execution: 1) execution against the debtor's assets through their freezing and sale; ...”

dev

001-57905

ENG

ESP

CHAMBER

CASE OF LÓPEZ OSTRA v. SPAIN

Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (victim);Violation of Art. 8;No violation of Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

6. Mrs Gregoria López Ostra, a Spanish national, lives in Lorca (Murcia). At the material time she and her husband and their two daughters had their home in the district of "Diputación del Rio, el Lugarico", a few hundred metres from the town centre. 7. The town of Lorca has a heavy concentration of leather industries. Several tanneries there, all belonging to a limited company called SACURSA, had a plant for the treatment of liquid and solid waste built with a State subsidy on municipal land twelve metres away from the applicant’s home. 8. The plant began to operate in July 1988 without the licence (licencia) from the municipal authorities required by Regulation 6 of the 1961 regulations on activities classified as causing nuisance and being unhealthy, noxious and dangerous ("the 1961 regulations"), and without having followed the procedure for obtaining such a licence (see paragraph 28 below). Owing to a malfunction, its start-up released gas fumes, pestilential smells and contamination, which immediately caused health problems and nuisance to many Lorca people, particularly those living in the applicant’s district. The town council evacuated the local residents and rehoused them free of charge in the town centre for the months of July, August and September 1988. In October the applicant and her family returned to their flat and lived there until February 1992 (see paragraph 21 below). 9. On 9 September 1988, following numerous complaints and in the light of reports from the health authorities and the Environment and Nature Agency (Agencia para el Medio Ambiente y la Naturaleza) for the Murcia region, the town council ordered cessation of one of the plant’s activities - the settling of chemical and organic residues in water tanks (lagunaje) - while permitting the treatment of waste water contaminated with chromium to continue. There is disagreement as to what the effects were of this partial shutdown, but it can be seen from the expert opinions and written evidence of 1991, 1992 and 1993, produced before the Commission by the Government and the applicant (see paragraphs 18-20 below), that certain nuisances continue and may endanger the health of those living nearby. 10. Having attempted in vain to get the municipal authority to find a solution, Mrs López Ostra lodged an application on 13 October 1988 with the Administrative Division of the Murcia Audiencia Territorial, seeking protection of her fundamental rights (section 1 of Law 62/1978 of 26 December 1978 on the protection of fundamental rights ("Law 62/1978") - see paragraphs 24-25 below). She complained, inter alia, of an unlawful interference with her home and her peaceful enjoyment of it, a violation of her right to choose freely her place of residence, attacks on her physical and psychological integrity, and infringements of her liberty and her safety (Articles 15, 17 para. 1, 18 para. 2 and 19 of the Constitution - see paragraph 23 below) on account of the municipal authorities’ passive attitude to the nuisance and risks caused by the waste-treatment plant. She requested the court to order temporary or permanent cessation of its activities. 11. The court took evidence from several witnesses offered by the applicant and instructed the regional Environment and Nature Agency to give an opinion on the plant’s operating conditions and location. In a report of 19 January 1989 the agency noted that at the time of its expert’s visit on 17 January the plant’s sole activity was the treatment of waste water contaminated with chromium, but that the remaining waste also flowed through its tanks before being discharged into the river, generating foul smells. It therefore concluded that the plant had not been built in the most suitable location. Crown Counsel endorsed Mrs López Ostra’s application. However, the Audiencia Territorial found against her on 31 January 1989. It held that although the plant’s operation could unquestionably cause nuisance because of the smells, fumes and noise, it did not constitute a serious risk to the health of the families living in its vicinity but, rather, impaired their quality of life, though not enough to infringe the fundamental rights claimed. In any case, the municipal authorities, who had taken measures in respect of the plant, could not be held liable. The non-possession of a licence was not an issue to be examined in the special proceedings instituted in this instance, because it concerned a breach of the ordinary law. 12. On 10 February 1989 Mrs López Ostra lodged an appeal with the Supreme Court (Tribunal Supremo - see paragraph 25 below in fine). She maintained that a number of witnesses and experts had indicated that the plant was a source of polluting fumes, pestilential and irritant smells and repetitive noise that had caused both her daughter and herself health problems. As regards the municipal authorities’ liability, the decision of the Audiencia Territorial appeared to be incompatible with the general supervisory powers conferred on mayors by the 1961 regulations, especially where the activity in question was carried on without a licence (see paragraph 28 below). Regard being had to Article 8 para. 1 (art. 8-1) of the Convention, inter alia, the town council’s attitude amounted to unlawful interference with her right to respect for her home and was also an attack on her physical integrity. Lastly, the applicant sought an order suspending the plant’s operations. 13. On 23 February 1989 Crown Counsel at the Supreme Court filed pleadings to the effect that the situation complained of amounted to arbitrary and unlawful interference by the public authorities with the applicant’s private and family life (Article 18 of the Constitution taken together with Articles 15 and 19 - see paragraph 23 below). The court should accordingly grant her application in view of the nuisance to which she was subjected and the deterioration in the quality of her life, both of which had moreover been acknowledged in the judgment of 31 January. On 13 March Crown Counsel supported the suspension application (see paragraph 12 above and paragraph 25 below). 14. In a judgment of 27 July 1989 the Supreme Court dismissed the appeal. The impugned decision had been consistent with the constitutional provisions relied on, as no public official had entered the applicant’s home or attacked her physical integrity. She was in any case free to move elsewhere. The failure to obtain a licence could only be considered in ordinary-law proceedings. 15. On 20 October 1989 Mrs López Ostra lodged an appeal (recurso de amparo) with the Constitutional Court, alleging violations of Article 15 (right to physical integrity), Article 18 (right to private life and to inviolability of the family home) and Article 19 (right to choose freely a place of residence) of the Constitution (see paragraph 23 below). On 26 February 1990 the court ruled that the appeal was inadmissible on the ground that it was manifestly ill-founded. It observed that the complaint based on a violation of the right to respect for private life had not been raised in the ordinary courts as it should have been. For the rest, it held that the presence of fumes, smells and noise did not itself amount to a breach of the right to inviolability of the home; that the refusal to order closure of the plant could not be regarded as degrading treatment, since the applicant’s life and physical integrity had not been endangered; and that her right to choose her place of residence had not been infringed as she had not been expelled from her home by any authority. 16. In 1990 two sisters-in-law of Mrs López Ostra, who lived in the same building as her, brought proceedings against the municipality of Lorca and SACURSA in the Administrative Division of the Murcia High Court (Tribunal Superior de Justicia), alleging that the plant was operating unlawfully. On 18 September 1991 the court, noting that the nuisance had continued after 9 September 1988 and that the plant did not have the licences required by law, ordered that it should be closed until they were obtained (see paragraph 28 below). However, enforcement of this order was stayed following an appeal by the town council and SACURSA. The case is still pending in the Supreme Court. 17. On 13 November 1991 the applicant’s two sisters-in-law lodged a complaint, as a result of which Lorca investigating judge no. 2 instituted criminal proceedings against SACURSA for an environmental health offence (Article 347 bis of the Criminal Code - see paragraph 29 below). The two complainants joined the proceedings as civil parties. Only two days later, the judge decided to close the plant, but on 25 November the measure was suspended because of an appeal lodged by Crown Counsel on 19 November. 18. The judge ordered a number of expert opinions as to the seriousness of the nuisance caused by the waste-treatment plant and its effects on the health of those living nearby. An initial report of 13 October 1992 by a scientist from the University of Murcia who had a doctorate in chemistry stated that hydrogen sulphide (a colourless gas, soluble in water, with a characteristic rotten-egg smell) had been detected on the site in concentrations exceeding the permitted levels. The discharge of effluent containing sulphur into a river was said to be unacceptable. These findings were confirmed in a supplementary report of 25 January 1993. In a report of 27 October 1992 the National Toxicology Institute stated that the levels of the gas probably exceeded the permitted limits but did not pose any danger to the health of people living close to the plant. In a second report of 10 February 1993 the institute stated that it could not be ruled out that being in neighbouring houses twenty-four hours a day constituted a health risk as calculations had been based only on a period of eight hours a day for five days. Lastly, the regional Environment and Nature Agency, which had been asked to submit an expert opinion by the Lorca municipal authorities, concluded in a report of 29 March 1993 that the level of noise produced by the plant when in operation did not exceed that measured in other parts of the town. 19. The investigation file contains several medical certificates and expert opinions concerning the effects on the health of those living near the plant. In a certificate dated 12 December 1991 Dr de Ayala Sánchez, a paediatrician, stated that Mrs López Ostra’s daughter, Cristina, presented a clinical picture of nausea, vomiting, allergic reactions, anorexia, etc., which could only be explained by the fact that she was living in a highly polluted area. He recommended that the child should be moved from the area. In an expert report of 16 April 1993 the Ministry of Justice’s Institute of Forensic Medicine in Cartagena indicated that gas concentrations in houses near the plant exceeded the permitted limit. It noted that the applicant’s daughter and her nephew, Fernando López Gómez, presented typical symptoms of chronic absorption of the gas in question, periodically manifested in the form of acute bronchopulmonary infections. It considered that there was a relationship of cause and effect between this clinical picture and the levels of gas. 20. In addition, it is apparent from the statements of three police officers called to the neighbourhood of the plant by one of the applicant’s sisters-in-law on 9 January 1992 that the smells given off were, at the time of their arrival, very strong and induced nausea. 21. On 1 February 1992 Mrs López Ostra and her family were rehoused in a flat in the centre of Lorca, for which the municipality paid the rent. The inconvenience resulting from this move and from the precariousness of their housing situation prompted the applicant and her husband to purchase a house in a different part of town on 23 February 1993. 22. On 27 October 1993 the judge confirmed the order of 15 November 1991 and the plant was temporarily closed. 23. The relevant Articles of the Constitution provide: "Everyone shall have the right to life and to physical and psychological integrity, without being subjected to torture or inhuman or degrading punishment or treatment under any circumstances. The death penalty shall be abolished except where it is provided for by military criminal law in time of war." "Everyone has the right to liberty and security. ..." "1. The right to honour and to private and family life and the right to control use of one’s likeness shall be protected. 2. The home shall be inviolable. It may not be entered or searched without the consent of the person who lives there or a judicial decision, except in cases of flagrant offences. ..." "Spanish citizens shall have the right to choose freely their place of residence and to move around the national territory ..." "1. Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it. 2. The public authorities, relying on the necessary public solidarity, shall ensure that all natural resources are used rationally, with a view to safeguarding and improving the quality of life and protecting and restoring the environment. 3. Anyone who infringes the above provisions shall be liable to criminal or, where applicable, administrative penalties as prescribed by law and shall be required to make good any damage caused." 24. Law 62/1978 provides that certain fundamental rights shall be safeguarded by the ordinary courts. The rights protected in this way include inviolability of the home and freedom to choose one’s place of residence (section 1(2)). However, under transitional provision 2(2) of the Law on the Constitutional Court of 3 October 1979, its application is extended to the other rights secured in Articles 14 to 29 of the Constitution (Article 53 of the Constitution). 25. Complaints against decisions of administrative authorities affecting the rights of the individual may be lodged with the administrative division of the appropriate ordinary court (section 6), without its first being necessary to exhaust the administrative remedies (section 7(1)). The procedure followed is an expedited one with shorter time-limits and exemption from certain procedural steps (sections 8 and 10). In the writ the individual may apply to have the impugned decision stayed, and the court rules on such applications by means of a separate, summary procedure (section 7). An appeal lies to the Supreme Court (section 9), which hears such appeals in expedited proceedings. 26. In the field of environmental protection the State and the autonomous communities have enacted many provisions of different ranks in law: Article 45 of the Constitution (see paragraph 23 above); Law 20/1986 of 14 May 1986 on toxic and dangerous waste; Royal Legislative Decree 1302/1986 of 28 June 1986 on environmental impact assessment and Law 38/1972 of 22 December 1972 on atmospheric pollution control. 27. The provisions most frequently relied on in the instant case are the 1961 regulations on activities classified as causing nuisance and being unhealthy, noxious and dangerous approved in Decree 2414/1961 of 30 November. The purpose of this decree is to prevent plant, factories, activities, industries or warehouses, whether public or private, from causing nuisance, impairing normal environmental health and hygiene or damaging public or private property or entailing serious risks to persons or property (Regulation 1). Regulation 3 extends the scope of the regulations to cover noise, vibrations, fumes, gases, smells, etc. Siting of the activities in question is governed by municipal by-laws and local development plans. At all events, factories deemed to be dangerous or unhealthy cannot in principle be built less than 2,000 metres from the nearest housing (Regulation 4). 28. The local mayor is empowered to issue licences for carrying on these activities, to supervise the application of the aforementioned provisions and to impose penalties where necessary (Regulation 6). The procedure for obtaining such licences has several stages, including mandatory consultation of a provincial committee as to the suitability of the safety systems proposed by the applicant in his description of the project. Before the premises are brought into use they must undergo a compulsory inspection by a local-authority technician (Regulations 29-34). An appeal lies to the ordinary courts against decisions to grant or refuse licences (Regulation 42). When a nuisance occurs, the mayor may order the party responsible for it to take steps to eliminate it. If these are not taken within the time specified in the regulations, the mayor may, in the light of the expert opinions obtained and after hearing the person concerned, either impose a fine or temporarily or permanently withdraw the licence (Regulation 38). 29. Article 347 bis was added on 25 June 1983 by the Law making urgent reforms to part of the Criminal Code (8/1983). It provides: "Anyone who, in breach of environmental protection legislation or regulations, causes to be released or directly or indirectly releases into the atmosphere, the soil or ... waters emissions or discharges of any kind that are likely seriously to endanger human health or seriously to interfere with the conditions of animal life, forests, natural sites or cultivated areas, shall be liable to a sentence of between one and six months’ imprisonment (arresto mayor) and a fine of 50,000 to 1,000,000 pesetas. A more severe penalty (six months’ to six years’ imprisonment) shall be imposed where an industrial plant is operating illegally, without having obtained the necessary administrative authorisations, or where express orders of the administrative authorities requiring modification or cessation of the polluting activities have not been complied with or where untrue information has been given about the activities’ environmental impact, or where an inspection by the administrative authorities has been obstructed. ... In all the cases referred to in this Article, temporary or permanent closure of the establishment may be ordered ..."

dev

001-93695

ENG

TUR

CHAMBER

CASE OF GÖK AND GÜLER v. TURKEY

Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza

4. The applicants were born in 1972 and 1975 respectively and live in Istanbul. 5. On 18 November 1995 the second applicant was arrested and taken into police custody on suspicion of membership of an illegal armed organisation, namely the PKK (Workers’ Party of Kurdistan). The first applicant was arrested and detained, on 23 November 1995, on the same grounds. 6. On 24 November 1995 the applicants and two other suspects were identified as those responsible by Mr G.T. and Mr O.T., eyewitnesses to the killing of their father, Mr M.S.T., by the PKK. 7. On 26 November 1995 the applicants were interrogated by two police officers, in the absence of a lawyer, and they both gave detailed statements regarding their participation in, inter alia, the killing of Mr M.S.T and kidnapping of G.T., on 2 August 1995, on behalf of the PKK. 8. On 27 November 1995 the applicants, in the absence of a lawyer, were first asked to identify from photos a deceased suspect and later confronted with other suspects. During this procedure both applicants gave details about the other detainees, such as their code names and acts undertaken by them. 9. On 28 November 1995, at 10.25 a.m., the applicants were examined by a doctor who noted that the first applicant had a bruise of 1x1 cm on his lower lip and that the second applicant had two scratches of 2 cm on his lower right knee and pain in his back and lower back. 10. In their application form the applicants submitted that they had been subjected to ill-treatment while in police custody. In this connection, they claimed that they had received electric shocks, falaka (beating of the soles of the feet) and Palestinian hanging. 11. In a letter to the Court dated 5 October 2004 the first applicant submitted, inter alia, that during his arrest he and his family had been sworn at and threatened and that when they had arrived at the police station he had been blindfolded. Subsequently, he had been interrogated by five or six police officers who had kicked and punched him and hit him with sticks. One of them had hit him in the stomach and another had stood on his head. When he had denied the accusations, they had subjected him to hanging and to electric shocks on his penis and feet. Later, when he had refused to sign a statement written by the police, two police officers had punched him in the face and squeezed his penis. Because of the pain he had signed the statement. The applicant further stated that the doctor who had examined him had seen the swelling on his lips and penis and had decided to transfer him to hospital but that the relevant paper had been ripped up by the police. 12. On the same day the applicants were brought before the public prosecutor at the Istanbul State Security Court where they refused to give any statements. 13. Later that same day the applicants were brought before a judge at the State Security Court where they refuted the contents of their statements to the police. The second applicant claimed that some of these submissions had been written by the police and that he had made others under duress. The first applicant submitted that the police had made him sign the statement without reading it. The judge remanded them in custody. 14. On 5 December 1995 the public prosecutor at the Istanbul State Security Court indicted the applicants under Article 125 of the Criminal Code for engaging in activities for the purpose of bringing about the secession of part of the national territory. In particular, they were accused of participating in the killing of Mr M.S.T and kidnapping of G.T. on 2 August 1995. 17. Between 5 March 1996 and 2 July 1999 the court held hearings on a regular basis during which it examined the accused and a number of witnesses, including those appearing for the defence. In particular, testimony was taken from the wife and sons of Mr M.S.T., including Mr G.T. All of them claimed that they would not be able to identify the perpetrators, in particular because they had been wearing masks. They further submitted that they knew the applicants because they were from the same village and were relatives but that they had never stated, during the identification procedure, that the applicants were responsible for the killing of Mr M.S.T. The court also took testimony from the police officers who had conducted the identification procedure and who stood by the content of the verbatim reports drawn up in that connection. On 12 December 1997 one of the judges, acting as rapporteur, examined the video footage of the re-enactment of events and submitted his report to the court. The applicants contested the report. On numerous occasions the applicants’ lawyer requested their release stating, in particular, that, apart from statements obtained under duress and torture, there was no evidence to convict the applicants. At a hearing on 27 March 1998 the prosecutor submitted his observations on the merits in which he requested the applicants’ conviction under Article 168 of the Criminal Code. The accused were granted time to submit their additional observations. 19. At a hearing on 2 July 1999 the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. At this hearing the court heard the additional defence submissions of three of the accused, including the second applicant. The next hearing was held on 10 September 1999, when the court heard the submissions of the applicants’ representative, the second applicant and some of the other accused. 20. In the meantime, on 2 July 1999, the applicants submitted their final written defence submissions in which they claimed that they had been subjected to torture, as shown by their medical reports, and that instead of opening an inquiry, the prosecution and the court had relied on their statements obtained under duress. 21. On the same day the first applicant wrote a letter to the court proclaiming his innocence. He reiterated that the police had made him sign some documents under torture. 22. On 17 November 1999 the court held a hearing. On the same day it decided to convict the applicants under, inter alia, Article 168 of the Criminal Code and sentenced them to twelve years and six months’ imprisonment. In its decision, the court held that the applicants, in their police statements, had acknowledged their relationship to and activities within the organisation and that although they had later retracted those statements, the court, having regard to the evidence in the case file, did not find their later submissions credible. 23. In the meantime, on 20 June 2000, the first applicant wrote to Ms Pişkinsüt, the chair of the Human Rights Commission of the Turkish Grand National Assembly, complaining about his alleged illtreatment. On 12 June 2001 the Fatih public prosecutor’s office decided not to commit any police officer for trial on the ground that the statutory time-limit for prosecution of the offence had expired. On 22 October 2004 the applicant filed a second petition with the Human Rights Commission of the Turkish Grand National Assembly. Once again, on 11 March 2005, the prosecutor decided that, despite recent amendments to the relevant provisions, the statutory timelimit in respect of the applicant’s complaint remained the same. 24. On 20 December 2000 the applicants appealed. In their petition they submitted, inter alia, that the first-instance court had based its conviction on their statements in police custody which had been obtained under duress. In this connection, they referred to their medical reports. 25. On 1 February 2001 the Court of Cassation held a hearing and upheld the judgment of the first-instance court in so far as it concerned the applicants’ conviction and sentence. 26. On 9 November 2004 the applicants were released from prison.

dev

001-99817

ENG

CHE

GRANDCHAMBER

CASE OF NEULINGER AND SHURUK v. SWITZERLAND

Violation of Art. 8 (in case of enforcement of the Federal Court's judgment)

András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Sverre Erik Jebens;Zdravka Kalaydjieva

15. The applicants were born in 1959 and 2003 respectively and live in Lausanne (Canton of Vaud). 16. The facts as submitted by the parties may be summarised as follows. 17. The first applicant, who refers to herself as Jewish, decided to settle in Israel in 1999. There she met an Israeli national, who is also Jewish, and they were married on 23 October 2001 in Israel. They had a son, Noam, who was born in Tel Aviv on 10 June 2003. He has Israeli and Swiss nationality. 18. According to the applicants, in the autumn of 2003 the child’s father joined the Jewish “Lubavitch” movement, which they have described as an ultra-orthodox, radical movement that is known for its zealous proselytising. 19. Marital difficulties then arose, and the first applicant, fearing that her husband would take their son to a “Chabad-Lubavitch” community abroad for religious indoctrination, applied to the Tel Aviv Family Court for a ne exeat order to prevent Noam’s removal from Israel. On 20 June 2004 the court made a ne exeat order that was to expire when the child attained his majority, that is to say on 10 June 2021, unless annulled by the court in the meantime. 20. In an interim decision of 27 June 2004, the same court granted “temporary custody” of the child to the mother and requested the Tel Aviv social services to draw up an urgent welfare report. The “guardianship” of the child was to be exercised jointly by both parents. 21. In a decision of 17 November 2004, the court, on the recommendation of a social worker, confirmed the first applicant’s custody of the child and granted a right of visitation to the father. 22. On 10 January 2005 the Israeli social services were obliged to intervene. They instructed the parents to live apart, in the interest of the child. The letter they sent to the parents read as follows: “1. We take the view that to maintain a common home and live, as you have been doing, under the same roof is not in the child’s interest – and that is an understatement. It appears to us that the environment of constant recrimination and invective created by Shai against Isabelle has caused her permanent stress that may prevent her from fulfilling her role as a mother, when she is already faced with the need to find a job in order to support herself and pay the rent. It should be noted that Shai pays neither the maintenance ordered by the court nor the rent. We felt that some of Shai’s recriminations verged on the absurd. He has decided that the child’s illness, like the glandular fever and the epileptic fit that the child has suffered, are the mother’s fault. Shai persists in asserting that Isabelle ‘is not a good mother’; he does not accept the fact that the child attends nursery school, and claims that the medical certificates are insufficient. We advise Shai to speak to the doctors who are treating the child. Although he is maintained by Isabelle, Shai demands that the food complies to a very strict degree with Jewish dietary laws, observing one dietary rule or another ... There is no doubt that living apart will resolve some of these problems. We find that Shai creates a hostile environment at home – an atmosphere of verbal aggression and threats that terrorise the mother. In the light of the foregoing, we cannot but find that the mother is exposed to mental harassment and that the maintaining of a common home is harmful to the child. 2. Under the powers conferred on us by sections 19 and 68 of the Law on legal capacity, we reiterate our warning to Shai, calling on him not to take his child with him to engage in religious proselytising on the public highway, where he encourages passers-by to put on phylacteries and collects donations. Likewise, the father is requested not to take the child with him to the synagogue for a whole day at a time. We emphasise that the provisions on access in respect of the child are intended to bring father and child together for their common activities, and not for other purposes.” 23. That same day, the first applicant filed a complaint with the police accusing her husband of assault. 24. In an injunction of 12 January 2005 the competent judge of the Tel Aviv Family Court, upon an urgent application lodged earlier that day by the first applicant, prohibited the father from entering the child’s nursery school or the first applicant’s flat, from disturbing or harassing her in any manner whatsoever, and from carrying or possessing a weapon. Restrictions were also imposed on the access right granted to the father, who was now authorised to see the child only twice a week under the supervision of the social services at a contact centre in Tel Aviv. 25. The couple’s divorce was pronounced on 10 February 2005 with no change in the attribution of guardianship. 26. As the father had defaulted on his maintenance payments to the first applicant, an arrest warrant was issued against him on 20 March 2005. 27. In a decision of 27 March 2005, a judge of the Tel Aviv Family Court dismissed an application lodged by the first applicant for the annulment of the ne exeat order prohibiting the removal of the second applicant from Israel. The judge found, in particular, that there was a serious risk that the mother would not return to Israel with the child after visiting her family abroad, in view of the fact that she had no ties in that country. 28. On 24 June 2005 the first applicant secretly left Israel for Switzerland with her son. 29. On 27 June 2005 Noam’s father contacted the Israeli Central Authority, which was unable to locate the child until 21 May 2006, when Interpol Jerusalem forwarded him a note from Interpol Berne indicating that the first applicant was in Switzerland. 30. On 22 May 2006 the Israeli Ministry of Justice transmitted to the Swiss Federal Office of Justice an application for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (the “Hague Convention”; see paragraph 57 below). In support of its application it indicated, among other things, that Interpol Berne had notified it only the day before that Noam and his mother were living in Lausanne and that the latter had applied for the renewal of her Swiss passport. 31. In a decision of 30 May 2006, delivered upon an application by the child’s father, the Tel Aviv Family Court observed that the child was habitually resident in Tel Aviv and that, as of 24 June 2005, the date of the applicants’ departure, the parents had been joint guardians of their son, with the mother having temporary custody and the father a right of access. The court held that the child’s removal from Israel without the father’s consent had been wrongful within the meaning of Article 3 of the Hague Convention. 32. On 8 June 2006 the child’s father lodged an application with the Lausanne District Justice of the Peace seeking an order for his son’s return to Israel. He requested in particular, as an extremely urgent measure, that the Lausanne Passport Office be ordered to retain the applicants’ Swiss passports. 33. On 12 June 2006 the Justice of the Peace made an order allowing the application by Noam’s father for an extremely urgent measure. 34. Following a new application for an extremely urgent measure, faxed by the child’s father on 27 June 2006, the Justice of the Peace, in a provisional-measures order made that same day, ordered the first applicant to deposit her passport and that of Noam immediately with the court registry of the Justice of the Peace, on pain of criminal sanctions for refusal to comply with the decision of an authority. 35. The first applicant, assisted by counsel, and the legal representative of the father, whose obligation to appear in person had been waived, made representations to the Justice of the Peace on 18 July 2006. 36. In a decision of 29 August 2006, after a hearing, the father’s application was dismissed by the Lausanne District Justice of the Peace. The court took the view that, whilst the child’s removal had been wrongful within the meaning of Article 3 of the Hague Convention, it had to apply Article 13, sub-paragraph (b), of that Convention, as there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. 37. On 25 September 2006 the father appealed against that decision before the Guardianship Division (chambre des tutelles) of the Vaud Cantonal Court, which ordered an expert’s report and for that purpose appointed Dr B., a paediatrician and child psychiatrist. In his report, delivered on 16 April 2007, he stated that the child’s return to Israel with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return, in particular the conditions awaiting the mother and their potential repercussions for the child; that the return of the child without his mother would expose him to a risk of major psychological harm; and that the maintaining of the status quo would also represent for the child a risk of major psychological harm in the long term. 38. On 30 November 2006 the competent court in Tel Aviv cancelled an indictment for domestic violence that the second wife of Noam’s father had initiated, as she had left the country. 39. In a letter of 12 March 2007, in connection with the proceedings to secure the child’s return, the Israeli Central Authority made the following observations to its Swiss counterpart: “We acknowledge receipt of your letter dated 7 February 2007. We wish to respond to the questions raised in that letter as follows: Mr Shuruk states that in the event that the mother refuses to return to Israel, he will take care of the child. He currently lives in an apartment with a roommate, however if the child is returned to Israel, he states that he will immediately secure an apartment to live in with the child. He is currently working and studying at an institution for religious learning, from 9 a.m. to 3 p.m. The child would be in day care/nursery school during those hours. Mr Shuruk points out that prior to the child’s abduction to Switzerland, he was in day care as the mother worked. Mr Shuruk advises that his extended family would provide a back-up system for him in the event that he would need assistance from time to time. The Appeal Court in Switzerland has raised a concern as to how Mr Shuruk can care for the child when his right of access has been restricted. As we stated in our letter to your office dated 28 September 2006, it must be remembered that according to the report of the social worker in Israel, the father and child had a wonderful relationship. There were plans to expand the visitation, to include overnight visits, however these plans were interrupted as a result of the mother’s abduction of the child. If the mother were to refuse to return to Israel with the child, she would in effect be agreeing to the father having de facto custody, and Mr Shuruk could apply to the Israeli court to grant an order reflecting the new reality. You further asked what steps could be taken to protect the mother should she return, given her allegations of violence on the part of Mr Shuruk. Mr Shuruk denies all such allegations. Furthermore, we are attaching a copy of the decision of the Tel Aviv Magistrate’s Court dated 30 November 2006, together with a translation into English. This decision concerned an indictment filed against Mr Shuruk for allegations of assault by his second wife. As you can see, the complainant apparently left Israel and could not be located, therefore the court cancelled the indictment against Mr Shuruk. In any event, we wish to draw your attention to the law in Israel that provides protection in cases of allegations of family violence; that law is the Prevention of Family Violence Law 1991. We are attaching a translation of that law into English, and an unofficial translation into French. Section 2 provides for protection orders that can be made. Therefore, if the mother has any concerns for her safety, she can apply to the court in Israel and request any necessary protection. Her allegations should not constitute a basis for the Swiss court to refuse to return the child to Israel. You informed us that the court ordered a psychological evaluation of the child. We must express our concern in this respect. Such evaluation was not ordered by the lower court, and we wish to inquire as to why it has been ordered at this late stage. It must be remembered that the child was abducted by the mother in June 2005. The child has not seen his father in almost two years. During this period he has been subject to the sole influence of the mother. We therefore question what can be gained by a psychological evaluation of the child. It must be remembered that this is a Hague Convention proceeding, and not a custody case. It seems that the mother is trying to prove that the child will be psychologically damaged by being separated from her if he is returned to Israel. However this can be avoided if the mother will act in the child’s best interests and return with him. As we stated in our letter of 28 September 2006, the mother does not appear to have any justifiable reason under the Hague Convention to prevent her return ...” 40. In a letter of 30 April 2007 to the lawyer acting for Noam’s father, the Israeli Central Authority made the following observations on the question whether the first applicant would be prosecuted or imprisoned if she returned to Israel: “... You have requested that we inform you as to the legal consequences that would face the mother, Isabelle Neulinger, should she return to Israel with the child, as a result of the act of abduction of the child. In terms of criminal consequences for the act of abduction, abduction is an offence under Israel’s Penal Law 1977 and carries a possible penalty of imprisonment. However, according to the guidelines of the State Attorney of Israel, upon receipt of a criminal complaint of parental abduction, the police are to forward the matter to the Central Authority under the Hague Convention for guidelines as to how to proceed in the matter. The State Attorney’s guidelines provide that criminal proceedings should be commenced only in very exceptional circumstances. In Ms Neulinger’s case, should she comply with an order to return the child to Israel, not disappear with the child upon her arrival to Israel, cooperate with the Israeli authorities and comply with the existing court order for supervised visitation by Mr Shuruk (pending any further decision), the Central Authority for Israel would positively consider instructing the Israel Police to close the criminal file for lack of public interest, provided that Ms Neulinger not commit further acts of abjection with respect to the child. In terms of civil consequences, we can inform you that the sole consideration in both the Israeli civil courts and Rabbinical courts, when deciding matters such as custody and access, is the best interests of the child ...” 41. In a judgment of 22 May 2007, the Guardianship Division of the Vaud Cantonal Court dismissed the father’s appeal. Having carried out an additional investigation, and taking into account the expert’s report by Dr B. of 16 April 2007, it took the view that the child’s return carried a grave risk of psychological harm, whether or not he was accompanied by his mother, and would also place him in an intolerable situation. It therefore considered that the conditions of Article 13, sub-paragraph (b), of the Hague Convention were met. Finding, however, that the child could not be deprived of all relations with his father, it prescribed measures with a view to rebuilding the personal relationship between them. Its judgment read as follows: “4. (d) ... In response to the questions put to him, expert B. ... states in his conclusions that Noam’s return to Israel with his mother would expose him to psychological harm, the intensity of which cannot be assessed without knowledge of the conditions of such return, in particular those awaiting his mother and the repercussions which they might have on the child; as regards the child’s return to Israel without his mother, [the expert] is of the opinion that it would expose him to major psychological harm, as described in detail in the report. In the ‘discussion’ part of his report the expert emphasises that Noam’s situation seems at present to be completely blocked. On the one hand, given his young age and his complete lack of recollection of his first years in Israel, including of his father, any visit to that country without his mother, even a brief visit, and even if the legal situation allowed it, would be psychologically highly traumatic, involving extreme separation-related anxiety and a major risk of severe depression. On the other hand, the possibility of the mother’s return to Israel with Noam, even for a short period, is totally out of the question for the mother. In answer to the question whether Noam’s return to Israel might place the child in an intolerable situation, the expert replied that it was ‘clearly’ the conditions of the child’s possible return to Israel that would or would not render the situation intolerable. He observed that, likewise, it was the conditions of his continuing residence in Switzerland that would or would not render his situation there intolerable and that the maintaining of the status quo represented a long-term major psychological risk for the child, with the result that, if there were no understanding between his parents, an agreement would urgently be required between the child protection services of the States of the parents’ residence in order to make up for their failure to act. In accordance with Article 13, third paragraph, of the Hague Convention, this court also requested the Israeli Central Authority to provide information about the child’s social background, by answering the following questions: ‘in the event that, as she has stated, the mother does not return to Israel, who will take care of the child and where will he stay? As the father does not appear to be in gainful employment, who will provide for the child’s upkeep? As the right of access has been restricted by judicial decisions, what measures will be taken to ensure that the exercise of the right of access does not harm the child’s physical and psychological welfare?’ In its letter of 12 March 2007 the Israeli Central Authority did not really answer the questions put to it, so it is impossible to be satisfied about the interests of the child. The Central Authority merely mentioned the appellant’s intentions concerning his son if his son should return to Israel without his mother, in the following terms: ‘[I]n the event that Noam’s mother refuses to return to Israel, the father will take care of the child. He currently lives in an apartment with a roommate; however if the child is returned to Israel, he states that he will immediately secure an apartment to live in with the child. He is currently working and studying at an institution for religious learning, from 9 a.m. to 3 p.m. The child would be in day care/nursery school during those hours. Mr Shuruk points out that prior to the child’s abduction to Switzerland, he was in day care as the mother worked. Mr Shuruk advises that his extended family would provide a back-up system for him in the event that he needs assistance from time to time.’ As to the issue of how Shai Shuruk would be able to take care of the child, given that he has only a restricted right of access, the Israeli Central Authority emphasised: ‘As we stated in our findings of 28 September 2006, according to the report of the social worker in Israel, the father and child had a wonderful relationship. There were plans to expand the visitation, to include overnight visits; however these plans were interrupted as a result of the mother’s abduction of the child.’ The Israeli Central Authority concluded that ‘[i]f the mother were to refuse to return to Israel with the child, she would in effect be agreeing to the father having de facto custody, and Mr Shuruk could apply to the Israeli court to grant an order reflecting the new reality’. It should be noted that neither the conclusions of the child psychiatrist’s report nor the information provided by the Israeli Central Authority are conducive to Noam’s return to Israel. Not only would such a return entail a grave risk of exposure to psychological harm, whether or not he is accompanied by his mother, it would also place him again in an intolerable situation. Firstly, the psychiatric expert observes that if the child returns to Israel with his mother, he will risk being exposed to psychological harm whose intensity cannot be assessed without knowledge of the conditions of that return. In that connection, the Guardianship Division is of the opinion that, since the child’s removal to Israel, even if his mother accompanies him, may expose the child to psychological harm and since, unlike the ‘classic scenario’ envisaged by the Hague Convention, the respondent has custody of her son, she cannot reasonably be required to return to Israel. An additional factor is that the mother’s return to Israel would also undermine the child’s economic security, since the mother would be required to find a job there, in order to provide not only for her own needs but also for those of her son. The fact that the appellant has never provided for his child’s upkeep and that he is known to earn only 300 [Swiss] francs per month cannot be disregarded when the interests of the child are taken into consideration in that context. Lastly, it must be considered that the requirement of the mother’s return is disproportionate to the reason for the return: the object of the Hague Convention is to put the child back into the legal situation in which he was before he was abducted. However, the present return is requested in order to allow the appellant to exercise his right to a personal relationship, a right which is shown to have been exercised before the child’s departure under the supervision of the social services in the form of two weekly meetings of two hours each. To require a mother to uproot herself in order to permit the exercise of such a restricted right of access, when the child’s return certainly entails a risk of grave psychological harm, in view of the conditions of insecurity in which the return will take place, constitutes an intolerable situation for the child within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. As to Noam’s return to Israel without his mother, the expert is of the opinion that it would be psychologically highly traumatic, involving extreme separation anxiety and a major risk of severe depression, which can be explained by his young age and his total lack of recollection of his first years in Israel, including of his father. That element is sufficient for a finding that the condition laid down in Article 13, sub-paragraph (b), is satisfied. In addition, the information provided by the Israeli Central Authority about the arrangements envisaged in the event that the child returns without his mother are, at the very least, a matter for concern: although the appellant has, legally speaking, only a very restricted right of access, under supervision, it is envisaged, according to the information provided by the Central Authority, that the appellant will take his son home (without any guarantee that he will by then have an individual flat) and will thus have de facto custody. In that connection, the Israeli Central Authority claims that by refusing to return to Israel with her son, the respondent is implicitly acquiescing in that change of situation – a new reality of which the appellant will then seek validation by the Israeli judicial authorities. That does not correspond to the aim pursued by the Hague Convention, which provides for the immediate return of the unlawfully removed child in order to put it back in the status quo ante. Such a return cannot therefore be ordered on the basis of the Hague Convention, and it is emphasised that there is no doubt that Noam’s return to Israel in such circumstances would definitely expose him to a risk of major psychological harm, owing not only to the fact that he would be abruptly separated from his mother, when she has been his principal parental reference since he was born and has been the only one to provide for his upkeep, but also to the fact that he will be just as abruptly faced with a father of whose existence he has just learnt. In the light of the foregoing, the appeal on this point must be dismissed. ... 5. ... In the present case, it is apparent from the file that Noam Shuruk has lived with his mother, who has custody of him, for at least one year in Lausanne. Thus, the Justice of the Peace of the District of Lausanne had jurisdiction, ratione loci and ratione materiae, to take the disputed protective measure. As to the merits, it is sufficient to state that, since the child has no recollection of his father, owing to the process of physiological amnesia attributable to his very young age, there are valid grounds for avoiding an abrupt reunion, as the welfare of the child requires that the resumption of a personal relationship with his father should take place calmly and gradually, after he has been properly prepared for that new situation, as may be seen from the expert’s convincing submissions on that point. The ground of appeal is therefore ill-founded and must be rejected ...” 42. The father lodged a civil appeal with the Federal Court seeking the quashing of the Cantonal Court’s judgment and the return of the child to Israel. He alleged that the court had misapplied Article 13, sub-paragraph (b), of the Hague Convention, principally, and Article 3 of the United Nations Convention on the Rights of the Child, secondarily. 43. In a decision of 27 June 2007, the President of the appropriate division of the Federal Court granted the father’s request for immediate suspension of the judgment. 44. In a judgment of 16 August 2007, served on the first applicant’s lawyer on 21 September 2007, the Federal Court allowed the father’s appeal. The relevant passages of its judgment read as follows: “3. The object of the Hague Convention on the Civil Aspects of International Child Abduction is to secure the prompt return of children wrongfully removed to or retained in any Contracting State (Article 1, sub-paragraph (a)). The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention (Article 3, sub-paragraph (a)). ‘Rights of custody’ include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence (Article 5 (a)). In the present case it is not in dispute that the child’s removal to Switzerland was wrongful, since the father retained, jointly with the respondent, the right of ‘guardianship’, which under Israeli law includes the right to decide on the child’s residence. Moreover, since the application for return was presented within a period of one year after the removal, the respondent cannot deny either that, in principle, pursuant to Article 12 of the Hague Convention, the child’s prompt return should be ordered. The only matter in dispute is therefore the question whether an exception to that return may be applied under Article 13, sub-paragraph (b), of the Hague Convention. 4. According to the appellant, by refusing to order the child’s return to Israel, the Cantonal Court misapplied Article 13, sub-paragraph (b), of the Hague Convention. 4.1 Under Article 13, sub-paragraph (b), of the Hague Convention, in respect of which the Federal Court is entitled to examine matters of compliance freely (section 95(b) of the Federal Court Act), the judicial authority of the requested State is not bound to order the child’s return when the person opposing that return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The exceptions to return provided for under Article 13 of the Hague Convention must be interpreted restrictively; the parent who has abducted the child cannot take advantage of his or her unlawful conduct (judgment 5P.71/2003 of 27 March 2003, recital 2.2, in FamPra.ch 2003, p. 718). Only grave risks must be taken into consideration, excluding any grounds relating to the parents’ child-rearing capacities, as the purpose of the Hague Convention is not to attribute parental authority (Federal Court judgment 131 III 334, recital 5.3; 123 II 419, recital 2b, p. 425). An exception to return under Article 13, sub-paragraph (b), of the Hague Convention, is therefore not open to consideration unless the child’s intellectual, physical, moral or social development is under serious threat (judgment 5P.65/2002 of 11 April 2002, recital 4c/bb, in FamPra.ch 2002, p. 620 and the reference cited therein). The burden of proof lies with the person who opposes the child’s return (ibid., recital 4b, in FamPra.ch 2002, p. 620 and the reference cited therein). 4.2 The Cantonal Court observed that the case concerned a very young child in the custody of his mother, who had always provided for him. The father, for his part, lived in a religious community where he was fed, and from his activity as a sports and art teacher he had a monthly income of only 300 [Swiss] francs. The custody of the child had been withdrawn from him on account of the atmosphere of fear that he had created at the family home. For the same reason, the Israeli courts ordered him to live separately and prohibited him from approaching the mother’s flat. Before the child’s removal to Switzerland he had only had a restricted right of visitation, limited to two hours twice a week, under the supervision of the Israeli social services. Concerning the conditions of a possible return of the child without his mother, according to the information provided by the Israeli Ministry of Justice on 12 March 2007, the father, who now shares a flat with one other tenant and still works in an institution for religious education, would be prepared to take care of the child. Taking into account the laconic and not very reassuring nature of this information, together with the expert’s report by Dr ..., a psychiatrist, the Cantonal Court considered that a return to Israel involved a risk of psychological harm for the child and might place him in an intolerable situation, whether or not he was accompanied by his mother. The court added that, in view of the father’s low income, the return to Israel of the respondent would also undermine the child’s economic stability and the mother would have to find a job in order to provide for them both. In his appeal, the appellant does not criticise the Cantonal Court’s finding that there was a grave risk that the child would be exposed to psychological harm if he returned to Israel without his mother. He is of the opinion, however, that such a risk would not exist if the child’s mother accompanied him to Israel, as could be reasonably expected of her. As regards that latter hypothesis, the judgment of the Cantonal Court fails to provide any evidence of such a grave risk of harm, or of any intolerable situation for the child. The expert psychiatrist failed, in particular, to address that question, simply explaining that the risk could not be assessed without ascertaining the conditions of a possible return. As to the appellant’s aggressive behaviour towards the respondent, it does not appear from the Cantonal Court’s judgment that the child would be threatened directly or indirectly as a result of witnessing such violence against his mother. She stated that the father had complied with the arrangements for his right of visitation and that the visits had gone well. The social worker appointed to supervise the right of visitation had described as ‘wonderful’ the father-son relationship as established just before the child’s abduction by his mother. She has not claimed that the appellant breached the judicial instructions which required him not to approach her flat or to disturb and/or harass her. As to the considerations relating to the father’s low income and his ties with the ‘Lubavitch’ religious community, as they stand they do not indicate a grave risk that the child would be exposed to harm within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. Whilst such considerations may help to determine which of the two parents offers the best child-rearing capacities for the purpose of deciding on the attribution of the right of custody – a matter that is decided by the judicial authorities of the place of habitual residence (Article 16 of the Hague Convention) – they are not pertinent, however, for a decision about the return of a child after a wrongful abduction (see recital 4.1 above). As to the mother’s threat not to return to Israel, the judgment of the Cantonal Court did not deal at all with the reasons for her refusal, whereas it should have established the existence of objective circumstances justifying that attitude. The Cantonal Court judges quoted the expert psychiatrist who had referred to the ‘judicial risks’ that would be entailed in the event of a return to Israel, without any indication as to whether the respondent actually faced a prison sentence as a result of the abduction. Supposing that such a risk were proven, she could not be expected to return to Israel with the child – and that would accordingly rule out the return of [the child] in view of the major psychological harm that would be caused to him by the separation from his mother. She made no comment on that question in her reply to the Federal Court; in particular, she has not claimed that immediate imprisonment, or even any criminal sanction at all, would be imposed on her. Neither has she argued that in the event of her return to Israel it would be impossible or very difficult for her to integrate, or, in particular, to find a new job. Consequently, it cannot be said that the mother’s return, and therefore that of the child, would be unbearable for economic reasons either. Therefore, as the respondent has failed to establish the existence of reasons that would objectively justify a refusal on her part to return to Israel, it must be accepted that she could reasonably be expected to return to that State of origin accompanied by the child. In these circumstances, it is of no import that the information provided by the Israeli Central Authority (see recital 4.2 above) on which the Cantonal Court based, in particular, its justification of the exception to the child’s return as provided for by Article 13, sub-paragraph (b), of the Hague Convention, was deemed not very reassuring, because that information was based only on the hypothesis of the child’s return without his mother. Accordingly, the Cantonal Court judges breached Article 13, sub-paragraph (b), of the Hague Convention in finding that they were entitled to apply an exception to the child’s return to the State of his habitual residence. The appeal must therefore be allowed and the judgment of the court below quashed, without it being necessary to examine the complaint concerning a violation of Article 3 of the Convention on the Rights of the Child. It is incumbent on the respondent to secure the return of the child ... to Israel by the end of September 2007. ... The Federal Court therefore finds as follows: 1. The appeal is allowed and the judgment of the court below is quashed. 2. The respondent is ordered to secure the return of the child ... to Israel by the end of September 2007. ...” 45. On 20 August 2007 the child’s father, through counsel, lodged an application with the Lausanne District Justice of the Peace, who was responsible for the enforcement of the return decision, seeking the appointment of an ad hoc administrator for the child who would be entrusted with the organisation of his departure. On 1 October 2007 he withdrew that application after the Court had decided, on 27 September 2007, to indicate interim measures to the Government. 46. Subsequently, the applicants transmitted to the Court a medical certificate issued on 23 February 2009 by Dr M.-A., a paediatrician in Lausanne, which reads as follows: “I, the undersigned, certify that I have seen the child Noam Shuruk, born on 10 June 2003, on a number of occasions since 7 October 2005. On each occasion Noam has been accompanied by his mother, with whom he has a very good relationship. His behaviour is appropriate and his level of psychomotor development and language are above average. He does not appear to suffer from any psychological trauma or from any emotional or educational deficiencies. He is a confident boy, capable of forming good relationships, in particular with adults. He is in good physical health, with little trace of intercurrent infections. An abrupt return to Israel without his mother would constitute a significant trauma and a serious psychological disturbance for this child.” 47. In a provisional-measures order of 29 June 2009 the President of the Lausanne District Court, at the request of the first applicant, decided that Noam should live at his mother’s address in Lausanne, suspended the father’s right of access in respect of his son and granted parental authority to the mother, so as to allow her to renew the child’s identity papers. The decision was based on the following grounds in particular: “[I]t is noted that the respondent was summoned to appear by court order served at his last known address in Israel. The letter was returned marked ‘gone away’, which can be translated as ‘parti sans laisser d’adresse’ (gone without leaving a forwarding address). ... It appears that the mother has custody of the child while parental authority is still held jointly. The father was apparently required to ‘exercise a right of visitation’ under the supervision of the social services ... In the context of the proceedings, the respondent never appeared at the hearings but was represented by counsel, who is apparently no longer acting for his client ... According to case-law, the wrongful removal of a minor does not in itself preclude the establishment of a new habitual residence for the child in the country to which it has been taken (see Federal Court judgment 125 III 301, Journal des Tribunaux 1999 I 500). In the present case, Noam has been living in Switzerland continuously since June 2005. He attends school there. He has family ties there on his mother’s side. He receives medical attention there. He is also a national of Switzerland, of which he speaks the language, in this case French. Interim measures in favour of the applicant were decided by the European Court of Human Rights, which requested the Swiss Government not to return Noam to Israel in spite of the Federal Court’s decision. Despite his legal battle, the respondent has never sought to see his child, and his place of residence is unknown. He appears to have lost interest in the present case. Consequently, the child now has a stable relationship only with his mother. It is therefore appropriate to allow her application and to decide provisionally that Noam should reside in Lausanne, Switzerland, at the place of his habitual residence, with his mother. Article 273 § 1 of the Civil Code provides that the father or mother not having parental authority or custody and the minor are reciprocally entitled to maintain such personal relations as may be appropriate in the circumstances. The right to personal relations is intended to preserve the bond between parents and children ... The maintaining and development of this bond is obviously beneficial to the child. Personal relations must accordingly be fostered, unless the child’s welfare is endangered. The scope of personal relations and the manner in which they are carried on should be appropriate to the situation, in other words taking fair account of the parti The child’s welfare is the most important assessment criterion (see Federal Court judgment 127 III 295, с 4a). The entitled person’s situation and interests should also be taken into consideration: his or her relationship with the child, personality, place of abode, free time and environment. Special conditions for the exercise of access rights may be imposed ... The applicant has requested the withdrawal of the respondent’s access right in respect of their son Noam. I’s access right was already limited by decisions given by the Israeli authorities before the child’s departure for Switzerland. The child has not seen his father since 2005. They apparently have no common language. In any event, the resumption of access rights, if requested by the respondent, could only be gradual. The respondent’s place of residence is currently unknown. In the circumstances it appears appropriate to order the provisional suspension of the respondent’s access rights in respect of his son Noam. The applicant requests that ‘parental authority in respect of Noam, born on 10 June 2003, be exclusively and provisionally granted to his mother Isabelle Neulinger in Lausanne for the purposes of renewing his identity papers’. The applicant has explained that her son, who has dual Israeli and Swiss nationality, currently has no identity documents. He had a Swiss passport until recently. However, when it expired the administrative authorities refused to issue him with a new one without the father’s consent, as the parties had joint parental authority in respect of the child. The respondent’s place of abode is currently unknown. The applicant is thus unable to ask him for such consent. The child lives in Switzerland with her, and she has custody of him. The present case, on the merits, admittedly concerns a change in the attribution of parental authority, since the applicant requests that by virtue of Swiss law it be exclusively granted to her. It may appear that the provisional measure requested, if granted, settles the case on the merits. However, the requested measure is far more limited in scope since it is only to ensure the possibility of obtaining identity papers for the applicant’s child. The child is a Swiss national resident in Switzerland. It is therefore necessary for him, like any other citizen, to obtain identity papers. The applicant’s request is therefore granted. ...” It does not appear, from the information currently before the Court, that either party to the dispute has appealed against that decision. 48. The relevant provisions of the Convention on the Rights of the Child of 20 November 1989, which came into force in respect of Switzerland on 26 March 1997, read as follows: “The States Parties to the present Convention, ... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ... Have agreed as follows: ...” “1. The child shall be registered immediately after birth and shall have the right from birth to ... know and be cared for by his or her parents. ...” “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ...” “1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. ...” “1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...” 49. The concept of the child’s best interests stems from the second principle of the Declaration of the Rights of the Child adopted by the United Nations on 20 November 1959. It provides as follows: “The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.” 50. The term was used again in 1989 in Article 3 § 1 of the Convention on the Rights of the Child: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” 51. Neither the working group during the drafting of the Convention nor the Committee on the Rights of the Child has developed the concept of the child’s best interests or proposed criteria for their assessment, in general or in relation to specific circumstances. They have both confined themselves to stating that all values and principles of the Convention should be applied to each particular case (see Rachel Hodgkin and Peter Newell (eds.), Implementation Handbook for the Convention on the Rights of the Child, United Nations Children’s Fund 1998, p. 37). In addition, the Committee has emphasised on various occasions that the Convention must be considered as a whole, with the relationship between the various articles being taken into account. Any interpretation must be consistent with the spirit of that instrument and must focus on the child as an individual having civil and political rights and its own feelings and opinions (ibid., p. 40). 52. The “Guidelines on Determining the Best Interests of the Child” were issued by the United Nations High Commissioner for Refugees (UNHCR). They provide, inter alia: “The term ‘best interests’ broadly describes the well-being of a child. Such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences.” (UNHCR Guidelines on Determining the Best Interests of the Child, May 2008) 53. The principle of “the child’s best interests” is also embodied in Articles 5 and 16 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women. Article 5 (b) reads as follows: “States Parties shall take all appropriate measures: ... (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.” 54. Under Article 16 § 1 (d) of that Convention, States are committed to ensuring the following, with regard to equality between men and women: “[t]he same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; [and] in all cases the interests of the children shall be paramount”. 55. Even though the principle does not appear in the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee in its General Comments Nos. 17 and 19 referred to “the paramount interest” of the child in the event of the separation or divorce of its parents. In its General Comment 17 (adopted at its 35th Session, 1989) the Committee stated that if a marriage is dissolved, steps should be taken, keeping in view the paramount interest of the children, to guarantee, so far as is possible, personal relations with both parents. For abandoned children, special measures must be taken in order to enable them to develop in conditions that most closely resemble those characterising the family environment. In its General Comment No. 19 (adopted at its 39th Session, 1990) the Committee indicated that any discriminatory treatment in regard to divorce, child custody, visiting rights, etc., must be prohibited, unless the paramount interest of the child required otherwise. 56. The European Union’s Charter of Fundamental Rights, which became legally binding with the entry into force of the Lisbon Treaty on 1 December 2009, contains the following Article: “1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.” 57. The relevant provisions of the Hague Convention, which came into force in respect of Switzerland on 1 January 1984, read as follows: “The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions: ... The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ... The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. For the purposes of this Convention – (a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; (b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence. ... “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ... Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: ... (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence. In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ... The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of cooperation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.” 58. The Explanatory Report by Ms Elisa Pérez-Vera on the drafting of the Convention states as follows: “... since one factor characteristic of the situations under consideration consists in the fact that the abductor claims that his action has been rendered lawful by the competent authorities of the State of refuge, one effective way of deterring him would be to deprive his actions of any political or juridical consequences. The Convention, in order to bring this about, places at the head of its objectives the restoration of the status quo ...”. (paragraph 16, p. 429) 59. However, the Hague Convention contains five exceptions to the principle of the child’s prompt return, among which the most commonly invoked exception is that of Article 13, sub-paragraph (b). 60. The French Court of Cassation, the House of Lords and the Finnish Supreme Court have all expressly incorporated the concept of the “child’s best interests” into their application of the exception based on a “serious risk” within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. 61. In a case from 2005, the French Court of Cassation stated the following: “... under Article 13, sub-paragraph (b), an exception can be made to the child’s prompt return only if there is a grave risk of harm or of the creation of an intolerable situation;” and “by virtue of Article 3 § 1 of the [United Nations] Convention on the Rights of the Child, a provision that is directly applicable before the French courts, such circumstances must be assessed with the child’s best interests as the primary consideration”. (Court of Cassation, First Civil Division, 14 June 2005, appeal no. 0416942) 62. That court thus upheld a judgment of the Aix-en-Provence Court of Appeal of 13 May 2004, finding as follows: “... the child’s best interests [had been] taken into consideration by the Court of Appeal, which [had] accordingly reached the conclusion ... that it was appropriate to order the prompt return of the child under the Hague Convention.” 63. The Finnish Supreme Court conducted a similar assessment in applying the exception under Article 13, sub-paragraph (b), indicating as follows: “... the court had pointed out that a grave risk of harm would not exist if the mother returned to France with her children and ensured that their living conditions were adapted according to their best interests ...” ([27 December 1996] Supreme Court of Finland 1996:151, S96/2489) 64. In a case examined on 16 November 2006 by the House of Lords concerning the abduction of a child from Romania to the United Kingdom, Lord Hope observed: “... it is impossible to believe that the child’s best interests would be served by his return forthwith to Romania.” (In re D (a child), [2006] UKHL 51, [2007] 1 AC 619) 65. Article 5 (a) of the Hague Convention defines custody rights as “rights relating to the care of the person of the child, and, in particular, the right to determine the child’s place of residence”. The Convention recognises that custody may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the State in which the child had its habitual residence immediately before removal or retention (Article 3 in fine). Furthermore, the Explanatory Report on the Convention emphasises the drafters’ intention to protect all the ways in which custody of children can be exercised and recognises that there can be wrongful removal or retention even if parents have joint custody of their child: “In terms of Article 3, custody rights may have been awarded to the person who demands that their exercise be respected, and to that person in his own right or jointly. ... Now, from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise” (Explanatory Report by Elisa Pérez-Vera, Acts and Documents of the Fourteenth Session, vol. III, Child Abduction, Hague Conference on Private International Law, paragraph 71, pp. 447-48) 66. The drafters of the Convention created an autonomous definition of custody rights quite apart from domestic-law interpretations of that concept. This autonomous nature was confirmed in the “Overall Conclusions of the Special Commission of October 1989 on the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction” (§ 9, p. 3), which stated as follows: “... ‘rights of custody’ as referred to in the Convention on the Civil Aspects of International Child Abduction constitute an autonomous concept, and thus such rights are not necessarily coterminous with rights referred to as ‘custody rights’ created by the law of any particular country or jurisdiction thereof. ... [T]he award of what is called ‘custody’ to only one parent under domestic law, does not necessarily mean that all ‘rights of custody’ within the intent of the Hague Convention have been granted to that parent. Since each domestic legal system has its own terminology for referring to rights which touch upon the care and control of children, and even some English-language systems do not employ the term ‘custody’, it is necessary to look to the content of the rights and not merely to their name.” 67. The autonomous meaning of “rights of custody” was further confirmed during the second meeting of the Special Commission when the following conclusion, among others, was adopted: “... the expression ‘rights of custody’ ... does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention.” (Report of the Second Special Commission Meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction held on 18-21 January 1993, p. 4) 68. In addition, according to the Explanatory Report, the Convention is engaged only by issues relating to breaches of custody rights. It does not in principle concern situations arising from breaches of access rights, in particular where the child is taken abroad by its custodian (Explanatory Report, paragraph 65). 69. The Hague Convention provides no enforcement mechanism or oversight body to ensure that Contracting States implement it. Therefore, it is possible that the case-law of domestic courts relating to the Hague Convention may differ from one Contracting State to another. In practice, there is a lack of consistency in the interpretation of the various judicial bodies as regards the Hague Convention’s distinction between custody rights and access rights, more specifically where they have to decide whether to grant the remedy of return to non-custodial parents who hold access rights. 70. However, there seems to be a trend towards a wide interpretation of wrongful removal or retention, thus broadening the scope of custody rights to allow types of parenting other than the holding of custody rights to benefit from the Convention’s protection. 71. In the case of C. v. C. (England and Wales Court of Appeal; [1989] 1 WLR 654, 657-58), for example, a custodial parent had removed a child from Australia in breach of a restraining order (also called a ne exeat order, prohibiting a child’s removal from a given geographical area). In that case the child could not be removed without the consent of the non-custodial parent. The court found that the Convention’s judicial remedy of return applied. They justified this reasoning by equating the ability to grant or withhold consent for relocation with a custodial “right to determine the child’s place of residence”. 72. The Family Court of Australia took the same approach in the case of José García Resina, where a father lodged an application under the Convention for the return of his children after they had been taken to France by their maternal grandparents (José García Resina and Muriel Ghislaine Henriette Resina, [1991] FamCA 33). The Australian court considered both a custody order, which gave the father “reasonable access” to the youngest child, and an injunction restraining both the mother and the father from removing the children from Australia. It ultimately ordered the return of the children pursuant to the Convention because their removal had violated the father’s custody rights that had been created by the restraining order. Similarly, the Israeli Supreme Court found that a custody agreement between parents contained a mutual consultation clause for major changes and unusual events, which implicitly included decisions on the residence of the child (Foxman v. Foxman, Israeli Supreme Court, 1992). The court thus considered that the father had rights of custody within the meaning of the Convention. 73. It appears that other national courts, in particular in common-law countries, have largely cited the C. v. C. case and have followed its general holding that if the custodial parent needs permission from the court or the non-custodial parent before removing the child from a country, a removal without such permission may be regarded as “wrongful” within the meaning of Article 3 of the Hague Convention (see Re F, England and Wales Court of Appeal, [1995] 3 WLR 339, where the father had rights of custody, even though the mother had a court order giving her temporary “care and control” and there was no order barring the child’s removal). 74. However, the practice of domestic courts is not homogeneous. Thus, for example, the United States Court of Appeals found that access rights coupled with a ne exeat clause did not constitute “rights of custody” within the meaning of the Hague Convention (Croll v. Croll, 229 F.3d 133, 143, Second Circuit, 2000). 75. On 21 December 2007 the Swiss Federal Parliament enacted the “Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults”, for the purpose of clarifying certain notions, especially in relation to the application of the Hague Convention of 1980. The Act came into force on 1 July 2009. The sections of the Act referred to by the applicants read as follows: “The return of a child places him or her in an intolerable situation, within the meaning of Article 13, sub-paragraph (b), of the Hague Convention, in particular where the following conditions are met: (a) placement with the parent who lodged the application is manifestly not in the child’s interests; (b) the abducting parent is not, given the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction, or this cannot reasonably be required of that parent; and (c) placement in the care of a third party is manifestly not in the child’s interests.” “The court dealing with the application for the return of the child shall decide, as required, on the child’s personal relations with his or her parents and order the measures necessary to ensure his or her protection. Where the application for return has been received by the Central Authority, the competent court may, at the request of the Central Authority or any of the parties, order the appointment of a representative or a guardian for the child, or take other protective measures even if the application for return is not yet pending before the court.” 76. In connection with the federal decree concerning this Act, the Federal Council submitted to Parliament a “dispatch” (Feuille Fédérale 2007, pp. 2433-682), of which the relevant passages read as follows: In order to ensure an application of the Hague Convention of 1980 that is better adapted to the interests of the child, it is necessary for the legislature to specify the various situations in which the return of the child can no longer be taken into consideration because it would place him or her in a manifestly intolerable situation. The rule in section 5 is not supposed to supersede the provision of Article 13, sub-paragraph (b), of the Hague Convention of 1980. The term ‘in particular’ means that the list merely enumerates a few situations which – although essential – do not preclude reliance on the clause provided for in the Convention. Firstly, sub-paragraph (a) refers to the situations in which the child’s accommodation by the parent who requested the return is manifestly not in the child’s interests. If that is not so, in particular where the parent who lodged the application has an exclusive right of custody or is the only one who could be granted such responsibility, there will not, in principle, be any cause for fear that the child will be placed in an intolerable situation on his or her return and therefore there is no reason why the return should be refused. This will not be the case where it appears obvious to the court that the party lodging the application would not be able to take care of the child. Sub-paragraph (b) governs cases in which the appropriateness of the child’s return can be assessed only from the standpoint of his or her relationship with the abducting parent. Where the child’s accommodation by the parent who requested the return is manifestly not to be taken into consideration, the problem of his or her return to the State of origin will be addressed differently, depending on whether the person who wrongfully removed or retained the child (usually the mother) is or is not in a position to return to that State. If the said parent is not able to do so because, for example, he or she faces a prison sentence that would lead to separation from the child or because the parent has very close family ties in Switzerland (for example following remarriage or on account of a situation of hardship suffered by another family member living in Switzerland), the child’s psychological and physical stability may be at stake, because the child would, after the return, be obliged to live apart from his or her parents. Such separation is tolerable only in exceptional cases and must constitute an ultima ratio. Second type of situation: where, given all the circumstances, it cannot reasonably be required of the abducting parent that he or she take care of the child in the State where the child had his or her habitual residence immediately before the abduction (section 5(b)). It is not sufficient for the parent who wrongfully removed or retained the child to state that he or she refuses to return to that State. He or she would also have to be in a situation of hardship such that he or she could not reasonably be expected to return to his or her place of prior residence to await there, with the child, the court’s final decision on the granting of custody. In that context, we have in mind especially those cases in which the mother cannot be guaranteed safe or affordable accommodation outside the home of her former partner. One must further take into account those cases in which the parent who has requested the return of the child will not resume the exercise of the right of custody and will not obtain it by court order, whilst the abducting parent is clearly the child’s primary carer. In such a case the child would only be taken to the State of origin to await the final attribution of the right of custody to the abducting parent, before coming back to Switzerland again with that parent. Such coming and going would ultimately only have served the purpose of bringing the case before the authorities of the former State of residence. Such a solution would be inadmissible according to the spirit and purpose of the Hague Convention, because it would be incompatible with the child’s interests. But the situation would have to be beyond doubt for the Swiss court dealing with the request for return. Unless the circumstances can be established clearly, the court will have to rule that the return to the parent’s State of origin is bearable and that, accordingly, the child will not be placed in an intolerable situation such as to justify a decision denying the return under Article 13, sub-paragraph (b), of the Hague Convention. Sub-paragraph (c) refers to placement with third parties. If the child’s return were to lead to separation from the parent who wrongfully removed or retained the child (because return is impossible for that parent or cannot reasonably be required of him or her), it could only be carried out in appropriate conditions if the child were placed with a third party in the State of origin. However, such a solution should only be sought, with the resulting possibility for the competent Swiss court to order the child’s return, if placement with a third party is not manifestly contrary to the child’s interests. That third condition can be satisfied only if separation from the parent remaining in Switzerland is bearable for the child – which may be the case where he or she has an antagonistic relationship with that parent – and if the foster family receiving the child can provide proper guarantees as to the protection and normal upbringing of the child. In any event, such a situation should only be envisaged as an ultima ratio. It must further be noted that, for the return to be compatible with the child’s interests and, in particular, for the conditions of Article 13 of the Hague Convention to be fulfilled, the authority ruling on the matter has to be apprised of the situation prevailing in the State of origin and of the legal provisions in force there. Thus, the parties, and in particular the parents, have a duty to participate in the establishment of the facts. The hearing of the parties in person by the court (section 9(1) and (2)) is therefore of great importance. The new provisions concerning the procedure and the cooperation with the competent authorities of the State of origin also play an essential role. The court must be able to verify whether, and in what manner, it is possible to ensure the child’s return (section 10(2)). If it does not succeed in that task, or succeeds only partially, it will not be in a position to weigh up all the consequences that a return might have for the child. The same will be true if it does not succeed in obtaining from the local authorities any reliable assurances as to the conditions of the child’s reception and protection, in particular when there is some doubt about the requesting parent’s capacity to look after the child properly. In this respect, section 10 is thus directly related to the practical application of section 5.” 77. The concept of guardianship is defined in Chapter 2 of the Capacity and Guardianship Law 1962. The term custody is not defined as such but is mentioned. 78. Section 14 of that Law provides that “[p]arents shall be the natural guardians of their minor children”. In Israel, parents, whether married, divorced or unmarried, are joint and equal guardians of their children. The term “guardianship” may be regarded as equivalent to “parental authority” in other jurisdictions. 79. Guardianship is an automatic right which both parents acquire and can only be restricted or removed in exceptional circumstances (where a Magistrate’s Court adopts one of the measures mentioned in section 3(3) or (4) of the Youth (Care and Supervision) Law). This rule is set out in section 27 of the Law. 80. Section 15 defines and describes the role of parents in Israeli law and outlines what parental guardianship entails in the following terms: “The guardianship of the parents shall include the duty and the right to take care of the needs of the minor, including his education, studies, vocational and occupational training and work and to preserve, manage and develop his property; it shall also include the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf.” 81. Section 17 sets the standard of parents’ duties. It states that in exercising their guardianship, “parents [must] act in the best interests of the minor in such manner as devoted parents would act in the circumstances”. 82. There is a general presumption that parents should cooperate in taking decisions relating to their guardianship (section 18). However, where no agreement is reached, they may refer to the court to decide the issue (section 19). 83. Section 24 provides that, when parents live apart, they may reach an agreement as to: who is going to have guardianship of the minor, wholly or in part; who is going to have custody of the minor; and what rights the other parent is going to have, in particular as regards contact with the child. Such an agreement is subject to the approval of the court. 84. Under section 25, if the parents cannot reach such an agreement these issues may be determined by the court having regard to the best interests of the child. 85. Section 25 further creates a presumption of custody in favour of the mother for children under six years old unless there are special reasons for directing otherwise. 86. Accordingly both parents share joint decision-making authority regarding their child’s place of residence. One parent cannot remove the child from Israel without the permission of the other parent or of a court. If one parent wishes to remove the child from Israel without the other parent’s consent, then the parent wishing to leave must apply to the Israeli courts for a relocation order and an order for custody of the child.

dev

001-105084

ENG

SRB

ADMISSIBILITY

VIDAKOVIC v. SERBIA

Inadmissible

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

1. The applicant, Mr Nenad Vidaković, is a Serbian national who was born in 1956 and lives in Belgrade. 2. The relevant 3. On 21 June 2002 the applicant left his car in a repair shop, in order to have it mended. The mechanic, employed by the said shop, subsequently caused a traffic accident while driving the applicant’s vehicle. 4. On 24 September 2002 the applicant therefore filed a claim with the Municipal Court (Opštinski sud) in Ivanjica, seeking compensation for the pecuniary damage suffered. 5. On 19 November 2003 the Municipal Court adopted a partial judgment (delimična presuda) in the applicant’s favour. This judgment subsequently became final. 6. On 19 January 2004 the Municipal Court: (i) ruled against the applicant as regards the remainder of his claim; (ii) ordered him to pay the related litigation costs; and (iii) ordered one of the two respondents to cover the applicant’s own litigation costs associated with the partial judgment of 19 November 2003. 7. On 20 April 2004 the District Court (Okružni sud) in Užice quashed this judgment’s rulings under points (i) and (ii), but upheld its order under point (iii). 8. On 27 October 2005 the Municipal Court ruled partly in favour of the applicant. 9. On 20 June 2006 the District Court quashed this judgment on appeal. 10. On 5 November 2008 the Municipal Court again ruled partly in favour of the applicant. In so doing, it ordered the respondents to pay jointly: (i) 45,154 Serbian Dinars (“RSD”) in damages, plus statutory interest as of 20 October 2008; and (ii) RSD 42,377.24 for the litigation costs incurred (i.e. at the time a total of approximately 1,000 Euros, “EUR”, plus statutory interest). 11. On 8 February 2010 the High Court (Viši sud) in Užice, now acting as the competent court of second instance, upheld this judgment on appeal and it thereby became final. There is nothing in the case file that would suggest that the sums awarded to the applicant have not been paid, and the applicant personally has not raised any objections in this respect. 12. On 8 January 2008 the applicant lodged an appeal with the Constitutional Court (Ustavni sud), complaining about the length of the above civil suit. 13. On 22 December 2009 the Constitutional Court held that the applicant had indeed suffered a breach of his “right to a trial within a reasonable time”, and ordered the competent courts to bring the impugned proceedings to a conclusion as soon as possible. The court, additionally, declared that the applicant was entitled to the non-pecuniary damages sought, in accordance with Article 90 of the Constitutional Court Act (see paragraph 23 below). 14. The applicant seems not to have been served with this decision until 26 February 2010. 15. In early March 2010 the applicant’s lawyer filed a request with the Commission for Compensation. In so doing, he relied on the Constitutional Court’s decision, and sought RSD 350,000 in compensation (see paragraph 23, Articles 89 and 90, below). 16. On 12 March 2010 the applicant’s lawyer filed another submission with the Commission for Compensation, specifying that he had made a mistake in his earlier request. The actual amount requested was instead RSD 3,500,000 (at the time approximately EUR 35,000). 17. On 22 June 2010 the applicant personally claimed a total of RSD 8,033,542 (at the time approximately EUR 77,300) on account of the pecuniary and non-pecuniary damage suffered, but offered, simultaneously, to settle for the said RSD 3,500,000. 18. In September 2010 the applicant filed a claim with the Court of First Instance (Osnovni sud) in Požega, specifically its Detached Section (Sudska jedinica) in Ivanjica, noting that he had received no response from the Commission for Compensation which was why he was entitled to bring a separate civil suit in this respect (see paragraph 23, Article 90, below). The applicant sought RSD 4,000,000 (at the time approximately EUR 40,000) for the non-pecuniary damage sustained, plus statutory interest. 19. On 14 October 2010 the Commission for Compensation offered to pay the applicant the sum of RSD 50,000 (at the time approximately EUR 500) for the non-pecuniary damage referred to in the Constitutional Court’s decision. 20. According to the information contained in the case-file, the applicant refused to accept this amount, deeming it insufficient. The applicant further maintained that the Commission for Compensation had not considered his request earlier since it had apparently experienced some staffing issues. 21. Article 32 § 1 provides, inter alia, that everyone shall have the right to a fair hearing before a tribunal in the determination of his rights and obligations. 22. Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.” 23. The relevant provisions of this Act read as follows: “The decisions of the Constitutional Court shall be final, enforceable and binding.” “A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law. A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant’s right to a trial within a reasonable time.” “A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the Constitution has been violated or denied by an individual decision or an action of a State body or an organisation exercising delegated public powers.” “A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...” “When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time. The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.” “... [An applicant who has obtained a Constitutional Court decision in his or her favour] .., may lodge a compensation claim with the Commission for Compensation in order to reach an agreement in respect of the amount ... [of compensation to be awarded] ... If the Commission for Compensation does not rule favourably in respect of a compensation claim or fails to issue a decision within thirty days from the date of its submission, the applicant may file a civil claim for damages before the competent court. If only partial agreement has been achieved, a civil claim may be filed in respect of the remainder of the amount sought. The composition and operation of the Commission for Compensation shall be regulated by the Minister of Justice.”

dev

001-83822

ENG

ROU

CHAMBER

CASE OF BEIAN v. ROMANIA [Extracts]

Violation of Art. 6-1;Not necessary to examine Art. 6-1 (independence and impartiality of the court);Violation of Art. 14+P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award (global)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre

5. The applicant was born in 1932 and lives in Sancraiu de Mureş. 6. In 1953 the applicant was called up for military service. However, because of his father’s opposition to the collectivisation of farmland, he was not allowed to undergo military training. Instead, he was assigned to a number of military units, including the Vatra Dornei unit, as a building worker. His military service ended in 1955. 7. In 1961 the Labour Department, an administrative body grouping together the military units specially created for conscripts who were barred from military training, was abolished. 8. Law no. 309 of 22 May 2002 (“Law no. 309-2002”) recognised as forced labour the work performed in the military units coming under the authority of the Labour Department, and provided for compensatory measures including a monthly allowance, free medical treatment and exemption from the television licence fee. 9. On 22 August 2002 the applicant applied to the county pensions and social insurance fund (“the county fund”), claiming the benefits available under Law no. 309-2002. In a decision of 19 December 2002 the county fund refused the application on the ground that the applicant had not performed his military service in a military unit coming under the authority of the Labour Department. 10. On 5 May 2003 the applicant brought proceedings against the county fund before the Targu Mureş Court of Appeal, seeking to have the decision of 19 December 2002 set aside and to be recognised as having performed forced labour during his military service. 11. In a judgment of 2 June 2003 the Court of Appeal found in the applicant’s favour and ordered the county fund to issue a new decision awarding him the benefits provided for by Law no. 309-2002. On the basis of the entries in the applicant’s military service record book, the Court of Appeal concluded that he had worked on various building projects with the Vatra Dornei military unit and had been discharged from service as an “untrained combat soldier”. 12. The county fund appealed to the High Court of Cassation and Justice (“the HCCJ”). 13. At the applicant’s request, the HCCJ referred to the Constitutional Court an objection raised by the applicant as to the constitutionality of Article 1 of Law no. 309-2002. The applicant alleged that, in making a distinction between persons who had performed the same kind of forced labour during their military service, the provision in question was in breach of Article 16 of the Constitution and of the European Convention on Human Rights. He considered this difference in treatment to be unjustified since it was based solely on the hierarchical structure to which the conscript’s military unit had belonged. 14. The Constitutional Court dismissed the objection in a judgment of 1 April 2004, which included the following passage: “The definition of the categories of persons who are eligible for certain measures in compensation for the duress and hardship they underwent in the past ... is a matter for the legislature alone, provided that no privileges or discrimination are engendered between persons belonging to the same category and in identical situations. Article 1 of Law no. 309-2002 does not give rise to any privileges or discrimination contrary to Article 16 of the Constitution.” 15. In a judgment of 8 June 2004 in which it found in favour of the county fund, the HCCJ quashed the judgment of the Court of Appeal and remitted the case for further preparation, with a view to determining whether the Vatra Dornei military unit had been attached to the Labour Department. 16. In a letter of 1 November 2004 in reply to a request for information made by the Court of Appeal, the Piteşti military unit, which kept the army archives, stated that the Vatra Dornei military unit did not feature on the list of units attached to the Labour Department. It added that, in accordance with the rules on the implementation of Law no. 3092002, the list had been drawn up by the National Pensions and Social Insurance Fund, which had made it available to the military unit as a “working tool”. 17. On 3 November 2004 the national archives of the Ministry of the Interior and Administrative Affairs informed the Court of Appeal that the Vatra Dornei military unit had not been attached to the Labour Department. 18. On the basis of the information provided by the Piteşti military unit and the national archives, and taking the view that Law no. 309-2002 applied only to conscripts who had worked in military units coming under the authority of the Labour Department, the Court of Appeal dismissed the applicant’s claims in a judgment of 8 November 2004. 19. The applicant appealed to the HCCJ. In his submission, the Piteşti military unit, by confining itself to reproducing the information contained in the list drawn up by the National Pensions and Social Insurance Fund and omitting to check the recruitment file, which contained proof of the work carried out, had not adequately replied to the request for information from the Court of Appeal. 20. The applicant further contested the distinction made by the Law between those conscripts who had performed forced labour in military units answerable to the Labour Department and other conscripts who, although they had performed the same kind of work, were not entitled to benefits under the Law solely because their military units had not come under the authority of the Labour Department. He argued that, in any event, the HCCJ, in a judgment of 21 January 2004, had recognised a former conscript in a similar situation to his own as being covered by the provisions of Law no. 309-2002. 21. In a final judgment of 13 May 2005, the HCCJ dismissed the appeal and upheld the judgment of the Court of Appeal on the following grounds: “In accordance with Law no. 309-2002, persons who performed their military service between 1950 and 1961 in the work brigades under the authority of the Labour Department are covered by the provisions of that Law. It follows that the decisive criterion for eligibility under the Law is not the kind of work performed within the military unit, for example building work, but whether or not the unit in question came under the authority of the Labour Department, within which work brigades were established. As a result, given the information provided by the Piteşti military unit in its letter stating that the unit to which the applicant belonged was not on the list of units answerable to the Labour Department, the Court of Appeal was correct in ruling that the conditions for application of the Law were not met in the instant case and in dismissing the appeal accordingly.” “Any Romanian citizen who performed military service between 1950 and 1961 in the work brigades coming under the authority of the Labour Department shall be covered by the provisions of this Law.” “The persons referred to in Article 1 shall be entitled to a monthly allowance ...” “The persons referred to in Article 1 ... shall also be entitled to ...: – free medical treatment and medicines ...; – exemption from the television licence fee ...” “(2) The benefits referred to in the preceding sections shall be awarded on request, regard being had to the entries in the individual’s military service record book or certificates issued by the county military headquarters or the Piteşti military unit. (3) Requests for these benefits shall be addressed to the county pensions and social insurance funds.” “For the purposes of the award of the benefits provided for by this Law, the National Pensions and Social Insurance Fund may request the national archives ... to compile, on the basis of the documents at its disposal, a list of the work brigades under the authority of the Labour Department.” 22. In a case similar to the present one, a former conscript who had performed forced labour in a military unit which did not come under the authority of the Labour Department claimed eligibility under the provisions of Law no. 309-2002. When the county pension fund dismissed his claim on the ground that the Law applied only to conscripts in the work brigades, he appealed to the Court of Appeal, which found in his favour. 23. Following an appeal by the county fund, the HCCJ upheld the Court of Appeal judgment on the following grounds: “As the fact that the claimant was subjected to forced labour is not in dispute ..., there is no justification for withholding the benefits in question. To do so would be to create an inequitable situation, denying compensation to persons who performed military service in identical conditions and who, for purely formal reasons relating solely to the hierarchical structure to which their military units belonged, would thus be subjected to different treatment of a clearly discriminatory nature.” 24. In a number of other judgments, including those of 4 November 2003, 21 January, 2 June and 14 December 2004, 11 and 19 January, 7, 14, 18, 22 and 28 February, 1, 8, 14 and 28 March and 24 May 2005, and 24 May and 6 June 2006, the HCCJ delivered rulings to the same effect as that referred to above. 25. However, in other judgments, and in particular those delivered on 13 and 28 November 2003, 11 March and 15, 22 and 29 April 2004, 11 and 18 January, 1, 17 and 21 February, 1, 10 and 28 March, 13 and 23 May and 14 November 2005, and 12 and 13 April and 25 May 2006, it ruled to the opposite effect, holding that conscripts who had not performed their military service in a military unit coming under the authority of the Labour Department were not covered by the provisions of Law no. 309-2002.