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ECHR

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train

001-4653

ENG

HUN

ADMISSIBILITY

MAMOU AND OTHERS v. HUNGARY

Inadmissible

Christos Rozakis

The applicants are Syrian passport-holders of Kurdish origin (see complete list in the Annex). They submit that they have been deprived of their Syrian citizenship and that their status in Syria is that of stateless “foreigners”. When introducing their application, they were held at the Communal Accommodation of the Budapest Border Guards Directorate, located on the premises of the Budapest Ferihegy Airport. Before the Court they are represented by Mr. J. Somogyi, a lawyer practising in Budapest and acting on behalf the Hungarian Helsinki Committee. The facts of the case, as submitted by the parties, may be summarised as follows. A. On 25 December 1996 the applicants, coming from Damascus, Syria, arrived at the Budapest Ferihegy Airport. At the passport control, the Hungarian immigration authority established that their visas had been reported stolen. Subsequently they were informed that they would be returned to Syria. Assisted by an interpreter, they signed the decision of the Budapest Border Guards Directorate to that effect and waived their right to an administrative appeal. On the same day Dr. S., a lawyer acting on behalf of the Mahatma Gandhi International Human Rights Organisation, contacted them. On 26 December 1996 the applicants made a request for asylum. On the same day they were committed to the Communal Accommodation. As to the circumstances at the Communal Accommodation, the applicants allege that they were all - men, women and children together - lodged in three rooms of a surface of approximately 30 square metres, packed with bunk beds. They were under constant control by armed guards and not allowed to leave the premises of the Communal Accommodation. The Government, for their part, allege that, on their committal to the Communal Accommodation, it was the applicants’ express desire to be allowed to stay together, as a result of which a room suitable to accommodate fourteen people was allocated to them. Admitting that the applicants’ stay at the Communal Accommodation was subject to severe security scrutiny, the Government nevertheless submit that on the occasion when one of the applicant children had had to be taken to hospital, the parents were escorted to the hospital to visit their child the very next day, on 19 January 1997. Meanwhile, on 27 December 1996 the Border Guards Directorate, pending the asylum proceedings, suspended the enforcement of the applicants’ deportation to Syria. On 30 December 1996 the Hungarian authorities heard the applicants, represented by Dr. S., with a view to clarifying their situation, if returned to Syria. After having interviewed the applicants, on 10 January 1997 the Hungarian Branch Office of the United Nations High Commissioner for Refugees dismissed the applicants’ request for asylum on the ground that their allegations lacked credibility. On 31 January 1997 the Office for Refugee and Migration Matters and the Ministry of Foreign Affairs approved the applicants’ deportation to Syria. On the same day the Border Guards Directorate ordered the applicants’ deportation. Upon the announcement of the deportation order, the applicants insisted that they would not leave Hungary for any Arab country. As a consequence, their deportation did not take place. On 5 February 1997 Dr. S. brought an action on behalf of the applicants before the Pest Central District Court challenging the Directorate’s deportation order as well as their committal to the Communal Accommodation. On 21 March 1997 the District Court discontinued the proceedings. The District Court recalled that the applicants had waived their right to an administrative appeal against the return order of 25 December 1996. The District Court pointed out that, since they had not exhausted the relevant administrative remedy in this respect, the applicants had no locus standi in judicial proceedings with a view to reviewing the impugned administrative proceedings. Meanwhile the applicants were committed to the Refugees Reception Camp in Bicske. On 20 February 1997 the Ministry of the Interior was informed that the applicants had, without authorisation, left the camp by undoing the fence. In his submissions of 3 April 1997, the applicants’ representative submitted that the applicants had eventually left Hungary for Germany. B. Relevant domestic law 1. The 1993 Aliens Act (Act no. 86 of 1993) Section 4 § 1 provides that foreigners may cross the Hungarian state frontier and stay on the territory of the Republic of Hungary only if they have valid passports verifying their citizenship and particulars of identification, and have valid visas issued by the Hungarian authorities. According to S. 25 §§ 1, 2 and 4, all conditions of entry and stay shall be inspected by the border guards at the time of entry to the country by the foreigner, prior to crossing the state frontier, while the availability of financial means shall be inspected by the customs authority. Foreigners who do not satisfy the conditions prescribed for entering the country, shall - subject to the provisions of S. 32 § 1 - be returned to the territory of the country they arrived from. Upon notification, an appeal may be lodged against the order of return. Section 32 § 1 provides that foreigners shall not be returned or expelled to such countries, or to the frontier of such areas, where they would be exposed to the danger of persecution for reasons connected with their race, religion, national, social belonging or political views; furthermore, to the territory of such states, or to the frontier of such areas, where it is to be greatly feared that they would be exposed to torture, inhuman or degrading treatment. These reasons shall be established by the refugee authority. Section 43 provides the possibility of ordering an alien’s residence at a designated place. According to paragraphs 1 and 3, the police headquarters and the directorate or branch of Border-Guards may order the residence of the foreigner at a designated place, restricting his personal liberty, if: (a) he is not able to certify his identity, until the establishment thereof; or (b) he is not able to certify the lawfulness of his stay in Hungary, until the verification thereof or until an official permit to stay is issued; or (c) this is necessary for the purposes of guaranteeing the execution of an expulsion, until the establishment of the conditions of expulsion; or (d) his return was ordered (see S. 25 above); or (e) his return or expulsion should take place, but he may not be returned or expelled in accordance with the prohibition under S. 32 § 1. The compulsory place of residence may also be designated at a communal accommodation, if the foreigner is not able to support himself, and no appropriate accommodation, financial means, income and inviting party or relatives obliged to support him are at his disposal. Paragraph 5 provides that, although no administrative appeal may be lodged against the order to reside at a designated place, the foreigner may request the court review of the decision. The procedure of the court shall be governed by the provisions applicable to the court review of the lawfulness of ‘custody for the purposes of supervision of aliens’. These provisions are as follows: Section 39 §§ 1 and 2 provide that foreigners may request - during the period of custody - a review of the lawfulness of the decision from the local court competent at the place of custody. The submission of such a request has no suspensive effect in respect of the enforcement of the custody order. If the foreigner requests the court review of the lawfulness of the ‘custody for purposes of supervision of aliens’, he shall be brought before the court in order to be heard. According to S. 41 § 1, if the court finds that the foreigner’s taking into, or holding in, custody violates the law, it shall take immediate measures for his release. Section 42 §§ 1, 3 and 4 provide that the authority ordering the taking into custody as well as the foreigner may appeal against the decision of the court. The appeal may be submitted orally in the course of the hearing or in writing to the local court within three days following the announcement of the decision. Appeals submitted against the decision of the local court shall be decided by the regional court within five days. Section 50 requires that the court shall act promptly in matters of judicial review of decisions of the immigration authorities. 2. Act no. 4 of 1957 on the General Rules of Administrative Procedure Section 62 provides that an [administrative] appeal lies against any first instance [administrative] decision taken on the merits of a case. Persons entitled to lodge an appeal may waive their right to appeal within the appeal deadline. According to S. 71, if an administrative decision is not in compliance with the law, the superior administrative body may amend or quash it. Section 72 provides that an administrative decision taken on the merits of a case may be challenged in court within thirty days from its delivery. Such judicial review may, however, take place only if the administrative remedies - if any - available in the case have already been exhausted.

train

001-89713

ENG

MDA

CHAMBER

CASE OF TĂNASE AND CHIRTOACĂ v. MOLDOVA

Violation of P1-3;Remainder inadmissible

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

6. The applicants were born in 1971 and 1978 respectively and live in Chişinău. They are both Romanian ethnics and Moldovan politicians. 7. The Republic of Moldova is situated on a territory which used to be part of Romania before World War II. Its population had Romanian citizenship but lost it after the annexation of the territory by the Soviet Union in 1940. 8. In the Declaration of Independence of 27 August 1991, the Parliament of the Republic of Moldova condemned, inter alia, the Soviet annexation of the territory from Romania in 1940 and proclaimed the independence of the country within the boundaries of the former Moldavian Soviet Socialist Republic. 9. In 1991 the Parliament of the Republic of Moldova adopted a Law on Moldovan nationality and proclaimed as its citizens, inter alios, all persons who had lived in the territory of the former Moldavian Soviet Socialist Republic before the Soviet annexation and their descendants. 10. Both applicants obtained Moldovan nationality as descendants of persons living on the territory of the Republic of Moldova before 28 June 1940. 11. Also in 1991 the Romanian Parliament adopted a new law on citizenship making it possible for former Romanian nationals and their descendants who had lost their nationality before 1989, for reasons notimputable to them, to re-acquire their lost Romanian nationality. 12. Initially Moldova did not allow its nationals to possess other nationalities other than in exceptional cases. However, the prohibition remained inoperative as very many Moldovans, especially of Romanian descent, used the provisions of Romanian law to re-acquire their lost Romanian nationality. At the same time, many Moldovans, usually of other ethnic backgrounds, acquired other nationalities such as Russian, Ukrainian, Bulgarian, Turkish and others. 13. In 2002 the constitutional provisions prohibiting multiple nationality were repealed. On 5 June 2003 the Moldovan Parliament amended the Law on Citizenship and repealed the restriction preventing Moldovan nationals from holding other nationalities (see paragraph 43 below). According to the amendments, the holders of multiple nationality have equal rights to those holding only Moldovan nationality, without exception. 14. On unspecified dates the applicants obtained Romanian nationality. Their current Romanian passports were issued in December 2005 and October 2006. Subsequently, they made public their holding of Romanian nationality. 15. The total number of Moldovans who have obtained Romanian citizenship since 1991 is unknown as the Romanian Government have never made it public. It has been estimated that between 95,000 and 300,000 Moldovans obtained Romanian nationality between 1991 and 2001. 16. On 4 February 2007 the President of Romania stated in an interview that there were some eight hundred thousand Moldovans with pending applications for Romanian nationality and that his Government expected the number to reach 1.5 million, of the total of 3.8 million Moldovans, before the end of 2007. 17. As to the number of Moldovans holding as a second nationality other nationalities than Romanian, this figure is equally unknown. However, it appears to be considerable and it appears that Russian nationality is the second most popular after Romanian. On 16 September 2008 the Russian Ambassador to Moldova stated in a televised interview that there were approximately one hundred and twenty thousand Moldovans with Russian passports on both banks of the Dniester river. The Moldovan Government indicated in their observations that one third of the population of Transdniestria had dual nationality while a Communist MP, Mr V. Mişin, advanced during the Parliament's debates concerning Law No. 273 (see paragraph 30 below) the number of five hundred thousand as an approximate total number of Moldovans with dual nationality. 18. During the last decade the Communist Party of Moldova was the dominant political party in the country with the largest representation in Parliament. 19. Beside the Communist Party, there are over twenty-five other political parties with considerably less influence. Their exact number is difficult to tell because of continuous fluctuation. Because of their weaker position, very few of them managed to clear the six per cent electoral threshold in the past legislative elections and to enter Parliament. 20. In the 2001 elections the Christian Democratic People's Party was the only party, besides the Communist Party, from the twenty-seven participants in the elections, which succeeded in clearing alone the electoral threshold by obtaining some eight per cent of the votes. Six other parties which merged into an electoral block (a common list) were able to obtain some thirteen per cent of the votes. The Communist Party obtained some fifty per cent of the votes and after the proportional distribution of the wasted votes it obtained seventy-one of the one hundred and one seats. 21. In 2002 the electoral legislation was amended. The six per cent electoral threshold was kept while a new nine per cent threshold was provided for electoral blocks composed of two parties and twelve per cent for those composed of three or more parties. 22. In the 2005 elections out of twenty-three participants, the Christian Democratic People's Party was again the only party, besides the Communist Party, which managed to clear the electoral threshold by itself with some nine per cent of the votes. Three other parties, united into an electoral block, obtained some twenty-eight per cent of the votes while the Communist Party obtained almost forty-six per cent of the votes. After the proportional distribution of the wasted votes, the Communist Party obtained fifty-six of the one hundred and one seats in the Parliament. 23. In July 2005, following persistent criticism by international observers and the Council of Europe, the Parliament amended the Electoral Code, setting the electoral threshold for parties at four per cent and for electoral blocks at eight per cent. The Commission for Democracy through Law of the Council of Europe (“the Venice Commission”) and the Organisation for Security and Cooperation in Europe (“OSCE”) praised the lowering of the electoral threshold and suggested a similar threshold for electoral blocks, which, in their view, were to be encouraged in order to provide more cooperation and stable government. 24. In the local elections of June 2007, the Communist Party obtained some forty per cent of the votes in the local legislative bodies. Since there is no electoral threshold in local elections, it became an opposition party in the majority of the local councils. 25. The mandate of the current Parliament expires on 5 March 2009. According to the Electoral Code the next general elections are to take place within three months from the expiry of the mandate of the current Parliament; however, the exact date of the next elections is unknown on the date of this judgment. 26. In 2005 Mr Chirtoacă became the Vice-President of the Liberal Party, an opposition party, and in June 2007, in a confrontation with a candidate of the Communist Party, won the local elections in the capital city of Chişinău with a majority of 61.17% and became mayor. 27. On 18 June 2008 Mr Chirtoacă declared in an interview that he would actively participate in the legislative elections of spring 2009 but that he would not give up his position of mayor of Chişinău even if he was elected. He made it clear that his sole intention was to help his party gather more votes in the elections and remain mayor afterwards. The holding of a dual mandate is prohibited in the electoral law of Moldova. On 1 September 2008 Mr Chirtoacă reiterated in an interview his intention to participate in the legislative elections without repeating that he would keep his position of mayor after the elections. However, on 13 October 2008 he made a statement similar to that of 18 June. 28. Mr Tănase is a lawyer who entered politics recently. In June 2007 he became member of the Chişinău Municipal Council and subsequently was elected Vice-President of the Liberal Democratic Party, an opposition party created in January 2008. 29. On 10 April 2008 the Moldovan Parliament carried out a reform consisting of three major amendments to the electoral legislation: an increase of the electoral threshold from four per cent back to six per cent, a ban on all forms of electoral blocks and coalitions and a ban on persons with dual or multiple nationality becoming members of Parliament. 30. The latter amendment to the electoral legislation (Law no. 273) was adopted in its first reading by Parliament long before that date, on 11 October 2007. According to the draft law prepared by the Ministry of Justice, only persons having exclusively Moldovan citizenship were entitled to work in senior positions in the government and in several public services and be candidates in legislative elections. This provision was not applicable to persons living in Transdniestria. In an explanatory note to the draft the Vice-Minister of Justice stated: “Having analysed the current situation in the country in the field of citizenship, we observe that the tendency of Moldovans to obtain citizenships of other countries is explained by their desire to obtain privileges consisting of unrestrained travel in the European Union, social privileges, family reunion, employment and studies. At the same time, persons holding other nationalities have political and legal obligations towards those states. This fact could generate a conflict of interest in cases in which there are obligations both towards the Republic of Moldova and towards other states, whose national a particular person is. In view of the above, and with a view to solving the situation created, we consider it reasonable to amend the legislation in force so as to ban holders of multiple nationalities from public functions... This will not mean, however, that those persons will not be able to work in the Republic of Moldova. They will be able to exercise their professional activities in fields which do not involve the exercise of state authority...” 31. During the debates in Parliament numerous opposition members requested that the draft be sent to the Council of Europe for a preliminary expertise. However, the majority voted against this proposal. In exchange, the opposition was invited to challenge the new law before the Constitutional Court of Moldova. No such challenge was made. Numerous MPs from the opposition argued that the proposed amendment was contrary to Article 17 of the European Convention on Nationality but the Vice-Minister of Justice expressed a contrary view and argued that, in any event, it was open to Parliament to denounce that Convention if there were any incompatibility. 32. On 7 December 2007 the draft law in question was adopted by Parliament in a final reading (see paragraph 44 below); however, later the President of the country refused to promulgate it and returned it to Parliament for re-examination. 33. The draft law was further amended and the list of positions in the government and in the public service closed to holders of multiple nationality was reduced. The provisions concerning legislative elections were also amended in the sense that persons with dual or multiple nationality are allowed to be candidates in legislative elections; however, they are obliged to inform the Central Electoral Commission about their other citizenships before registering as candidates and give them up before the validation of their MP mandates by the Constitutional Court (see paragraph 45 below). 34. On 10 April 2008 the new draft law was again put before Parliament by the Law Commission of Parliament and adopted. On 29 April 2008 the President promulgated it and on 13 May 2008 it was published in the Official Gazette, thus entering into force. The other two amendments to the electoral legislation were also enacted and entered into force in May 2008. 35. On 29 April 2008 the Council of Europe's Commission against Racism and Intolerance (“ECRI”) made public a report dated 14 December 2007 in which it expressed concern in respect of the amendments concerning dual and multiple nationalities: “16. ECRI notes with interest that Article 25 of the Law on Citizenship, in full accordance with Article 17 of the European Convention on Nationality, which has been ratified by Moldova, provides that Moldovan citizens who are also citizens of another State and who have their lawful and habitual residence in Moldova enjoy the same rights and duties as other Moldovan citizens. In this respect, ECRI would like to express its concern about a draft law on the modification and completion of certain legislative acts adopted in its first reading by Parliament on 11 October 2007. According to this draft law, only persons having exclusively Moldovan citizenship are entitled to work in senior positions in the government and in several public services. From the information it has received, ECRI understands that if this draft law enters into force as it stands, Moldovan citizens with multiple citizenship would be seriously disadvantaged compared with other Moldovan citizens in access to public functions. It thus appears that, if the law enters into force as such, this could lead to discrimination, i.e. unjustified differential treatment on the grounds of citizenship. ECRI understands that a wide-ranging debate is occurring within Moldova at the time of writing this report as far as this draft law is concerned and that many sources both at the national and international level have stressed the need to revise the text thoroughly before its final adoption in order to ensure its compatibility with national and international standards. ... 18. ECRI strongly recommends that the Moldovan authorities revise the draft law of 11 October 2007 ... in order to ensure that it neither infringes the principle of non-discrimination on the grounds of citizenship nor undermines all benefits of the recent changes made to the law on citizenship and allowing for multiple citizenship.” 36. On 27 May 2008 the head of the EU-Moldova Cooperation Council, Slovenian Foreign Minister, Dr Rupel, stated that it was important that Moldova should conduct its parliamentary elections in 2009 in line with international standards and expressed concern at the latest amendments to the electoral law, which increased the electoral threshold to six per cent. 37. In a report dated 9 June 2008, the Parliamentary Assembly's Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe stated, inter alia, that: “20. The Assembly appreciates the efforts made by the Moldovan authorities in order to assess the degree of implementation of the recommendations made by Council of Europe experts. However, all new draft legislation in areas relating to the commitments to the Council of Europe must be submitted to expertise and discussed with Council of Europe experts prior to adoption. ... 80. In their 2007 report on the honouring of obligations and commitments by Moldova (Doc. 11374), the co-rapporteurs of the Committee on Moldova welcomed the changes made to the Electoral Code in 2005. In particular, the threshold for party lists was lowered to 4% for lists presented by individual political parties and 8% for coalitions of political parties... 82. The Monitoring Committee was ... alarmed by the recent legislative developments with regard to the Electoral Code. In April 2008, the Moldovan Parliament amended the Electoral Code again to raise the threshold for party lists up to 6%. Moreover, the establishment of “electoral blocs” – joint lists submitted by a coalition of political parties - was prohibited. These measures have raised concern and the committee decided at short notice to hold an exchange of views with the Moldovan delegation on 15 April. The electoral legislation should not be changed every two or three years according to political imperatives. It should allow a wide spectrum of political forces to participate in the political process to help build genuinely pluralistic democratic institutions. The co-rapporteurs will closely examine the recent amendments as well as the reasons behind the recent legislative developments during the observation of the preparation of the forthcoming parliamentary election to be held in spring 2009.” 38. Concern was also expressed in the Parliamentary Assembly's Resolution No. 1619 adopted on 25 June 2008: “The Assembly ... regrets the recent decision of the Moldovan Parliament to raise this threshold for party lists to 6%”. 39. The problem of the electoral reform was also raised on 9 July 2008 by the President of the Parliamentary Assembly of the Council of Europe, Mr Lluís Maria de Puig, in a speech to the Moldovan Parliament: “...I strongly encourage you to obtain the approval by the Venice Commission in respect of the recent amendments to the legislation which will apply in the next elections, namely in what concerns the electoral threshold, the electoral blocks and the dual nationality. These are delicate problems and it is necessary to find the right balance between the preoccupations which guided you to make these amendments and the concern of the international community that these amendments are compatible with the principles of the Council of Europe.” 40. On 23 October 2008 the Venice Commission made public a report concerning the amendments to the Electoral Code made in April 2008. The report expressed critical views in respect of all the aspects of the reform. As to the amendments concerning holders of multiple nationality it stated the following: “30. A new paragraph to article 13(2) denies the right to “be elected” in parliamentary elections to “persons who have, beside the Republic of Moldova nationality, another nationality for the position of deputy in the conditions of Art. 75”. Article 75(3) states that a person may stand as a candidate with multiple citizenship, provided he/she upon election denounces other citizenships than the Moldovan. This must be considered as an incompatibility. 31. Beyond the mere question of the wording, restrictions of citizens' rights should not be based on multiple citizenship. The Code of Good Practice in Electoral Matters quotes the European Convention on Nationality, ratified by Moldova in November 1999, which unequivocally provides that 'Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party.' 32. Moreover, this restriction could be a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, articles 3 of the first Protocol and 14 of the Convention.” 41. The relevant provisions of the Constitution of the Republic of Moldova read: Article 8. Compliance with international treaties (1) The Republic of Moldova is obliged to respect the United Nations Charter and the treaties to which it is a party... Article 38. The right to vote and to be elected (3) The right to be elected is guaranteed to Moldovan citizens who enjoy the right to vote, within the conditions of the law. Article 39. The right to participate in the administration (1) The citizens of Moldova shall have the right to participate in the administration of public affairs in person or through their representatives. (2) Every citizen shall have access, in accordance with the law, to public functions. 42. According to Article 38 of the Code of Constitutional Jurisdiction of the Republic of Moldova the Constitutional Court may be seized only by the President of the country, the Government, the Minister of Justice, the Supreme Court of Justice, the Economic Court, the Prosecutor General, the MPs, the parliamentary factions and the ombudsman. 43. According to section 24 (1 and 3) of the Law on Moldovan Citizenship, as amended on 5 June 2003, multiple nationality is permitted in Moldova and the obtaining by a Moldovan national of another nationality does not entail loss of the Moldovan nationality. 44. The relevant provisions of Law no. 273 adopted by Parliament on 7 December 2007, but not promulgated by the President, read: Section X “Candidates for the office of MP shall be at least eighteen years old on the day of the elections, shall have exclusively Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code.” 45. The relevant provisions of Law no. 273, which entered in force on 13 May 2008, provide as follows: Section IX “(1) Candidates for the office of MP shall be at least eighteen years old on the day of the elections, shall have Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code. (2) At the moment of registering as a candidate, any person holding the citizenship of another country shall declare that he or she holds another citizenship or that he or she has applied for another citizenship. (3) At the time of validation of the MP mandate, the person indicated in paragraph (2) shall prove with documents that he or she has renounced or initiated the procedure of renunciation of the citizenship of other States or that he or she has withdrawn an application to obtain another citizenship. (4) A failure to declare the fact of holding another citizenship at the moment of registering as a candidate for the office of MP or the fact of obtaining another citizenship during the exercise of a MP mandate, shall be sufficient grounds for the Constitutional Court to annul the MP mandate at the request of the Central Electoral Commission.” Section XXI (3) The incompatibilities provided for in the present law shall apply to persons living in Transdniestria only in so far as they are stipulated in the legislation concerning the special legal status of Transdniestria. 46. The relevant provisions of Law No. 595 concerning the International Treaties of the Republic of Moldova, in so far as relevant read: Section 19. Compliance with international treaties “International treaties shall be complied with in good faith, in accordance with the principle pacta sunt servanda. The Republic of Moldova cannot invoke the provisions of its internal legislation as a justification for non-compliance with an international treaty to which it is a party. Section 20. The application of international treaties The provisions of the international treaties which, according to their wording, are susceptible to be applicable without there being need for enactment of special legislative acts, shall have an enforceable character and shall be directly applied in the Moldovan law system. For the realisation of other provisions of the treaties, special normative acts shall be adopted.” 47. The relevant provisions of the European Convention on Nationality, which entered into force in general and in respect of Moldova on 1 March 2000, provide: Preamble “Recognising that, in matters concerning nationality, account should be taken both of the legitimate interests of States and those of individuals; ... Noting the varied approach of States to the question of multiple nationality and recognising that each State is free to decide which consequences it attaches in its internal law to the fact that a national acquires or possesses another nationality;” Article 15 – Other possible cases of multiple nationality The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether: a. its nationals who acquire or possess the nationality of another State retain its nationality or lose it; b. the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality. Article 17 – Rights and duties related to multiple nationality “Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party. The provisions of this chapter do not affect: the rules of international law concerning diplomatic or consular protection by a State Party in favour of one of its nationals who simultaneously possesses another nationality; the application of the rules of private international law of each State Party in cases of multiple nationality.” 48. The Explanatory Report to the Code of Good Practice in Electoral Matters of the Venice Commission of the Council of Europe (CDL-AD (2002) 23 rev), in so far as relevant, reads: “63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections. 64. In practice, however, it is not so much stability of the basic principles which needs protecting (they are not likely to be seriously challenged) as stability of some of the more specific rules of electoral law, especially those covering the electoral system per se, the composition of electoral commissions and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as decisive factors in the election results, and care must be taken to avoid not only manipulation to the advantage of the party in power, but even the mere semblance of manipulation. 65. It is not so much changing voting systems which is a bad thing – they can always be changed for the better – as changing them frequently or just before (within one year of) elections. Even when no manipulation is intended, changes will seem to be dictated by immediate party political interests. ...under the European Convention on Nationality persons holding dual nationality must have the same electoral rights as other nationals.” 49. The Court, having conducted a comparative review of the legislations of forty-two countries, members of the Council of Europe, noted that the majority of them permit dual or multiple nationalities. In some of the countries which ban double nationality, in practice the provisions aimed at preventing multiple nationalities have remained a dead letter (for instance Estonia). There are four countries in which beside a ban on dual nationality, there is a supplementary provision in the electoral laws or Constitutions banning persons with other nationalities from being elected to Parliament. Those countries are Azerbaijan, Bulgaria, Lithuania and Malta. There are two countries in which dual nationals are ineligible for election to Parliament only in certain circumstances: as Monaco and Portugal. In Monaco persons who possess dual nationality and occupy in a foreign country a public or elected office are ineligible to stand as a candidate. In Portugal, beside the main territory of the country there are two constituencies, one covering the territory of the European countries, and the other covering all other countries and the territory of Macao. A Portuguese national holding, for instance, the nationality of France, will not be able to stand for Parliament in the constituency covering the territory of the European countries. However, he will be able to stand in the other two constituencies.

train

001-84373

ENG

POL

CHAMBER

CASE OF LUBOCH v. POLAND

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1+6-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award

Giovanni Bonello;Ján Šikuta;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

5. The applicant was born in 1956 and lives in Rzeszów. 6. The applicant read law from 1981 to 1986. Subsequently, he did his four-year advocate training and in 1992 he began to practise as an advocate. 7. The applicant submits that from 1984 onwards he had often gone abroad to visit his family and to work. 8. On one occasion, after his return from abroad, the applicant met with his old colleague, W.C., who had offered his help in connection with a letter which had allegedly arrived from abroad and could have caused problems for the applicant. The applicant was not aware that W.C., who claimed to be working as a teacher, was in fact an officer of the Security Service (Służba Bezpieczeństwa). 9. In spring 1987 the applicant became aware of that fact. He then threw W.C. out of his flat and cut off all contacts with him. There were three witnesses to that event, T.L., B.M. and M.S. 10. On 11 April 1997 the parliament passed the Law on disclosing work for or service in the State's security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) (the “1997 Lustration Act”). Persons falling under the provisions of the Lustration Act, i.e. candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime. The provisions of the Act extended to, inter alia, judges, prosecutors and advocates. 11. Following the entry into force of the 1997 Lustration Act the applicant declared that he had not been an intentional and secret collaborator of the communist-era security services. 12. On an unspecified date in 2000 the Commissioner of Public Interest (Rzecznik Interesu Publicznego) applied to the Warsaw Court of Appeal to institute proceedings in the applicant's case on the grounds that he had lied in his lustration declaration by denying his collaboration with the security services. The Commissioner heard W.C. as a witness. 13. On 30 May 2000 the Warsaw Court of Appeal instituted lustration proceedings in the applicant's case. On 5 June 2000 the applicant was informed that the lustration proceedings had been instituted and that he could consult the case file in the court. 14. On 8 May 2001 the court held a hearing partly in camera. It examined some archived classified documents. 15. On 16 June 2001 the court held a hearing partly in camera at which it examined the applicant's personal record (teczka osobowa). The applicant stated that he would not make any statements and would not answer any questions put to him by the court. He requested the court to call W.C. and M.R. as witnesses. 16. The court held hearings in camera on 27 June, 25 September and 25 October 2001. Witness W.C. summoned by the court failed to appear. 17. On 25 October 2001 the Warsaw Court of Appeal, acting as the first-instance lustration court, found that the applicant had been an intentional and secret collaborator with the Security Service and had therefore lied in his lustration declaration. The operative part of the judgment was served on the applicant on 20 December 2001. At the same time, the reasoning was considered “top secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the Court of Appeal's secret registry. 18. On 3 January 2002 the applicant lodged an appeal. He argued that the Court of Appeal's judgment had been primarily based on the statements of W.C. who had not been heard by the court. The court had instead relied on the transcript of W.C.'s statements given before the Commissioner. Those statements had been given without the applicant or his lawyer being present. W.C. was an officer of the Security Service which had allegedly managed the applicant as a secret collaborator. 19. On 16 May 2002 the Warsaw Court of Appeal held a hearing at which it heard W.C. as a witness. The court notified W.C. that the Head of the State Security Bureau (Urząd Ochrony Państwa) had discharged him from the obligation of confidentiality in respect of the subject matter of the proceedings. 20. W.C. was heard again at the hearing held on 18 November 2003. The court refused the applicant's request to call two additional witnesses (M.S. and J.S.) on the ground that their evidence would not be relevant for the determination of the case. 21. On 3 September 2004 the court held a hearing. It refused the applicant's request to call two further witnesses (B.M. and T.L.), considering their evidence irrelevant for the case. 22. On 3 September 2004 the Warsaw Court of Appeal, acting as the second-instance lustration court, upheld the original decision. It appears that the judgment and its reasoning were served on the applicant. 23. On 15 November 2004 the applicant lodged a cassation appeal with the Supreme Court. He submitted, inter alia, that the Court of Appeal had refused to call three crucial witnesses for the applicant whose evidence was to rebut the fact of his alleged collaboration with the security services. The applicant further submitted that the Court of Appeal had disregarded his arguments to the effect that his contacts with W.C. had been of a private nature. He submitted that his contacts with W.C. had not constituted secret and intentional collaboration. He also challenged the fact that he could not consult the file in the proceedings before the Commissioner or adduce any evidence at that stage of the proceedings. 24. On 14 April 2005 the Supreme Court dismissed the applicant's cassation appeal. The applicant was served with the operative part of the judgment. The written reasoning was designated “secret” by the Supreme Court and the applicant could consult it at the Institute of National Remembrance (Instytut Pamięci Narodowej). 25. On 19 May 2005 the President of the Court of Appeal, pursuant to the 1997 Lustration Act, ordered the publication in the Official Law Gazette (Monitor Polski) of the information that according to the Warsaw Court of Appeal's final judgment of 25 October 2001 the applicant had lied in his lustration declaration. 26. Consequently, on 9 June 2005 the President of the Rzeszów Regional Bar Council issued a decision depriving the applicant of the right to practise as an advocate. 27. On 11 November 2005 the applicant requested the President of the Republic of Poland to grant him a pardon. He was informed, however, that a pardon could only be granted in respect of a person who had been convicted of a criminal offence. 28. On 3 August 1997 the 1997 Lustration Act entered into force. The relevant provisions of this Act, in the version in force at the material time, are the following: Section 3 reads, in so far as relevant: “1. Persons exercising public functions within the meaning of this law are: the President of the Republic of Poland, deputies, senators ... judges, prosecutors and advocates...” 29. Section 4 provides the following definition of the term “collaboration”: “1. Collaboration within the meaning of this law is intentional and secret collaboration with operational or investigative branches of the State's security services as a secret informer or assistant in the process of gathering information. 2. Collaboration within the meaning of this law is not an action which was obligatory under the law in force at the material time. ...” 30. Section 6 concerns the obligation to submit a “lustration declaration” (oświadczenie lustracyjne”): “1. Persons in the categories listed in section 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').” Section 40 requires such a declaration to be submitted also by those who at the date of entry into force of the 1997 Lustration Act are holding a public function. 31. Section 17 et seq. concerns the office of the Commissioner of the Public Interest. It reads, in so far as relevant: “1. The Commissioner of the Public Interest (Rzecznik Interesu Publicznego), hereafter called 'the Commissioner', represents the public interest in lustration proceedings.” Section 17(d) provides, in so far as relevant: “1. The duties of the Commissioner shall include in particular i) analysing the lustration declaration submitted to the court; ii) collecting 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 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.” 32. Section 17(e) provides: “The Commissioner, his deputies and the authorised employees of his office shall have full access to documentation and other information sources, regardless of the form in which they were recorded, provided that they were created before 10 May 1990 by 1. The Minister of Defence, the Minister of the Interior, the Minister of Justice, the Minister of Foreign Affairs, or by the services under their authority; or 2. The Head of the State Security Bureau.” 33. Sections 19 and 20 refer to the Code of Criminal Procedure. Section 19 reads as follows: “Matters not covered by this law and relating to lustration proceedings, including the appeal and cassation phase, shall be governed by the Code of Criminal Procedure.” The amendment to section 19, which entered into force on 8 March 2002, provides that the proceedings can also be conducted in camera on an application by the person subject to lustration. This provision replaced the one contained in section 21(4), which provided that the court could decide to conduct the proceedings in camera of its own motion or on an application by a party. Section 20 provides: “The provisions of the Code of Criminal Procedure relating to the accused shall apply to the person subject to lustration (hereafter called 'the subject').” 34. Section 23 provides for service of the judgment: “1. The court's judgment, together with the written reasons, shall be served on the parties to the proceedings without delay....” Section 28, amended with effect from 8 March 2002, provides: “A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in the Official Law Gazette (Dziennik Urzędowy RP Monitor Polski) if 1) no cassation appeal has been lodged within the prescribed time-limit; or 2) the cassation appeal has been left unexamined; or 3) the cassation appeal has been dismissed.” 35. Section 30 lists the consequences of the judgment for a person subject to lustration who has submitted an untrue declaration. It reads, in so far as relevant: “1. A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions, described according to the relevant laws as: unblemished character, immaculate reputation, irreproachable reputation, good civic reputation, or respectful of fundamental values. After 10 years the judgment shall be considered to be of no legal effect. 2. A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it. 3. A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of 10 years.” On 8 March 2002 sub-section 4 was added, which provides: “The consequences enumerated in sub-sections 1-3 above shall take place if 1) no cassation appeal has been lodged within the prescribed time-limit; or 2) the cassation appeal has been left unexamined; or 3) the cassation appeal has been dismissed.” 36. Article 100 § 5, which concerns 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 shall be served to the effect that the reasons have actually been prepared.” 37. Article 156, which deals with access to the case file, in so far relevant provides as follows: “1. The court files pertaining to a case shall be made available to the parties, their defence counsels, legal representatives and guardians who shall have possibility to obtain copies from them. Other persons may access the case file provided that the president of the court agrees to it. 2. Upon a request from the accused or his defence counsel, photocopies of the documents of the case shall be provided at their expense. 3. The president of the court may on justifiable grounds, order certified copies to be made from the files of the case. 4. If there is a danger of revealing a state secret, inspection of files, making certified copies and photocopies shall be done under conditions imposed by the president of the court or by the court. Certified copies and photocopies shall not be released unless provided otherwise by law....” 38. Section 2 (1) of the 1982 Protection of State Secrets Act (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) 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...” 39. Section 86 of the 1999 Protection of Classified Information Act (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 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.” 40. 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.”

train

001-97880

ENG

GBR

CHAMBER

CASE OF M.A.K. AND R.K. v. THE UNITED KINGDOM

Reminder inadmissible;Violation of Art. 8;Violation of Art. 13;Pecuniary and non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

5. The first applicant's daughter, who is the second applicant, was born on 6 March 1989. 6. On 9 September 1997 the first applicant took the second applicant to see their general practitioner because he and his wife were concerned about what appeared to be bruising on her legs. A clotting test was carried out but it showed no abnormality. 7. On 25 February 1998 the first applicant took the second applicant back to the general practitioner because her swimming teacher had expressed concern about the marks on her legs. The first applicant asked for a referral to hospital and an appointment was made for 17 March 1998 with Dr W., a consultant paediatrician. 8. On 15 March 1998 the second applicant hurt herself in the genital area while riding her bike. She complained to her mother of hurting between her legs. Her mother did not examine her and she did not tell the first applicant of the incident. 9. On 17 March 1998 the first applicant took the second applicant to the appointment with Dr W. Dr W. said that the bruising did not appear to be a skin disease and admitted the second applicant to hospital for further examination. The first applicant had to go to work but before leaving the hospital he told Dr W. that his wife would arrive soon and there should be no further examination or tests until she came and gave any necessary consent. 10. When the first applicant's wife arrived one hour later, she found that a sample of the second applicant's blood had been taken for testing, photographs had been taken of her legs and the local authority had been notified. A social worker informed her that Dr W. thought the second applicant had been abused. The first applicant's wife then gave consent for a further examination. Dr W. and a police surgeon examined the second applicant's legs and genitalia. The second applicant was given no explanation for the examinations and she was not questioned about the allegations of abuse. Following the examination, Dr W. informed the first applicant's wife that the second applicant had been sexually abused and that it had probably been going on for eight months on account of the bruising. The social worker interviewed the second applicant generally, but asked no direct questions about sexual abuse. No record was made of the interview. During the interview the social workers told the first applicant's wife to ask the first applicant and their eldest son to move out of the family home until further investigations had taken place. At this point she recalled that the second applicant had “hurt between her legs” while on her bicycle. She informed the social worker, who said that she would pass the information on to the doctor. 11. At 17.30 that evening, when the first applicant and his wife attempted to visit the second applicant on the ward, a nurse told them that there were orders that the first applicant should not be allowed to see her. This exchange was witnessed by other people on the ward. News was passed through the community and reached acquaintances in India. The following day, hospital staff were correctly informed that there could be no restrictions on visitors. The first applicant was thereafter permitted to visit the second applicant in hospital, although all visits were supervised on account of the suspicion that she had been sexually abused. 12. On 18 March 1998 the first applicant's wife informed Dr W. that the second applicant had “hurt between her legs” on her bicycle. Dr W. told her that there was no doubt the second applicant had been sexually abused and advised her that if she did not accept it, there was a risk that her other children would be taken into care. 13. On the same day two social workers visited the applicants' home. The applicant's wife asked for a second opinion on the cause of the bruising but the social workers told her that they saw no point in obtaining a second opinion. They did not, however, insist that the first applicant should leave the family home; instead it was arranged that the first applicant's wife should sleep in the room with her daughters. 14. On 21 March 1998 the first applicant's wife noticed that the second applicant had marks on her hands. An appointment was made for the second applicant to see a dermatologist. 15. On 24 March 1998 the dermatologist reported that the marks on the second applicant's legs were caused by vasculitis. 16. On 27 March 1998 the second applicant was diagnosed with Schamberg's disease, a rare condition of the capillaries which is manifested by the eruption of purple patches on the skin. She was discharged from hospital. Dr W. wrote a letter to the first applicant and his wife which stated that there was insufficient evidence to say that the second applicant had been sexually abused and that the first applicant should no longer be considered to be implicated in the sexual or physical abuse of his daughter. 17. The first applicant and his wife were unhappy with what had happened and made a formal complaint to the NHS Trust. The Trust set up an Independent Review Panel with two Assessors who were consultant paediatricians experienced in child abuse cases. The Panel report concluded that Dr W. had been right to admit the second applicant to hospital but found that she had acted too quickly in carrying out examinations. The report further noted that examinations and photographs should not have been taken while no parent was present; that while Dr W. was not to blame for misdiagnosing the bruises, she should have monitored them and obtained a dermatologist's opinion as a matter of urgency; that the first applicant should have been properly consulted and interviewed; and that Dr W. had attached far too much importance to the bruising, neglecting other relevant information available from the first applicant, his wife and the family doctor. Finally, the report noted that Dr W. had, without convincing explanation, failed to write to the first applicant with an explanation and an apology. 18. On 9 March 2001 the applicants brought proceedings in negligence against the local authority and hospital trust claiming compensation for personal injury and financial loss. Both were legally aided. 19. On 22 November 2002 the County Court judge struck out the claims, finding that no duty of care arose between the local authority and the first applicant and that the hospital but not the local authority had owed a duty of care to the second applicant. The applicants appealed. Their appeals were joined to those of a number of other appellants. 20. On 31 July 2003 the Court of Appeal granted the second applicant's appeal and allowed her claim to proceed against the local authority as well as the hospital. The Legal Services Commission, however, withdrew the second applicant's legal aid certificate on the basis that it was no longer reasonable for her to receive legal aid because the likely costs were disproportionate to the value of the claim. On 4 April 2006 the second applicant's appeal against the withdrawal was dismissed by an independent Funding Review Committee, which agreed that the costs of pursuing the claim considerably outweighed any likely award of damages. 21. On 31 July 2003 the Court of Appeal dismissed the first applicant's appeal together with the appeals of the other appellants. The first applicant and the other appellants were granted leave to appeal to the House of Lords. 22. The House of Lords gave judgment in 2005 (see JD v East Berkshire Community Health NHS Trust and Ors [2005] 2 AC 373). The question before the House of Lords in JD was whether the parent of a minor child falsely and negligently said to have abused or harmed the child could recover common law damages for negligence against a doctor or social worker who, discharging professional functions, made the false and negligent statement, if the suffering of psychiatric injury by the parent was a foreseeable result of making it and such injury had in fact been suffered by the parent. The House of Lords concluded (Lord Bingham of Cornhill dissenting) that there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents and it would not be just or reasonable to impose such a duty. 23. Section 8 of the Family Reform Act 1969 provides as follows: “Consent by persons over 16 to surgical, medical and dental treatment (1) The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian. (2) In this section “surgical, medical or dental treatment” includes any procedure undertaken for the purposes of diagnosis, and this section applies to any procedure (including, in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment. (3) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.” 24. In relation to children under the age of sixteen, the House of Lords has held that such minors have the right to consent on their own behalf to a variety of medical procedures, as long as they fully understand what is involved. Until the child achieves the capacity to consent, however, the parental right to make the decision continues save only in exceptional circumstances (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112). 25. The General Medical Council (“GMC”) guidelines for doctors in relation to obtaining consent for the treatment of children provide as follows: “23. You must assess a child's capacity to decide whether to consent to or refuse proposed investigation or treatment before you provide it. In general, a competent child will be able to understand the nature, purpose and possible consequences of the proposed investigation or treatment, as well as the consequences of non-treatment. Your assessment must take account of the relevant laws or legal precedents in this area. You should bear in mind that: At age 16 a young person can be treated as an adult and can be presumed to have capacity to decide; Under age 16 children may have capacity to decide, depending on their ability to understand what is involved; Where a competent child refuses treatment, a person with parental responsibility may authorise investigation or treatment which is in the child's best interests. The position is different in Scotland, where those with parental responsibility cannot authorise procedures a competent child has refused. Legal advice maybe helpful on how to deal with such cases. Where a child under 16 years old is not competent to give or withhold their informed consent, a person with parental responsibility may authorise investigations or treatment which are in the child's best interests. This person may also refuse any intervention, where they consider that refusal to be in the child's best interests, but you are not bound by such a refusal and may seek a ruling from the court. In an emergency where you consider that it is in the child's best interests to proceed, you may treat the child, provided it is limited to that treatment which is reasonably required in that emergency. 26. The statutory framework for civil legal aid is contained within Parts IV and I of the 1988 Act. 27. A civil Legal Aid Certificate can only be issued where the case has sufficient merit to justify public funding. With limited exceptions, every application for civil legal aid is subject to two statutory tests: first, section 15(2) of the 1988 Act requires that the applicant have reasonable grounds for taking, defending or being a party to the proceedings (“the legal merits test”); secondly, section 15(3)(a) of the 1988 Act provides that civil legal aid might be refused if is unreasonable that the applicant should be granted legal aid (“the reasonableness test”). 28. Factors relevant to determining the reasonableness of a grant of legal aid include, inter alia, a cost benefit analysis, the importance of the case to the applicant, and whether the case is in the public interest. 29. Once an applicant is granted legal aid, the merits are kept under review throughout the case. Under the Civil Legal Aid (General) Regulations 1989, the Legal Aid Board has the power to discharge or revoke a Legal Aid Certificate. 30. If a certificate is discharged or revoked, the assisted person may appeal to the Area Committee. If they remain dissatisfied with the decision, they may seek to have the Area Committee's decision quashed by the High Court by way of judicial review. It is possible to appeal against a decision of the High Court on judicial review to the Court of Appeal and (with leave) to the House of Lords. 31. The Council of Europe's Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (opened to signature at Oviedo on 4 April 1997) contains the following principles regarding consent: “Chapter II – Consent Article 5 – General rule An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time. Article 6 – Protection of persons not able to consent 1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit. 2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity. 3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The individual concerned shall as far as possible take part in the authorisation procedure. 4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5. 5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned. Article 8 – Emergency situation When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.”

train

001-72816

ENG

DEU

ADMISSIBILITY

MITZON v. GERMANY

Inadmissible

The applicant, Mr Karl-Heinz Mitzon, is a German national who was born in 1956 and lives in Berlin. He is represented before the Court by Mr F. Lansnicker, a lawyer practising in Berlin. Since 1985 the applicant lived as a tenant in a State-owned semidetached house in East-Berlin in the German Democratic Republic (”GDR”). The house’s former owner had left the GDR in 1961 and the house was subsequently seized and transferred into public property in 1969. On 7 March 1990 the GDR’s parliament (Volkskammer) passed a law that allowed the purchase of State-owned buildings. On 28 March 1990 the applicant acquired the house for the sum of GDR Marks 58,010. He was entered as the owner into the land register (Grundbuch) on 21 May 1990. On 11 September 1990 the former owner requested the house’s restitution under the Resolution of Outstanding Property Issues Act/Property Act (Gesetz über die Regelung offener Vermögensfragen / Vermögensgesetz – hereinafter called Property Act). On 13 August 1991 the Office for the Resolution of Outstanding Property Issues (Amt zur Regelung Offener Vermögensfragen) ordered the real estate’s restitution according to section 4 § 2 of the Property Act (see “Relevant domestic law and practice” below). It stated that the house had been acquired after the key date (Stichtag) of 18 October 1989 and should not have been authorised under GDR Law. In return for the restitution the Land of Berlin was obliged to reimburse the applicant the purchase price of GDR Marks 58,010, converted into DEM 29,005 (EUR 14,830). On 4 December 1991 the Regional Office for the Resolution of Outstanding Property Issues (Landesamt zur Regelung Offener Vermögensfragen) rejected the applicant’s objection. On 16 June 1992 the Berlin Administrative Court confirmed those decisions, refusing the applicant leave to appeal on points of law. Section 4 § 2 of the Property Act was amended by the second Property Rights Amendment Act (Zweites Vermögensrechtsänderungsgesetz) of 14 July 1992. It introduced exceptions to the key date regulation, thus allowing the new owners in certain cases to keep their property even if they had acquired it after 18 October 1989 (see “Relevant domestic law and practice” below). The applicant then lodged a complaint against the refusal of leave to appeal on points of law with the Federal Administrative Court. He held the opinion that the old version of section 4 § 2 infringed his right of property, as it did not contain any exceptions to the key date and thus led to expropriation. Moreover, he submitted that the key date regulation was discriminatory within the meaning of Article 3 of the Basic Law. Therefore, he demanded that the new version of section 4 § 2 of the Property Act be applied to his case, in particular since the court proceedings were still pending. On 5 March 1993 the Federal Administrative Court granted the applicant leave to appeal on points of law. On 12 November 1993 it rejected the applicant’s appeal on points of law. Having recourse to the Property Act’s travaux préparatoires, it interpreted the second Property Rights Amendment Act as applying only to proceedings which had not yet been terminated by final administrative decision (Widerspruchsbescheid). It stated that this interpretation alone guaranteed the speedy handling of cases of outstanding property issues as intended by the legislator. It furthermore pointed out that the latter had opted for a compromise between the interests of the former and new owners by choosing the final administrative decision instead of the final court decision as a criterion. The court therefore applied the old version of section 4 § 2 and found that it did not violate the applicant’s right of property. It held that the restitution of the real estate had not been an expropriation within the meaning of Article 14 § 3 of the Basic Law, because all it did was to balance the competing private interests of the former and the new owners. Therefore, the impugned provision of the Property Act was a determination of the subject matter of the right to property and its limitations within the meaning of Article 14 § 1, sentence 2, of the Basic Law (Inhalts- und Schrankenbestimmung). The court recalled that the Property Act aimed at creating a socially acceptable balance between the interests of the former owners who had been expropriated contrary to the rule of law, on the one hand, and the new owners which had acquired ownership rights in good faith, on the other hand. The court pointed out that the Property Act in fact favoured those new owners by excluding restitution, but only if they had acquired the property rights before 18 October 1989. On that date Erich Honecker, President of the Council of State (Staatsratsvorsitzender) had resigned. The court stressed that the legislator had decided that in the light of those political events the purchaser of real estate could have no longer had a legitimate expectation that the acquired property rights would remain guaranteed or unaffected. The court held that for those reasons the key date regulation of section 4 § 2 complied with the requirements of Article 14 of the Basic Law, particularly in the light of the legislature’s wide margin of appreciation. Lastly, the court stated that this regulation did not violate the prohibition of discrimination under Article 3 of the Basic Law. The applicant then lodged a constitutional complaint on 24 January 1994. On 23 November 1999 the Federal Constitutional Court held in a pilot judgment that the key date regulation set in section 4 § 2 of the Property Act did not violate Articles 3 and 14 of the Basic Law (see “Relevant domestic law and practice” below). On 1 December 1999 the Federal Constitutional Court refused to admit the applicant’s complaint. It confirmed the reasoning of the Federal Administrative Court, holding that in the light of the aforementioned pilot judgment of 23 November 1999, restitution based on the key date regulation did not violate Articles 3 and 14 of the Basic Law. Furthermore, the court did not find it arbitrary that the Federal Administrative Court had applied the old version of section 4 § 2 of the Property Act. On 30 March 2000 the Land of Berlin made it known that the Federal Ministry of Finances had ordered that compensation for cases such as the present one should be provided by the Compensation Fund (Entschädigungsfonds) which, however, had not yet been established at that time. On 10 May 2000 the applicant lodged his application with the Court. On 19 October 2000 the Land of Berlin reimbursed the purchase price amounting to DEM 29,005 (EUR 14,830). The applicant then brought an action against the Land of Berlin for the payment of interest on arrears. On 18 July 2002 the Administrative Court rejected the applicant’s claim, refusing him leave to appeal on points of law. On 4 July 2003 the Federal Administrative Court rejected the applicant’s complaint against the refusal of leave to appeal on points of law. The applicant did not lodge a constitutional complaint against that decision with the Federal Constitutional Court. Article 3 “(1) All persons shall be equal before the law. ...” Article 14 “(1) Property and the right of inheritance shall be guaranteed. Their subject matter and limits shall be defined by the laws. (2) Property entails obligations. Its use shall also serve the public good. (3) Expropriation shall only be permissible in the public interest. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts.” “Restitution is furthermore excluded if individuals, religious communities (Religionsgemeinschaften) or foundations for public utility (gemeinnützige Stiftungen) acquired in good faith ownership or rights of user in rem over property assets. This does not apply to plots of land and buildings if the legal transaction which resulted in the acquisition took place after 18 October 1989 and should not have been authorised pursuant to section 6 §§ 1 and 2 of the Regulation of the Registration of Claims for Property Assests (Anmeldeverordnung). “ “Restitution is furthermore excluded if individuals, religious communities or foundations for public utility acquired in good faith ownership or rights of user in rem over property assets. This does not apply to plots of land and buildings if the legal transaction, which resulted in the acquisition, took place after 18 October 1989 without the consent of the former owner, unless an application for the acquisition was made in writing or was established on record (aktenkundig angebahnt) before 19 October 1989 the acquisition took place pursuant to section 1 of the Act on the Sale of Buildings in Public Property of 7 March 1990 (...) the acquirer made considerable investments that increased the property’s value or maintained its substance.” This amendment was introduced in the light of the fact that many of the new owners had already applied for the acquisition of real estate before 18 October 1989, but had not been able to complete the legal transaction, because the GDR authorities were unable to process those applications in time. In its judgment the Federal Constitutional Court found that the key date regulation in section 4 § 2 of the Property Act and the restitution of property thereunder did not violate Articles 3 and 14 of the Basic Law. It recalled that the legislator had had to balance the interests of the former owners requesting restitution and the interests of the new owners requesting protection of their acquired rights. It stressed that the legislator had had a wide margin of appreciation when determining that balance. While the Property Act actually favoured the new owners who had acquired the property in good faith, it had been justified to introduce a key date in order to distinguish between those who had exercised their property rights already for a certain time and those who had done so for only a short period. The Federal Constitutional Court found that the resignation of Erich Honnecker as the President of the Council of State on 18 October 1989 had been an adequate point in time to make that distinction. The court also noted that the GDR had already made clear in section 7 of the Regulation of the Registration of Claims for Property Assets of July 1990 that the authorisation procedure had to be renewed (wiederaufgreifen) in cases of acquisitions after 18 October 1989. Hence the new owners in those cases could not have reasonably expected to remain proprietors and their legitimate expectation of remaining proprietors (Vertrauensschutz) did not deserve protection. Section 6 § 1 of the Regulation of the Registration of Claims for Property Assets of 11 July 1990 held that that the authorisation for the purchase of real estate should be denied if the legal transaction concerned real estate that had been put, inter alia, under public administration and if the former owner did not consent to the purchase. Section 6 § 2 stated that pending procedures for the authorisation of purchase of real estate had to be stayed until it was established whether they concerned cases of outstanding property issues. Cases of outstanding property issues were defined, inter alia, as those cases in which real estate had been transferred into public property after it had been put under public administration by an escrow. The same applied to cases in which former owners had lodged claims, inter alia, for restitution. The authorisation could however be granted if the former owner consented to the purchase or if the former owner did not apply for restitution until 13 October 1990. If the authorisation had already been granted, section 7 § 1 provided the following: At the former owner’s request, the authorisation procedure had to be renewed if the acquisition had taken place after 18 October 1989 and if it should not have been authorised pursuant to section 6 §§ 1 and 2.

train

001-58134

ENG

GBR

GRANDCHAMBER

CASE OF BOWMAN v. THE UNITED KINGDOM

Preliminary objection rejected (victim);Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

C. Russo;John Freeland;N. Valticos

10. Mrs Phyllis Bowman was born in 1926 and lives in London. She is the executive director of the Society for the Protection of the Unborn Child (“SPUC”), an organisation of approximately 50,000 members which is opposed to abortion and human embryo experimentation and seeks changes to the present United Kingdom law which permits abortion up to twenty-two weeks and embryo experimentation up to fourteen days. 11. The major political parties have no policies with regard to abortion and embryo experimentation: these are regarded as moral issues and members of Parliament are allowed to vote on proposed legislation according to their consciences. Mrs Bowman and SPUC therefore took the view that, if electors were to be in a position to bring about changes to the law through their choice of representative, it was important for them to be informed of the opinions of candidates standing for election with regard to abortion and related issues. 12. In the period immediately before the parliamentary elections in April 1992, Mrs Bowman therefore arranged to have some one and a half million leaflets distributed in constituencies throughout the United Kingdom, including, in the constituency of Halifax, 25,000 copies of a leaflet which read as follows: “We are not telling you how to vote, but it is essential for you to check on Candidates’ voting intentions on abortion and on the use of the human embryo as a guinea-pig. Terry Martin, Conservative. Mr Martin has publicly declared his firm commitment to defending the unborn child. If elected, he would vote to tighten the grounds for abortion to stop abortion on demand. He would vote to stop abortion after 24 weeks, as the law currently allows abortion up to birth for handicapped babies and on other grounds. Would vote to stop the creation and use of human embryos as guinea-pigs for drug testing. Alison Mahon, Labour. Mrs Mahon is a leading pro-abortionist. As an MP she voted to allow abortion up to birth for handicapped babies. She voted for the compulsory enrolment on a published register of doctors with a conscientious objection to abortion despite warnings that it could be used as a blacklist. She also voted to allow human embryos to be used as guinea-pigs in programmes including the testing of drugs and other experiments. Ian Howell, Liberal Democrat. If elected, Mr Howell would vote for the tightening of the grounds for abortion to stop abortion on demand. He would vote to reduce the time-limit to 24 weeks or less, where the law currently allows abortion up to birth for handicapped babies and on other grounds. He would vote to protect human embryos from being used as guineapigs in research programmes. THE SOCIETY FOR THE PROTECTION OF THE UNBORN CHILD” On the reverse side of the leaflet, together with a picture marked “an unborn baby ten weeks after conception”, was printed: “The First Weeks of Life Day 1: Conception – sperm and ovum meet in fertilisation. Genetic make-up complete. Colour of eyes, hair, sex and even build determined. A unique individual is present in the womb’s fallopian tube. Day 12: Has travelled to the womb and implanted there. Day 17: Development of own blood cells. Day 21: Heart starts to beat. This is at least as dramatic as birth, but far less dramatic than fertilisation. Day 26: Foundation of central nervous system established. Day 30: Regular blood flow within closed vascular system. Ears and nose start to develop. Day 42: Skeleton and reflexes present. Liver, kidneys and lungs formed. Responds to touch around the mouth. Day 45: Electrical brainwave patterns can be recorded. Day 56: All organs functioning except the lungs; the baby only has to grow and mature now, just as a child grows into an adult. Day 65: The baby can make a fist and will grasp an object stroking his palm; leaps up and down in the womb with movements co-ordinated. Week 12: Entire surface of the body sensitive to touch. Week 16: Baby is half birth length; the heart pumps 50 pints of blood daily. Week 28: Eyes open. Baby can hear mother’s digestive processes, heartbeat and her voice, as well as sounds outside her body. 9th Month: Birth – just another stage in an already well-advanced process. From the above it is clear that the baby can feel pain at a very early stage. We are, therefore, destroying babies painfully up to 6 months after conception, and in some cases, such as handicap, up to birth.” 13. Mrs Bowman was charged with an offence under subsections 75(1) and (5) of the Representation of the People Act 1983 (“the 1983 Act”), which prohibits expenditure of more than five pounds sterling (“GBP”) by an unauthorised person during the period before an election on conveying information to electors with a view to promoting or procuring the election of a candidate (see paragraphs 17–19 below). 14. At Mrs Bowman’s trial at Southwark Crown Court on 27 September 1993, the judge directed her acquittal, because the summons charging her with the offence had not been issued within one year of the alleged prohibited expenditure, in accordance with the time-limit stipulated in section 176 of the 1983 Act. The proceedings were, nonetheless, reported in the press. 15. In 1979, Mrs Bowman had been convicted of an offence under similar legislation in respect of a leaflet distributed prior to the Ilford North by-election and in 1982 she had also been convicted in respect of a leaflet distributed during the elections for the European Parliament. On both occasions she was ordered to pay a fine and the prosecution costs. 16. The date of a general election is chosen by the incumbent Prime Minister and is normally announced between four and six weeks before polling day. 17. For electoral purposes the United Kingdom is divided into constituencies. Each constituency is represented by a single member of Parliament, the person who received the greatest number of votes in his or her constituency. Most candidates are selected by the main, national political parties, although some stand as independent. A candidate’s nomination for election must be signed by ten people registered to vote in the constituency. Each candidate must deposit GBP 500 with the constituency returning officer. If he or she does not receive at least 5% of the votes validly cast, this deposit will be forfeited. 18. Parliamentary candidates in the United Kingdom receive no State funding for their campaigns. To safeguard the position of candidates without access to substantial resources, the amount of expenses which may be incurred by a candidate before, during or after an electoral campaign is controlled by statute (1983 Act, section 76). The amount varies slightly depending on the size of the constituency, but the average is currently GBP 8,300. To ensure that this limit is not circumvented, all election expenditure by a candidate must go through an election agent, who is required to submit an account after the election (1983 Act, sections 73, 76 and 81). 19. Under section 75(1) of the 1983 Act, any expenditure incurred to promote the election of a candidate by any person other than the candidate or his or her agent is prohibited: “No expenses shall, with a view to promoting or procuring the election of a candidate at an election, be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent on account – (a) of holding public meetings or organising any public display; or (b) of issuing advertisements, circulars or publications; or (c) of otherwise presenting to the electors the candidate or his views or the extent or nature of his backing or disparaging another candidate, but paragraph (c) of this subsection shall not – (i) restrict the publication of any matter relating to the election in a newspaper or other periodical or in a broadcast made by the British Broadcasting Corporation ... [or the Independent Broadcasting Authority]; (ii) apply to any expenses not exceeding in aggregate the sum of GBP 5.” The words “with a view to promoting or procuring the election of a candidate” in this subsection have been interpreted by the House of Lords to include the intention to prevent the election of a particular candidate or candidates (Director of Public Prosecutions v. Luft [1977] Appeal Cases 962). 20. Mrs Bowman was charged with an offence under section 75(5) of the 1983 Act, which provides: “If a person – (a) incurs, or aids, abets, counsels or procures any other person to incur, any expenses in contravention of [section 75] ... he shall be guilty of a corrupt practice...” 21. The maximum penalty for offences tried on indictment under subsections 75(1) and (5) is one year’s imprisonment and/or a fine up to GBP 5,000. In addition, a person convicted may be disqualified for up to five years from voting in elections, being elected to or sitting in the House of Commons or holding any judicial or public office (1983 Act, sections 160(4), 168(1) and 173). 22. Section 75 is concerned only with expenditure incurred in relation to the election of a particular candidate in a particular constituency. There is nothing to prohibit a political party or wealthy individual or organisation from spending money on publicity in support or opposition to a political party or tendency generally, at national or regional level, provided that there is no intention to promote or prejudice the electoral chances of any particular candidate in any particular constituency (see R. v. Tronoh Mines [1952] 1 All England Reports 697). Nor are there any restrictions on private donations to political parties or on the powers of the press to support or oppose the election of any particular candidate (see 1983 Act, section 75(1)(c)(i) – paragraph 19 above).

train

001-23109

ENG

FIN

ADMISSIBILITY

USKI v. FINLAND

Inadmissible

Elisabeth Palm

The applicant, Mr Jorma Uski, is a Finnish national, who was born in 1949 and lives in Jyväskylä. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1988 the applicant and another man, A., intended to found a real estate company K. They bought two pieces of property and signed the purchase deeds on behalf of K. The applicant owned 8/30 parts of the shares of K. and A. owned 22/30 parts of them. In December 1988 the applicant sold his shares to his female friend T. Later the foundation of K. elapsed as the applicant and A. had failed to apply for its registration within the relevant time-limit. Their application concerning the registration to the Land Registry of the real estates on behalf of K. was refused as K. had never been registered as a company within the meaning of the Companies’ Act. Some years later the applicant failed to pay a loan he had guaranteed on behalf of K. The Bailiff ordered that the above-mentioned real estates be sold in a forced auction in September 1995. The applicant objected to this and informed the Bailiff that he did not own any of the real estates as he had sold his shares of K. to T. already in 1988. The applicant’s appeal against the Bailiff’s decision was not examined by the County Administrative Board as the applicant was not found to be a party to the proceedings as he had not owned the real estates. It was found that it was only the actual owner who had the sole competence to make such an allegation (T. had not appealed against the Bailiff’s decision). Insofar as A.’s part of the shares was concerned, the Board found that A. had not been informed of the Bailiff’s decision. The relevant time-limit for appeal was returned to A. On 15 August 1997 the County Administrative Board ordered the forced auction to be adjourned until it had examined A.’s appeal. In the meantime, it ordered that A. should institute proceedings before the local District Court in order to establish the real owners of the real estates. He was also requested to inform the Board of the outcome of such proceedings if he wished to continue the examination of his appeal before the Board. On 12 May 1998 A. and K. instituted civil proceedings against the applicant, a bank, and various other parties, requesting the District Court to confirm that the real estates were owned by K., that A. owned 22/30 parts of K., and that T. owned 8/30 parts of it. They argued that the Bailiff’s decision to seizure the real estates and to order them to be auctioned in order to pay the applicant’s debts was illegal as the applicant was not an owner any more. They, thus, requested that the seizure be quashed by the District Court. On 18 June 1998 the District Court dismissed the case insofar as it concerned the claims instituted by K., finding that the case was based on the County Administrative Court’s decision of 15 August 1997 in which A.’s appeal had not been examined insofar as it concerned T.’s possible ownership of the shares as T. (nor K.) had not appealed against the Bailiff’s decision herself. It considered that the Board’s decision only concerned the question whether A.’s ownership was to be confirmed and that it, thus, lacked competence to examine the case any further in that respect. It adjourned the case insofar as A.’s ownership was at issue. K. appealed against the District Court’s decision to the Court of Appeal which upheld the District Court’s decision on 31 May 1999. Both T. and the applicant sought leave to appeal from the Supreme Court even though it was only K. who had appealed against the District Court’s decision to the Court of Appeal. On 2 May 2000 the Supreme Court refused the applicant and T. leave to appeal. On 4 November 1998 the District Court issued a judgment by default in respect of the rest of the case, i.e. in respect of A.’s ownership of the real estates. It confirmed that A. owned 22/30 parts of each of the two real estates as he had owned 22/30 parts of K.’s shares and as the foundation of K. had elapsed, in which occasion the assets of K. were returned to the owners of its shares. The District Court having confirmed that A. owned 22/30 parts of the real estates at issue, the Bailiff rectified, on 18 December 1998, his own earlier seizure decision and ordered that only 8/30 parts of the real estates were to be seized and auctioned (i.e. he annulled the decision only insofar as A.’s property was concerned). As T. had failed to institute any proceedings within the relevant time-limit to have her ownership to the rest of the real estates confirmed, and as no-one else had instituted such proceedings either, the seizure decision concerning the 8/30 parts of the real estates stayed unchanged. The applicant, A. and T. all appealed to the District Court against the Bailiff’s decision concerning the seizure of the 8/30 parts of the real estates. The applicant’s and A.’s appeals were dismissed as they were not found to be affected by the decision which concerned seizure of T.’s property. T.’s appeal was dismissed by the District Court on 9 April 1999 because the Bailiff’s decision of 18 December 1998 had concerned only the rectification of his earlier decision in respect of the part of the real estate owned by A. and as there is no appeal against a decision not to rectify a decision (i.e. no new decision had been issued in this respect and the decision of September 1995, against which T. had failed to appeal within the relevant time-limit, was still valid). The applicant, A. and T. appealed against the District Court’s decision to the Court of Appeal which, on 2 July 1999, upheld the District Court’s decision. On 11 February 2000 the Supreme Court refused all the parties leave to appeal. In the meantime, on 18 April 1999, the applicant, A. and T. all requested from the Court of Appeal that the forced auction, which was planned to be held on 14 May 1999, be cancelled until the Court of Appeal had examined their appeal against the District Court’s decision of 9 April 1999. The applicant, among others, argued that the auction would be illegal and claimed that the County Administrative Board had adjourned the enforcement of the seizure decision until the question of the ownership had been legally decided and until the parties had informed the Board, within three months’ time-limit, of that decision. This request was refused by the Court of Appeal on 26 April 1999. It found that an auction which had already been announced publicly could only be cancelled if there were exceptional reasons for such a cancellation and if the person seeking for such a cancellation had paid a full guarantee of the auction expenses. As the applicant and his counterparts had not submitted any such exceptional reasons to their request nor paid the guarantee, the Court of Appeal could not accept their appeal. On 5 May 1999 the Supreme Court refused the parties leave to appeal. Their later request to re-open the proceedings was rejected by the Supreme Court on 24 May 1999. The 8/30 parts of the real estates were sold in an forced auction on 14 May 1999. The applicant, A. and T. all complained about the enforcement of the forced auction to the District Court. They argued, inter alia, that the County Administrative Board had ordered on 15 August 1997 that the forced auction shall be adjourned until the Board had examined A.’s appeal after the final decision had been issued in the proceedings concerning the ownership of the real estates. As those proceedings had not yet ended at the time of the forced auction, the auction was to be considered illegal and should, thus, be annulled. The applicant also claimed that the District Court judge was biased as he had participated also in the proceedings concerning the applicant’s earlier appeals in respect of the same seizure of the same real estates. On 16 July 1999 the District Court rejected the applicant’s and the other parties’ complaints. It found that the final decision concerning the ownership proceedings had been issued on 4 November 1998 when the District Court had issued a judgment by default. The Bailiff had informed the County Administrative Court orally about the decision. As the County Administrative Board had found no reason to a further adjournment of the auction after having received that information, the District Court found the complaint manifestly ill-founded. The applicant, A. and T. appealed against the District Court’s decision to the Court of Appeal which, on 23 December 1999, upheld the District Court’s decision. It found that, even though the County Administrative Board’s decision would have been needed in order to continue the seizure which had been adjourned by the County Administrative Board, it was important to note that the real estates had in fact been auctioned also in order to pay the debts of A. That payment was, however, based only on the Bailiff’s later seizure decision of 12 November 1998 which had not been appealed against. Thus, there was no need for the protection of A.’s legal rights in respect of the earlier seizure as the question was to be regarded only of theoretical interest. Insofar as the other part of the real estates was auctioned, the Court of Appeal noted that T.’s ownership had never been confirmed by a court and that, thus, that part could be auctioned in order to pay the applicant’s debts. On 21 December 2000 the Supreme Court refused the applicant leave to appeal. In 1999 the applicant, A. and T. requested the police to investigate whether the Bailiff, the County Administrative Board and various other authorities had committed an offence when allowing the auction to take place even though the Board’s decision of adjourning the enforcement proceedings had still been valid. Having received the relevant police report the local public prosecutor decided, on 6 July 1999, not to institute criminal proceedings against anyone as he found that the Board’s decision had not been valid any more (as the Bailiff had informed the Board within the relevant time-limit of the final court decision concerning the ownership proceedings) and that no offence had been committed by any of the relevant authorities involved. The applicant has since submitted numerous complaints to various authorities, including, inter alia, the Parliamentary Ombudsman, the Chancellor of Justice, the Finnish President and the Minister of Justice. None of these complaints has been successful, no more than the applicant’s efforts to institute criminal proceedings against persons involved in the decision-making in some of these complaint proceedings.

train

001-87404

ENG

HUN

CHAMBER

CASE OF VAJNAI v. HUNGARY

Violation of Art. 10;Non-pecuniary damage - finding of a violation sufficient

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

5. The applicant was born in 1963 and lives in Budapest. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 21 February 2003 the applicant, at the material time Vice-President of the Workers’ Party (Munkáspárt) – a registered left-wing political party – was a speaker at a lawful demonstration in the centre of Budapest. The demonstration took place at the former location of a statue of Karl Marx, which had been removed by the authorities. On his jacket, the applicant wore a five-pointed red star (hereinafter “the red star”), 5 cm in diameter, as a symbol of the international workers’ movement. In application of Article 269/B § 1 of the Criminal Code, a police patrol which was present called on the applicant to remove the star, which he did. 7. Subsequently, criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public. He was questioned as a suspect on 10 March 2003. 8. On 11 March 2004 the Pest Central District Court convicted the applicant of the offence of using a totalitarian symbol. It refrained from imposing a sanction for a probationary period of one year. 9. The applicant appealed to the Budapest Regional Court (Fővárosi Bíróság). 10. On 24 June 2004 that court decided to stay the proceedings and to refer the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling under Article 234 of the Treaty establishing the European Community. The reference – received at the CJEU on 28 July 2004 – concerned the interpretation of the principle of non-discrimination as a fundamental principle of Community law. 11. In its order for reference, the Regional Court observed that in several member States of the European Union, such as the Italian Republic, the symbol of left-wing parties is the red star or the hammer and sickle. Therefore, the question arose whether a provision in one member State of the European Union prohibiting the use of the symbols of the international labour movement on pain of criminal prosecution was discriminatory, when such a display in another member State did not give rise to any sanction. 12. On 6 October 2005 the CJEU declared that it had no jurisdiction to answer the question referred by the Regional Court. The relevant part of the reasoning reads as follows: “11. By its question, the national court asks, essentially, whether the principle of non-discrimination, Article 6 EU, Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, p. 22) or Articles 10, 11 and 12 of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ C 364, p. 1), preclude a national provision, such as Article 269/B of the Hungarian Criminal Code, which imposes sanctions on the use in public of the symbol in question in the main proceedings. ... 13. By contrast, the Court has no such jurisdiction with regard to national provisions outside the scope of Community law and when the subject matter of the dispute is not connected in any way with any of the situations contemplated by the treaties (see Kremzow, paragraphs 15 and 16). 14. It is clear that Mr Vajnai’s situation is not connected in any way with any of the situations contemplated by the provisions of the treaties and the Hungarian provisions applied in the main proceedings are outside the scope of Community law. 15. In those circumstances, it must be held, on the basis of Article 92 § 1 of the Rules of Procedure, that the Court clearly has no jurisdiction to answer the question referred by the Fővárosi Bíróság.” 13. On 16 November 2005 the Budapest Regional Court upheld the applicant’s conviction. 14. The Constitution of Hungary provides, in its relevant part, as follows: “1. The Republic of Hungary is an independent and democratic State under the rule of law ... 3. No one’s activity shall aim at the violent acquisition or exercise of power or at its exclusive possession ...” “1. In the Republic of Hungary everyone has the right to freely express his opinion, and, furthermore, to have access to and distribute information of public interest.” 15. The Criminal Code, as in force at the material time, provided, in so far as relevant, as follows: “1. In case of a misdemeanour (vétség) or a felony (bűntett) punishable by imprisonment of up to a maximum of three years, the court may postpone the imposition of a sentence for a probationary period if it can be presumed with good reason that the aim of the punishment may be just as well attained in this manner.” “2. The probation shall be terminated and a punishment shall be imposed if ... the person on probation is convicted of an offence committed during the probationary period ...” “1. A person who commits an action whose direct objective is to change the constitutional order of the Republic of Hungary by means of violence or by threatening violence – in particular, using armed force – commits a felony ...” “A person who incites, before a wider public, to hatred against (a) the Hungarian nation, or (b) a national, ethnic, racial or religious community or certain groups of the population ... commits a felony ...” “1. A person who (a) disseminates, (b) uses in public, or (c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle and hammer or a red star, or a symbol depicting any of them, commits a misdemeanour – unless a more serious crime is committed – and shall be sentenced to a criminal fine (pénzbüntetés). 2. The conduct proscribed under paragraph 1 is not punishable, if it is done for the purposes of education, science, art or in order to provide information about history or contemporary events. 3. Paragraphs 1 and 2 do not apply to the insignia of States which are in force.” 16. The Code of Criminal Procedure provides as follows: “1. Review proceedings may be instituted in favour of the defendant if: ... (b) a human rights institution set up by an international treaty has established that the conduct of the proceedings or the final decision of the court has violated a provision of an international treaty promulgated by an act, provided that the Republic of Hungary has acknowledged the jurisdiction of the international human rights organisation and that the violation can be remedied through review.” 17. Decision no. 14/2000 (V. 12.) of the Constitutional Court, dealing with the constitutionality of Article 269/B of the Criminal Code, contains the following passages: “... [N]ot only do such totalitarian symbols represent the totalitarian regimes known to and suffered by the general public, but it has from the very beginning been reflected in the legislation of the Republic of Hungary that the unlawful acts committed by such regimes should be addressed together ... The Constitutional Court has expressly confirmed in its decisions ... that no constitutional concern may be raised against the equal assessment and joint regulation of such totalitarian regimes ... In the decades before the democratic transformation, only the dissemination of Fascist and arrow-cross symbols had been prosecuted ... At the same time, resulting reasonably from the nature of the political regime, the use of symbols representing communist ideas had not been punished; on the contrary, they were protected by criminal law. In this respect, the Act does, indeed, eliminate the former unjustified distinction made in respect of totalitarian symbols ... The Convention (of the European Court of Human Rights) affords States a wide margin of appreciation in assessing what can be seen as an interference which is ‘necessary in a democratic society’ (Barfod, 1989; markt intern, 1989; Chorherr, 1993; Casado Coca, 1994; Jacubowski, 1994). ... In several of its early decisions, the Constitutional Court included the historical situation as a relevant factor in the scope of constitutional review ... In its decisions so far, the Constitutional Court has consistently assessed the historical circumstances (most often, the end of the [previous] regime) by acknowledging that such circumstances may necessitate some restriction on fundamental rights, but it has never accepted any derogation from the requirements of constitutionality on the basis of the mere fact that the political regime has been changed ... The Constitutional Court points out that even the practice of the European Court of Human Rights takes into account the specific historical past and present of the respondent State when it assesses the legitimate aim and necessity of restricting freedom of expression. In the case of Rekvényi v. Hungary concerning the restriction of the political activities and the freedom of political debate of police officers, the Court passed its judgment on 20 May 1999 stating that ‘the objective that the critical position of the police in society should not be compromised as a result of weakening the political neutrality of its members is an objective that can be accepted in line with democratic principles. This objective has special historical significance in Hungary due to the former totalitarian system of the country where the State relied greatly on the direct commitment of the police forces to the ruling party’ ... In the practice of the Constitutional Court, conduct endangering public order and offending the dignity of communities may be subject to criminal-law protection if it is not directed against an expressly defined particular person; theoretically, there is no other – less severe – tool available to achieve the desired objective than criminal sanction ... To be a democracy under the rule of law is closely related to maintaining and operating the constitutional order ... The Constitution is not neutral as regards values; [on the contrary,] it has its own set of values. Expressing opinions inconsistent with constitutional values is not protected by Article 61 of the Constitution ... The Constitution belongs to a democratic State under the rule of law and, therefore, the constitution-making power has considered democracy, pluralism and human dignity constitutional values worth protecting; at the same time, it makes unconstitutional any activity directed at the forcible acquisition or exercise of public power, or at the exclusive possession thereof (Article 2 § 3). Article 269/B orders the punishment of distributing, using in front of a large public gathering and exhibiting in public symbols that were used by political dictatorial regimes; such regimes committed unlawful acts en masse and violated fundamental human rights. All of these symbols represent the despotism of the State, symbolise negative political ideas realised throughout the history of Hungary in the twentieth century, and are expressly prohibited by Article 2 § 3 of the Constitution, which imposes upon everyone the obligation to resist such activities ... Using the symbols in the way prohibited by Article 269/B of the Criminal Code can cause a reasonable feeling of menace or fear based on the concrete experience of people – including their various communities – who suffered injury in the past, as such symbols represent the risk of having such inhuman acts repeated in connection with the totalitarian ideas concerned. In the opinion of the Constitutional Court, if – in addition to the subject thus protected by criminal law – the protection of other constitutional values cannot be achieved by other means, criminal-law protection itself is not considered to be disproportionate, provided that it is necessary to have protection against the use of such symbols. Whether or not it is necessary to have such protection in a democratic society depends on the nature of the restriction, its social and historical context, and its impact on the persons affected. Based on the above, in the present case, the statute under review serves the purpose of protecting other constitutional values in addition to the protected subject defined in criminal law. Such values are the democratic nature of the State under the rule of law mentioned in Article 2 § 1 of the Constitution, the prohibition defined in Article 2 § 3, as well as the requirement specified in Article 70/A of the Constitution, stating that all people shall be treated by the law as persons of equal dignity ... Allowing an unrestricted, open and public use of the symbols concerned would, in the present historical situation, seriously offend all persons committed to democracy who respect the human dignity of persons and thus condemn the ideologies of hatred and aggression, and would offend in particular those who were persecuted by Nazism and communism. In Hungary, the memories of both ideologies represented by the prohibited symbols, as well as the sins committed under these symbols, are still alive in the public mind and in the communities of those who have survived persecution; these things are not forgotten. The individuals who suffered severely and their relatives live among us. The use of such symbols recalls the recent past, together with the threats of that time, the inhuman sufferings, the deportations and the deadly ideologies. In the opinion of the Constitutional Court, it is indeed a measure with a view to the protection of democratic society – and therefore not unconstitutional – if, in the present historical situation, the State prohibits certain conduct contrary to democracy, connected to the use of the particular symbols of totalitarian regimes, their dissemination, their use in front of a large public gathering, and a public exhibition ... The constitutional assessment and evaluation of criminally sanctioning separate violations of the values protected by the law – namely, public order and the dignity of communities committed to the values of democracy – could possibly result in a different conclusion; however, since the use of totalitarian symbols violates both values jointly and simultaneously, there is a cumulative and synergic effect reinforced by the present-day impact of recent historical events. The Constitutional Court holds that the historical experience of Hungary and the danger to the constitutional values threatening Hungarian society reflected in the potential publicly to demonstrate activities based on the ideologies of former regimes, convincingly, objectively and reasonably justify the prohibition of such activities and the use of the criminal law to combat them. The restriction on freedom of expression found in Article 269/B § 1 of the Criminal Code, in the light of the historical background, is considered to be a response to a pressing social need. According to the Constitutional Court, in the present historical situation, there is no effective legal tool other than the tools of criminal law and penal sanction (ultima ratio) against the use of the symbols specified in Article 269/B § 1; the subjects committing the crime and, in particular, the three specific types of conduct in committing the crime, require restriction for the protection of the aims represented by the constitutional values. In another country with a similar historical experience, the Criminal Code also deems it an offence, endangering the democratic State under the rule of law, to use the symbols (flags, badges, uniforms, slogans and forms of greeting) of unconstitutional organisations [Strafgesetzbuch (StGB) vom 15. Mai 1871 (RGBl. S. 127) in der Fassung der Bekanntmachung vom 13. November 1998 (BGBl. I, 3322) § 86a.] ... It is not prohibited by the law to produce, acquire, keep, import, export or even use such symbols provided it is not done in front of a large public gathering. There are only three specific types of conduct mentioned in the law as being contrary to the values of the democratic State under the rule of law (distribution, use in front of a large public gathering and public exhibition), because of the tendency of such conduct not only to ‘insult or cause amazement or anxiety’ to the public, but also to create express fear or menace by reflecting an identification with the detested ideologies and an intention to propagate openly such ideologies. Such conduct can offend the whole of democratic society, especially the human dignity of major groups and communities which suffered from the most severe crimes committed in the name of both ideologies represented by the prohibited symbols. ... On the basis of the above, in the opinion of the Constitutional Court, the restriction specified in Article 269/B § 1 of the Criminal Code is not disproportionate to the weight of the protected objectives, while the scope and the sanction of the restriction is qualified as the least severe potential tool. Therefore, the restriction of the fundamental right defined in the given provision of the Criminal Code is in compliance with the requirement of proportionality ...”

train

001-60477

ENG

AUT

CHAMBER

CASE OF W.F. v. AUSTRIA

Violation of P7-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

Georg Ress

9. On 21 May 1995 the applicant was involved in a road traffic accident and, on 19 October 1995, he was found by the Braunau District Administrative Authority (Bezirkshauptmannschaft) to have been driving under the influence of alcohol, contrary to sections 5 § 1 and 99 § 1 (a) of the Road Traffic Act 1960 (Straßenverkehrsordnung). He was sentenced to pay a fine of ATS 14,000.00. It does not appear that the applicant appealed against this decision. 10. On 1 August 1996 the Mattighofen District Court convicted him under Article 88 §§ 1 and 3 of the Penal Code of negligently causing bodily harm in particularly dangerous conditions (fahrlässige Körperverletzung unter besonders gefährlichen Verhältnissen), and sentenced him to a fine of ATS 8,000.00. 11. On 2 June 1997 the Ried Regional Court dismissed the applicant’s appeal. The Regional Court distinguished the present case from the Gradinger case of the European Court of Human Rights (Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C) on the ground that in the Gradinger case the administrative proceedings were after the criminal proceedings, whereas in the present case the order of the criminal and administrative criminal proceedings was reversed. 12. Section 5 of the Road Traffic Act 1960 provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. 13. Section 99 of the 1960 Act provides, so far as relevant, that: “(1) It shall be an administrative offence (Verwaltungsűbertretung), punishable with a fine of not less than ATS 8,000 and not more than ATS 50,000 or, in default of payment, with one to six weeks’ imprisonment, for any person: (a) to drive a vehicle when under the influence of drink ...” 14. Section 99 § 6 of the Road Traffic Act regulates the relation between the offences under section 99 §§ 1-5 of that Act and offences of ordinary criminal law coming within the jurisdiction of the ordinary courts. While in respect of some offences under the Road Traffic Act Section 99 of that Act stipulates a relation of subsidiarity – if the same set of facts might constitute an offence of ordinary criminal law and the Roads Traffic Act only an offence falling within the jurisdiction of the ordinary courts is committed – this is not the case with the offence under the Road Traffic Act of driving a vehicle under the influence of drink. 15. In its judgment of 5 December 1996 the Constitutional Court had to examine the constitutionality of Section 99 subsection (6)(c) of the Road Traffic Act, by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts. The Constitutional Court noted that that it was not contrary to Article 4 of Protocol No. 7 if a single act constituted more than one offence. This was a feature common to the criminal law of many European countries. However, it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute more than one offence, whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment. Thus, Article 4 of Protocol No. 7 prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other. Where, as in the present case, the law explicitly provided that one offence was not subsidiary to another, it had to be guided by Article 4 of Protocol No. 7. The Court’s Gradinger judgment of 23 October 1995 had shown that there was a breach of this Article if an essential aspect of an offence, which had already been tried by the courts, was tried again by the administrative authorities. Section 99 subsections (1)(a) and (6)(c) of the Road Traffic Act, taken together, meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent. According to the criminal courts’ constant case-law under Article 81 § 2 of the Criminal Code (cited below), drunken driving was also an essential aspect of certain offences tried by these courts. In so far as section 99 (6)(c) of the Road Traffic Act limited the subsidiarity of administrative offences to those enumerated in subsections (2) to (4) of Section 99, thus excluding subsidiarity for the offence of drunken driving contained in section 99 (1)(a), it violated Article 4 of Protocol No. 7. 16. Under Article 88 § 1 of the Criminal Code, it is an offence, punishable by up to three months’ imprisonment or a fine, to cause physical injury by negligence. 17. Section 88 § 3 increases the sentence in respect of causing injury by up to six months’ imprisonment , if the special circumstances of Section 81 § 2 apply. Section 88 § 4 increases the sentence in respect of causing injury by up to two years’ imprisonment, if the special circumstances of Section 81 § 2 apply and the injury is particularly serious. 18. Section 81 § 2 applies where a person commits the offence “after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, ...”. 19. Under an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be “intoxicated” for the purposes of section 81 § 2.

train

001-95054

ENG

UKR

CHAMBER

CASE OF SOLOMATIN v. UKRAINE

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

Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

4. The applicant was born in 1979 and lives in the city of Kyiv, Ukraine. 5. The applicant is a former military serviceman. In October 2001 he was transferred to the reserve. 6. On an unspecified date the applicant instituted proceedings in the Tsentralno-Gorodskoy District Court of Gorlovka (“the court”) against the Tsentralno-Gorodskoy District Military Enlistment Office of Gorlovka (“the enlistment office”) claiming payment of a single-payment allowance due to him, compensation for non-pecuniary damage and 51 Ukrainian hryvnias (UAH) in compensation for the court fees. 7. While the proceedings were still pending, the enlistment office paid the allowance. Therefore, the applicant withdrew his claims regarding payment of the allowance and compensation for non-pecuniary damage. 8. On 24 April 2003 the court awarded the applicant UAH 51 in compensation for the court fees, to be paid by the enlistment office. The judgment was not appealed against and became final. 9. On an unspecified date the Tsentralno-Gorodskoy District Bailiffs' Service of Gorlovka (“the Bailiffs' Service”) initiated enforcement proceedings in respect of that judgment. 10. On 15 July 2003 the Bailiffs' Service suspended enforcement proceedings since the court had not indicated the debtor's account in the enforcement writ. 11. Later the enlistment office was closed down. The latter's debts were transferred to its successor, the Gorlovsky City Enlistment Office. On 4 May 2006 the court granted the applicant's request and changed the debtor in the enforcement proceedings. The applicant re-lodged the enforcement writ with the Bailiffs' Service. 12. The judgment remains unenforced. 13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).

train

001-60751

ENG

ITA

CHAMBER

CASE OF LUCIANO ROSSI v. ITALY

Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

Christos Rozakis

8. The applicant was born in 1947 and lives in Florence. 9. The applicant is the owner of a flat in Florence, which he had let to A.R. 10. In a registered letter of 4 November 1985, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 30 June 1987 and asked her to vacate the premises by that date. 11. In a writ served on the tenant on 13 January 1987, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. 12. By a decision of 19 January 1987, which was made enforceable on 4 February 1987, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1988. 13. On 18 March 1989, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. 14. On 21 June 1989, the applicant served notice on the tenant requiring her to vacate the premises. 15. On 7 August 1989 he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 28 August 1989. 16. Between 18 September 1989 and 4 July 1996 the bailiff made 15 attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 17. On 18 September 1996, the applicant recovered possession of his flat. 18. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.

train

001-109091

ENG

LTU

CHAMBER

CASE OF D.D. v. LITHUANIA

Preliminary objection dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-3 - Abuse of the right of petition);Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

6. The applicant was born in 1963 and currently lives in the Kėdainiai Social Care Home (hereinafter “the Kėdainiai Home”) for individuals with general learning disabilities. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. The applicant has had a history of mental disorder since 1979, when she experienced shock having discovered that she was an adopted child. She is classed as Category 2 disabled. 9. In 1980, the applicant was diagnosed with schizophrenia simplex. In 1984 she was diagnosed with circular schizophrenia. In 1999, the applicant was diagnosed with paranoid schizophrenia with a predictable course. She has been treated in psychiatric hospitals more than twenty times. During her most recent hospitalisation at Kaunas Psychiatric Hospital in 2004, she was diagnosed with continuous paranoid schizophrenia (paranoidinė šizofrenija, nepertraukiama eiga). The diagnosis of the applicant remains unchanged. 10. In 2000 the applicant’s adoptive father applied to the Kaunas City District Court to have the applicant declared legally incapacitated. The court ordered a forensic examination of the applicant’s mental status. 11. In their report (no. 185/2000 of 19 July 2000), the forensic experts concluded that the applicant was suffering from “episodic paranoid schizophrenia with a predictable course” (šizofrenija/paranoidinė forma, epizodinė liga su prognozuojančiu defektu) and that she was not able “to understand the nature of her actions or to control them”. The experts noted that the applicant knew of her adoptive father’s application to the court for her incapacitation and wrote that she “did not oppose it”. The experts also wrote that the applicant’s participation in the court hearing for incapacitation was “unnecessary”. 12. On 15 September 2000 the Kaunas City District Court granted the request by the applicant’s adoptive father and declared the applicant legally incapacitated. In a one-page ruling, the court relied on medical expert report no. 185/2000. Neither the applicant nor her adoptive father was present at the hearing. The Social Services Department of the Kaunas City Council was represented before the court. 13. On 17 May 2001 the applicant’s adoptive father requested her admission to the Kėdainiai Home for individuals with general learning disabilities. The applicant’s name was put on a waiting list. 14. On 13 August 2002 the Kaunas City District Court appointed D.G., the applicant’s psychiatrist at the Kaunas out-patient health centre (Kauno Centro Poliklinika), as her legal guardian. The applicant was present at the hearing. Her adoptive father submitted that “he himself did not agree with being appointed her guardian because he was in disagreement with his daughter (jis pats nepageidauja būti globėju, nes su dukra nesutaria)”. Nonetheless, he promised to take care of her in future and to help her financially. 15. By a decision of 24 March 2003, the director of the health care centre dismissed D.G. from her work for a serious violation of her working duties. The decision was based on numerous reports submitted by D.G.’s colleagues and superiors. 16. On 16 July 2003 D.G. wrote to the Kaunas City District Court asking that she be relieved of her duties as the applicant’s guardian. She mentioned that she had only agreed to become the applicant’s guardian because she had observed a strained relationship between the applicant and her adoptive father. However, D.G. claimed that the applicant’s adoptive father had asked her to hand over the applicant’s pension to him, even though the applicant had been receiving her pension and had been using the money perfectly well on her own for many years. D.G. also contended that the applicant’s adoptive father had attempted to unlawfully appropriate the applicant’s property. 17. On 1 October 2003 the Kaunas City District Court relieved D.G. of her duties as the applicant’s guardian at her own request. In court D.G. had argued that as she was litigating for unlawful dismissal she could not take proper care of the applicant. 18. By letter of 9 December 2003, the Kaunas City Social Services Department suggested to the district court that the applicant’s adoptive father be appointed her guardian, although the Department noted that relations between the two of them were tense. 19. On 21 January 2004 the Kaunas City District Court appointed the applicant’s adoptive father as her legal guardian. The court relied on the request by the Kaunas City Council Department of Health, which was represented at the hearing. The applicant’s adoptive father did not object to the appointment. The applicant was not present at the hearing. 20. Upon the initiative and consent of the applicant’s adoptive father, on 30 June 2004 the applicant was taken to the Kaunas Psychiatric Hospital for treatment. The applicant complained that she had been treated against her will. A letter by the hospital indicates that the applicant’s adoptive father had asked the hospital staff to ensure that her contacts with D.G. were limited on the ground that the latter had had a negative influence on the applicant. However, on 3 September 2004 the prosecutor for the Kaunas City District dismissed the applicant’s allegations, finding that she had been hospitalised due to deterioration in her mental state upon the order of her psychiatrist. The applicant had also expressed her consent to being treated. 21. On 8 July 2004 a panel designated by Kaunas City Council to examine cases of admission to residential psychiatric care (Kauno miesto savivaldybės asmenų su proto negalia siuntimo į stacionarias globos įstaigas komisija) adopted a unanimous decision to admit the applicant to the Kėdainiai Home. 22. On 20 July 2004 a medical panel of the Kaunas Psychiatric Hospital concluded that the applicant was suffering from “continuous paranoid schizophrenia” (paranoidinė šizofrenija nepertraukiama eiga). The commission also stated that it would be appropriate for the applicant to “live in a social care institution for the mentally handicapped”. 23. On 28 July 2004 a social worker examined the conditions in which the applicant lived in her apartment in Kaunas city. The report reads that “the applicant is not able to take care of herself, does not understand the value of money, does not clean her apartment, is not able to cook on her own and wanders in the city hungry. Sometimes the applicant gets angry at people and shouts at them without a reason; her behaviour is unpredictable. The applicant does not have bad habits and likes to be in other persons’ company”. The social worker recommended that the applicant be placed in a social care institution because her adoptive father could not “manage” her. 24. On 2 August 2004 an agreement was concluded between the Kėdainiai Home, the Guardianship Department of Kaunas City Council and the Social Services Department of the Kaunas Regional Administration. On the basis of that agreement, the applicant was transferred from the Kaunas Psychiatric Hospital to the Kėdainiai Home, where she continued her treatment. 25. On 6 October 2004 the applicant signed a document stating that she agreed to be examined by the doctors in the Kėdainiai Home and to be treated there. 26. On 10 August 2004 the applicant’s adoptive father wrote to the director of the Kėdainiai Home with a request that during the applicant’s settling into the Kėdainiai Home she should be temporarily restricted from receiving visits by other people. The director granted the request. Subsequently, the Kaunas District Administration upheld the director’s decision on the ground that the latter was responsible for the safety of patients in the Kėdainiai Home and thus was in a better position to determine what steps were necessary. 27. On 18 August 2004, upon the decision of the Kėdainiai Home director, D.G. was not allowed to visit the applicant. The applicant’s medical record, which a treating psychiatrist signed the following day, states that “[the applicant] is acclimatising at the institution with difficulties, as her former guardian and former doctor [D.G.] keeps calling constantly and telling painful matters from the past (...) [the applicant] is crying and blaming herself for being not good, for not preserving her mother, for having lived improperly. Verbal correction is not effective”. 28. According to a document signed by Margarita Buržinskienė on 23 February 2005, she had called the Kėdainiai Home to speak to the applicant but the employees had told her that, on the director’s orders, the applicant was not allowed to answer the phone (vykdant direktorės nurodymą Daivos prie telefono nekviečia). 29. On 15 June 2006 the applicant’s adoptive father removed her from institutional care and taken her to his flat. On 15 July 2006 the applicant left his home on her own. A police investigation was started following a report by the applicant’s adoptive father of the allegedly unlawful deprivation of the applicant’s liberty. She was eventually found and apprehended by the police on 31 October 2006, and was taken back to the Kėdainiai Home. 30. On 6 September 2007 the applicant left the Kėdainiai Home without informing its management. She was found by the police and taken back to the institution on 9 October 2007. 31. As can be seen from a copy of the record of the Kėdainiai Home’s visitors submitted by the Government, between 2 August 2004 and 25 December 2006 the applicant received one or more visitors on forty-two separate occasions. In particular, her adoptive father saw her thirteen times, her friends and other relatives visited her twenty-six times and she was visited by D.G. on twelve occasions. 32. On 15 July 2004 the applicant asked the Kaunas Psychiatric Hospital to initiate a change of guardianship from her adoptive father to D.G. The applicant wrote that her adoptive father had had her admitted to the psychiatric hospital by force and deception, thus depriving her of her liberty. The hospital refused her request as it did not have competence in guardianship matters. 33. The applicant states that a similar request was rejected by the Kėdainiai Home. 34. On 2 September 2005, assisted by her former guardian and then friend, D.G., the applicant brought an application before the courts, requesting that the guardianship proceedings be reopened and a new guardian appointed. She submitted that she had been unable to state her opinion as to her guardianship, because she had not been informed of and summoned to the court hearing during which her adoptive father had been appointed her guardian. The applicant relied on Article 507 § 3 of the Code of Civil Procedure and stated that her state of health in the previous year could not have been an obstacle to her expressing her opinion as to the appropriateness of the guardian proposed at the court hearing. She claimed that in 2004 she had used to visit her friend in a village for a couple of weeks at a time. The applicant also noted that when she returned to Kaunas, her adoptive father had often threatened to have her committed to a mental asylum. 35. The applicant also argued that by appointing her adoptive father to be her guardian without informing her and without her being able to state her opinion as to his prospective appointment, in contravention of Article 3.242 of the Civil Code and Article 507 § 4 of the Code of Civil Procedure, the court had disregarded the strained relationship between the two of them. The applicant drew the court’s attention to the ruling of the Kaunas City District Court of 13 August 2002, in which the applicant’s adoptive father had himself stated that their relationship had been tense. The applicant drew the court’s attention to Article 491 § 2 of the Code of Civil Procedure, stipulating that the court had to take all necessary measures to avoid a possible conflict between the incapacitated person and her potential guardian. Lastly, she stated that she had only learned of her adoptive father’s appointment in April 2004. 36. By a ruling of 29 September 2005 the Kaunas City District Court decided to accept the applicant’s request for examination. 37. On 27 October 2005 the applicant wrote to the Chairman of the Kaunas City District Court. She complained of her incapacitation on her adoptive father’s devious initiative without having being informed of the incapacitation proceedings. The applicant also pleaded that she had been unlawfully deprived of her liberty and involuntarily admitted to the Kėdainiai Home for an indefinite time and where she had been unable to obtain legal aid. 38. On 7 November 2005 judge R.A. of the Kaunas City District Court held a closed hearing in which the applicant, her guardian (her adoptive father) and his lawyer, and D.G. took part. The relevant State institutions were also represented at the hearing: the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor and the Social Services Department of Kaunas City Council. The applicant’s doctor did not take part in the hearing. The court noted that the doctor had been informed of it and had asked the court to proceed without him. 39. In her application form to the Court, the applicant alleged that at the beginning of the hearing the judge had ordered her to leave her place next to D.G. and to sit next to the judge. The judge had also ordered D.G. “to keep her eyes off the applicant”. Given that this was not reflected in the transcript of the hearing, on 19 November 2005 D.G. had written to the court asking that the transcript be rectified accordingly. 40. According to the transcript of the hearing, at the beginning thereof D.G. requested that an audio recording be made. The judge refused the request. The applicant asked to be assisted by a lawyer. The judge refused her request, deeming that her guardian was assisted by a lawyer before the court. Without the agreement of her guardian, a separate lawyer could not be appointed. The lawyer hired by the applicant’s guardian was held to represent both the interests of the applicant and her guardian. 41. As the transcript of the hearing shows, the applicant went on to unequivocally state that she stood by her request that the guardianship proceedings be reopened. She argued that she had neither been informed of the proceedings as to her incapacitation, nor those pursuant to which her guardian had been appointed. The decisions had been taken while she had been in hospital. During the hearing, the applicant expressed her willingness to leave the Kėdainiai Home and stated that she was being kept and treated there by force. She submitted that she would prefer to live at her adoptive father’s home and to attend a day centre (lankys dienos užimtumo centrą). The applicant also argued that D.G. had been forced to surrender her duties as her guardian and to allow the applicant’s adoptive father to become her guardian because of pressure from him with the aim of transferring the applicant’s flat to him. The applicant also noted that in the Kėdainiai Home she was cut off from society and had been deprived of the opportunity to make telephone calls. Her friends could not visit her and she was not allowed to go to the cinema. In the Kėdainiai Home “she was isolated and saw only a fence”. The other parties to the proceedings opposed the applicant’s wish that the guardianship proceedings be reopened. 42. In her application to the Court, the applicant alleged that during a break in the hearing she had been ordered to follow the judge to her private office. When the applicant had refused, she had been threatened with restraint by psychiatric personnel. In private, the judge had instructed her not to say anything negative about her adoptive father and that, should she not comply, her friend D.G. would also be declared legally incapacitated. As stated in D.G.’s letter seeking rectification of the transcript (paragraph 39 above), after the break was announced the applicant had wished to stay in the hearing room. However, she had been taken away and had returned very depressed (prislėgta). Responding to a question by the judge as to her guardianship, the applicant replied: “I agree that [my adoptive father] should be my guardian, because God asks that people be forgiving. I just wish that he [would] take me [away] from [the Kėdainiai Home] to Kaunas, to his place... and let me see D.G. and my friends”. 43. It appears from the transcript of the hearing that after the break, when giving her submissions to the court, the applicant agreed to keep her adoptive father as guardian, but insisted on being released from institutional care in order to live with her adoptive father. The relevant State institutions – the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor, the Social Services Department of Kaunas City Council – and the applicant’s guardian’s lawyer each argued that the applicant’s request for reopening was clearly unfounded and should be dismissed. 44. On 17 November 2005 the Kaunas City District Court refused to reopen the guardianship proceedings on the basis of Article 366 § 1 (6) of the Code of Civil Procedure, ruling that there were no grounds to change the guardian (see Relevant domestic law part below). The court noted that before appointing the applicant’s adoptive father as her guardian, the Kaunas City Council Department of Health had prepared a report on the proposed appointment of the applicant’s guardian and had questioned the applicant, who had not been able to provide an objective opinion about that appointment. The court confirmed that the applicant had not been summoned to the hearing of 21 January 2004, when her guardian was appointed, as the court had taken into consideration the applicant’s mental state and, on the basis of the findings of the relevant health care officials, had not considered her involvement in the hearing necessary. The court further noted that the findings had disclosed tense relations between the applicant and her adoptive father. Even so, the applicant’s adoptive father had been duly performing his duties. The court also referred to statements of the representatives of the Kaunas Psychiatric Hospital and the director of the Kėdainiai Home to the effect that the applicant’s contact with D.G. had had a negative influence on her mental health. 45. The Kaunas City District Court proceeded to fine D.G. 1,000 Lithuanian litai (LTL) (approximately 290 euros (EUR)) for abuse of process. It noted that D.G. had filed numerous complaints before various State institutions and the courts of alleged violations of the applicant’s rights. Those complaints had prompted several inquiries which had revealed a lack of substantiation. The court noted: “... by such an abuse of rights, [D.G.] caused damage to the State, namely the waste of time and money of the court and the participants in the proceedings. The court concludes that [D.G.] has abused her rights ... and the vulnerability of the incapacitated person”. 46. D.G. appealed against the above decision. She noted, inter alia, that the 21 January 2004 ruling to appoint the applicant’s adoptive father as her guardian had been adopted by judge R.A. The same judge had dismissed the applicant’s request that the court proceedings be reopened, although this was explicitly prohibited by Article 370 § 5 of the Code of Civil Procedure. The applicant also submitted a brief in support of D.G.’s appeal, arguing that persons admitted to psychiatric institutions should have a right to know the reasons for their admission. Moreover, they should be able to contact a lawyer who is independent from the institution to which they have been admitted. 47. The appeal by D.G. was dismissed by the Kaunas Regional Court on 7 February 2006 in written proceedings. The court did not rule on the plea that the district court judge R.A. had been partial. 48. On 11 May 2006 the Supreme Court declared D.G.’s subsequent appeal on points of law inadmissible, as it had not been submitted by a lawyer and raised no important legal issues. 49. By a ruling of 7 February 2007 the Kaunas City District Court, following a public hearing attended by social services representatives and the applicant’s legal guardian, granted the guardian’s request to be relieved from the duties of guardian and property administrator. The applicant’s adoptive father had argued that he was no longer fit to be her guardian because of his old age (seventy-seven years at that time) and state of health. The Kėdainiai Home was appointed temporary guardian and property administrator. The applicant was not present at the hearing. 50. On 25 April 2007, the Kaunas City District Court held a public hearing and appointed the Kėdainiai Home as the applicant’s permanent guardian and administrator of her property rights. The applicant was not present at that hearing; the court did not give reasons for her absence. 51. On 1 February 2006 a criminal inquiry was opened on the initiative of some of the applicant’s acquaintances, who alleged that the applicant had been the victim of Soviet-style classification of illnesses which was designed to repress those who fall foul of the regime. The complainants submitted that, as a result of the persistent diagnoses of schizophrenia, the applicant had been unlawfully deprived of her liberty, had been ill-treated and had been overmedicated in the Kėdainiai Home, and that her property rights had been violated by her guardian. 52. On 31 July 2006 the investigation was discontinued, no evidence having been found of an abuse of the applicant’s interests, either pecuniary or personal. It was established that the immovable property belonging to the applicant had been let to a third person, with the proceeds used to satisfy the applicant’s needs. The applicant had had a bank account opened in her name on 6 October 2005, and the deposit made on that date had since been left untouched. Moreover, the applicant’s guardian had transferred to her account the sum received from the sale of their common property. There was thus no indication that the applicant’s adoptive father had abused his position as guardian. 53. As regards the deprivation of the applicant’s liberty, the prosecutor noted that the applicant had been admitted to an institutional care facility in accordance with the applicable legislation. The prosecutor acknowledged that the freedom of the applicant “to choose her place of residence [was] restricted (laisvė pasirinkti buvimo vietą yra ribojama)”, but further noted that she was: “... constrained to an extent no greater than necessary in order to take due care of her as a legally incapacitated person. The guardian of [the applicant] can change her place of residence without first obtaining a separate official decision; she is not unlawfully hospitalised. Therefore, her placement in the Kėdainiai Home cannot be classified as an unlawful deprivation of liberty, punishable under Article 146 § 2 (3) of the Criminal Code”. 54. The prosecutor had also conducted an inquiry into an incident which had occurred at the Kėdainiai Home on 25 January 2005. After questioning the personnel of the Home, it was established that on that day the applicant had been placed in the intensive supervision ward (intensyvaus stebėjimo kambarys), had been given an additional dose of tranquilisers (2 mg of Haloperidol) and had been tied down (fiksuota) for fifteen to thirty minutes by social care staff. 55. The prosecutor noted the explanation of the psychiatrist at the Home, who admitted that the applicant’s restraint had been carried out in breach of the applicable rules, without the approval of medical personnel. However, after having read written reports on the incident produced by the social care personnel, he considered the tying down to have been undertaken in order to save the applicant’s life and not in breach of her rights. 56. Questioned by the prosecution as witnesses, social workers at the Kėdainiai Home testified that 25 January 2005 had been the only occasion on which the applicant had been physically restrained and placed in isolation. The measures had only been taken because at that particular time the applicant had shown suicidal tendencies. 57. The prosecutor concluded that the submissions made by the complainants were insufficient to find that the applicant’s right to liberty had been violated by unnecessary restraint or that she had suffered degrading treatment. 58. On 30 August 2006 the higher prosecutor upheld that decision. 59. With the assistance of D.G., the applicant addressed a number of complaints to various State authorities. 60. On 30 July 2004, in reply to a police inquiry into the applicant’s complaint of unlawful detention in the Kėdainiai Home, the Kaunas City Council Social Services department wrote that “[in] the last couple of years, relations between the applicant and her adoptive father have been tense. Therefore, on the wish of both of them, until 21 January 2004 [the applicant’s] legal guardian was D.G. and not her adoptive father”. 61. The Ministry of Social Affairs also commissioned an inquiry, including conducting an examination of the applicant’s living conditions at the Kėdainiai Home and interviews with the applicant and the management of the Home. The commission established that the applicant’s living conditions were not exemplary (nėra labai geros), but it was promised that the inhabitants would soon move to new premises with better conditions. However, it was noted that the applicant received adequate care. The commission opined that it was advisable not to disturb the applicant, given her vulnerability and instability. It was also emphasised that the State authorities were under an obligation to be diligent as regards supervision of how the guardians use their rights. 62. On 6 January 2005 D.G. filed a complaint with the police, alleging that the applicant had been unlawfully deprived of her liberty and of contact with people from outside the Kėdainiai Home. By letter of 28 February 2005, the police replied that no violation of the applicant’s rights had been found. They explained that, in accordance with the internal rules of the Kėdainiai Home, residents could be visited by their relatives and guardians, but other people required the approval of the management. At the request of the applicant’s guardian, the management had prohibited other people from visiting her. 63. On 17 May 2005 upon the inspection performed by food safety authorities out-of-date frozen meat (best before 12 May 2005) was found in the Kėdainiai Home. However, there was no indication that that meat would have been used for cooking. On 20 February 2006 the Kaunas City Governor’s office inspected the applicant’s living conditions in Kėdainiai and found no evidence that she could have been receiving food of bad quality. 64. On 28 April 2006 the applicant complained to the Ministry of Health about her admission to long-term care. By letter of 12 May 2006, the Ministry noted that no court decision to hospitalise the applicant had been issued, and that she had been admitted to the Kėdainiai Home after her adoptive father had entrusted that institution with her care. 65. On 6 October 2006, the Ministry of Health and Social Services, in response to the applicant’s complaints of alleged violations of her rights, wrote to the applicant stating that it was not possible to investigate her complaints because she had left the Kėdainiai Home and her place of living was unknown. Prosecutors were in the middle of a pre-trial investigation into the circumstances of the applicant’s disappearance from where she had previously been living. 66. By a decision of 18 December 2006, the Kaunas City District prosecutor discontinued a pre-trial investigation into alleged unlawful deprivation of the applicant’s liberty. 67. Article 21 of the Lithuanian Constitution prohibits torture or degrading treatment of persons. Article 22 thereof states that private life is inviolable. 68. The Law on Mental Heath Care provides: “1. Main Definitions ... 5. “Mental health facility” means a health care institution (public or private), which is accredited for mental health care. If only a certain part (a “unit”) of a health care institution has been accredited to engage in mental health care, the term shall only apply to the unit. In this Law, the term is also applicable to psychoneurological facilities...” “The parameters of a patient’s health care shall be determined by a psychiatrist, seeking to ensure that the terms of their treatment and nursing offer the least restrictive environment possible. The actions of a mentally ill person may be subject to restrictions only provided that the circumstances specified in section 27 of this Law are manifest. A note to that effect must be promptly made in the [patient’s] clinical record.” “In emergency cases, in seeking to save a person’s life when the person himself is unable to express his will and his life is seriously endangered, necessary medical care may be taken without the patient’s consent. Where instead of a patient’s consent, the consent of his representative is required, the necessary medical care may be provided without the consent of such person provided that there is insufficient time to obtain it in cases where immediate action is needed to save the life of the patient. In those cases when urgent action must be taken in order to save a patient’s life, and the consent of the patient’s representative must be obtained in lieu of the patient’s consent, immediate medical aid may be provided without the said consent, if there is not enough time to obtain it.” 69. Article 24 of the Law on Mental Health Care stipulated that if a patient applied with a request to be hospitalised, he or she could be hospitalised only provided that: 1) at least one psychiatrist, upon examining the patient, recommended that he or she had to be treated as an inpatient at a mental health facility; 2) he or she had been informed about his or her rights at a mental health facility, the purpose of hospitalisation, the right to leave the psychiatric facility and restrictions on the right, as specified in Article 27 of the law. The latter provision read that a person who was ill with a severe mental illness and refused hospitalisation could be admitted involuntarily to the custody of the hospital only if there was real danger that by his or her actions he or she was likely to commit serious harm to his or her health or life or to the health or life of others. When the circumstances specified in Article 27 of that law did exist, the patient could be involuntarily hospitalised and given treatment in a mental health facility for a period not exceeding 48 hours without court authorisation. If the court did not grant the authorisation within 48 hours, involuntary hospitalisation and involuntary treatment had to be terminated (Article 28). 70. As concerns legal incapacity and guardianship, the Civil Code provides: “1. A natural person who, as a result of mental illness or imbecility, is not able to understand the meaning of his actions or control them may be declared incapacitated. The incapacitated person shall be placed under guardianship. 2. Contracts on behalf and in the name of a person declared incapacitated shall be concluded by his guardian... 3. Where a person who was declared incapacitated gets over his illness or the state of his health improves considerably, the court shall reinstate his capacity. After the court judgement becomes res judicta, guardianship of the said person shall be revoked. 4. The spouse of the person, parents, adult children, a care institution or a public prosecutor shall have the right to request the declaration of a person’s incapacity by filing a declaration to the given effect. They shall also have the right to apply to the courts requesting the declaration of a person’s capacity.” “1. Guardianship shall be established with the aim of exercising, protecting and defending the rights and interests of a legally incapacitated person. 2. Guardianship of a person subsumes guardianship of the person’s property, but if necessary, an administrator may be designated to manage the person’s property.” “1. Guardians and curators shall represent their wards under law and shall defend the rights and interests of legally incapacitated persons or persons of limited active capacity without any special authorisation. 2. The guardian shall be entitled to enter into all necessary transactions in the interests and on behalf of the represented legally incapacitated ward...” “1. Guardianship and curatorship authorities are the municipal or regional [government] departments concerned with the supervision and control of the actions of guardians and curators. 2. The functions of guardianship and curatorship in respect of the residents of a medical or educational institution or [an institution run by a] guardianship (curator) authority who have been declared legally incapacitated or of limited active capacity by a court shall be performed by the respective medical or educational establishment or guardianship (curator) authority until a permanent guardian or curator is appointed...” “1. Having declared a person legally incapacitated or of limited active capacity, the court shall appoint the person’s guardian or curator without delay. ... 3. Only a natural person with legal capacity may be appointed a guardian or a curator, [and] provided he or she gives written consent to that effect. When appointing a guardian or curator, account must be taken of the person’s moral and other qualities, his or her capability of performing the functions of a guardian or curator, relations with the ward, the guardian’s or curator’s preferences and other relevant circumstances...” “... 6. After the circumstances responsible for the declaration of the ward’s legal incapacity or limited active capacity [are no longer in existence], the guardian or curator shall apply to the courts for the cancellation of guardianship or curatorship. Guardianship and curatorship authorities, as well as prosecutors, shall also have a right to apply to the courts for the cancellation of guardianship or curatorship.” “1. An adult person declared legally incapacitated by the courts shall be placed under guardianship by a court judgment.” “1. Guardianship and curatorship authorities shall be obliged to monitor whether the guardian/curator is fulfilling his or her duties properly.” 71. The Code of Civil Procedure stipulates that rights and interests of [disqualified] natural persons protected by law shall be defended in court by their representatives (parents, foster-parents, guardians) (Article 38 § 2). A prosecutor has the right to submit a claim to protect the public interest (Article 49). 72. Article 366 § 1 (6) of the Code of Civil Procedure provides that proceedings may be reopened if one of the parties to them was incapacitated and did not have a representative. Article 370 § 5 stipulates that when deciding upon a request that proceedings be reopened, the judge who took the decision against which the request has been lodged may not participate. 73. An application to declare a person legally incapacitated may be submitted by a spouse of that person, his or her parents or full-age children, a guardianship/care authority or a public prosecutor (Article 463). The parties to the proceedings for incapacitation consist, besides the applicant, of the person whose legal capacity is at issue, as well as the guardianship (care) authority. If it is impossible, due to the state of health, confirmed by an expert opinion, of the natural person whom it has been requested to declare incapacitated, to call and question him or her in court or to serve him or her with court documents, the court shall hear the case in the absence of the person concerned (Article 464 §§ 1 and 2). 74. Article 491 § 2 of the Code of Civil procedure stipulates that the courts are obliged to take all measures necessary to ensure that the rights and interests of persons who need guardianship are protected. 75. Pursuant to Article 507 § 3 of the Code of Civil Procedure, a case concerning the establishment of guardianship and the appointment of a guardian shall be heard by means of oral proceedings. The guardianship authority, the person declared incapacitated, the person recommended to be appointed as guardian and any parties interested in the outcome of the case must be notified of the hearing. The case is to be heard with the attendance of a representative of the guardianship authority, who is to submit the authority’s opinion to the court. The person to be appointed the guardian must also attend. The person declared incapacitated is entitled to give his or her opinion at the hearing, if his or her health allows, as regards the prospective appointment of the guardian. The court may hold that it is necessary that the person declared incapacitated attend the hearing. Article 507 § 4 provides that in appointing a guardian his moral and other qualities, his capability to perform the functions of a guardian, his relationship with the person who requires guardianship, and, if possible, the wishes of the person who requires guardianship or care shall be taken into consideration. 76. The Law on Prosecutor’s Office provides that prosecutors have the right to protect the public interest, either on their own initiative or if the matter has been brought to their attention by a third party. In so doing, prosecutors may institute civil or criminal proceedings. 77. In a ruling of 9 June 2003 the Supreme Court stated that a public prosecutor could submit an application for reopening of proceedings, if the court’s decision had been unlawful and had infringed the rights of a legally incapacitated person having limited opportunity to defend his or her rights or lawful interests. 78. The Law on Social Services provides that the basic goal of social services is to satisfy the vital needs of an individual and, when an individual himself is incapable of establishing such conditions, to create living conditions for him that do not debase his dignity (Article 2 (2)). 79. The Requirements for residential social care institutions and the Procedure for admission of persons thereto, approved by Order No. 97 of the Minister of Social Security and Labour on 9 July 2002 and published in State Gazette (Valstybės žinios) on 31 July 2002, regulate the methods of admission to a social care institution. The rules provide that an individual is considered to be eligible for admission to such an institution, inter alia, if he or she suffers from mental health problems and therefore is not able to live on his or her own. The need for care is decided by the municipal council of the place of his or her residence in cooperation with the founder of the residential care institution (the county governor). Individuals are admitted to care institutions in the event that the provision of social services at their home or at a non-statutory care establishment is not possible. A guardian who wishes to have a person admitted to a residential care institution must submit a request in writing to the social services department of the relevant municipal council. The reasons for and motives behind admission must be indicated. An administrative panel of the municipal council, comprising at least three persons, is empowered to decide on the proposed admission. Representatives of the institution to which the person is to be admitted as well as the founder (the governor) must participate. 80. The Government submitted to the Court an application by the Kėdainiai Home of 6 October 2009 to the Kaunas City District Court for the restoration of capacity (dėl neveiksnumo panaikinimo) of an individual, G.P. The Kėdainiai Home had been G.P.’s guardian. The director of the Kėdainiai Home had noted that after G.P.’s condition had become better and he had become more independent, it had accordingly become necessary for the court to order a fresh psychiatric examination and make an order restoring G.P.’s legal capacity. 81. The Bylaws of the Kėdainiai Home (Kėdainių pensionato gyventojų vidaus tvarkos taisyklės), as approved by an order of the director dated 17 March 2003, provide that the institution shall admit adults who suffer from mental health problems and are in need of care and medical treatment. A patient may leave the institution for up to ninety days per year, but only to visit his or her court-appointed guardian. The duration and conditions of such leave must be confirmed in writing. The rules also stipulate that a patient is not allowed to leave the grounds of the facility without informing a social worker. If a patient decides to leave the Kėdainiai Home on his or her own, the management must immediately inform the police and facilitate finding him or her. A patient may be visited by relatives and guardians. Other visitors are allowed only upon the management’s approval. The patients may have personal mobile phones. They may follow a religion, attend church services and receive magazines. 82. In a ruling of 11 September 2007 in civil case No. 3K-3-328/2007, the Supreme Court noted that the person whom it is asked to declare incapacitated is also a party to the proceedings (Article 464 § 1 of the Code of Civil Procedure). As a result, he or she enjoys the rights of an interested party, including the right to be duly informed of the place and time of any hearing. The fact that the case had been heard in the absence of D.L. – the person whom the court had been asked to declare incapacitated – was assessed by the Supreme Court as a violation of her right to be duly informed of the place and time of court hearings, as well as of other substantive procedural rights safeguarding her right to a fair trial. The Supreme Court also found that by failing to hear the person concerned and without making sure that she had been aware of the proceedings, the firstinstance court had breached the principle of equality of arms, as well as D.L.’s right to appeal against the decision to declare her incapacitated, because the decision had not been delivered to her. The Supreme Court also referred to Principle no. 13 of Recommendation No. R (99) 4 by the Committee of Ministers of the Council of Europe (see paragraph 85 below), stating that the person concerned should have the right to be heard in any proceedings which could affect his or her legal capacity. This procedural guarantee should be applicable to the fullest extent possible, at the same time bearing in mind the requirements of Article 6 of the European Convention on Human Rights. In this regard, the Supreme Court also referred to the Court’s case-law to the effect that a mental illness could result in appropriate restrictions of a person’s right to a fair hearing. However, such measures should not affect the very essence of that right (Golder, Winterwerp, both cited below, and Lacárcel Menéndez v. Spain, no. 41745/02, 15 June 2006). 83. In the same ruling, the Supreme Court also emphasised that determining whether the person can understand his or her actions was not only a scientific conclusion, namely that of forensic psychiatry. It was also a question of fact which should be established by the court upon assessing all other evidence and, if necessary, upon hearing expert evidence. Taking into consideration the fact that the declaration of a person’s incapacity is a very serious interference into his or her right to private life, one can only be declared incapacitated in exceptional cases. 84. This Convention entered into force on 3 May 2008. It was signed by Lithuania on 30 March 2007 and ratified on 18 August 2010. The relevant parts of the Convention provide: “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. 5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” “1. States Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. 2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.” 85. The relevant parts of this Recommendation read as follows: “1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations. ... 4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.” “1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned. 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...” “1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...” “The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.” “1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ... 3. There should be adequate rights of appeal.” 86. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency. Part C of the report (paragraphs 120, 125-132) analyses situation in the Skemai Residential Care Home. 87. The CPT noted that Lithuanian legislation does not provide for an involuntary placement procedure in social welfare establishments. At Skemai Residential Care Home, residents were admitted on their own application or that of their guardian through the competent district authority (Panevėžys District Administration). The decision on the placement was taken by the social affairs unit of Panevėžys District Administration on the basis of a report drawn up by a social worker and a medical certificate issued by a psychiatrist stating that the applicant’s mental health permitted his/her placement in a social welfare institution of this type. An agreement was then signed between the applicant and the authorised representative of the local government for an indefinite period. That said, it appeared that even legally competent residents admitted on the basis of their own application were not always allowed to leave the home when they so wished. The delegation was informed that their discharge could only take place by decision of the social affairs unit of the Panevėžys District Administration. This was apparently due to the need to ascertain that discharged residents had a place and means for them to live in the community; nevertheless, this meant that such residents were de facto deprived of their liberty (on occasion for a prolonged period). 88. Specific reference was made to the situation of residents deprived of their legal capacity. Such persons could be admitted to the Skemai Home solely on the basis of the application of their guardian. However, they were considered to be voluntary residents, even when they opposed such a placement. In the CPT’s view, placing incapacitated persons in a social welfare establishment which they cannot leave at will, based solely on the consent of the guardian, entailed a risk that such persons will be deprived of essential safeguards. 89. It was also a matter of concern that all 69 residents who were deprived of their legal capacity were placed under the guardianship of the Home. In this connection, the delegation was surprised to learn that in the majority of these cases, the existing guardianship arrangements had been terminated by a court decision upon admission to the establishment and guardianship of the person concerned entrusted to the Home. The CPT stressed that one aspect of the role of a guardian is to defend the rights of incapacitated persons vis-à-vis the hosting social welfare institution. Obviously, granting guardianship to the very same institution could easily lead to a conflict of interest and compromise the independence and impartiality of the guardian. The CPT reiterated its recommendation that the Lithuanian authorities strive to find alternative solutions which would better guarantee the independence and impartiality of guardians. 90. In the context of discharge from psychiatric institution procedures, the CPT recommended that the Lithuanian authorities took steps to ensure that forensic patients were heard in person by the judge in the context of judicial review procedures. For that purpose, consideration may be given to the holding of hearings at psychiatric institutions 91. Lastly, the CPT found that at the establishment visited the existing arrangements for contact with the outside world were generally satisfactory. Patients/residents were able to send and receive correspondence, have access to a telephone, and receive visits.

train

001-69750

ENG

GBR

ADMISSIBILITY

I.H. v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

The applicant, Mr I.H., is a United Kingdom national, who was born in 1970 and lives in Chaste Field Hopsital, Enfield, Middlesex. He is represented before the Court by Mr M. David, a solicitor practising in Saxmundham, Suffolk. The facts of the case, as submitted by the applicant, may be summarised as follows. In March 1995, the applicant severely mutilated his three year old son by castrating him. He was charged with causing grievous bodily harm with intent to do so. On 4 May 1995 he was transferred to Rampton Hospital under section 28 of the Mental Health Act 1983 ('MHA'), diagnosed with paranoid psychosis. On 21 July 1995 he was found not guilty of that offence by reason of insanity and ordered to be admitted to a high security hospital (Rampton) under section 5 of the Criminal Procedure (Insanity) Act 1964. When an individual is admitted to hospital in this way, he becomes entitled to apply to a Mental Health Review Tribunal (“MHRT”) which is empowered to order his discharge either absolutely or conditionally. On 18 July 1998 the applicant's detention was reviewed by the MHRT but no order for discharge was made. On 7 September 1998 the MHRT, after reviewing the applicant's case again, recommended his transfer to a less secure unit. However the Secretary of State refused the transfer. In December 1998, Dr. Sagar, a psychiatrist, considered that the applicant was in a state of natural remission as he had not been taking medication for 18 months. On 31 May 1999, Dr. Gandhi (a psychiatrist instructed by the applicant's solicitors) considered that the applicant was no longer suffering from a mental disability under the MHA and therefore his detention was unjustified. On 7 June 1999 there was a third MHRT hearing which heard evidence from Doctors Sagar, Gandhi and Page as well as from a representative of the Secretary of State for the Home Department. Both Dr Page and the Secretary of State's representative opposed the proposed conditional discharge of the applicant. In spite of this opposition the MHRT held that: “having considered all the medical evidence we have come to the conclusion that the applicant is not now suffering from mental illness of a nature or degree which necessitates his detention in hospital for medical treatment, but having regard to the serious nature of the condition he suffered and the possibility of recurrence we do consider it appropriate for the patient to remain liable to be recalled to hospital for treatment. We adjourn the hearing until 1 December 1999 at the latest for a full care plan to be drawn up. The terms which we consider should probably be attached to the Conditional Discharge are:- 1) Supervision by a named Social Worker 2) Supervision by a named forensic psychiatrist; the appellant to be subject to the directions of the Psychiatrist including any relating to drug monitoring 3) Residence at a suitable hostel, preferably staffed 24 hours a day. If it is considered that he should be excluded from any area because of the presence there of the victim we should be given full details of the area proposed. We require Haringey Council to provide full details of a suitable plan at the adjourned hearing.” On 3 February 2000 the tribunal reconvened and decided that the applicant should be transferred to a medium security unit. A conditional discharge order was then made. The terms of the discharge were as follows: “4. Decision of the tribunal: (d) The patient shall be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions set out at (7) below. ... 6. Findings of the Tribunal concerning the statutory criteria The tribunal is obliged to direct the absolute discharge of the patient if the answer to any of the following questions (A) or (B) is 'yes' and the answer to question (C) is also 'yes'. A. Is the tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment or from any of those forms of disorder of a nature or a degree which makes it appropriate for the patient to be detained in a hospital for medical treatment? Yes B. Is the tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment? Yes C. Is the tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment? No 7. Conditions imposed by the tribunal (conditional discharge only): And the reasons for the tribunal's decision. Having considered the reports and correspondence from Haringey Social Services and the Enfield and Haringey Health Authority, and having heard the evidence of Miss Milne of the Haringey Social Services we are very concerned that no supervising psychiatrist has yet been identified and as a result no care plan has been put in place. For the reasons given on 7 June 1999, we make a conditional discharge order in the following terms: (1) There shall be supervision by a named social worker, (2) there shall be supervision by a named psychiatrist, preferably by a forensic psychiatrist; (3) the applicant shall be subject to the directions of the psychiatrist including any relating to drug monitoring; (4) the applicant shall reside at a suitable hostel, preferably a hostel staffed 24 hours a day; (5) the applicant shall be excluded from Enfield, Harringey and Islington save for the purpose only of visiting his relatives in their homes. In the event that his psychiatrist or supervising social worker wishes to vary the exclusion zone for the purposes of implementing the conditions of this order as to treatment and/or residence application may be made for that purpose. The applicant's discharge shall be deferred until the arrangements listed have been made.” At the time this order was made it was not challenged by the applicant. Unfortunately, the local authorities were unable to find a forensic psychiatrist to supervise the applicant. To find a psychiatrist required the cooperation of North London Forensic Service, who refused to provide a psychiatrist, basing their refusal on the fact that they considered the applicant's release into the general public to be premature and dangerous. In 2001, the applicant applied for judicial review. He asked the court to consider whether the MHA's provisions governing conditional discharge and deferral were consistent with Article 5 of the Convention as interpreted in Winterwerp v. Netherlands (judgment of 24 October 1979, Series A no. 33) and Johnson v. United Kingdom (Johnson v. the United Kingdom, judgment of 24 October 1997, Reports of Judgments and Decisions 1997VII), in particular concerning the MHRT's lack of power to secure compliance with its conditions and, in the event of a failure of the health authority to secure compliance with its decision, its inability to reopen and reconsider the case. The applicant also made a claim for damages. On 25 July 2001, the High Court, when granting permission for judicial review, suggested that meanwhile the Secretary of State refer the case back to the tribunal, which he did. Further hearings were held by the MHRT in January and March 2002. On 25 March 2002 it was recommended that the applicant remain in hospital as it was satisfied, notwithstanding the earlier decisions, that the applicant was and always had been suffering from a mental illness which was in remission but with a significant risk of relapse, that it was appropriate for the applicant to be detained in hospital for the treatment of his illness and that the evidence of the need for hospital treatment was compelling. On 5 December 2001, after a hearing at which the applicant was represented, the Administrative Court judge found that it was a least arguable that the applicant had been detained unlawfully for a period of a few months after February 2000 and that in breach of Article 5 §§ 1 and 4 he had been left in limbo for 21 months. He did not however consider that there was breach of these provisions based on a lack of power to ensure that the condition of psychiatric supervision was implemented within a reasonable time. While he did not see how any order that a medical practitioner supervise a patient in the community could be enforced against his professional principles, he considered that the relevant legislation could be given effect to in a way compatible with the Convention, namely that an MHRT could make a deferred direction for conditional discharge enabling the tribunal to monitor attempts to comply with reasonable conditions and to amend the deferred conditional discharge in the light of difficulties encountered by the authorities. The applicant was given permission to appeal to the Court of Appeal. On 15 May 2002, the Court of Appeal held concerning Article 5 § 4 : “... we agree that Article 5 § 4 was infringed. If after a tribunals decides that it is appropriate to direct a conditional discharge of a patient, that patient remains detained without access to the tribunal for an unreasonably long period while unsuccessful attempts are made to make arrangements that will enable the conditions to be satisfied, Article 5 § 4 is clearly infringed. That is what happened on this occasion. ... no attempt was made ... to revert to the third tribunal, but no doubt this was because the decision in Campbell's case was believed to preclude this. In practice it would clearly have done so. In the light of that decision the tribunal would not have felt able to entertain an application on behalf of [the applicant] to reconsider the position.” The Court of Appeal went on to review the Campbell authority, noting that no reference had been made to the provisions of the Convention or relevant case-law and that the Secretary of State accepted that it needed to be revisited in the light of the Human Rights Act 1998. Having given consideration to various cases, it proceeded to outline a new regime compatible with the requirements of the Convention and the legislative provisions as follows: “1. The tribunal can at the outset, adjourn the hearing to investigate the possibility of imposing conditions. 2. The tribunal can make a provisional decision to make a conditional discharge on specified conditions, including submitting to psychiatric supervision, but defer directing a conditional discharge while the authorities responsible for after-care under section 117 of the Act make the necessary arrangements to enable the patient to meet those conditions. 3. The tribunal should meet after an appropriate interval to monitor progress in making these arrangements if they have not by then been put in place. 4. Once the arrangements have been made, the tribunal can direct a conditional discharge without holding a further hearing. 5. If problems arise with making arrangements to meet the conditions, the tribunal has a number of options, depending on the circumstances (a) it can defer for a further period, perhaps with suggestions as to how any problems can be overcome; (b) it can amend or vary the proposed conditions to seek to overcome the difficulties that have been encountered; (c) it can order a conditional discharge without specific conditions, thereby making the patient subject to recall; (d) it can decide that the patient must remain detained in hospital for treatment. 6. It will not normally be appropriate for a tribunal to direct a conditional discharge on conditions with which the patient will be unable to comply because it has not proved possible to make the necessary arrangements.” The Court of Appeal considered that if despite best endeavours a health authority was unable to provide the necessary services or supervision, the tribunal would have to think again and it would be likely that it would conclude that it was necessary for the patient to remain detained in hospital in order to receive the treatment or care. If the health authority did not make best endeavours it could be subject to judicial review. If psychiatrists who foiled the intention of the tribunal were in breach of a public law duty the patient would also have a remedy under judicial review. If they were not in breach of duty, it was likely to follow that the Convention did not require psychiatrists to administer treatment or supervision in the community when, as a result of professional judgment made in good faith, they were not prepared to undertake this responsibility. On 13 November 2003, the House of Lords dismissed the applicant's appeal and upheld the judgment of the Court of Appeal. In giving his judgment, Lord Bingham found a breach of Article 5 § 4 in that the MHRT, having made its order, was precluded from reconsidering the case leaving the applicant in limbo for a period longer than was acceptable under the Convention and endorsed the views of the Court of Appeal on the regime to be followed in future. However, Lord Bingham also concluded that there was no time between 3 February 2000 and 25 March 2002 in which the applicant was unlawfully detained or held in breach of Article 5 § 1(e). He found a categorical difference between the circumstances of Johnson (cited above), where the Winterwerp criteria had not been found to be satisfied and the situation of the applicant, where there had never been a medical consensus or finding by the MHRT that the Winterwerp criteria were not satisfied. The written statement of the chairman of the MHRT dated 28 March 2002 made it clear that continued detention was not considered necessary as long as the conditions were fulfilled and that the removal of the condition for psychiatric supervision would have changed their view as to the possibility of his release : “The tribunal considered that the [applicant] could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention. The [applicant] was never detained when there were no grounds for detaining him.” In addition, it considered that the health authorities had done their best to comply with the conditions and had no power to require a psychiatrist to act against his conscientious professional judgment. It further concluded that the violation of Article 5 § 4 did not call for an award of compensation as the violation had been publicly acknowledged and the applicant's right thereby vindicated, the law had been amended in a way which should prevent similar violations in future and the applicant had not been the victim of unlawful detention which Article 5 was intended to avoid.

train

001-87693

ENG

CYP

ADMISSIBILITY

MENELAOU v. CYPRUS

Inadmissible

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

The applicant, Mr Costas Menelaou, is a Cypriot national who lives in Limassol, Cyprus. He had been granted legal aid covering part of his costs for the proceedings before this Court and was represented by Professor M. Shaw QC, a barrister practising in London. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was arrested on 20 April 1999 and was remanded in custody until 12 May 1999. On 15 February 2000 he was committed for trial before the Assize Court of Limassol sitting on 30 March 2000. On the latter date, he was formally charged with a series of offences dating from 15 July 1997 to 4 January 1999. He pleaded not guilty. A lengthy series of adjournments of the proceedings followed. On 26 June 2000 the court adjourned the case to 3 October 2000, and then to 27 November 2000 as another case which was pending before it had been assigned priority. On the same ground the hearing was adjourned twice more. On 28 May 2001, the applicant’s request for an adjournment was granted and the case fixed for 5 November 2001. On that date, the case was further adjourned on the basis of a request submitted by the prosecution and was fixed for hearing on 28 January 2002. On the latter date, the applicant requested an adjournment. This was granted by the court which noted that it was, in any event, unable to proceed because it was engaged in the trial of another case. It fixed the case for 29 April 2002 when it adjourned it to 23 September 2002 due to lack of time as it had three ongoing trials. On that date, the hearing was again adjourned to 17 March 2003 and it was further adjourned at the applicant’s request because in fact the court had two other hearings. On 12 September 2003, the applicant requested a further adjournment due to the deterioration of his health following a road accident. The case was accordingly adjourned to 14 October 2003. On that date the applicant applied for a stay of the proceedings on the ground that the excessive delay violated Article 30 of the Constitution guaranteeing the right to a fair trial within a reasonable time and Article 6 of the Convention. The Assize Court granted the application. Reference was made to a period of three and a half years when “there was complete inactivity in the case” and for which “the excessive workload of the Assize Court” was responsible. It observed that the trial had been adjourned ten times without the applicant being responsible, and that even on the three occasions when he had himself requested an adjournment, this was granted because of the court’s inability to pursue the case. It therefore concluded that three and a half years’ delay, from the filing of the case until 12 September 2003, constituted a breach of the reasonable time requirement. It noted that while the European Court of Human Rights had never found that a violation of Article 6 of the Convention required the quashing of a conviction, this was one of the remedies offered by the common law in appropriate circumstances. For instance, where the delay took place after the lodging of an appeal against conviction, the appropriate remedy would be a reduction of a sentence, whereas if the delay had arisen before the trial began, as in the present case, one of the available remedies would be to uphold an accused’s plea in bar of the trial. Reference was made to the House of Lords’ judgment in Attorney General’s Reference no.2 of 2001 (J) (2001) EWCA Crim. 1568 where it had been stated with regard to stay of proceedings that although it was a remedy which the court could grant, it should be confined to situations which in general terms amounted to an abuse of process. It was noted, however, that Cyprus case-law on this point was clear: where the shortcomings in the fairness of the proceedings could be remedied by a retrial, a retrial should be ordered where possible; but if the constitutional rights of an accused had been infringed by a failure to put him on trial within a reasonable time, he should not be obliged to prepare for a trial which would necessarily take place after an unreasonable length of time. In the view of the Assize Court, the only appropriate remedy for the unreasonable length of the proceedings under examination was to stay the proceedings and order the applicant’s discharge. The Supreme Court in its judgment of 14 April 2004 criticised the Assize Court’s assessment of the delay since it had only relied on the length of the period and had not considered other relevant factors, such as the complexity of the case and the applicant’s own conduct. Moreover, it found that the Assize Court’s account of the relevant adjournments had been inaccurate: while the court itself had been responsible for a number of them, the applicant had not objected and he had himself requested the adjournment of the case on a number of occasions. It observed that according to its case-law unreasonable delay could be remedied by taking it into account in the reduction of sentence. For all the above reasons it considered the decision of the Assize Court erroneous and held that it should be set aside and the case sent for retrial by the Assize Court. On 20 May 2005 judgement was delivered by the Assize Court which found the applicant guilty of the offences of falsification of accounts and stealing by an employee. The applicant was acquitted of ten other charges of steeling by an employee and more serious charges of falsification of documents. On 24 May 2005 the same court proceeded to sentence the applicant. It considered that given the seriousness of the offences of which he had been convicted, involving breach of confidence and elements of fraud, the only appropriate sentence would be that of imprisonment. The maximum sentence provided for by the relevant provisions of the Criminal Code at the time of commission of the relevant offences was seven years’ imprisonment. The Assize Court referred to the previous decision of the Supreme Court in the case, noting that a finding that a trial had not been concluded within reasonable time could be remedied by taking the delay into account as a mitigating factor. It stated that: “It is a fact that the lapse of six years from the date of the applicant’s arrest and more than seven years (almost eight) from the commission of the offences for which he has been found guilty, constitutes in itself a period of time that should be taken into account in the determination of an appropriate sentence. The uncertainty of the pending proceedings leading to understandable anxiety about one’s guilt or innocence is in itself harrowing, but this is aggravated by the circumstances of this case, which we will attempt to summarise in the context of our duty to impose a sentence: (a) the accused has been acquitted after a lengthy hearing of most of the charges brought against him; (b) Despite the fact that certain requests for an adjournment were made on behalf of the defence, responsibility for the length of the proceedings could not be attributed to them given the conduct of the proceedings as a whole... (c) During this period of time... the accused’s [personal] circumstances had deteriorated. In addition to the anguish he went through due to the pending proceedings, he had lost his employment in the bank and was unable to find a new job.... Moreover, [it was asserted on behalf of the accused that] because of the proceedings he could not get married. .... We have carefully examined the circumstances of the present case knowing that they lasted for such a long period that their duration must have a substantial impact on the sentence as a primary mitigating factor. Having examined the seriousness of the offences and balanced every other relevant factor, we find that the appropriate sentence cannot be other than that of imprisonment. The length of the proceedings in combination with the accused’s lack of criminal record, the devastating effects that the proceedings had on his life (and, in particular, his loss of employment and career prospects) must have a significant impact on the prison sentence that is to be passed.” Accordingly, the applicant was sentenced to eight months’ imprisonment on each of the two counts of falsification of accounts and ten months’ imprisonment on each of the counts of stealing in respect of which he had been convicted. All the sentences were to run concurrently. The applicant’s request for suspension of the sentence of imprisonment was rejected. Article 30 (2) of the Cyprus Constitution provides as follows, in so far as relevant: “In the determination of his civil rights and obligations ..., every person is entitled to a ... hearing within a reasonable time by an independent, impartial and competent court...”. In the case of Eustathiou v. the Police (1990) 2 S.C.J. 294 it was stated: “This case had been repeatedly adjourned without a valid reason and without the accused’s culpability. Hence, the accused’s criminal liability had not been determined within reasonable time in breach of his right guaranteed by Article 30 (2) of the Constitution. This finding leads to the quashing of the conviction as well as the proceedings in their entirety including the arrest order and confiscation of the applicant’s surety.” In the case of Christopoulos v. the Police (2001) 2 C.L.R. the Supreme Court stated that: “A violation of the rights guaranteed by Article 30 (2) of the Constitution ... renders the proceedings void in their entirety.” However, in the recent case of Theocharous v. The Republic, Criminal Appeals 185/2006 and 210/2006 of 21 January 2008, the Supreme Court observed that the case-law of the European Court of Human Rights concerning the consequences of a violation of the fair trial guarantee due to the excessive length of the proceedings was not as strict as the position adopted by the Cyprus Supreme Court in its judgment in Eustathiou v. the Police (cited above) and subsequent cases. It concluded that the consequences ought to be determined in accordance with the extent of the violation at issue and the possible prejudice to an accused’s defence. Where a violation is demonstrated it should be taken seriously into account as a mitigating factor in sentence.

train

001-4717

ENG

GBR

ADMISSIBILITY

VERNON v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicant is a British national, born in 1942, and resides in Gloucestershire. He is represented by Messrs Osbourne Clarke, Solicitors, from Bristol. In 1982, the applicant witnessed the tragic death by drowning of his two young children when the car they were in, being driven by their nanny, went into a river. The applicant had previously experienced some psychological instability in his life, but, following the accident, he began to manifest symptoms of Post Traumatic Stress Disorder. From being a successful businessman, he became unemployable, and the relationship with his wife broke down. In October 1993, they were divorced. In August 1985, a writ was issued in an action for damages for personal injury against the driver of the vehicle. The action was set down for trial on the application of the Defence in June of 1996. The initial estimate for the length of the trial was six weeks. The trial began on 12 January 1994. After six weeks, the applicant as plaintiff was still giving evidence. He was in the witness box for thirty days overall. Due to his mental condition, the process of questions and answers was very lengthy, and the estimate for the trial length was revised. There were additionally conflicts with the judge's timetable which required lengthy breaks in the trial, and a move in the venue from Cardiff to London. An application was made by the applicant's representatives in February 1994 to impose time-limits in respect of cross-examination of the applicant. This was refused on the basis that the defence must have every opportunity to present their case, subject to the normal controls. In April 1994, the applicant’s expert witnesses, Dr L and Mr M, gave evidence, essentially stating that the prognosis was not very good, and that the applicant was unlikely ever to be able to work again. On 13 June 1994, Mr Justice Sedley imposed time-limits for the hearing of the remaining witnesses and to ensure the trial finished in time. The evidence in the trial, which lasted 70 days, concluded on 14 July 1994. Counsel made their final submissions on 24 and 25 October 1994. The judge, Mr Justice Sedley, did not give his judgment until 30 January 1995, which judgment ran to 262 pages, giving judgment for the applicant in the sum of over 1,300,000. Following further submissions of the parties on aspects of social security benefits, interest, costs, stay of execution, time for appeal and the form of order, Mr Justice Sedley gave a further judgment on 10 May 1995. In August 1994, the applicant had applied for a residence order under the Children Act 1989 in respect of his remaining children. The expert doctors who had given evidence in the personal injury trial were instructed by the applicant to give their views of the state of the applicant's mental health for the purpose of these proceedings. They produced draft reports which gave a more positive prognosis. Mr M’s report went so far as to suggest that the applicant was no longer suffering mental health problems. It was sent to the solicitors of the applicant’s wife by mistake. The applicant’s counsel, on his instructions, applied to the judge in the family matter for the report to be returned on the basis that it had been disclosed without the applicant’s authority and that the applicant did not wish to rely on it. The judge ruled that the report was to be admitted in evidence. The applicant states that as a result he was obliged to call Mr M as a witness. Mr M produced a revised version of his draft report. Dr L in his oral evidence stated that he would have to alter the prognosis given previously as the applicant had remained free of depression and his medication had been reduced, such that it was now appropriate to see if it could be further reduced or even stopped. He stated that he had not foreseen this improvement earlier though it was premature to be optimistic. In the applicant’s evidence in the family proceedings, he said in a statement of 30 September 1994 that his psychiatric situation had improved dramatically and, in his oral evidence, he did not resile from his descriptions of his improved mental health. On 6 January 1995, the Judge in the family matter, Judge McNaught, rejected the applicant’s claim for a residence order, though subsequently, the applicant’s ex-wife agreed that he should have custody of the youngest child. Concerns had arisen as to the relevance of the medical reports to the imminent decision of Mr Justice Sedley in the personal injury action. The applicant sought the opinion of his Queen's Counsel as to whether the documents needed to be disclosed. He was advised on 16 November 1994 that as the reports were subject to professional privilege they need not be. The defendants in the personal injury action appealed against the decision of Mr Justice Sedley, and the appeal was heard over 12 days in January and February 1996. A draft judgment of the Court of Appeal was produced on 29 March 1996. It reduced the award of damages to £643,425.59 with interest and costs. Part of the interest awarded by Mr Justice Sedley was deducted (one year) on the basis of the applicant’s inordinate delay in the case. When the draft judgments were handed down, however, issues were raised by the parties as to the correct calculation of past and future loss of earnings. These matters were adjourned in the hope that the parties could agree, failing agreement the matter was to be re-argued on those points. On 17 April 1996, leading counsel for the defendants received anonymously through the post copies of the reports prepared by the applicant’s doctors in the Children Act proceedings. On 30 April 1996, the defendants applied to the Court of Appeal for the appeal to be listed for rehearing, for discovery and inspection of the medical reports and evidence given in the family proceedings. After initially resisting the application for disclosure, on 19 September 1996, the applicant waived any privilege covering the documents in the light of the decision of the House of Lords of the House of Lords, In re L (A Minor)(Police investigation: privilege) judgment of 21 March 1996 [1997] A.C. 16, and in the hope of shortening the proceedings. The reports and transcripts of evidence were placed before the Court of Appeal, which sat on 22 and 23 October and 5 to 8 November 1996. The Court of Appeal agreed to the defendant’s application for further evidence to be heard and for Dr L to be heard as a witness. The applicant called Mr M as a witness. The applicant also applied to be allowed to give evidence himself as to his current mental condition, and to call another witness as to the same matter. He asked to be able to produce further evidence from an employment expert regarding loss of earnings, based on the Court of Appeal's findings as to his mental state. The Court of Appeal refused both these applications, giving the following explanation at page 50 of its judgment: “So far as the Plaintiff is concerned we know what he was saying about his health in October 1994; we also had Dr <L.>'s clinical notes recording the <applicant’s> condition at fairly regular intervals since then. The Judge found the <applicant> to be an unsatisfactory and unreliable witness who was compulsively manipulative. There is also abundant evidence from his pre-accident job applications that he was untruthful when it suited his convenience. If <the applicant> had given further evidence it would only have invited further lengthy cross-examinations to show this Court what the Judge had already concluded. We did not think further evidence from him would assist the Court. As to further evidence from an employment expert, no doubt to be countered by such a person called on behalf of the Defendant and which would in any event have occasioned further delay and expense in this far too protracted litigation, again we did not think this would assist the Court. Such evidence would be unlikely to be sufficiently precise and would be likely to be discursive and speculative depending on the findings of this Court. In my judgment the Court must adopt a broad-brush approach to the question doing the best we can with the material at our disposal.” Judgment was given on 13 December 1996, and the decision of the Court, by a majority, was to reduce the award of damages made in favour of the applicant to the sum of just over 600,000. This involved a further reduction in Mr Justice Sedley’s award of £60,000 from the sum of future loss of earnings, the sum of general damages was reduced by a further £20,000, and sums for future domestic help and future gardener/handyman reduced from £10,233.60 and £3,952 respectively to nothing. This decision was made on the basis of the finding by the Court of Appeal that the applicant had made a substantial recovery since 1993. While it found that his recovery was not complete and that he would require low level medication and supportive therapy for the foreseeable future, it considered that this did not prevent him functioning normally. As regards the issues arising from the disclosure of materials from the family proceedings, one of the appeal court judges observed that “it is simply unconscionable for a litigant to run contradictory cases in simultaneous proceedings in the hope of gaining advantage in each” and another appeal judge noted that, if it was correct that the evidence falsified the assumptions previously made by the trial judge and themselves in the civil proceedings, it would be inequitable and an affront to common sense and justice not to admit it. The award was however less than the £750,000 paid into court by the defendants, and thus the applicant became liable to pay a substantial amount of costs. The applicant petitioned for leave to appeal to the House of Lords, which petition was refused on 10 March 1997.

train

001-88716

ENG

RUS

ADMISSIBILITY

RAYEVA v. RUSSIA

Inadmissible

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

The applicant, Ms Galina Nikolayevna Rayeva, is a Russian national who was born in 1940 and lives in Moscow. The respondent Government were represented by Mr P. Laptev, a former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In 1993 the applicant married Mr M. and they started living together at the applicant’s flat on the Menjinsky Street in Moscow. In 1997 they moved into a two-room flat on the Tkatskaya Street in Moscow (“the flat”). The flat was owned by the district council; M. and his son D., born in 1974, had their “registered place of residence” in the flat. In 1998 D.’s wife gave birth to a son and D. moved with his family to his wife’s flat. As D. never consented to privatisation of the flat, it remained in the ownership of the district council. The applicant contributed to payment of rent and maintenance charges. In 2001 D. asked his father and the applicant either to repay him one half of the flat’s value, or to exchange it for two smaller ones. The applicant and M. had no money, so D. sought a court order for exchange. On 17 January 2002 the Izmaylovskiy District Court of Moscow refused to issue the order as the terms of exchange offered by D. were not satisfactory. On 27 November 2002 the applicant brought separate proceedings against D., seeking a court declaration upholding her right of residence in the flat. On 6 February 2003 the District Court granted D.’s claim and ordered that M. move to a 17-square-metre room in a two-room “communal” flat. It dismissed M.’s objections to the move relating to the applicant’s frail health, finding as follows: “M.’s wife [the applicant] has not acquired the right of residence in the contested flat in accordance with the established procedure, her right to reside [in the flat] has not been confirmed, whereas the plaintiff [D.] does not recognise that she should have such a right.” The court concluded that in these circumstances the move would not impair M.’s rights and interests. On 31 March 2003 the District Court refused the applicant’s claim for recognition of her right of residence. M. joined the proceedings as a third party and supported the applicant’s claim. The court found as follows: “It has been established at the hearing that in November 1997 the plaintiff [the applicant] moved into the contested flat as the tenant M.’s family member and that she has lived in the flat up to the present day. The defendant [D.] has not contested these circumstances. However, the plaintiff’s claim... cannot be granted because... there is no evidence that [D.] had contented to her moving-in and residing in the contested flat and [D.] denies that he has ever consented... Moreover, the plaintiff is a registered tenant of a flat on the Menjinsky Street, she is on the waiting list for improvement of her housing conditions and contributes to payment of maintenance charges at her registered place of residence.” On 2 June 2003 the Moscow City Court upheld that judgment on appeal. On 20 October 2003 the Moscow City Court also upheld the judgment of 6 February 2003. The RSFSR Housing Code of 24 June 1983 (as amended on 28 March 1998, effective at the material time) provided: “The tenant’s family members shall include the tenant’s spouse, children and parents. Other relatives, disabled dependants, and – in exceptional circumstances – other persons may be recognised as the tenant’s family members if they live together with the tenant and maintain a joint household.” “The tenant shall be entitled to accommodate in his living premises, in accordance with the established procedure, his spouse, children, parents, other relatives, disabled dependants and other persons, subject to written consent of all adult members of his family... The persons accommodated by the tenant in accordance with the rules of the present article shall have the same right to use the living premises as the tenant or other members of his family provided that such persons are, or have been recognised as, members of the tenant’s family (Article 53) and that no other agreement on the use of the premises has been signed between these persons, the tenant and his family members.” “If family members fail to agree to an exchange, any family member may seek a court order for a forced exchange of the flat occupied by them for living premises in different blocks of flats. In these proceedings regard must be had to meritorious arguments and interests of the residents of the exchanged flat.”

train

001-114118

ENG

MNE

ADMISSIBILITY

EPARHIJA BUDIMLJANSKO-NIKŠIĆKA AND OTHERS v. MONTENEGRO

Inadmissible

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

1. The applicants are Eparhija Budimljansko-Nikšićka (“the first applicant”) with its seat in the monastery Đurđevi stupovi in Berane (“the second applicant”), monasteries Bijela from Šavnik (“the third applicant”), Podmalinsko from Šavnik (“the fourth applicant”), Dobrilovina from Mojkovac (“the fifth applicant”), Svete Trojice from Bijelo Polje (“the sixth applicant”), Svete Trojice from Plav (“the seventh applicant”), Piva from Plužine (“the eighth applicant”), Svetog Luke from Nikšić (“the ninth applicant”), Kosijerevo from Nikšić (“the tenth applicant”), as well as churches Sv. Vasilija Ostroškog from Nikšić (“the eleventh applicant”), and Svetog Apostola Petra i Pavla from Nikšić (“the twelfth applicant”), all part of the Serbian Orthodox Church in Montenegro. They were represented before the Court by Ms V. Mijanović, a lawyer practising in Nikšić. 2. The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On unspecified dates immediately after World War II several plots of land were expropriated from the seventh and twelfth applicants, apparently in the absence of any decision to that effect. 5. On various dates in 1946 several plots of land were expropriated from the second, third, fourth, fifth, sixth, eighth, ninth, tenth and eleventh applicants by the relevant District Agricultural Commissions’ decisions (Sreska poljoprivredna komisija). These decisions would appear to have been upheld by the State Agrarian Court (Zemaljski agrarni sud). 6. On 18 March 2004 the applicants filed a request with the Government seeking restitution of the expropriated plots of land, relying on the Just Restitution Act 2002 (see paragraphs 16 and 18-19 below). 7. On 19 May 2004 the applicants urged the Government to decide on their request. 8. On 16 June 2004, not having received any response from the Government, the applicants initiated an administrative dispute (upravni spor) before the Supreme Court (Vrhovni sud) for “silence of administration”. 9. On 22 September 2005 the Administrative Court, which, in the meantime, had taken over the competencies of the Supreme Court in respect of administrative disputes (see paragraph 35-36 below), ruled against the applicants on the grounds that the Government had no jurisdiction to rule on their request. 10. On 24 October 2005 the Administrative Court decision was dispatched by regular post to the applicants’ representative in the domestic proceedings. 11. On 26 October 2005 the postman noted down that the applicants’ representative had moved from the address provided (preseljen sa date adrese). 12. On 2 October 2006 the Administrative Court noted that its judgment of 22 September 2005 could not be served on the applicants’ representative as he had changed his address, failing to inform the court of the new one. Pursuant to section 142 § 5 of the Civil Procedure Act, the court decided that all the relevant documents (sva pismena u ovom sporu) would be served on the applicants by posting the documents on the court’s notice board. Accordingly, the decision was posted on the notice board the same day and removed from it on 11 October 2006. 13. On 8 May 2003 the Constitutional Court declared a number of the core provisions of the Just Restitution Act 2002 unconstitutional including those relating to restitution in kind as well as the composition and the competencies of the Restitution Commission (see paragraphs 29-31 below). 14. The Just Restitution Act 2002 was never applied in practice. The Government have never enacted secondary legislation needed for its implementation and nor has the Restitution Commission, which was supposed to deal with restitution requests, or any other relevant body, ever been established. 15. On 8 April 2004 the Restitution of Expropriated Property Rights and Compensation Act entered into force, providing that the restitution of property to religious communities would be regulated by a separate law (see paragraphs 32-34 below). 16. Section 1 provided that restitution in kind should always be the rule and other forms of compensation, specified in section 12, “only the exception”, where restitution was not possible due to legal or factual reasons. 17. Section 3 §§ 2 and 3 provided that previous owners whose property rights had been taken away on the basis of, inter alia, a court judgment or a decision were also entitled to restitution. 18. Section 5 § 1(3) provided that de facto expropriations of property would be treated in the same manner as expropriations carried out on legal grounds. 19. Section 10 § 6 provided that religious organisations or communities (vjerska organizacija ili zajednica) could be beneficiaries of the right to restitution in the same manner as natural persons. 20. Section 11 § 1 provided that if the property had been taken on the basis of Republic regulations or by a Republic body action (radnjom), the debtor (obveznik restitucije) was the Republic of Montenegro. Section 11 § 3 provided that if the property subject to restitution was owned by a natural or legal person, the debtor was that person. 21. Section 12 provided that when the right to restitution could not be in kind, it could be exercised, inter alia, by providing other property of the same value or by compensation. 22. Section 33 § 1 provided that the Government of Montenegro would establish a Restitution Fund within 60 days as of the date of entry into force of the Act. 23. Section 36 § 1 provided that restitution requests would be dealt with by a Restitution Commission. 24. Section 39 prohibited the disposal of the property subject to restitution pursuant to the Act (zabranjen je promet) until the relevant restitution proceedings had been concluded. 25. Section 40 § 1 provided that the Government would enact a decree on regulations and the implementation of the Act within 60 days of the date of entry into force of the Act. 26. Section 40 § 2 further provided that these regulations would further define the modalities of the Act, including the establishing and functioning of the Restitution Commission and the Restitution Fund. 27. Section 40 § 3 provided that at least half of the members of the restitution commissions would be representatives of former owners. 28. The Act entered into force on 10 July 2002. 29. On 8 May 2003 the Constitutional Court established that a number of provisions of the Just Restitution Act 2002 were unconstitutional and that they should cease to have effect as of the date of publication of its decision. 30. The Constitutional Court held, inter alia, that restitution in kind would be in breach of existing property rights. Other unconstitutional provisions referred mostly to the composition and competencies of the Restitution Commission, and the limitations imposed by the Act on current owners of property subject to restitution. In particular, it was held that: (a) the Restitution Commission’s competence to decide on the restitution of property taken by virtue of final court judgments was contrary to the principle of separation of powers; (b) the prohibition imposed on current owners to dispose of their property which was subject to restitution proceedings until the relevant proceedings had been concluded, was contrary to the current owners’ property rights; and (c) the provision that previous owners could be members of the Restitution Commission was unacceptable because of their interest in the outcome of the proceedings. 31. The decision was published on 2 June 2003. 32. Sections 6 and 8 § 1 provide that natural persons, endowments and other non-profitable legal persons (zadužbine i druga nekomercijalna pravna lica) are entitled to restitution or compensation in accordance with this Act. 33. Section 8 § 2 provides that the conditions, method and the procedure for the restitution of property to religious communities will be regulated by a separate law. 34. The Act entered into force on 8 April 2004 thereby repealing the Just Restitution Act 2002. 35. Sections 23 and 24 provided that an Administrative Court would be set up for the territory of Montenegro, and that its competencies would include, inter alia, deciding in administrative disputes on the lawfulness of administrative decisions (o zakonitosti upravnih akata) and other individual decisions. 36. Section 132 provided that the Administrative Court would become operational by 31 December 2004. 37. Section 212 § 2 enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal with the appellate body as if his request had been refused. If the appeal is not allowed, the appellant can directly initiate an administrative dispute before the court with jurisdiction. 38. Section 127 § 1 provides that court documents (pismena) shall be delivered via the regular post, but may also be delivered by a designated court employee, an authorised legal person registered for delivery, directly in court or in another manner as provided for by this Act. 39. Section 133 § 1 provides, inter alia, that when a party has a representative (punomoćnika), all court documents will be served on the representative. 40. Section 135 § 1 provides that the delivery can be effected any day between 7 a.m. and 8 p.m. at the flat or at the business premises of the person on whom a document is to be served. If the delivery cannot be effected at the address and at the time provided for in paragraph 1 of this section it can be effected at any time and at any place. 41. Section 140 provides that if a registered person (subjektu upisanom u registar) cannot be served at the registered address, the documents will be posted on the court’s notice board. Eight days thereafter the delivery shall be deemed to have been fully effected. 42. Section 142 § 5 provides, inter alia, that if during the proceedings a party or his/her representative changes the address to which the documents should be delivered they are obliged to immediately inform the court thereof. If they fail to do so, the court will order that the documents be posted on the court’s notice board. The delivery shall be deemed to have been effected eight days after the document has been posted on the notice board.

train

001-57594

ENG

GBR

CHAMBER

CASE OF WEEKS v. THE UNITED KINGDOM

Violation of Art. 5-4;No violation of Art. 5-1;Just satisfaction reserved

C. Russo

10. The applicant, Mr. Robert Malcolm Weeks, is a British citizen born in 1949. 11. On 6 December 1966, then aged 17, he pleaded guilty at Hampshire Assizes to armed robbery, assaulting a police officer and being in the unlawful possession of a firearm. In respect of the first offence, he was sentenced to life imprisonment; for the second and third offences he received 2 and 3 years’ imprisonment respectively, all sentences to run concurrently. 12. The applicant had committed the robbery on 18 November 1966 when he entered a pet shop in Gosport, Hampshire, with a starting pistol loaded with blank cartridges, pointed it at the owner and told her to hand over the till. He stole a sum of 35 pence which was later found on the shop floor. Later that same day, he telephoned Gosport police station to say that he would give himself up. He was apprehended in the High Street by two police officers. He took the starting pistol from his pocket and it went off. In the ensuing struggle, two more blanks were fired, one of which caused a powder burn to the wrist of one of the police officers. It emerged that the applicant had committed the robbery because he wanted to pay back £3 which he owed his mother, who had told him that morning to find lodgings elsewhere. 13. At the trial, a prison medical officer testified that he could find no evidence of mental instability which would justify sending the applicant to a mental institution. However, a probation report, which had been prepared by a probation officer who had supervised the applicant for a period of two years, characterised him as being susceptible to fluctuation of mood and emotionally immature, and as having a morbid interest in the literature of violence and a fascination for guns. The report also stated that he had taken to drinking heavily from time to time and that he had a high potential for aggression. No psychiatric report was available to the court. 14. In passing sentence, Mr. Justice Thesiger said: "... [T]he facts of the offence and the evidence of the character and disposition of the accused ... satisfy me that ... he is a very dangerous young man. ... I think an indeterminate sentence is the right sentence for somebody of this age, of this character and disposition, who is attracted to this form of conduct. That leaves the matter with the Secretary of State who can release him if and when those who have been watching him and examining him believe that with the passage of years he has become responsible. It may not take long. Or the change may not occur for a long time - I do not know how it will work out. ... So far as the first count of the indictment is concerned, I think the right conclusion, terrible though it may seem, is that I pass the sentence that the law authorises me to pass for robbery and for assault with intent to rob with arms, that is life imprisonment. The Secretary of State can act if and when he thinks it is safe to act." 15. Mr. Weeks applied for leave to appeal against the sentence to the Court of Appeal (Criminal Division) which, on 6 April 1967, dismissed the application. Lord Justice Salmon upheld the view of the sentencing judge in the following terms: "Now at the trial it appears that the prison doctor said that there was no evidence of any mental disorder then apparent which would have justified his detention in a mental institution. The Learned Judge, quite rightly in the view of this Court, took the view that this was not a case for borstal because borstal for one reason would not be a sufficiently secure place to send such a dangerous young man. The Judge was therefore - since he could not send him to a mental institution for lack of evidence - faced with a difficult decision on whether he should give him what he did, namely life imprisonment, or sentence him to some long term, some definite term of imprisonment for a number of years. As he was at pains to point out, he in mercy really to the boy took the former course. Now life imprisonment in this case at any rate means an indeterminate sentence. If when he gets to prison it then appears after he has been there some time that there are grounds for transferring him to a mental institution for treatment, there are ample powers under the Act which will enable the Home Secretary to do so. Moreover, as soon as it becomes apparent, and it is to be hoped that it may not be long, but one cannot tell, that it is safe from the public point of view and from his own point of view to do so, this boy will be released. At first sight a sentence of life imprisonment, particularly having regard to his age, sounds terrible, but when the factors to which reference has been made are considered it will be seen that this is really in mercy to the boy and will perhaps enable him to be released much sooner than if a long term of imprisonment had been imposed, which was the only other alternative." 16. In 1970, the applicant was transferred to Grendon Underwood, a psychiatric prison. However, it was found that he did not respond to the regime and after six months’ treatment, he was transferred back to Albany Prison until his release on licence in March 1976. He had originally been given a release date for April 1975 but had absconded from a prison hostel during a probationary period. He later surrendered to the police, but on his return to prison was violent and refused food for a time. On the recommendation of the Parole Board, a further release date was set for October 1975. However, this date was again rescinded when the applicant returned to a prison hostel drunk, tried to escape while being escorted to the main prison and was recaptured only after a chase and a violent struggle. His case was once more referred to the Parole Board and, on its recommendation, he was released on licence by decision of the Secretary of State for the Home Department ("the Home Secretary") on 31 March 1976. 17. On 12 January 1977, the applicant pleaded guilty at Portsmouth Magistrates’ Court to burglary and driving while uninsured and without a licence. It appears he had broken into a beach hut and stolen a pullover. He was given a conditional discharge for one year and fined. The probation report described the applicant as having frequent disagreements with members of his family, with whom he lived in turn, and drinking to excess in times of stress. Following this incident, a letter warning that his licence could be revoked was issued by the Home Office and served on him on 19 April 1977. At the beginning of June 1977, the applicant was given accommodation and employment as a labourer at Aylesford Priory. On 21 June he was arrested, having damaged a car in the village while driving a dumper truck without permission. He was granted bail. Two days later he visited a public house and became drunk and abusive. He was escorted by police back to the Priory where he became agitated, particularly at the prospect of being sent back to prison again, and produced an air pistol, threatening to commit suicide. A priest in the Priory remonstrated with him, the gun was fired and a lead pellet hit the ceiling. Later that day he was found to be very drunk and in possession of a quantity of bottles of spirits which had been stolen from a store. He was arrested and taken to the police station where he became abusive and violent and during the night tried to hang himself. Following his arrest, he was remanded in custody by West Malling Magistrates’ Court. 18. On 30 June 1977, whilst Mr. Weeks was still in custody on remand, the Home Secretary ordered that his licence be revoked (section 62(2) of the Criminal Justice Act 1967, hereafter referred to as "the 1967 Act" - see paragraph 26 below). His case was referred to the Parole Board (section 62(4) of the Act - ibid.), which decided to defer consideration of his case until the outcome of his appearance in court, in connection with the above offences, was known. 19. On 3 October 1977, he was convicted by the Crown Court at Maidstone on charges of taking a dumper truck for his own use, being in possession of an air pistol as a prohibited person, theft of some alcohol and damaging a police blanket. He was given a conditional discharge for two years by a judge (Judge Streeter) assisted by two lay magistrates. Judge Streeter indicated that he did not consider that the applicant’s case was "a typical case of someone given a sentence such as a life sentence, released on parole and then reverting straight into crime, reverting back to usual or true colours". He then left it to the Home Office to consider whether to release the applicant once more on parole, with the suggestion that he be allowed his liberty again. Judge Streeter himself had no competence to restore the applicant’s licence or to order release, although he could have revoked the licence had it still been in force (section 62(7) of the 1967 Act - see paragraph 26 below). 20. The applicant’s case was considered by the Parole Board in December 1977. The Board took the view that the applicant was still a danger to himself and to the public and confirmed his recall to prison. It recommended that the case be referred to the Local Review Committee, the first stage of a formal review by the Parole Board (see paragraph 29 below), in December 1978. The Parole Board reviewed the case again in May 1979, when it recommended that he be released on licence once more. The Home Secretary, after consultation with the Lord Chief Justice and the trial judge, did not accept the Parole Board’s recommendation and decided that the applicant should be transferred to an open prison. In November 1979, he absconded from the open prison to Spain, but surrendered himself to the police in April 1980. In May 1981, the Parole Board recommended that he be released on licence as soon as resettlement arrangements could be made. The Home Secretary accepted this recommendation and decided upon a provisional release date of February 1982, subject to pre-release employment at Maidstone Prison Hostel. However, in October 1981, when in a drunken and agitated state, he was involved in a violent struggle with the hostel wardens during which one officer was injured on the thumb with a knife. On 28 October 1981, he was found guilty at Maidstone Magistrates’ Court of the offence of malicious wounding and sentenced to three months’ imprisonment. In December 1981, the case was again referred to the Parole Board, which recommended that preparation should be made for the applicant to be released directly from prison to a hostel. He was released on licence on 18 October 1982. As in the case of every life licensee, his licence included conditions requiring him, inter alia, to place himself under the supervision of a nominated probation officer; to keep in touch with his supervising officer in accordance with that officer’s instructions; to reside only where approved by his supervising officer; and not to travel outside Great Britain without the prior permission of his supervising officer. 21. On 14 June 1983, at Maidstone Magistrates’ Court, the applicant pleaded guilty to driving a motorcycle whilst unfit through drink and driving without insurance. He was fined a total of £110 and disqualified from driving for one year. On 28 July, at Maidstone Crown Court, he pleaded guilty to the charge of being in unlawful possession of a shotgun. He was sentenced to six months’ imprisonment suspended for two years. On 3 August, the police reported that he had been apprehended whilst driving in North London and charged with a number of motoring offences including fraudulent use of a road fund licence and driving whilst disqualified. The case was referred to the Parole Board for its consideration. On 16 September 1983, the Board decided not to recommend the revocation of the applicant’s licence but asked for a letter to be sent to his supervising officer (and to be shown to the applicant) saying that the Board was aware of his offences and asking to be notified if any further cause for concern was shown. In November, the applicant wrote to the Home Office acknowledging his irresponsible behaviour and agreeing to heed the Parole Board’s warning. On 9 March 1984, at Acton Crown Court, he pleaded guilty to the fraudulent use of an excise licence and driving whilst disqualified and was fined a total of £300. 22. In June 1984, the Probation Service reported that the applicant was out of touch with his supervising officer, had vacated his flat and was believed to have gone abroad. He had in fact moved his residence to France. The case was referred to the Parole Board which, on 5 October, recommended that his licence should be revoked on the ground that he was in breach of its conditions. The Board’s recommendation was accepted by the Secretary of State and the licence was revoked on 13 November. He was arrested by the police on 7 April 1985, having returned to England from France to visit his family. 23. Following consideration by the Parole Board of his representations with respect to his recall (section 62(3) of the 1967 Act - see paragraph 26 below), Mr. Weeks was again released on licence on 26 September 1985. He subsequently failed to keep appointments with his supervisory probation officer and was found to have left his lodgings, his whereabouts being unknown. In the light of these facts the Parole Board Board recommended on 7 February 1986 that his licence be revoked on the same ground as in 1984. The Home Secretary acted on this recommendation on 13 March 1986. As at 27 January 1987, the applicant was still at large, having once more moved his residence to France. 24. By virtue of section 23(1) of the Larceny Act 1916, the maximum penalty for robbery with violence was imprisonment for life. This was the provision in force at the time of the applicant’s conviction in 1966. It has now been replaced by section 8(2) of the Theft Act 1968, which came into force on 1 January 1969. Between that date and 31 December 1984, of the 54,580 persons convicted of robbery only 17 have been sentenced to life imprisonment (Hansard, House of Commons, vol. 90, no. 43, 24 January 1986, col. 325 - written answer by the Secretary of State for the Home Department). There is no definitive statement, statutory or otherwise, as to the principles governing the imposition of life sentences in the United Kingdom. However, certain guidelines have from time to time been given in judgments of the Court of Appeal. Broadly speaking, according to these guidelines, apart from such crimes as murder where a life sentence is mandatory, life sentences should be reserved for exceptional cases, for example (a) where the offence committed is in itself grave enough to require a very long sentence; (b) where it appears from the nature of the offence or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future. In relation to the latter category, the Court of Appeal has stated that a sentence of life imprisonment should not be imposed unless there is clear evidence of mental instability (as opposed to mental disorder) which indicates that the person is likely to be a danger to the public. 25. At the time of Mr. Weeks’ conviction in 1966, the relevant statutory provision governing the release on licence and recall to prison of persons serving life sentences was section 27 of the Prison Act 1952, which read: "27. (1) The Secretary of State may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions, if any, as the Secretary of State may from time to time determine. (2) The Secretary of State may at any time by order recall to prison a person released on licence under this section, but without prejudice to the power of the Secretary of State to release him on licence again; and where any person is so recalled his licence shall cease to have effect and he shall, if at large, be deemed to be unlawfully at large." This provision was qualified by section 2 of the Murder (Abolition of Death Penalty) Act 1965 which provided that no person convicted of murder could be released under section 27 of the 1952 Act unless the Home Secretary had prior to release consulted the Lord Chief Justice and, if available, the trial judge. 26. A new system was introduced by sections 61 and 62 of the Criminal Justice Act 1967 ("the 1967 Act"): "61. (1) The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life or a person detained under section 53 of the Children and Young Persons Act 1933 (young offenders convicted of grave crimes), but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty’s pleasure or for life except after consultation with the Lord Chief Justice of England together with the trial judge if available. ... 62. (1) Where the Parole Board recommends the recall of any person who is subject to a licence under section 60 or 61 of this Act, the Secretary of State may revoke that person’s licence and recall him to prison. (2) The Secretary of State may revoke the licence of any such person and recall him as aforesaid without consulting the Board, where it appears to him that it is expedient in the public interest to recall that person before such consultation is practicable. (3) A person recalled to prison under the foregoing provisions of this section may make representations in writing with respect to his recall and shall on return to prison be informed of the reasons for his recall and of his right to make such representations. (4) The Secretary of State shall refer to the Board the case of a person recalled under subsection (1) of this section who makes representations under the last foregoing subsection and shall in any event so refer the case of a person returned to prison after being recalled under subsection (2) of this section. (5) Where the Board recommends the immediate release on licence of a person whose case is referred to it under this section, the Secretary of State shall give effect to the recommendation, and where it is necessary for that purpose to release that person under subsection (1) of the last foregoing section, the Secretary of State shall do so without the consultation required by that subsection. ... (7) If a person subject to a licence under section 60 or 61 of this Act is convicted on indictment of an offence punishable on indictment with imprisonment ..., the court by which he is convicted ... may, whether or not it passes any other sentence on him, revoke the licence. ... (9) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence, and, if at large, shall be deemed to be unlawfully at large." 27. Once an offender is sentenced to life imprisonment, then, subject to any variation of the sentence by the sentencing court upon reconsideration within 28 days or to variation of it by the Court of Appeal, he may be detained by virtue of the original order of the court in prison for the rest of his life. A sentence of life imprisonment can never be altered, substituted or terminated, save if there is a free pardon or an exercise of the Royal Prerogative remitting the remainder of the sentence. Such use of the prerogative power could be contemplated only in the most exceptional circumstances, as it would have the effect of overriding the decision of the court; it has not been considered in Mr. Weeks’ case. As far as offenders sentenced to life imprisonment are concerned, any release ordered by the Home Secretary under the 1967 Act is always conditional and can never become unconditional. 28. Relevant provisions concerning the Parole Board are also contained in section 59 of the 1967 Act: "59. (1) For the purposes of exercising the functions conferred on it by this part of this Act as respects England and Wales there shall be a body known as the Parole Board ... consisting of a chairman and not less than four other members appointed by the Secretary of State. ... (3) It shall be the duty of the Board to advise the Secretary of State with respect to: (a) the release on licence under section 60(1) or 61, and the recall under section 62, of this Act of persons whose cases have been referred to the Board by the Secretary of State; (b) the conditions of such licences and the variation or cancellation of such conditions; and (c) any other matter so referred which is connected with the release or recall of persons to whom the said section 60 or 61 applies. (4) The following provisions shall have effect with respect to the proceedings of the Board on any case referred to it, that is to say: (a) the Board shall deal with the case on consideration of any documents given to it by the Secretary of State and of any reports it has called for and any information whether oral or in writing that it has obtained; and (b) if in any particular case the Board thinks it is necessary to interview the person to whom the case relates before reaching a decision, the Board may request one of its members to interview him and shall take into account the report of that interview by that member; ... (5) The documents to be given by the Secretary of State to the Board under the last foregoing subsection shall include: (a) where the case referred to the Board is one of release under section 60 or 61 of this Act, any written representations made by the person to whom the case relates in connection with or since his last interview in accordance with rules under the next following subsection; (b) where the case so referred relates to a person recalled under section 62 of this Act, any written representations made under that section. ..." As to the constitution of the Parole Board, Schedule 2 to the 1967 Act further provides: "1. The Parole Board shall include among its members: (a) a person who holds or has held judicial office; (b) a registered medical practitioner who is a psychiatrist; (c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or aftercare of discharged prisoners; and (d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders." The Parole Board always counts among its members three High Court judges, three circuit judges and a recorder. Cases referred to the Board may be dealt with by three or more members of the Board (Parole Board Rules 1967). In practice, the Board sits in small panels, each of which in the case of life prisoners includes a High Court judge and a psychiatrist. The judges on the Board are appointed by the Home Secretary (section 59(1) of the 1967 Act) after consultation with the Lord Chief Justice. 29. A recalled prisoner, as well as being entitled to make written representations to the Parole Board under section 62(3) of the 1967 Act and possibly being interviewed by a member of the Board under section 59(4)(b) (see paragraphs 26 and 28 above), also has the opportunity of making oral representations to a member of the Local Review Committee. The prisoner may seek legal advice in preparing his representations to the Parole Board and the Local Review Committee. The Local Review Committee is a body independent of the Parole Board, and is constituted by way of statutory instrument. It has the duty of reviewing the cases of, amongst others, life prisoners and of reporting to the Home Secretary on their suitability for release on licence (section 59(6) of the 1967 Act). The Local Review Committee rules provide that there must be a Local Review Committee for every prison, consisting of a minimum of five members, not less than two of whom must be members of the general public. In every case of a life prisoner who is recalled, it is one of the two independent members of the Local Review Committee who will interview the prisoner, and the prisoner has the right to make oral representations to him. Furthermore, the United Kingdom courts have made it clear that, for the purposes of section 62(3), the prisoner must be furnished with full and sufficient reasons for his recall in order to enable him to make sensible representations to the Parole Board (judgment of the Court of Appeal in Gunnell v. The Chairman of the Parole Board and the Secretary of State for Home Affairs, 30 October 1984; judgment of the High Court in R v. The Parole Board and the Secretary of State for the Home Department, ex parte Wilson, 20 March 1985). There is no entitlement to an oral hearing before the full Board or the full local Review Committee. 30. Where the remedy of judicial review of administrative action lies, the Divisional Court of the High Court will quash decisions of an administrative authority if those decisions are taken in breach of the relevant statutory requirements or if the decisions are otherwise tainted by illegality, irrationality or procedural impropriety. The scope of judicial review was explained as follows by Lord Diplock in his speech in the case of Council of Civil Service Unions v. Minister for the Civil Service ([1984] 3 All England Law Reports 935 at 950-951): "... Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice. By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable. By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1947 2 All England Law Reports 680, 1948 1 King’s Bench Reports 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. ... I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. ..." 31. According to the Government, a decision of the Parole Board or of the Home Secretary which violates any of those requirements may be quashed by the courts. Thus, in two recent cases, the courts have examined, under the head of procedural impropriety, whether adequate reasons for recall were given for the purposes of section 62(3) of the 1967 Act and have, in one case, quashed on that ground a decision of the Parole Board refusing to recommend release from prison on licence pursuant to its powers under section 62(5) of the 1967 Act (see respectively the Gunnell and Wilson cases - paragraphs 26 and 29 above). In the Gunnell case, the Court of Appeal also considered the extent to which the rules of natural justice apply to proceedings before the Parole Board. Lord Justice Eveleigh stated: "... I agree with what was said by Lord Justice Watkins in his judgment in the Divisional Court. He quoted the words of Lord Justice Brightman in the case of Payne v. Lord Harris of Greenwich & Others, 1981, 1 Weekly Law Reports 754, at page 766, where he said: ‘The scope and extent of the principles of natural justice depend on the subject matter to which they are sought to be applied: see Reg. v. Gaming Board for Great Britain, ex parte Benaim and Khaida 1970 2 Queen’s Bench Reports 417, 430. They apply to the present case, as conceded, to the extent that they impose on the Board and the Committee, and each member of it, a duty to act fairly. That duty does not, in my judgment, require that any disclosure is made to the prisoner of adverse material which the Board and the Committee have in their possession to assist them in their advisory and reporting functions.’ [Counsel for the applicant for judicial review] submitted that there is a difference in this case and that case, because that case was dealing with an initial release on parole and not with a consideration of the matter by the Board after recall. It is true factually that there is that distinction, but in my judgment that distinction results in one difference and one difference only from the point of view of the consideration of the matter by the Board; that is that the prisoner himself, in the case of recall, is entitled to have been told the reasons for his recall. So there is some information to which he is entitled, but to my mind that is the only distinction between the two cases. The principle of natural justice upon which reliance has been placed in this case, i.e. an alleged principle of full disclosure, does not in my judgment apply."

train

001-59718

ENG

DEU

CHAMBER

CASE OF SOMMERFELD v. GERMANY

Violation of Art. 8;Violation of Art. 14+8;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

Antonio Pastor Ridruejo

8. The applicant, born in 1953, is the father of the child M., born out of wedlock on 25 January 1981. The applicant recognised his paternity of M. 9. The applicant and the child’s mother lived together at the time of the child’s birth. They separated in September 1986. The child’s mother prohibited any contacts between the applicant and the child. The applicant still met M. several times at school until such contacts were no longer possible. Subsequently the child’s mother married Mr W., the father of her child A., born in August 1985, W. being the common family name. 10. On 2 October 1990 the applicant applied to the Rostock District Court for a decision granting him a right of access (Umgangsregelung) to his daughter. Having heard the persons concerned, the Rostock Youth Office advised against a right of access. The Youth Office submitted that M. had established a close relationship with Mr. W. which would be adversely affected by contacts between M. and her natural father. It also stated that M., when heard in the absence of her mother, had indicated that she was not keen to see the applicant and was suffering from his continuing efforts for access. 11. On 27 June 1991 M., then ten years old, was heard by the competent District Court Judge. She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court. 12. At a court hearing on 31 July 1991, the applicant and the child’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of the Youth Office. On 30 September 1991 the Youth Office informed the District Court that no agreement could be achieved and that M. had stated that she did not wish to see the applicant. 13. On 12 December 1991 the court ordered a psychological expert opinion. On 9 April 1992, in one-page submissions, the psychologist of the Rostock Health Services (Gesundheitsamt) stated that, as the contacts between the applicant and M. were disrupted for six years, no diagnosis of their actual relationship appeared possible. The psychologist considered that M. did not wish any personal contacts with the applicant who should give her the necessary time to take up contacts on her own motion. The psychologist noted that she had arranged a meeting between the applicant and M. which, however, had been cancelled by M.’s stepfather. 14. On 24 June 1992 the competent District Court Judge heard the applicant and M. in the presence of the psychological expert. M. having repeatedly stated that she did not wish to have contacts with the applicant, the latter affirmed that he would withdraw his request for a right of access. The applicant withdrew his request on 1 July 1992. 15. On 13 September 1993 the applicant again applied to the District Court for a right of access to his daughter. 16. On 15 February 1994 the District Court Judge heard the thirteen-year-old M. who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her. She also said that she had a father whom she loved though it was not her natural father. The court held a hearing with the applicant and the child’s mother on 26 April 1994. 17. On 1 June 1994 the District Court dismissed the applicant’s request. The District Court noted the comments filed by the Rostock Youth Office as well as the parents’ and the child’s statements in court. The Court had also regard to the comments filed by the Youth Office in April 1991 and by the psychologist of April 1992, both in the context of the first set of access proceedings. The District Court found that the applicant was not entitled to have access to his daughter. Referring to section 1711 of the Civil Code, the Court observed that the mother, in the exercise of her right to custody, determined the child’s relations with third persons, and that therefore her will was decisive. The father could only be granted a right of access by court order, if this was in the interest of the child. According to the District Court’s findings, in particular M.’s statements in 1992 and February 1994, these conditions were not met. The District Court considered that M., then thirteen years old and capable of forming her own will, unequivocally refused contacts with her natural father. In the District Court’s view, it was not in M.’s interest to enforce contacts contrary to her will, as her mental and psychological well-being would be endangered thereby. The applicant’s argument that contacts with the natural father were generally in a child’s interest was rejected. 18. On 17 June 1994 the Rostock Regional Court dismissed the applicant’s appeal. Endorsing the District Court’s findings, the Regional Court found that contacts were not in the child’s interest. It regarded as decisive that for many years the now thirteen-year-old girl had clearly refused contacts with her father. The applicant should accept his adolescent daughter’s will in his own and her interest. Only if he would stop to inflict himself on her, contacts might eventually be possible. The court further observed that contacts between the applicant and M. could hardly be enforced against her will. On 22 July 1994 the applicant filed a constitutional complaint with the Federal Constitutional Court. On 19 January 1996 a panel of three judges of the First Chamber of the Federal Constitutional Court refused to entertain the applicant’s complaint. 19. The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998. 20. Section 1626 § 1 reads as follows (the Court’s translation): “The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.” 21. Pursuant to section 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access exercised in the presence of a third party, such as a Youth Office authority or an association. 22. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows (the Court’s translation): Section 1634 “1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing. 2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare. 3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information. 4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.” 23. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows (the Court’s translation): Section 1705 “Custody over a minor child born out of wedlock is exercised by the child’s mother...” Section 1711 “1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy. 2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3. The right to request information about the child’s personal circumstances is set out in Section 1634 § 3. 4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.” 24. Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). 25. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate. 26. In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49(1) (k)). 27. As regards the hearing of parents in custody proceedings, section 50a (1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter. 28. Section 63 provides for a right of a further appeal challenging the first appeal decision. Section 63a of that Act as in force at the material time excluded this right in proceedings concerning a natural father’s access to his child born out of wedlock. This provision has been repealed by the Law on Family Matters of 1997.

train

001-76455

ENG

POL

CHAMBER

CASE OF KOZIK v. POLAND

Violation of Art. 5-3;Damage - finding of violation sufficient

Nicolas Bratza

4. The applicant was born in 1959 and lives in Goleniów, Poland. 5. On 19 June 2000 the applicant was arrested on suspicion of killing D.L., his fiancée. 6. On 20 June 2000 the Świnoujście District Court (Sąd Rejonowy) ordered his detention. It considered that placing the applicant in custody was justified by the existence of strong evidence against him and the gravity of the charges. Since he had attempted to flee, his detention was necessary to ensure the proper course of the proceedings. 7. The applicant’s detention was subsequently prolonged several times by the Szczecin Regional Court (Sąd Okręgowy). Each time the court repeated the reasons it had previously given. 8. On 1 March 2001 the applicant lodged an application for release with the Świnoujście District Prosecutor (Prokurator Rejonowy). The prosecutor dismissed the application on 7 March 2001. 9. On 26 April 2001 the Świnoujście District Prosecutor lodged a bill of indictment with the Szczecin Regional Court. The applicant was charged with murder (he had strangled his fiancée) and fraud. 10. On 30 January 2002 the Szczecin Regional Court convicted him as charged and sentenced him to 15 years’ imprisonment. 11. The Poznań Court of Appeal quashed that judgment and remitted the case on 14 May 2002. 12. The applicant remained in custody. 13. On 13 June 2002 the Poznań Court of Appeal (Sąd Apelacyjny) ordered that the applicant remain in detention until 30 September 2002. 14. On 19 June 2002 the court refused his application for release. 15. Subsequently, the applicant’s detention was extended every 3 months by the Szczecin Regional Court, for the same reasons as before. 16. The applicant lodged numerous unsuccessful applications for release with the Regional Court. 17. On 7 October 2004 the Szczecin Regional Court convicted the applicant of murder and sentenced him to 25 years’ imprisonment. The court stressed the depraved nature of the crime and maintained that there were no mitigating circumstances in the case. 18. The Poznań Court of Appeal upheld the first-instance judgment on 29 December 2004. 19. On 20 October 2005 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal. 20. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). 21. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.” 22. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 23. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” 24. Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. 25. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4. The court of appeal within whose jurisdiction the offence in question has been committed may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

train

001-113684

ENG

GBR

ADMISSIBILITY

ABDI IBRAHIM v. THE UNITED KINGDOM

Inadmissible

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva

1. The applicant, Mr Hassan Ahmed Abdi Ibrahim, is a Somali national. He is currently held in immigration detention in West Drayton. He is represented before the Court by Ms J. Hunt of Wilson & Co. Solicitors, a firm of lawyers practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant was born in Somalia in 1982. He arrived in the United Kingdom in 1989, at the age of seven, with his father, step-mother, uncle and siblings, having spent two years in a refugee camp in Ethiopia immediately prior to his arrival. He was, together with his family, granted refugee status on 6 January 1990 and indefinite leave to remain on 11 July 1994. 4. On 14 November 1995, the applicant made an allegation of child abuse, claiming that since he was five years old, his father had regularly beaten him and deprived him of food. He was placed with foster carers but, as the local authority’s investigations into his allegations were inconclusive and the applicant’s father agreed not to use force against him, he was returned home later the same month. However, following further allegations of violence against his father, the applicant was placed with foster carers in January 1996. He returned home for a short period later that month but, following further allegations, was placed with foster carers in February 1996. He absconded, and in March 1996 was placed in a residential children’s home. A medical examination conducted on 12 April 1996 indicated that the applicant had old injuries consistent with his account of abuse at the hands of his father and was extremely thin. He went to live with his uncle in November 1996, until March 1997 when his uncle stated that he could no longer care for him and the applicant was placed back in a residential children’s home. 5. Throughout the period 1996-1997 there were problems with the applicant’s behaviour. He used drugs, including crack cocaine, and stole to finance his drug use, accumulating 12 criminal convictions as a minor. He frequently absconded from his residential placements and was excluded from school. In March 1998 the residential children’s home terminated his placement, on the grounds that his behaviour was beyond their control, and in particular that he was bullying residents and threatening staff. At the age of 16, he moved into bed and breakfast accommodation. In the Autumn of 1998 the applicant persuaded his father to pay for him to travel to Ethiopia to visit his grandmother, where he remained until March 1999 (by which time he was aged 17). Thereafter he received support, including with accommodation, from the social services “leaving care team”, although from 2000 onwards he spent substantial periods in custody. 6. Between 26 June 1997 and 1 December 2005 the applicant was convicted of 21 offences, including theft, affray, common assault, possession of Class A and В drugs, burglary, robbery, handling stolen goods and failing to surrender to bail. In February 2001 he received a nine month custodial sentence for robbery. In November 2001, whilst still under supervision by the probation service following his release, he committed further offences and on 5 February 2002 he was convicted of robbery and offering to supply a Class В drug and sentenced to four and a half years’ imprisonment. The applicant had forced the 16 year-old he was supplying with drugs to strip and was verbally and physically aggressive towards him because he was unable to pay. On his release, in November 2004, the applicant failed to attend probation appointments and was recalled to prison. He was re-released on 15 April 2005. On 18 April 2005 he committed a further robbery, for which he was convicted on 15 July 2005. He was initially sentenced to life imprisonment with a tariff based on a determinate sentence of four years, but on appeal this was reduced to a sentence of four years’ imprisonment. In the course of that period of detention he received approximately 20 in-prison adjudications for misconduct, including fighting and disobeying orders. The applicant was released on 5 June 2007, but was recalled to prison on 27 August 2007 following a fight with another resident of the hostel where he was living. 7. On 1 July 2005 the applicant was informed that the Secretary of State had decided to deport him to Somalia, as conducive to the public good. However, this decision was subsequently withdrawn as the applicant’s refugee status had not been considered. On 9 April 2009 the applicant was informed that the decision had been taken to revoke his refugee status. On 17 April 2009, his prison sentence ended, and he was immediately transferred into immigration detention. 8. The applicant appealed against both the decision to revoke his refugee status and the decision to deport him, and his appeal was heard by the then Asylum and Immigration Tribunal on 10 August 2009. The Tribunal took note of the applicant’s claims to have been drug-free since 2007, and to have been let down by social services in failing to investigate the abuse he had suffered at the hands of his father and in failing subsequently to provide him with adequate support. However, the Tribunal found that, while the local authority should have investigated the applicant’s allegations of abuse more rigorously, he had, in fact, received considerable support from social services and had on occasion abused this help by running away from care homes or failing to attend appointments. In his evidence to the Tribunal, the applicant claimed not to believe in God and not to be a practising Muslim but, undermining his credibility, this contrasted with his complaint to the local authority that he was placed in a drug rehabilitation unit which did not meet his cultural needs as a Muslim. According to a forensic psychiatric report, the applicant presented a moderate risk of violent recidivism, which would be increased if he returned to substance abuse or was subjected to negative peer influences. It appeared to the Tribunal that, if released, the applicant was likely to return to the same area where he had previously committed crimes; that he had no employment prospects; and that he had previously failed to comply with supervision in the community. Given these facts and the seriousness of his offence, particularly when combined with his “appalling record” of previous convictions, the Tribunal concluded that the applicant was a danger to the community and that deportation was appropriate. The Tribunal considered a number of recent country guidance cases and the expert reports submitted by the applicant (see paragraphs 1619 below) and concluded that the revocation of his refugee status was also appropriate. There was evidence that his father had been born in Hargeisa in Somaliland, which meant that the applicant would be allowed entry by the Somaliland authorities. He was of the Isaaq clan, which was the majority clan in Somaliland, and would be able to seek clan protection. The objective evidence indicated that the situation in Somaliland was reasonably stable. The grant of asylum to the applicant was no longer necessary. The tribunal also rejected the applicant’s claim to protection under Article 3 of the Convention, concluding: “There is no evidence to support the appellant’s view that he faces a real risk of illtreatment upon return to Somaliland. The appellant is a young single male with no dependants who would be able to establish himself in northern Somalia and obtain protection from his clan.” 9. The applicant sought reconsideration of the Tribunal’s decision, which was refused by a Senior Immigration Judge on 9 September 2009. Pending his application to the High Court he was granted bail by the Asylum and Immigration Tribunal on 1 December 2009, on conditions including twice weekly reporting. The applicant failed to comply with the bail conditions and did not report at all during December 2009. His application for reconsideration was refused by the High Court on 11 January 2010. The High Court found that the Tribunal had been entitled to hold that the applicant’s removal to Somaliland would not breach the Refugee Convention and that his deportation would not amount to a disproportionate interference with his Article 8 rights. The Tribunal had plainly had regard to all the applicant’s arguments and there was no realistic possibility that another Tribunal would reach a different conclusion. 10. Meanwhile, on 31 December 2009 the applicant was arrested on a charge of theft and remanded to prison. On 15 January 2010 he was sentenced to 28 days’ imprisonment, and, following completion of his sentence, a decision was made to detain him under immigration powers. On 21 April 2010, while in immigration detention, the applicant was involved in a fight with another detained person, and on 24 June 2010 he was convicted and fined for resisting or obstructing a person assisting a constable, which incident had taken place on 7 December 2009. In August 2010 the applicant was, with others, involved in a serious disturbance whilst in immigration detention, resulting in injury to a number of individuals, including staff. He was placed in a segregation unit, and transferred to prison on 6 September 2010. 11. A report published by UNHCR on 5 May 2010, “Eligibility Guidelines for assessing the international protection needs of asylumseekers from Somalia”, stated as follows: “The self-declared Republic of Somaliland, which has not been recognized by the international community as an independent sovereign state, has been relatively peaceful and secure with the exception of the problematic presidential elections process... UNHCR considers that a situation of generalized violence or events seriously disturbing public order does not exist to the extent that an individual present in either Puntland or Somaliland would be at risk of serious harm.” 12. In a report published on 17 March 2009, “Human Rights Challenges: Somaliland”, Amnesty International observed: “While overall human rights and humanitarian conditions have continued to worsen in southern and central Somalia, as well as in Puntland, a stable Somaliland has devoted attention to democratization, institutional capacity-building, stability and development in its 18-year pursuit of international recognition of self-declared independence. While Amnesty International takes no position on Somaliland’s claim to independence, the international community should provide the de facto authorities of the Government of Somaliland with necessary support to promote the rights of its people, and to ensure its capacity to firmly establish broad human rights protections.” In their Annual Report on Somalia, published on 13 May 2011, Amnesty International found in relation to Somaliland that: “Presidential elections were held on 26 June in the Republic of Somaliland. Ahmed Mohamed Mahamoud Silanyo, a former opposition politician, was declared the new President in July. According to independent observers, the elections were generally free, fair and peaceful. However, media freedom organizations reported some instances of restrictions on journalists in the lead-up to the elections. Tensions flared in the border areas of Sool and Sanaag claimed by Puntland. A new armed group clashed with Somaliland security forces from May onwards. Thousands of people were reportedly displaced by the clashes. Displaced people from southern and central Somalia continued to live in difficult conditions. Minority groups continued to suffer discrimination.” 13. In a report published on 13 July 2009, “Hostages to Peace: Threats to Human Rights and Democracy in Somaliland”, Human Rights Watch reported as follows: What Somaliland has accomplished over the years is both improbable and deeply impressive. While much of south/central Somalia remains mired in chaos and bloodshed, Somaliland has built a hard-won peace that it has now maintained for more than a decade. That peace has sheltered Somalilanders from the horrific abuses that have destroyed so many lives across Somalia. At the same time, Somaliland has done much to build the foundations of democratic governance grounded in respect for fundamental human rights. In 2003 and 2005 it held competitive and credible national elections, including parliamentary polls that put the territory’s House of Representatives firmly in the hands of the political opposition. There is a vibrant print media and an active and independent civil society. Somaliland has accomplished these things primarily on its own, in one of the world’s most volatile regions.” Human Rights Watch’s more recent “World Report 2011 – Somalia”, published on 24 January 2011, stated: “After almost two years of delay, Somaliland finally held its presidential election on June 26, 2010. International observers deemed the polls reasonably free and fair despite an isolated incident in the Sool region, where one person was killed. The incumbent President Dahir Riyale accepted defeat and peacefully ceded power to an opposition candidate, further advancing hopes for stability in the northern region. The situation remains unstable in the contested regions of Sool, Sanag, and Cayn, which lie between Somaliland, in Somalia’s northwest, and the autonomous state of Puntland in the northeast. Thousands of civilians were displaced by clan-based clashes and conflicts over resources in the disputed area in June.” 14. The most recent Operational Guidance Note on Somalia, published on 15 December 2011, provided: “Somaliland and Puntland, are in general relatively safe. A long-standing dispute exists over the territories of Cayn, Sool and Sanag, with both Somaliland and Puntland claiming them and the Sool-Sanag-Cayn alliances fighting to remain part of the original state of Somalia. General insecurity resulting from armed violence continues to be the main protection concern in the North-West regions of Somaliland and there has also been an increase in violence and assassinations in Puntland, since the beginning of 2011, mostly in Galkayo, Bossaso and areas around Galgala. There are major protection concerns around [internally displaced person] settlements both in Puntland and Somaliland, which include overcrowding, severe levels of malnourishment, economic exploitation of children and a lack of physical security, rapes, gang rapes and other instances of sexual and gender-based violence. The authorities in Somaliland will only admit failed asylum seekers returning from European countries who originate from their territory or those who have close affiliations to the territory through clan membership. In the case of majority clan affiliates, this means those associated with the Isaaq in Somaliland. In Somaliland taxis and 4x4 vehicles can easily travel from Hargeisa, Burao, Lasanod and Garowe. The main transportation between Somaliland and South Central is by lorry. People travel by air between Mogadishu and Hargeisa. The Tribunal in AMM and others ... also found that a person from Somaliland will not, in general, be able without real risk of serious harm to travel overland from Mogadishu International Airport to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to Somaliland, and then by land to Somaliland. This is particularly the case if the person is female. A proposed return by air to Hargeisa, Somaliland (whether or not via Mogadishu International Airport) will in general involve no such risks.” 15. In R. (Hussein) v. the Secretary of State for the Home Department [2009] EWHC 2506 (Admin), heard by the High Court on 14 October 2009, reference was made to a Memorandum of Understanding between the Government of the United Kingdom and the Somaliland authorities concluded in 2003 and renewed in 2007, which dealt with the question of returns. The Memorandum of Understanding provided that the Somaliland authorities would accept the return of persons who had no right to remain in the United Kingdom and had a right of return to Somaliland. Such return might be voluntary or enforced as regards the individual, but required the prior consent of the authorities. Such consent would be granted only after the provision of bio-data to satisfy the Somaliland authorities that the individual in question had a sufficient connection to Somaliland, which would generally entail that the person came from a clan with a sizeable representation in the region, and/or had been born or had parents who had been born in the region, and/or had family currently residing there. If a returnee were to be rejected by the Somaliland authorities at the point of entry, he or she would be brought back to the United Kingdom at the Government’s expense. 16. During the domestic proceedings and in his application to this Court, the applicant relied on two reports, dated March 2007 and July 2009, by Markus Höhne, from the Max Planck Institute of Social Anthropology. Mr Höhne had learnt the Somali language and had carried out research on Somali history, culture and politics since 2001, including extensive field research throughout 2002-2004 in Somaliland and Puntland. 17. In his first report, Mr Höhne gave an overview of events in Somalia from 1979 onwards. He noted that warlord rule prevailed in southern Somalia, but that in the North West the situation developed differently, since the Somali National Movement, a guerrilla organisation predominantly supported by the Isaaq clan, seized control early in 1991. The guerrillas entered into peace negotiations with the various other clans in the region and Somaliland was declared a secessionist republic in May 1991. Over the following decade Somaliland developed as a peaceful de facto State, with a clan-based political system. In recent years, democratic reforms had been introduced and elections were held in 2002 and 2005. However, the effectiveness of the Somaliland Government was limited by lack of resources, non-recognition by the international community and military challenges from other clans, who opposed a separate Somaliland. 18. Mr Höhne referred to the Court’s conclusions in Salah Sheekh v. the Netherlands, no. 1948/04, 11 January 2007 that individuals without ties to Somaliland would risk being turned back at the airport or subjected to harassment and abuse by the authorities. Although it appeared that the applicant originated from Somaliland, it was unclear from which clan he descended, and without any contacts to arrange his reception and arrival at Hargeysa airport, he might face rejection by the authorities. If he were allowed to enter, he might face severe problems in finding proper accommodation and meeting his other basic needs. Individuals who stood out because they dressed or spoke differently from the general population were subject to verbal harassment on the street, possibly escalating into physical attacks. Somaliland was strictly Islamic and any person who failed to conform to Islamic norms would be stigmatised and excluded from access to work, health care and other basic services. There was no welfare state or free access to health care, and people with serious illnesses had to rely on their families for support. Educational facilities were poor and unemployment was high. In most cases, it was necessary to rely on assistance from relatives in order to get a job. The reaction of the local population to the applicant would, therefore, depend on his ability to conform to the local culture. If he did become stigmatised because of his inability to fit in, he would face exclusion from employment and basic social services. 19. In his 2009 report, Mr Höhne referred to a report by Amnesty International that the ongoing instability and armed conflict in southern and central Somalia had had an impact in Somaliland. There were at least six camps for displaced persons in Hargeisa, populated by refugees from elsewhere in Somalia and Ethiopia, and members of minority groups originating in Somaliland. Living conditions in the camps were harsh, with no running water or electricity and problems with security. Religious extremism had increased in Somaliland in recent years, due in part to radical Islamist groups such as Al-Shabaab increasing their following, with the result that much of the population took great pains to follow Islamic rules and norms in all areas of daily life, and practices which had previously been tolerated, particularly in the urban centres of the region, were now completely unacceptable. Such practices included the wearing of light clothes or even trousers by women, and smoking by men. The applicant’s lack of knowledge of and adherence to the principles of Islam would, in the light of the increasingly strict and intolerant religious context, be an even more worrying issue for him. Furthermore, the fact that it had now emerged that the applicant was from the majority Isaaq clan did not alter Mr Höhne’s view that, without contacts or family connections in Somaliland, the applicant would face severe difficulties in establishing himself. Housing, employment and other services were usually organised within family networks; unemployment was high and it was extremely hard to find a job without good qualifications and family support. An individual would need detailed knowledge about clan relations and other social structures in order to find his way through daily life.

train

001-103365

ENG

POL

CHAMBER

CASE OF ŚCIEBURA v. POLAND

No violation of Art. 5-3

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano

5. The applicant was born in 1971 and lives in Cracow. 6. On 14 January 1999 criminal charges were brought against the applicant. He was suspected of armed robberies, committed in an organised criminal group. The applicant was in hiding at the material time. 7. On 29 January 1999 an arrest warrant was issued against the applicant by the Polish authorities. After having been unsuccessfully sought for many months, he was eventually detained in Spain on 23 October 2001 and remanded in custody. 8. Subsequently, action was taken with a view to the applicant's extradition and on 21 October 2002, the Spanish authorities handed him over to Poland. 9. On 24 October 2002 the Katowice District Court ordered that the applicant remain in custody, relying on the reasonable suspicion that he had committed the offences in question. The court considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence and induce witnesses to give false testimony or go underground again (he had earlier been in hiding in Spain). It further stressed the severity of the anticipated penalty and the fact that the applicant had been acting in an organised criminal group. 10. The applicant's appeal against the detention order was dismissed by the Katowice Regional Court on 23 December 2002. Likewise, his further appeals against decisions prolonging his detention and all his subsequent, numerous applications for release and appeals against refusals to release him were unsuccessful. In his applications and appeals he relied on his personal circumstances, in particular his poor health, stressing that he had been infected with an HCV virus. 11. In the course of the investigation, the applicant's detention was prolonged on several occasions, namely by the Katowice Regional Court's decisions of 16 January, 20 March and 8 September 2003, 16 January and 20 September 2004, 14 January, 6 June and 14 November 2005, 24 April and 20 October 2006 and the Katowice Court of Appeal's decisions of 8 August 2007 and 6 February 2008. In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant's detention. In addition, they stressed the existence of a strong suspicion that the applicant had committed the offences in question, which was supported by an extensive body of evidence from witnesses and experts. Further, they attached importance to the grave nature of the charges against him and the fact that a “wanted” notice had been issued for his arrest. 12. On 3 March 2003 the Regional Prosecutor filed a bill of indictment with the Częstochowa Regional Court. The applicant was charged with inter alia numerous counts of armed robberies committed in an organised criminal group. 13. On 27 March 2003 the Częstochowa Regional Court requested the Supreme Court that the case be transferred to the Katowice Regional Court. The court stressed the special nature of the case, which implied that exceptional security measures be taken and special facilities provided. On 14 May 2003 the Supreme Court granted the request. 14. Between 18 November 2002 and 16 September 2005 the applicant served a prison sentence imposed in another set of criminal proceedings (on the strength of the Cracow District Court's judgment of 23 February 1998). 15. On 14 April 2008 the Katowice Regional Court granted the applicant's request to be released on bail. On 16 April 2008 the applicant was released as he had paid bail of 350,000 Polish zlotys (PLN). 16. It appears that the criminal proceedings are still pending. 17. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.

train

001-58114

ENG

AUT

CHAMBER

CASE OF WERNER v. AUSTRIA

Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings;Non-pecuniary damage - finding of violation sufficient

Feyyaz Gölcüklü;N. Valticos

6. Mr Johannes Werner, an Austrian national born in 1963, lives in Vienna. 7. On 15 May 1991 the police arrested a Mr and Mrs Hauser (see paragraph 25 below), who were suspected of fraudulently using a credit card which did not belong to them when making purchases in various shops in Vienna to the value of about 200,000 Austrian schillings (ATS). On 17 May they were detained pending trial. 8. On 1 July 1991 the police also arrested the applicant, who was suspected of having aided and abetted Mr and Mrs Hauser by forging the signature on the credit card. On 3 July he was detained pending trial. 9. On 8 July 1991 Mr and Mrs Hauser were released, and on 19 July the applicant was released. 10. On 24 February 1992 the investigating judge at the Vienna Regional Court (Landesgericht) decided to discontinue the proceedings in the light of a graphologist’s finding that it was unlikely that the signatures on the payment slips for the purchases made with the stolen credit card were in Mr Werner’s hand and of the fact that the witnesses called by the public prosecutor did not have sufficiently clear memories. 11. In the meantime, on 4 February 1992, the public prosecutor’s office (Staatsanwaltschaft) had asked the Regional Court to declare that the applicant and Mr and Mrs Hauser were not entitled to compensation for their detention under section 2 (1) (b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz, “the 1969 Act” – see paragraph 19 below), on the ground that the suspicion concerning them had not been dispelled. 12. On 21 April 1992 the investigating judge interviewed the applicant and Mr and Mrs Hauser and told them of the application made by the public prosecutor’s office. 13. The applicant and Mr and Mrs Hauser sought compensation from the State for the pecuniary damage sustained on account of their detention. 14. On 3 June 1992 the Review Division (Ratskammer) of the Vienna Regional Court, sitting in private, refused their compensation claims on the ground that, contrary to the requirements of section 2 (1) (b) of the 1969 Act, the suspicion concerning them had not been dispelled. No representative of the public prosecutor’s office attended the deliberations. 15. On 15 June 1992 Mr Werner and Mr and Mrs Hauser appealed against that decision to the Vienna Court of Appeal (Oberlandesgericht). They asked the Court of Appeal to take further evidence and, in particular, to hear witnesses. 16. On 2 September 1992 the principal public prosecutor’s office (Oberstaatsanwaltschaft) submitted written observations. It asked the Court of Appeal to dismiss the appeal and not to take further evidence as the witnesses’ statements were not capable of exculpating the appellants. These observations were not communicated to the applicant or to Mr and Mrs Hauser. 17. On 29 October 1992 the Vienna Court of Appeal, sitting in private, dismissed the appeal. It ruled as follows: “In the first place, the appellants’ argument that suspicion does not have to be wholly dispelled for compensation to be payable under section 2 (1) (b) of the Compensation (Criminal Proceedings) Act is contradicted by the settled case-law of the Austrian courts. It has been consistently held that suspicion must be dispelled sufficiently to establish that the detained person is not punishable, and cannot be prosecuted, on account of the conduct in respect of which his detention was ordered. Where that remains only doubtful, suspicion is not dispelled within the meaning of section 2 (1) (b) of the Act. The appellants’ assertion that this case-law reverses the burden of proof is incorrect, since cogent evidence must be adduced before it can be accepted that suspicion has been dispelled. In this connection, there is no justification for giving the appellants, as they demanded, the opportunity to prove their innocence by taking further evidence, since the evidence they propose to adduce cannot be considered likely to lead to such a result. Seeing that the suspicion concerning the appellants is based mainly on the witness statements of 16 March 1991 and that, in addition, it is not possible to determine when the other offences were committed, conclusive results cannot be expected if fresh evidence is taken in the form of the appellant Johannes Werner’s time-sheets and itineraries for 18 and 19 March, together with his tachograph discs, because the offences could have been committed during the rest stops on those journeys, or before or after them, especially as there are gaps in the time-sheets submitted by Mr Werner. The witnesses it was proposed to call have already been interviewed by the police and have already been confronted with the appellants. The main reason why the prosecution was abandoned was that with the passing of time those witnesses’ memories had begun to falter. However, if their memories were so defective that they could no longer be considered adequate to establish guilt, neither can they in the present proceedings form an adequate basis for awarding compensation. The appellants did not dispute that the police inquiries had given rise to real suspicion concerning them. That suspicion was not subsequently dispelled, but on account of some remaining doubt was simply not sufficient to support a finding of guilt. The conditions which must be met under section 2 (1) (b) of the Compensation (Criminal Proceedings) Act in order to be able to claim compensation have accordingly not been satisfied and the appellants’ claims must therefore fail.” No representative of the principal public prosecutor’s office attended the deliberations. 18. Article 90 § 1 of the Federal Constitution provides: “Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law.” 19. The relevant provisions of the 1969 Act read as follows: “(1) A right to compensation arises: (a) … (b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria … and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...” “(1) ... (2) A court which acquits a person or otherwise frees him from prosecution … (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions of compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3 ... If the investigating judge decides to discontinue the proceedings, the Review Division concerned shall rule. (3) Before ruling, the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ... (4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and on the public prosecutor ... (5) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within two weeks. (6) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision. If the court which has to rule is the court of first instance, the investigations shall be carried out by the investigating judge. (7) Once the decision has become final, it is binding on the courts in subsequent proceedings.” 20. If the courts consider that the conditions in sections 2 and 3 have been satisfied, the applicant must apply to the Auditor-General’s Department (Finanzprokuratur) for his claim to be allowed. If no decision has been taken on his claim within six months or if it has been refused in whole or in part, the claimant may bring a civil action against the Republic of Austria (sections 7 and 8 of the Act). 21. As a general rule, there is no public hearing before the Review Division of the Regional Court or in the Court of Appeal in appeal proceedings (Beschwerden) against a decision of the Review Division. The two courts rule after sitting in private and after hearing the representative of the public prosecutor’s office and the principal public prosecutor’s office respectively (Articles 32 § 1 and 35 § 2 of the Code of Criminal Procedure – Strafprozeßordnung). 22. At the material time Article 35 § 2 of the Code of Criminal Procedure provided: “[Public prosecutors] may attend the deliberations of the court, provided that these do not concern a decision to be delivered at the trial [Hauptverhandlung], or on the sitting day [Gerichtstag] appointed for ruling on an ordinary appeal or an appeal on points of law; they shall not, however, be entitled to be present during the vote and the taking of the decision [Beschlußfassung].” Since 1 January 1994 that Article has been worded as follows: “Where the public prosecutor at an appellate court makes observations concerning an appeal on points of law or an ordinary appeal against a judgment or any other judicial decision, the appellate court must communicate those observations to the accused (person concerned) and indicate to him that he is entitled to comment on them within a specified period that must be reasonable. Such communication is not necessary where the prosecutor does no more than submit, without argument, that the appeal should be dismissed or merely submits that it should be allowed or if the appellate court allows the accused’s appeal.” 23. Article 82 of the Code of Criminal Procedure provides: “The courts shall have discretion to decide whether a party or his duly appointed representative may, in cases other than those expressly provided for in the Code of Criminal Procedure, be given leave to inspect documents in the file or whether copies may be given to them, provided that the persons concerned can convincingly show that they need such copies in order to be able to claim compensation or to support an application for a retrial or for some other reason.” 24. It is the practice of the registries of the Austrian Constitutional Court and Administrative Court to make their respective court’s judgments available on request. The courts also publish a selection of their decisions each year. Since an amendment to the Supreme Court Act in 1991, the judgments of the Supreme Court (Oberster Gerichtshof) have likewise been available to the public on request. The Supreme Court also publishes a selection of its judgments each year.

train

001-57530

ENG

DEU

CHAMBER

CASE OF LUEDICKE, BELKACEM AND KOÇ v. GERMANY

Preliminary objection rejected (disappearance of object of proceedings);Violation of Art. 6-3-e;Not necessary to examine Art. 14;Pecuniary damage - financial award;Just satisfaction partially reserved

10. At the time when they introduced their applications with the Commission, Mr. Gerhard W. Luedicke, Mr. Mohammed Belkacem and Mr. Arif Koç were resident in the Federal Republic of Germany. The three applicants were charged before the German courts with the commission of various criminal offences. Since they were not sufficiently familiar with the language of the country, they were assisted by an interpreter in accordance with German law. After conviction, they were ordered, amongst other things, to pay the costs of the proceedings, including the interpretation costs. They consider that the inclusion of this latter item is contrary to, inter alia, Article 6 para. 3 (e) (art. 6-3-e) of the Convention. 11. In criminal proceedings, the courts must use the services of an interpreter whenever the accused is not conversant with German. The first sentence of section 185 para. 1 of the Constitution of the Courts Act (Gerichtsverfassungsgesetz) provides as follows: "If the proceedings before the court involve the participation of persons who do not have command of the German language, an interpreter shall be employed." Pursuant to this provision, the assistance of an interpreter is made available as a matter of course to an accused - whatever his nationality - who does not understand or speak the German language. The same rule is applicable to the examination of witnesses who do not have command of the German language. The obligation to employ an interpreter is, however, subject to one exception, namely when all the participants are familiar with the foreign language (section 185 para. 2 of the Constitution of the Courts Act). 12. Interpretation costs are part of the costs of the proceedings which, according to Article 464 (a) para. 1, first sentence, of the Code of Criminal Procedure (Strafprozeßordnung), are made up of "the fees (Gebühren) and expenses of the Treasury". The latter are listed in the Court Costs Act (Gerichtskostengesetz) which in turn refers to the Witnesses and Experts (Expenses) Act (Gesetz über die Entschädigung von Zeugen und Sachverständigen). Section 17 para. 2 of the last-mentioned Act provides that "for the purposes of compensation, interpreters shall be treated as experts". According to Article 465 para. 1, first sentence, of the Code of Criminal Procedure: "The accused shall bear the costs of such part of the proceedings as concerned the act that gave rise to the conviction ..." Under this provision, the question of payment of the costs of the proceedings arises only after there has been a final ruling on the guilt of the accused; an accused person may never be required to make any advance payment on these costs. In the event of acquittal or of proceedings being discontinued, the Treasury in principle bears the costs. On the other hand, if the individual concerned is convicted, he has to pay the costs, but only such proportion thereof as relates to the criminal charges upheld by the court. 13. As concerns interpretation costs in particular, Article 6 para. 3 (e) (art. 6-3-e) of the Convention, which forms an integral part of the domestic law, specifies that "everyone charged with a criminal offence has the (right) ... to have the free assistance of an interpreter if he cannot understand or speak the language used in court". This text has not been interpreted and applied by the German courts in a uniform way. Certain courts read it as embodying an obligation for the Treasury to bear the costs in question for all time and in all cases; other courts, including some higher courts, consider on the contrary that while Article 6 para. 3 (e) (art. 6-3-e) - like the Code of Criminal Procedure - exempts an accused (that is, a person "charged with a criminal offence") from paying in advance for the expenses incurred by the use of an interpreter, it does not prohibit such expenses being awarded against a convicted person. 14. Interpretation costs are assessed in accordance with a scale fixed by law and not by the interpreters themselves; the assessment is made by a court official (Kostenbeamter) when the overall costs of the proceedings are determined. 15. Mr. Gerhard W. Luedicke is a citizen of the United Kingdom and was, at the time of his application to the Commission, a member of the British Forces stationed in the Federal Republic of Germany. 16. On 5 May 1972, the Bielefeld District Court (Amtsgericht) convicted him of a road traffic offence. He was fined DM 900 and ordered to pay the costs of the proceedings. On 2 June 1972, after the judgment had become final, the public prosecutor’s department (Staatsanwaltschaft) attached to the Bielefeld Regional Court (Landgericht) served Mr. Luedicke with a notice to pay the sum of DM 1,330.90, made up of the fine of DM 900 and the fees (Gebühren) due in respect of the criminal proceedings (DM 90) and the withdrawal of his driving licence (DM 30), together with police costs (DM 85.50) and interpretation costs (DM 225.40). DM 154.60 of the last item related to the oral hearing. 17. On 30 June 1972, the applicant, represented by the Command Legal Aid Section at Bielefeld, entered an appeal (Erinnerung) against this assessment of costs; he maintained that the assessment was contrary to Article 6 para. 3 (e) (art. 6-3-e) of the Convention in so far as it concerned payment of the interpretation costs. Following the refusal of the auditor (Bezirksrevisor) attached to the Bielefeld Regional Court to modify the assessment, the matter was referred to the Bielefeld District Court which dismissed the appeal on 31 August 1972. The District Court stated in particular: "The object of Article 6 (art. 6) of the Convention ... is to guarantee certain fundamental rights to everyone faced with criminal proceedings. In Germany, this Article (art. 6) applies to proceedings brought against foreigners as well as to those brought against German nationals. It is not the aim of the provision to place foreigners in a more favourable position than German nationals. This, however, would be the case if a foreign convicted person was not required to pay the interpretation costs. For example, under the German law of procedure and costs, a deaf-and-dumb convicted person against whom proceedings cannot be taken without a special interpreter must pay the costs of interpretation. So must also a German convicted person in whose trial non-German-speaking witnesses have to be examined with the assistance of an interpreter. Under the rules of German criminal procedure every person finally convicted must himself bear all the costs of the proceedings, including ... the interpretation expenses. This obligation is not contrary to Article 6 (art. 6) ... which does not forbid awarding the costs of the proceedings against a person convicted of an offence. Under German procedural law, however, no accused person need make advance payment for the costs of interpreters ... This would appear not to be the case in other signatory States of the Convention as otherwise it would be difficult to understand the wording of Article 6 para. 3 (e) (art. 6-3-e). The Court thus interprets Article 6 para. 3 (e) (art. 6-3-e) ... as a provisional exemption from paying the interpretation costs ..." 18. On 8 February 1973, following an "immediate appeal" (sofortige Beschwerde) by Mr. Luedicke, the Bielefeld Regional Court confirmed the impugned decision, relying, inter alia, on the "correctness of the reasoning" contained in that decision. On 4 May 1973, the applicant paid the costs of the proceedings, including the interpretation costs. 19. Mr. Mohammed Belkacem is an Algerian citizen, born in 1954. After completing his apprenticeship as a locksmith in Algeria, he rejoined his father in the Federal Republic of Germany where he followed various occupations. 20. In December 1973, he was involved in a dispute in a Berlin night-club during which another client lost his coat. He was charged with robbery and with assault occasioning bodily harm; his case was tried by the Berlin-Tiergarten Juvenile Court (Jugendschöffengericht). On 8 April 1974, the Juvenile Court convicted him of assault occasioning bodily harm. He was sentenced to four weeks’ imprisonment (Dauerarrest) - a sentence deemed to have been served during his detention on remand - and to a fine of DM 500, and he was ordered to pay the costs of the proceedings. 21. On 10 April 1974, Mr. Belkacem filed an "immediate appeal" against the order as to costs insofar as the interpretation costs had been included in the award. He submitted that Article 6 para. 3 (e) (art. 6-3-e) of the Convention granted him exemption from payment of the costs in question. On 13 June 1974, the Berlin Regional Court dismissed the appeal. The Regional Court reasoned that, since no assessment of costs had yet been made, there had been no decision capable of being challenged on appeal. The Regional Court further stated that the Juvenile Court would have acted improperly if it had omitted the interpretation costs from its decision on the costs of the proceedings - the former costs, according to Article 464 (a) of the Code of Criminal Procedure read in conjunction with the Court Costs Act and the Witnesses and Experts (Expenses) Act, constituting a component of the latter costs. Furthermore, it was added, Article 6 para. 3 (e) (art. 6-3-e) of the Convention did not prohibit a convicted person being made to bear interpretation costs. 22. On 11 April 1975, the Berlin-Tiergarten District Court served Mr. Belkacem with a notice to pay costs amounting to DM 665.63, including DM 321.95 for interpretation costs. The latter sum comprised the expenses incurred in respect of Mr. Belkacem’s appearance before the judge on 17 December 1973 (DM 33.25), the review on 14 January 1974 of his detention on remand (Haftprüfungstermin) (DM 67.60), the translation of the indictment (DM 90.20) and the trial hearing on 8 April 1974 (DM 130.90). The applicant unsuccessfully challenged the inclusion of interpretation costs in this assessment of the costs. On 29 May 1975, his appeal was dismissed by the District Court which held, inter alia, that Article 6 para. 3 (e) (art. 6-3-e) of the Convention did not prevent interpretation costs being awarded against a convicted person. Mr. Belkacem then lodged an "immediate appeal" which was rejected by the Berlin Regional Court on 2 October 1975. As far as Article 6 para. 3 (e) (art. 6-3-e) was concerned, the Regional Court referred to its decision of 13 June 1974 and continued: "In the light of the context of Article 6 para. 3 (art. 6-3) ..., which lays down fundamental guarantees for a fair trial, the Court ... interprets sub-paragraph (e) (art. 6-3-e) to mean that the assistance of an interpreter must not be made dependent on the accused’s making any advance payment. This sub-paragraph guarantees a court hearing for a foreigner who is ignorant of the language, regardless of his capacity to pay. Who finally has to bear the costs of interpretation after the proceedings have terminated is a different question. That after conviction this may be the accused is not excluded by Article 6 para. 3 (e) (art. 6-3-e) ..." 23. On 5 May 1977, following a request by Mr. Belkacem, the Berlin Justizkasse allowed him to defer payment "until the decision of the Commission of Human Rights be known". From that time, he has not been required to pay the costs in question since, at the request of the Government, the relevant Berlin authorities (Landesjustizverwaltung) have suspended recovery awaiting the judgment of this Court. 24. Mr. Arif Koç, a Turkish citizen born in 1940, has been employed in the Federal Republic of Germany in various trades, including mining and the construction industry. When he applied to the Commission, he was living at Geilenkirchen-Waurichen. On 12 April 1976, he notified the relevant authorities in Alsdorf, near Aachen, his last place of residence in Germany, of his intention to return to Turkey. 25. On 6 December 1973, the Assize Court attached to the Regional Court (Schwurgericht beim Landgericht) at Aachen convicted Mr. Koç of causing grievous bodily harm. He was sentenced to a year’s imprisonment, but the balance of his sentence remaining after allowance had been made for his detention on remand was commuted to a period of probation. The court ordered the applicant to bear the costs of the proceedings "with the exception, however, of the costs occasioned by the assistance of the Turkish-language interpreter, which costs are to be borne by the Treasury". Although taking notice of the conflicting practice of the German courts in this connection, the Assize Court held that the "free" assistance of an interpreter, as guaranteed by Article 6 para. 3 (e) (art. 6-3-e) to every accused not conversant with the language of the court, is to be understood as being free once and for all time. 26. On an "immediate appeal" by the public prosecutor’s department, the Cologne Court of Appeal (Oberlandesgericht), in a fully reasoned decision delivered on 5 June 1975, set aside the Assize Court’s judgment insofar as it related to the interpretation costs. The Court of Appeal stated: "On [its] wording, it is controversial whether (Article 6 para. 3 (e)) (art. 6-3-e) forbids a convicted person’s being charged with the costs of interpretation under the above-cited provisions relating to costs or whether - in the case of criminal proceedings in German courts – it merely means that the assistance of an interpreter may not be made dependent on an advance payment by the accused. ... ..... The object of the Convention is to secure human rights and fundamental freedoms against arbitrary State action and to place them under the protection of supranational law. ... It is not its purpose to go further and alter the national legal systems ... The list of procedural guarantees in Article 6 (art. 6) of the Convention shows that the intention was to enshrine rights of the citizen and duties of the State which ensure a fair trial. This obviously means that the accused (or person charged) should be able to call for the assistance of an interpreter if he does not understand or speak the language used in court and that such assistance should be in no way dependent on the question of costs. But it certainly does not mean that even a convicted person may not have the costs of interpretation awarded against him. A fair trial is guaranteed in this respect insofar as the accused must be assisted by the interpreter he needs. The question whether he may later be required to bear the costs is not of the same order as the problem of guaranteeing human rights and fundamental freedoms but, both in theoretical and practical terms, is of lesser moment. It cannot be assumed that the Convention is intended to provide a piecemeal solution of the question of costs in criminal proceedings. Nor does the consideration that a foreigner should not receive worse treatment in the matter of costs than a national, dictate the conclusion that permanent exemption from costs is necessarily implied by the object of the Convention ... The Convention would not have come appreciably nearer to achieving its aim by prohibiting a financial disadvantage of such a kind." On 1 July 1975, Mr. Koç applied to the Federal Constitutional Court (Bundesverfassungsgericht) which, eight days later, declined to hear the application on the ground that it did not offer sufficient prospects of success. 27. According to the payment vouchers (Kassenanweisungen), the fees paid to the interpreter amounted to DM 311.50 for the hearing on 4 December 1973, DM 510.50 for the hearing on 5 December and DM 112.50 for the hearing on 6 December - making a total of DM 934.50. 28. Nevertheless, the applicant was not served with a notice to pay the costs for which he was liable, including the interpretation costs, since it was noted that he had a wife and four children to support, that his income was modest and that there was thus no prospect of recovering the costs. For these reasons, the competent court official, acting in pursuance of Article 10 para. 1 of the Service Instructions of 28 February 1969 on Court Costs (Kostenverfügung), had decided of his own motion on 23 October 1975 not to assess the costs. His decision was not notified either to Mr. Koç or to Mr. Koç’s lawyer. A second decision to this effect was taken by the same official on 20 December 1977. This decision recorded that the applicant was living in Turkey that his address was unknown and that recovery of the costs, being doomed to failure, should be waived. Mr. Koç’s lawyer discovered the existence of the decision in April 1978 when he sought from the court a photocopy of the interpreter’s payment vouchers. 29. Before the Court, the Agent of the Government, with the agreement of the Minister of Justice for the Land of North-Rhine Westphalia made the following declaration: "... the compulsory collection of costs from the applicant Koç in pursuance of the judgment of 6 December 1973 by the Assize Court attached to the Aachen Regional Court, varied in part by the decision of 5 June 1975 by the Cologne Court of Appeal, will not be carried out in future; for the costs of such compulsory collection and the administrative costs would be out of proportion to the sum owed." The Agent specified that "the costs ... would not be collected even if the applicant were to return to the Federal Republic of Germany".

train

001-22359

ENG

RUS

ADMISSIBILITY

LARIOSHINA v. RUSSIA

Inadmissible

Gaukur Jörundsson

The applicant is a Russian national, born in 1918. She lives in Ardatov, Republic of Mordoviya of the Russian Federation. The applicant receives her old-age pension and certain other social benefits from the social security authorities. At the time when the applicant lodged the application the total amount of the social payments that she received was 653 Russian roubles per month. She claimed that from 1995 to 1998 the amount of these benefits had not been properly calculated. In particular, she alleged that during this period she had been entitled to a special benefit as a widow of a Second World War participant, in accordance with a statute of 7 May 1995 (see the ‘Relevant domestic law’ part below). She applied to the Ardatov District Court of the Mordoviya Republic, claiming pecuniary and non-pecuniary damages in this respect. On 11 November 1998 the court dismissed the action on the ground that the applicant had been entitled to the social benefit in question, but that before July 1998 she had not applied for it in accordance with the procedure established by that law. The court also noted that since July 1998 the applicant had received the claimed benefit. On 29 December 1998 the Supreme Court of the Mordoviya Republic dismissed the applicant’s appeal against the judgment, finding that the lower court had properly decided the case. The Russian Constitution (Article 39) and the State Pensions Act entitle a person to an old-age pension, the amount of which depends on the employment and related activities record. The Act of 7 May 1995 entitles Second World War participants and their widows to additional monthly payments.

train

001-69901

ENG

POL

CHAMBER

CASE OF KNIAT v. POLAND

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

7. The applicant was born in 1956 and lives in Poznań, Poland. 8. On an unknown date in 1997 the applicant’s husband lodged a petition for divorce with the Poznań Regional Court (Sąd Okręgowy). The applicant did not agree to a divorce and asked the court to dismiss the petition. 9. On 1 November 1997 the court made an interim periodical payments order requiring the applicant’s husband to pay 2,500 Polish zlotys (PLN) for maintenance in respect of their 3 children pending the proceedings. 10. On 21 September 1999 the Poznań Regional Court granted a decree of divorce. The court held that the marital breakdown was irretrievable and that both spouses had been at fault in respect of the breakdown of their marriage. It ordered that a final court fee (“wpis ostateczny”) of PLN 10,000 should be borne by the parties in equal shares (PLN 5,000 each). 11. On 20 October 1999 the applicant appealed against the divorce decree. She contested the findings made by the Regional Court in respect of the breakdown of the marriage and her being responsible for the marital breakdown. She also asked the court to rule that adultery on the part of her husband had been the main reason why their marriage had ended. 12. On 25 October 1999 the court ordered the applicant to pay a court fee of PLN 10,000 for lodging the appeal. 13. On 3 November 1999 the applicant made an application for an exemption from that fee. She argued, in particular, that a court fee for lodging an appeal constituted in fact an interim court fee (“wpis tymczasowy”) and that it should be estimated pursuant to section 11 of the Ordinance of the Minister of Justice of 17 December 1996 on Determining Court Fees in Civil Cases (Rozporządzenie Ministra Sprawiedliwości w sprawie określenia wysokości wpisów w sprawach cywilnych). It could not, therefore, exceed the maximum interim court fee in divorce proceedings, which was PLN 600. The applicant further submitted that she was in a difficult financial situation and that she was not able to pay the fee in question. She also stressed that the sum required from her was unusually high and out of any proportion to her standard of living. 14. On 8 November 1999 the Poznań Regional Court dismissed the application, considering that the applicant had “not shown that her financial situation made it impossible for her to pay the fee”. It held that she had not supplied a detailed statement concerning her financial situation. 15. On 20 November 1999 the applicant lodged an interlocutory appeal against that decision. She maintained that she had already submitted a declaration of means, pursuant to Article 113 § 1 of the Code of Civil Procedure. The Poznań Court of Appeal (Sąd Apelacyjny) dismissed that appeal on 30 November 1999. That decision did not contain any reasons. 16. On 16 December 1999 the Poznań Regional Court ordered the applicant to pay, within seven days, a court fee of PLN 10,000 for lodging the appeal of 20 October 1999, on pain of it being rejected. 17. On 10 January 2000 the applicant lodged the second application for an exemption from court fees. She submitted that, given her financial means, she could pay only a sum not exceeding PLN 3,300. The applicant argued that she was not employed and that her only means were payments for her share in marital property received from her husband. She further maintained that she had not put money aside for the litigation since she had not expected the court fee to be so high. The applicant also stressed that the case was relatively simple but that important issues were at stake for her in the proceedings because they related to her civil status. Moreover, she pointed out that in other, more complex proceedings (concerning the marital property division) the Poznań Regional Court levied a moderate court fee of PLN 4,660 on each party. 18. On 13 January 2000 the Poznań Regional Court dismissed the application for a partial exemption from court fees and rejected the appeal against the divorce decree of 21 September 1999 for non-compliance with the court’s decision ordering the applicant to pay the court fee for lodging that appeal. The court held that the applicant had failed to indicate whether paying the full amount of court fees would entail a substantial reduction in her standard of living. 19. On 28 January 2000 the applicant lodged an interlocutory appeal against that decision. On 22 February 2000 the Poznań Court of Appeal dismissed the appeal. It held that the applicant’s financial situation was good since she had already received PLN 300,000 from her husband on the basis of a lump sum order made in the proceedings concerning the division of their marital property, and that she would receive more payments. 20. On 20 March 2000 the applicant lodged a cassation appeal with the Supreme Court against that decision. She repeated the arguments raised in her earlier applications. 21. On 29 March 2000 the Poznań Court of Appeal ordered the applicant to pay a court fee of PLN 10,000 for lodging the cassation appeal. 22. On 5 April 2000 the applicant made an application for a partial exemption from court fees in the cassation proceedings. She submitted that she was able to pay the court fees not exceeding PLN 3,300. She further maintained that her financial situation was difficult because she was not employed and her only asset was the lump sum received from her husband; that sum, however, had to be disbursed not only for her needs but also for maintenance of her two minor children who lived with her. 23. On 17 April 2000 the Poznań Court of Appeal dismissed the application. The decision did not contain any reasons. 24. The applicant did not pay the fee of PLN 10,000. As a consequence, on 16 May 2000, the Poznań Court of Appeal rejected her cassation appeal on formal grounds. 25. On 26 May 2000 the applicant lodged an interlocutory appeal against that decision. On 30 May 2000 the Poznań Court of Appeal ordered the applicant to pay a court fee of PLN 2,000 for lodging the interlocutory appeal. 26. On 6 June 2000 the applicant made another application for an exemption from court fees in the interlocutory appeal proceedings. On 9 June 2000 the court again ordered her to pay a court fee of PLN 2,000. 27. On 9 June 2000 the Poznań Court of Appeal dismissed her application for an exemption from court fees in the interlocutory appeal proceedings. That decision was upheld on appeal on 12 July 2000. 28. 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 (appl. no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01), §§ 29-39). Polish law provides however, for special regulations with respect to divorce proceedings. A petitioner is obliged to pay an interim court fee at the time of lodging a divorce petition with a court. Subsequently, the court levies a final court fee in a divorce decree. Section 31 of the Law of 13 June 1967 on Court Fees in Civil Cases (Ustawa o kosztach sądowych w sprawach cywilnych) (as amended) states, in so far as relevant: “1. In cases concerning non-pecuniary rights and in cases where it is impossible to establish the value of a claim at the time of lodging a statement of claim with a court, the president of the court shall order the party concerned to pay an interim court fee (wpis tymczasowy) for lodging his pleading. 2. The court levies a final court fee (wpis ostateczny...” Paragraph 11(6) of the Ordinance of the Minister of Justice of 17 December 1996, reads: “An interim court fee for lodging a divorce petition shall range from PLN 30 to PLN 600.”

train

001-79394

ENG

MDA

CHAMBER

CASE OF VENERA-NORD-VEST BORTA A.G. v. MOLDOVA

Government's request for a strike-out rejected;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

7. On 1 May 1999 the applicant concluded a contract with another private company. According to the contract, the applicant would locate assets belonging to the debtors of the second company in exchange for a commission. Since the second company failed to comply with the contract, the applicant brought an action against it seeking damages for breach of the contract. 8. On 8 May 2001 the Chişinău Economic Court found in favour of the applicant and awarded it 244,939 Moldovan lei (MDL) (the equivalent of 21,050.46 euros (EUR) at that time). 9. On 30 January and 9 October 2002 the Economic Court of the Republic of Moldova and the Supreme Court of Justice respectively dismissed the second company’s appeals and upheld the judgment of the first-instance court, which thus became final. 10. On 24 December 2002 the Prosecutor General lodged with the Plenary of the Supreme Court of Justice a request for annulment of the judgment in favour of the applicant. 11. On 27 January 2003 the Plenary of the Supreme Court of Justice upheld the Prosecutor General’s request for annulment and quashed the judgment. It adopted a new judgment dismissing the applicant’s action. 12. Following the communication of the case by the Court, the Government Agent asked the Prosecutor General to lodge a request with the Plenary of the Supreme Court of Justice in order to quash its judgment of 27 January 2003 and to discontinue the request for annulment proceedings. He considered that the quashing of a final judgment in favour of the applicant following the annulment proceedings had breached the applicant’s rights under the Convention. 13. On 2 November 2004 the Prosecutor General complied with the Government Agent’s request. He lodged a revision request relying on section 449 § 1 (j) of the Code of Civil Procedure (the “CCP”, see paragraph 16 below) and indicated that the applicant and the Government intended to conclude a friendly settlement agreement. 14. By a judgment of 21 February 2005 the Plenary of the Supreme Court of Justice dismissed the Prosecutor’s request for revision on the ground that the parties had not submitted any evidence of the alleged friendly settlement. 15. The relevant domestic law concerning the quashing of a final judgment was set out in Roşca v. Moldova, no. 6267/02, § 16, 22 March 2005. 16. The Code of Civil Procedure of 12 June 2003, insofar as relevant, reads as follows: Revision may be requested: ... j) When the Government of the Republic of Moldova, represented by the Government Agent, or the European Court of Human Rights has started a procedure of friendly settlement in a pending case against the Republic of Moldova, and the Government consider that by a final decision of a court a fundamental right guaranteed by the Constitution of the Republic of Moldova or by the European Convention for the Protection of Human Rights and Fundamental Freedoms has been breached. k) When the European Court of Human Rights has found a violation of fundamental rights and liberties, as well as when it has found that the interested person could obtain, in accordance with domestic law, at least partial reparation by way of annulment of a judgment pronounced by a domestic court. 17. In Ungureanu v. the Sângerei Local Council on 25 January 2006 the Supreme Court of Justice upheld the Prosecutor’s request for revision lodged in accordance with section 449 § 1 (j) following the Government’s Agent request. It discontinued the annulment proceedings, acknowledged the violation of the applicant’s rights under Article 6 § 1 of the Convention and awarded her compensation in respect of pecuniary and non-pecuniary damage and for costs and expenses. 18. In Dumitru Grosu v. the Ministry of Finance on 22 March 2006 the Supreme Court of Justice upheld the Prosecutor’s request for revision lodged on 6 May 2004 in accordance with section 449 § 1 (j) following the Government’s Agent request. It discontinued the annulment proceedings, acknowledged the violation of the applicant’s rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention and awarded him compensation in respect of pecuniary and non-pecuniary damage and for costs and expenses. 19. In Enachi v. the Ministry of Finance on 15 March 2006 the Supreme Court of Justice upheld the applicant’s action following the re-opening of the proceedings upon the Prosecutor’s request for revision lodged in accordance with section 449 § 1 (j). It acknowledged the violation of the applicant’s rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention and awarded him compensation in respect of pecuniary and non-pecuniary damage and for costs and expenses. 20. In The Ministry of Industry of the Republic of Moldova v. JSC Hidromasina on 29 June 2006 the Supreme Court of Justice dismissed the Prosecutor’s request for revision lodged in accordance with section 449 § 1 (j) following the Government’s Agent request. It found that the Government had failed to submit any evidence of the violation of the applicant company’s rights under the Convention. The Supreme Court also stated it could not re-open the case until the Court had adopted a judgment on the merits of the case.

train

001-76565

ENG

RUS

ADMISSIBILITY

KOLENOVA v. RUSSIA

Inadmissible

Nicolas Bratza

The applicant, Ms Liliya Vladimirovna Kolenova, is a Russian national who was born in 1975 and lives in Kimovsk, Tula Region. She was represented before the Court by Mr R. Ganiyev, a lawyer practising in Kimovsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 May 1998 the applicant lodged an action before the Kimovsk Town Court against a private insurance company for payment of an index-linked insurance sum and compensation for non-pecuniary damage. Of the fifteen hearings listed between 21 August 1998 and 13 July 2001, two hearings were adjourned because the applicant did not attend, three hearings were postponed because both parties defaulted, and three hearings were adjourned because the defendant failed to appear. From 21 July to 11 September 2000 the proceedings were adjourned because the judge was involved in other proceedings. On 29 November 2000 the Kimovsk Town Court asked the applicant to clarify her claims. On 16 February 2001 the applicant submitted the amended claims. On 13 July 2001 the Kimovsk Town Court dismissed the applicant’s action. On 20 December 2001 the Tula Regional Court upheld the judgment on appeal.

train

001-81010

ENG

DEU

ADMISSIBILITY

KERN v. GERMANY

Inadmissible

Peer Lorenzen

The applicant, Mr Dieter Kern, is a German national who was born in Lübeck and lives in Kosel. The applicant is an environmental engineer (Umweltschutztechniker) who had been employed with the Lübeck municipality since 1989. His contract had been subject to the collective bargaining contract for federal employees (Bundesangestelltentarifvertrag). The applicant is a member and the local chairman of the right-wing extremist collaboration Bündnis Rechts. On 12 September 2001, the day after the terrorist attacks on the World Trade Centre in New York and the Pentagon in Washington (DC), he issued a press release on behalf of the Bündnis Rechts which he both published on the internet and distributed to the press in the State Schleswig-Holstein. Extracts from the press release read as follows: “How long can one carry on to exercise terrorism against peoples worldwide, stir up terrorism, sponsor civil wars, apply sanctions against peoples etc., like America has done for decades with its ‘one world-idiocy’ in order to bring them to their knees for the interest of a Zionist oligarchy, so that the situation ended in an act of liberation against the USA which had been overdue for a long time and in which human beings unconditionally sacrificed themselves in their fight for liberty? Now that America has noted that it is no longer invulnerable as a world power and war monger, the moaning and whining is wide and it condemns as usual before investigating, instead of admitting its mistakes, because the act of violence was certainly not in the first place directed against civilians, but against the political leadership which, viewed under closer scrutiny, has to take responsibility for it. One does not have enemies by coincidence, but one has to make enemies and America has already done a lot in this respect. ... Regarding the events, rejoicing is as inappropriate as the voicing of solidarity with the state USA as the ‘guardian of the western community of values’. The strikes should rather serve as a warning to America perhaps not to act as the policeman of the world on all continents and finally to ensure that less control is being accorded to certain power constellations within America! The Bündnis Rechts fiercely condemns all terrorist attacks no matter by whom and expresses its condolences to all innocent, civil victims of such attacks. Terrorist attacks, no matter against whom, are basically unacceptable and intolerable. ... Therefore, a differentiated view is appropriate. Emotions are understandable, but they cannot play a role when assessing the situation objectively.” After having consulted the staff council, the Lübeck municipality informed the applicant about the extraordinary, alternatively ordinary termination of his employment on 1 October 2001. After having obtained the staff council’s approval on 4 October 2001, the municipality repeated the extraordinary, alternatively ordinary, dismissal on 11 October 2001. On 19 February 2002, the Lübeck Labour Court declared that the employment relationship between the applicant and the municipality had neither been terminated by the extraordinary nor by the ordinary dismissal of 1 and 11 October 2001. It found that the dismissal of 1 October 2001 had been unlawful because the staff council had not yet approved it, as required by the applicable law, whereas the extraordinary dismissal of 11 October 2001 had been unlawful because the municipality had exceeded the required time-limit of two weeks since it took note of the events. Moreover, the Lübeck Labour Court considered the ordinary dismissal of 11 October 2001 to be unlawful because it was not socially justified within the meaning of section 1 (2) of the Unfair Dismissal Act (see Relevant domestic law). The press release of 12 September 2001 did not constitute a sufficient reason for the applicant’s dismissal as he did not exceed his obligation to recognise the free democratic order within the meaning of section 8 § 1 of the Law on Contracts for Federal Employees (see Relevant domestic law). The Lübeck Labour Court considered that the applicant, when writing the first paragraph of the press release, was at the borderline of a permissible exercise of an employee’s freedom of expression. However, having regard to the remainder of the press release, it could not be said that the applicant had approved of the terrorist attacks. The applicant had considered the attacks as terrorist acts, he had basically condemned all terrorist attacks and expressed his sincere condolences to all innocent victims of the attacks. Therefore, it could not be said that the applicant had made a malicious statement with regard to the numerous victims or that he had approved of the attacks. He had merely expressed his anti-american feelings which could neither be qualified as a lack of loyalty towards the municipality nor as a refusal to recognise the free democratic order. Having found that the dismissal was unlawful, the Lübeck Labour Court however dismissed the applicant’s claim for continued employment until the labour proceedings had been completed. In this respect, the Lübeck Labour Court took note of a further extraordinary dismissal of 31 January 2002 in view of the applicant’s criminal conviction of the use of symbols of unconstitutional organisations (section 86a of the Criminal Code) and reasoned that that dismissal outweighed the applicant’s interest for continued employment. Even though the applicant had brought an objection against the dismissal of 31 January 2002 which was pending in a different set of proceedings before the labour courts, the Lübeck Labour Court found that the dismissal with regard to the above conviction was at least not manifestly void. On 6 August 2002, on appeal by the municipality, the Schleswig-Holstein Labour Court of Appeal partly quashed the judgment of 19 February 2002 and declared that the employment relationship between the applicant and the municipality had neither been terminated by the extraordinary dismissals of 1 and 11 October 2001 nor by the ordinary dismissal of 1 October 2001. However, it considered that the ordinary dismissal of 11 October 2001 was lawful and that consequently the employment had ended on 31 March 2002. The Schleswig-Holstein Labour Court of Appeal noted that, according to section 8 § 1 of the Law on Contracts for Federal Employees, the applicant was required to recognise the free democratic order within the meaning of the Basic Law and act accordingly, even outside of his workplace. The above provision had to be interpreted in the light of freedom of expression which protected statements that were polemic or offending, but which were on its part subject to limitations such as section 8 § 1 of the Law on Contracts for Federal Employees which mirrors other provisions applicable to public servants. An employee was therefore required, when publicly commenting on current political affairs, to do so in a careful manner in order not to damage the public confidence in his impartial, just and welfare-oriented performance. The Schleswig-Holstein Labour Court of Appeal found that the press release issued by the applicant exceeded the above limits. The core proposition in the first paragraph of the press release was that the USA exercised terrorism and pursued a “Zionist oligarchy”. The Schleswig-Holstein Labour Court of Appeal found the latter expression objectionable. While the notion “Zionism” as such did not have a negative meaning, the combination with “oligarchy” had a negative notion as it suggested world domination by the Jews living in the USA. Moreover, the applicant had approved of the terrorist attacks by stating that they were “an act of liberation against the USA which had been overdue for a long time”. While the second paragraph of the press release stated that “the act of violence was certainly not in the first place directed against civilians”, the applicant did not consider the fact that the majority of the victims had been civilians (but also soldiers working in the Pentagon). Consequently, he had tried to downplay the attacks. When stating in the sixth paragraph that “the strikes should rather serve as a warning to America perhaps not to act as the policeman of the world”, the applicant had again approved of the attacks in the sense of “you deserved it”. The Schleswig-Holstein Labour Court of Appeal continued that the impression which the applicant had created with the above passages of the press release could not be removed by the last three paragraphs. Even assuming that readers would in fact read the press release until the end, it could not be established that the applicant condemned the attacks as he restricted his condolences to the civilian victims and disregarded the considerable number of military victims in the Pentagon. The last paragraphs therefore could not serve as a revocation of his former statements. While the applicant could not be accused of having been disloyal to his employer when expressing his anti-american attitude, his approval of the attacks was in contempt of human dignity of the victims and therefore in breach of the free democratic order. A balancing of the diverging interests in the present case suggested that the interest of the municipality to terminate the employment outweighed the applicant’s interests to keep his position as an environmental engineer. Even though the Schleswig-Holstein Labour Court of Appeal recognised the applicant’s difficulties in finding a new employment given his age of forty-seven years, it reasoned that it was unacceptable for the municipality to continue the employment as it could not expect the applicant to respect the free democratic order in the future. On 7 November 2002, the Federal Labour Court dismissed the applicant’s motion to be granted leave to appeal on points of law. The Federal Constitutional Court refused to admit the applicant’s constitutional complaint on 8 January 2004. Section 1 (1) of the Unfair Dismissal Act (Kündigungsschutzgesetz) provides that a termination of an employment relationship by the employer is unlawful if it is socially unjustified. According to Section 1 (2) of the Act, a termination shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct. Section 8 § 1 of the Law on Contracts for Federal Employees (Bundesangestelltentarifvertragsgesetz) provides that employees must act as it is expected from employees and that they must recognise the free democratic order within the meaning of the Basic Law and act accordingly. The Law on Contracts for Federal Employees applies to employees at the federal, state (Länder) and municipal level alike.

train

001-75327

ENG

TUR

CHAMBER

CASE OF ERGIN v. TURKEY (NO. 6)

Violation of Art. 10;Violation of Art. 6-1 (independence and impartiality of the General Staff Court);Not necessary to examine Art. 6 (another complaint);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

Nicolas Bratza

6. The applicant was born in 1973 and lives in Istanbul. 7. On 1 September 1997, as editor of the newspaper Günlük Emek (Everyday Work), the applicant published in issue number 297 an article entitled “Giving the conscripts a send-off, and collective memory” (Asker uğurlamalar ve toplumsal hafıza) signed by Barış Avşar. 8. On 4 December 1997 the public prosecutor at the Military Court of the General Staff (“the General Staff Court”), acting under Article 58 of the Military Penal Code and Article 155 of the Criminal Code, charged the applicant with incitement, by publication of the above article, to evade military service (askerlikten soğutma). 9. The applicant informed the General Staff Court that the article had been written by Mr Şevki Akbaba, who had signed it with a pseudonym. 10. In a judgment of 20 October 1998 the General Staff Court initially sentenced the applicant to two months’ imprisonment and a fine of 60,000 Turkish liras (TRL). By virtue of section 4 of the Execution of Sentence Act (Law no. 647), which provided for prison sentences imposed on editors to be commuted to fines, the applicant was ultimately ordered to pay a “heavy fine” of TRL 1,160,000. 11. In its judgment the General Staff Court referred to the following passage from the offending article: “This last week in bus stations has been a time for sending the August conscripts on their way... The novice soldiers setting off – “but you’ll soon be back”, people tell them to console them – already seemed during these ritual send-offs to be plunging into war by donning “invisible khaki”. It was a time when war seemed rather attractive; the congratulations and praises made it seem like a warm nest, almost as warm as a mother’s arms, into whose embrace they would have liked to run. What we saw at each of these ceremonies shows that the thing has become a collective hysteria and that this hysteria has also spawned its own indispensable attributes: the traditional drum and clarinet, the famous three-crescented flag, sometimes accompanied by the corn-ear flag of the RP [Welfare Party] or the rose-bearing flag of the BBP [Great Union Party] ... Warm-up ceremonies are organised for those setting off for the war, the exaltation felt on killing a man is the exaltation of winning a match and, what is more, the killer justifies his act by speaking of the love he has for his fatherland and his nation. In short, it can’t be said that what we’re doing is right... Those verses, written by a fallen soldier, are carved on his own tombstone. He will no longer see those who gather to give the conscripts a send-off, no longer hear the drum, the clarinet or the gunfire, not be able to read the verses written on his tombstone, on seeing which he would perhaps have felt repelled by the determinism they convey. Because from now on he is reduced to a title: a martyr... It is because the State does not recognise as such the war which is etched deeply into the collective life and the collective memory that, apart from a small minority, those who return from it after losing an arm, a leg or an eye receive no allowance. These people who are no longer capable of meeting their own needs are being deceived by talk of fictitious jobs. ‘There is a war, but not officially; you are war-wounded, but you count for nothing.’” In its considerations the General Staff Court pointed out that military service was a constitutional duty and that the applicant, by denigrating military service had also denigrated the struggle against the PKK, a terrorist organisation which killed soldiers, police officers, teachers and civil servants. It held that the offending article contained terms contrary to morality and public order. 12. Relying on Articles 6 and 10 of the Convention, the applicant appealed on points of law to the Military Court of Cassation. He argued that the General Staff Court had given its judgment without hearing his defence on the merits of the charge. He submitted that as a civilian he should not have been tried by that court, and alleged that it was not independent or impartial. 13. The applicant was allegedly not provided with a copy of the opinion of the Principal Public Prosecutor at the Military Court of Cassation. 14. In a final judgment of 10 February 1999 the Military Court of Cassation upheld the first-instance judgment. It observed that the applicant’s submissions on the merits had been filed by his lawyer, and that the fact that he had been tried by a military court was in accordance with the law. 15. The relevant provisions in force at the material time provided: “Military justice shall be dispensed by military courts and military disciplinary organs. These courts and tribunals shall be responsible for conducting proceedings concerning offences committed by military personnel which are breaches of military law or are committed against other military personnel, on military premises or in connection with military service and the related duties. Military courts shall also be responsible for dealing with offences committed by civilians where these are designated by special laws as breaches of military law, or have been committed against military personnel, either during their performance of duties designated by law or on military premises so designated. The jurisdiction of the military courts as regards persons and offences in time of war or state of emergency, the composition of such courts and the secondment of civilian judges and prosecutors to them where necessary shall be regulated by law The organisation and functions of military judicial organs, the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary and with the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law in accordance with the requirements of military service.” 16. Article 155 of the Criminal Code provides: “It shall be an offence, punishable by two months’ to two years’ imprisonment and a fine ... to publish articles inciting the population to break the law or weakening national security, to issue publications intended to incite others to evade military service...” 17. Article 58 of the Military Penal Code provides: “Undermining national resistance: Any person who commits one of the offences defined in Articles ... and 155 of the Criminal Code ... shall be liable to the sentence laid down in the provision concerned, for undermining national resistance”. 18. At the material time section 11 of the Constitution of Military Courts Act read as follows: “Trial of civilians by military courts: ... the offences referred to in Articles ... and 58 of the Military Penal Code [come within the jurisdiction of the military courts].” 19. Following the amendment introduced on 30 July 2003 by section 6 of Law no. 4963, section 11 of the Constitution of Military Courts Act now reads as follows: “... Military courts shall not try civilians charged with committing the crimes and lesser offences referred to in Article 58 of the Military Penal Code in time of peace.” 20. At international level, the position regarding the jurisdiction of military courts to try civilian defendants is as follows. 21. Among the member States of the Council of Europe Turkey is at present the only country whose Constitution explicitly provides that military courts may try civilians in peacetime. Although there is some diversity in legislation governing the jurisdiction of military courts to try civilians, in the great majority of legal systems that jurisdiction is either non-existent or limited to certain very precise situations, such as complicity between a member of the military and a civilian in the commission of an offence punishable under the ordinary criminal code or the military penal code. 22. In its 1984 General Comment on Article 14 of the International Covenant on Civil and Political Rights the UN’s Human Rights Committee issued the following warning to member States: “The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. The Committee has noted a serious lack of information in this regard in the reports of some States parties whose judicial institutions include such courts for the trying of civilians. In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of article 14 which are essential for the effective protection of human rights.” 23. The country reports subsequently adopted enabled the Committee to clarify its position. It no longer hesitated to criticise States whose legislation still permitted military courts to try civilians. The Committee urged those countries to amend their legislation on the question while congratulating those among them who had implemented such a reform. In the final analysis, the Committee took the view that “military courts should not have the faculty to try cases which do not refer to offences committed by members of the armed forces in the course of their duties”. In its 1999 report on Poland the Committee expressed its views even more incisively, stating that it was “concerned at information about the extent to which military courts have jurisdiction to try civilians; despite recent limitations on this procedure, the Committee does not accept that this practice is justified by the convenience of the military court dealing with every person who may have taken some part in an offence primarily committed by a member of the armed forces” (Concluding Observations of the Human Rights Committee: Poland, Doc. CCPR/C/79/ Add. 110, 29 July 1999, § 21). Similar criticisms were made of the Russian Federation and Slovakia, to mention only member States of the Council of Europe, with the Committee taking the line that civilians should not be tried by military courts in any circumstances (see, in particular, Concluding Observations of the Human Rights Committee: Slovakia, Doc. CCPR/C/79/Add. 79, 4 August 1997, § 20). 24. Lastly, mention should be made of the report on the issue of the administration of justice through military tribunals, submitted to the Commission on Human Rights, which is to debate it at its 62nd session in 2006 (Doc. E/CN.4/Sub.2/2005/9 of 16 June 2005). The first of the Principles set out in the report reads: “Military tribunals, when they exist, may be established only by the constitution or the law, respecting the principle of the separation of powers. They must be an integral part of the general judicial system.” However, the rapporteur pointed out “... the ‘constitutionalization’ of military tribunals that exists in a number of countries should not place them outside the scope of ordinary law or above the law but, on the contrary, should include them in the principles of the rule of law, beginning with those concerning the separation of powers and the hierarchy of norms.” Principle No. 2 emphasises respect for the standards of international law in the following terms: “Military tribunals must in all circumstances apply standards and procedures internationally recognized as guarantees of a fair trial, including the rules of international humanitarian law.” Principle No. 5, which deals with the functional jurisdiction of military courts, states: “Military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts.” 25. The settled case-law of the Inter-American Court of Human Rights excludes civilians from the jurisdiction of military courts in the following terms: “In a democratic Government of Laws the penal military jurisdiction shall have a restrictive and exceptional scope and shall lead to the protection of special juridical interests, related to the functions assigned by law to the military forces. Consequently, civilians must be excluded from the military jurisdiction scope and only the military shall be judged by commission of crime or offenses that by its own nature attempt against legally protected interests of military order” (IACHR, Durand and Ugarte v. Peru, 16 August 2000, § 117). That line of case-law, based on Article 8 of the American Convention on Human Rights, was followed in other cases decided by the Court, and the Inter-American Commission had also previously followed that approach (see International Commission of Jurists, Military Jurisdiction and International Law, (2004, pp. 118 et seq.).

train

001-58798

ENG

GBR

CHAMBER

CASE OF CONDRON v. THE UNITED KINGDOM

Violation of Art. 6-1;No separate issue under Art. 6-2;Not necessary to examine Art. 6-3-b and 6-3-c;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

9. Both applicants are admitted heroin addicts. Prior to their being convicted and sentenced for drug offences they lived at 51 Cubitt House, a large block of council flats in South London. Adjacent to their flat, at no. 50, lived a Mr James Curtis. Mr Curtis was also charged with the same offences as the applicants, namely being concerned with the supply of heroin and possession of heroin with intent to supply, but was acquitted. 10. The prosecution case was that the applicants would prepare wraps (individual sachets) of heroin for sale and pass them to Mr Curtis when he knocked on the back window of their flat whenever he had a purchaser. The prosecution alleged that wraps would be handed from the balcony at flat 51 to someone leaning out of the back window of flat 50. Mr Curtis would then sell the wraps to visitors to his flat. 11. The applicants and Mr Curtis were observed from 24 to 28 April 1995 by police and recorded on video from 25 April 1995 onwards. The applicants were seen to pass various items to Mr Curtis including a plastic bottle for smoking crack cocaine and silver foil for smoking heroin. The prosecution stated that on 26 April 1995 a man was seen at the back window of flat 50 handing an object which looked like a cigarette packet to the second applicant who was on her balcony. She went into her flat, then re-emerged and returned the packet to the man. 12. The applicants were arrested at 12.45 p.m. on 28 April 1995. In the flat were found sixteen wraps of heroin weighing between 0.07 and 0.09 g and a further quantity of heroin weighing 1.19 g. The prosecution also alleged that a polythene sheet in the flat had been used to make wraps. 13. At 10.40 a.m. on 29 April 1995 the applicants' solicitor, Mr Delbourgo, noted that the first applicant, who seemed to be in the early stages of withdrawal, was unfit to be interviewed. However, after a 10- to 15-minute examination, the Force Medical Examiner, Dr Youlten, stated that the applicant was fit for interview. The doctor's report notes that the first applicant was an opiates addict with symptoms and signs of withdrawal but that he was thinking clearly and able to answer questions. The second applicant was also seen to have withdrawal symptoms but again was stated by the Force Medical Examiner to be thinking clearly and able to answer questions. 14. The transcript of the interviews with the first applicant reveals that Mr Delbourgo was concerned that his clients were unfit to be interviewed and in some distress. In particular, he had found it difficult to get the second applicant to concentrate on what he was saying to her. 15. The applicants were interviewed separately in the presence of their solicitor. Both applicants were told by the police: “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.” 16. The applicants stated that they understood the warning. They were advised by the police that if during the interview they felt unwell they should say so and the interview would be stopped. At no stage during interview did either of the applicants request this, even though at one point the first applicant's solicitor specifically suggested that this might happen. However, the first applicant expressly stated that he did not want the interview to stop. 17. The applicants were asked to explain their actions in apparently passing to, and being passed items from, flat 50. Both simply responded to these questions with the words “no comment”. 18. From 16 October to 2 November 1995 the applicants were tried before a jury at Kingston Crown Court. Both applicants were legally aided and represented by counsel. In a pre-trial hearing counsel for the applicants argued that the interviews should not be put before the jury as they had been carried out whilst the applicants were suffering from drug withdrawal symptoms. Their solicitor, Mr Delbourgo, testified that he had been of the firm view that neither should embark upon what might prove to be a very lengthy interview given their condition. However, the judge noted that the doctor had considered them fit to be interviewed, that they were thinking clearly and able to answer questions, and that both applicants had stated in response to direct questions that they understood the charges against them and the possible repercussions of failing to answer questions. He therefore considered that Mr Delbourgo had been wrong in his analysis that the applicants had been unfit to be questioned and allowed their interviews to stand as evidence. The judge further observed that the interviews had been short and were not conducted in an oppressive manner. He noted that in any event the application to exclude the evidence was premature since the defendants had not given evidence, so that it was not clear what facts were going to be relied on in their defence which might reasonably have been expected to have been mentioned. Moreover, it was a matter for the jury, properly directed, to determine the issues. 19. Both applicants gave evidence at the trial and said that the heroin found in the flat had been for their own personal use and had been purchased in bulk by the first applicant the evening before their arrest. They stated that the polythene sheet had been planted there by the police after they had been brought to the police station. When asked about the incident recorded on 26 April 1995 in which the second applicant was seen receiving and then returning a packet to the occupant of flat 50, the applicants gave explanations which they had not mentioned to the police in their interviews. The first applicant stated that no drugs had ever passed between the flats and that the packet contained either cigarettes or money; whilst the second applicant stated that it was simply an exchange of a packet of cigarettes. Other items had been passed this way since it was easier than having to go along the walkway of the front of each flat. 20. The applicants' co-accused, Mr Curtis, testified at the trial that the applicants had never given him heroin. He confirmed the applicants' account of their friendship with him and his frequent borrowing, with communication being by the balcony. When he was arrested he was told that he would not get bail which made him angry and “bloody-minded” so he decided not to help the police by answering their questions. 21. When asked why they had made no comment to police questions during interview, both applicants stated that their solicitor's advice that they were not in a condition to do so, given their withdrawal from heroin, had been conclusive. 22. In his summing-up the judge made reference to the jury's ability to draw inferences from the applicants' silence: “I turn to a new topic in our law ... It is the law that these defendants did not mention certain facts when questioned about them in interview by the police. In the past that would not have been evidence that could in any way be held against them but now it is possible that it can be though it is for you to judge whether in fact you do hold it against them. [The first applicant] has relied in evidence on an explanation as to the passing of that cigarette packet, which is the subject of count 1. ... Firstly, it could have been cigarettes or it could have been money. He also said in evidence to you, 'There were no drugs ever passed through our hands to Curtis'. He admits that he did not mention that when questioned under caution before being charged ... I turn now to [the second applicant] because she has relied in her own evidence on the fact that she had asked for cigarettes and was passed a packet, took a couple, and handed the packet back. She admits that she did not mention that when she was questioned under caution before being charged. ... Also in [the second applicant's] interview she was asked about another matter, and I deal with this because in her evidence she relied on the fact that on 26 April at 11.30 a.m., a little before the incident with the cigarette packet, she handed Curtis some 'sticky chewing gum' ... so the chewing gum is again not mentioned. ... She also in the course of her evidence relies on her telling you that there were only innocent, neighbourly exchanges of commonplace items from her balcony and she admits that she never mentioned those matters to the police ... The prosecution case, members of the jury, is that (and it is for you to judge whether this assists you in your judgment to reach a verdict) in the circumstances when each of these defendants were questioned on these topics, he or she could reasonably be expected to have mentioned what they said in court. The defendants explained that their 'no comment' answers, speaking generally because of course they put it in more detail, the [applicants] said they were suffering from withdrawal symptoms and relied on Mr Delbourgo, their solicitor's advice that he could see they were suffering from withdrawal symptoms and should not answer questions because in his judgment of their appearance they were unfit for interview despite the known and expressed view of the FME, which means Force Medical Examiner and is in fact a doctor, who comes along to police stations to deal with problems of this sort ... The law is ... that you may draw such inferences as appear proper from a defendant's failure to mention the points I have referred to in their respective interviews. In each case it is relevant only to the case against the defendant concerned. You do not have to hold it against him or her. It is for you to decide whether it is proper to do so. Failure to mention the points in interview cannot on its own prove guilt but depending on the circumstances you may hold it against him or her when deciding whether he or she is guilty. You should decide whether in the circumstances which existed at the time of the interview the matters were ones which the defendant concerned could reasonably be expected then to mention. Members of the jury that is all I have to say at this stage about the law.” 23. The applicants were each convicted by a majority of nine to one of being concerned in supplying heroin and possessing heroin with intent to supply. The first applicant was sentenced to a total of four years' imprisonment. The second applicant was sentenced to a total of three years' imprisonment. James Curtis, the co-accused, was acquitted on both charges. 24. The applicants appealed to the Court of Appeal on two primary grounds: the inclusion of the police interviews and the contents of the judge's direction. 25. The applicants' counsel contended before the Court of Appeal that the trial judge should have excluded the “no comment” interviews as they were a direct result of following their solicitor's honest advice. The Court of Appeal pointed to problems with that argument in situations where solicitors advised their clients tactically or dishonestly to refuse to answer questions; the key question was the subjective reason why the applicants had not answered the questions. The Court of Appeal went on to find that the judge, as the fact-finding tribunal in the voir dire (submissions on a point of law in the absence of the jury), had been correct in his decision to include the notes of interviews in evidence. 26. The Court of Appeal rejected the submission that the trial judge had been wrong to allow the jury to draw adverse inferences from the applicants' failure to answer questions at the interview. Lord Justice Stuart-Smith stated on this point: “... both [applicants] knew that the Force Medical Examiner certified that they were fit to be interviewed and therefore that medical opinion differed from that of their solicitor. Both were clearly advised by their solicitor that if they failed to mention material facts at the proposed interview, they could be criticised if the matter came to trial. That advice was understood; he also made it plain that this was entirely their choice. At the beginning of the interview both were given the caution in its current form. ... Both indicated that they understood that caution. Both were told that if they felt unwell during the interview, they could let the interviewer know and it could be stopped. In these circumstances the fact-finding tribunal might well consider that if the [applicants] had an innocent explanation of the incriminating evidence about which they were specifically questioned, they would have mentioned it.” 27. The Court of Appeal then considered the applicants' criticism of the trial judge's summing-up in so far as he omitted to remind the jury that “they could only draw an adverse inference if, in spite of any evidence relied upon to explain the failure to mention the relevant matters (or indeed in the absence of such evidence) they conclude[d] that such failure [could] only sensibly be attributed to the fact that the appellants must have fabricated the evidence subsequently”. The Court of Appeal, with reference to the dicta of Lord Taylor CJ in R. v. Cowan ([1996] Queen's Bench Reports 373) (see paragraph 33 below) considered that it would have been desirable if the trial judge had directed the jury along the following lines: “If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference.” 28. However, the Court of Appeal did not find that this lacuna in the summing-up meant that the convictions were unsafe, having regard to the weight of the other evidence. Lord Justice Stuart-Smith explained in this connection: “We have already referred to the substantial, almost overwhelming evidence of drug supply from what was found in the [applicants'] house. Although there were no scales, all of the other paraphernalia of supply was present. All but one of the jury must have rejected the [applicants'] explanation of the police observations, much of which was recorded on video, the presence of the matching wraps in Curtis' flat and the elaborate security arrangements at the applicants' own flat. The acquittal of Curtis shows that the jury regarded the evidence of the interviews as insignificant. Curtis also failed to answer questions in interview.” 29. The Court of Appeal dismissed the applicants' appeal in its judgment delivered on 17 October 1996. 30. Section 34 of the Criminal Justice and Public Order Act 1994 provides that: “(1) Where in any proceedings against a person for an offence, evidence is given that the accused – (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies. (2) Where this subsection applies ... (c) the court, in determining whether there is a case to answer; and (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. (3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention. ...” Section 35(2) and (3) provides: “(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” Section 38(3) adds that: “A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...” 31. Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in the instant case. 32. The Judicial Studies Board guideline direction at the time of the Court of Appeal's consideration of the applicant's appeal provided that: “If he failed to mention ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention. The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take it into account as some additional support for the prosecution's case. It is for you to decide whether it is fair to do so.” 33. The dicta of Lord Taylor CJ are as follows: “We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight: 1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is. 2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. 3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. 4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence. 5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference.” 34. The current specimen direction for section 34, updated in May 1999 in the light of the judgments of the Court of Appeal in R. v. Argent ([1997] Criminal Appeal Reports 27) and in the instant case, provides: “[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence. The defendant as part of his defence has relied upon [...] (here specify precisely the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence]. The prosecution case is that in the circumstances, and having regard to the warning which he has been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny]. If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so. Failure to mention [...] cannot, on its own, prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, i.e. you may take it into account as some additional support for the prosecution's case. You are not bound to do so. It is for you to decide whether it is fair to do so. [There is evidence before you on the basis of which the defendant's advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is [...]. If you think this amounts to a reason why you should not hold the defendant's failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.]” 35. In R. v. Argent the Court of Appeal confirmed that legal advice is one circumstance to be taken into account by the jury. The Court of Appeal explained six conditions that had to be met before section 34 of the 1994 Act could allow inferences to be drawn. As regards the sixth condition, Lord Bingham CJ stated: “The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression 'in the circumstances' restrictively: matters such as the time of day, the defendant's age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ... Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.” 36. In R. v. Roble ([1997] Criminal Law Reports 449) the Court of Appeal stressed the defendant's right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury (by way of oral evidence from the defendant himself and/or the solicitor who gave the advice) about the contents of the advice, that is the reason why he was so advised. 37. The approach in R. v. Roble was confirmed in the later cases of R. v. Daniel ([1998] 2 Criminal Appeal Reports 373), R. v. Bowden ([1999] 1 Weekly Law Reports 823) and R. v. Fitzgerald (judgment of 6 March 1998, unreported). 38. In R. v. McGarry ([1999] 1 Criminal Appeal Report 377) the Court of Appeal held that where a trial judge decides, as a matter of law, that no jury could properly conclude that the requirements of section 34 of the 1994 Act have been satisfied and, therefore, it is not open to the jury to draw an adverse inference under section 34(2), he must specifically direct the jury not to draw any inference. In R. v. Doldur (judgment of 23 November 1999, The Times, 7 December 1999) the Court of Appeal (per Lord Justice Auld) stated: “Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one. What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of section 34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt.” In the Government's submission the case of R. v. Doldur is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under section 34 of the 1994 Act. 39. In R. v. Birchall ([1999] Criminal Law Reports) Lord Bingham CJ stated, with reference to section 35 of the 1994 Act: “Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant's failure to give oral evidence at his trial until they have concluded that the Crown's case against him is sufficiently compelling to call for an answer by him. ... There is a clear risk of injustice if the requirements of logic and fairness are not observed ...” 40. In R. v. Bowden ([1999] 2 Criminal Appeal Reports 176) the Court of Appeal confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial. 41. Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides a single, composite ground of appeal against a criminal conviction. It states that the Court of Appeal “shall allow an appeal against conviction if it thinks that the conviction is unsafe”. In R. v. Chalkey and Jeffries ([1998] 2 Criminal Appeal Reports 79) the Court of Appeal recognised that the omission of the word “unsatisfactory” which had been contained in the former section 2 of the 1968 Act had changed the law. A conviction will not be liable to be quashed on account only of procedural irregularity, or abuse of process or a failure of justice to be seen to be done. However in R. v. Mullen

train

001-77270

ENG

RUS

CHAMBER

CASE OF MARCHENKO v. RUSSIA

Violation of Art. 6-1 (length);Remainder inadmissible

Christos Rozakis

5. The applicant was born in 1951 and lives in the village of Timiryazevskoye in the Tomsk Region. 6. On 3 December 1997 the applicant sued the Tomsk central district hospital for damages caused by medical malpractice. 7. On 1 March 1998 judge F. of the Tomsk District Court was assigned to the case. Between March 1998 and 22 April 1999 the Tomsk District Court held four hearings. 8. At the hearing of 22 April 1999 the applicant notified the District Court that his medical papers could have been forged and asked for an investigation into this issue. His request was granted. 9. The investigation was completed on 11 August 1999 and on 7 September 1999 the District Court received the expert report and held a hearing. 10. The following hearing was held on 8 December 1999. The applicant successfully asked the District Court to order a medical expert examination. The proceedings were stayed until 8 February 2000. 11. Of three hearings listed between 8 February and 22 March 2000, one hearing was adjourned because the applicant defaulted and one was adjourned upon the defendant's request. 12. Between July and September 2000 no hearings were listed because judge F. had resigned. Judge A. was assigned to the case. The examination of the case re-commenced. 13. On 19 September 2000 the District Court held a hearing. The court again ordered a medical examination and stayed the proceedings. After the proceedings had been resumed, a hearing was listed for 4 July 2001. It was, however, adjourned because the applicant wanted to amend his claims. 14. The following hearing, listed for 4 August 2001, was adjourned due to dismissal of judge A. On 9 August 2001 the case was re-assigned to judge I. 15. From 9 August to 6 November 2001 no hearings were held because judge I. was on leave or the defendant did not attend on the day fixed. 16. The hearings listed for 6 and 12 November 2001 were postponed upon the applicant's request. 17. At the following hearing of 29 November 2001 the applicant successfully challenged judge I. The case was re-assigned to judge K. 18. Of fourteen hearings listed between December 2001 and January 2003, one hearing was adjourned because the defendant did not attend, one was postponed due to the judge's illness, three hearings were adjourned because witnesses defaulted and seven were postponed due to the applicant's illness. 19. From 3 February to 7 April 2003 six hearings were held. It appears that each hearing lasted approximately three hours because the applicant did not feel well. 20. Of fourteen hearings fixed between 8 and 28 April 2003 five hearings were adjourned because the applicant was ill or wanted to call additional witnesses and study the case-file. 21. From May to 22 July 2003 no hearings were held because the judge was on leave. 22. Between 22 July and 8 August 2003 the District Court held thirteen hearings. The hearings lasted approximately three hours because the applicant provided the District Court with a medical report according to which he could not effectively participate in a hearing if it lasted more than three hours. 23. From 8 August 2003 to 20 January 2004 the Tomsk District Court did not fix hearings due to the defendant's requests and the judge's absence. 24. Eighteen hearings were held between 20 January and 19 March 2004. Each hearing lasted approximately three hours because the applicant felt ill and could not effectively participate. 25. On 19 March 2004 the Tomsk District Court of the Tomsk Region dismissed the applicant's action against the hospital as unsubstantiated. The applicant and his representative left the courtroom at the beginning of the hearing. 26. On 6 July 2004 the Tomsk Regional Court upheld the judgment on appeal.

train

001-95271

ENG

POL

ADMISSIBILITY

JAKOWICZ v. POLAND

Inadmissible

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

1. The applicant, Mr Wiktor Jakowicz, is a Polish national who was born in 1917 and lives in Grotniki. He was represented before the Court by Mr P. Radek and subsequently by Mr B. Zacharek, lawyers practising in Łódź. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 2. The realities of the international situation following the end of the Second World War prevented the Republic of Poland from asserting any claims arising out of persecution of its citizens by Nazi Germany, including as forced labourers. 3. In the period immediately following the Second World War Poland did not conclude a specific agreement with Germany regarding the issue of reparations. It relied on the Potsdam Agreement of 1 August 1945, concluded by the Governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics. 4. On 27 February 1953 the London Agreement on Germany's External Debts (London Debt Agreement) was concluded by the United States of America, Great Britain, France and the Soviet Union. Under this Agreement, consideration of claims arising out of the Second World War by countries which were at war with or were occupied by Germany during that war, and by nationals of such countries, against the Reich or agencies of the Reich was deferred until final settlement of the issue of reparations. 5. On 23 August 1953, a day after a similar declaration by the Government of the Soviet Union, the Government of Poland declared that it renounced any claims against Germany in respect of war reparations as of 1 January 1954. In a declaration of 27 September 1969, made at the United Nations, the Government of Poland clarified that the renouncement of 1953 did not affect individual claims arising out of unlawful acts. 6. In 1972 the Federal Republic of Germany made an ex-gratia payment of DM 100 million to the Polish Government for the victims of pseudomedical experiments. 7. It was only after the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the socalled TwoPlusFour Treaty) and the conclusion of two treaties between the Federal Republic of Germany and the Republic of Poland in 1990 and 1991 that the issue of persons persecuted by the Nazi regime was addressed in the bilateral Agreement of 16 October 1991 (see paragraph 30 below). 8. The issue of compensation for slave and forced labour during the Second World War was addressed in the Joint Statement of 17 July 2000 and the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (see relevant law below). 9. The applicant lived in the Vilnius region of pre-war Poland. It appears that following the Soviet Union's invasion of Poland in 1939 he was detained by the Soviet authorities. 10. Subsequently, in June 1941, following the outbreak of the GermanSoviet war, the applicant was interned in the Hammerstein (Czarne) POW camp for 41 months. He submitted that he had not been a member of the military personnel of either side in that war and had been interned with many other Polish civilians, alongside captured Soviet soldiers. He claimed that the said camp had served as an extermination camp for the first year of its operation. The applicant further submitted that he had been subjected to forced labour in the camp under very harsh conditions. 11. On 21 October 1944 the applicant was released from captivity on the basis of forged documents. Subsequently he worked as a forced labourer on a farm until 28 February 1945. 12. The applicant received a payment from the “Polish-German Reconciliation” Foundation (“the Foundation”) under the first compensation scheme in respect of the 41 months during which he was obliged to provide forced labour. 13. On 28 May 2001 the applicant applied to the Foundation seeking compensation from the funds of the German Foundation “Remembrance Responsibility and Future” (“the German Foundation”) on account of his detention and forced labour in the Hammerstein (Czarne) camp and his subsequent forced labour on a farm. He submitted that from June 1941 to October 1944 he had been imprisoned in the said camp. The applicant enclosed various documents in evidence. That request was made under the scheme for slave and forced labourers (“the second compensation scheme”) established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (“the German Foundation Act”; “the GFA”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation (“the German Foundation”) and the Polish-German Reconciliation Foundation (see relevant law below). 14. On 7 January 2002 the Foundation's Verification Commission (Komisja Weryfikacyjna) found that the applicant was eligible for compensation payment, as his persecution came under the 4th category, which included persons subjected to forced labour in the agricultural sector who had been deported to the Third Reich. It consequently awarded him DEM 2,000 in compensation. The decision did not contain any specific reasoning, in particular with regard to the period of the applicant's forced labour which was taken into account by the Verification Commission. 15. On 5 April 2002 the applicant appealed against the decision of 7 January 2002. It appears that he alleged that the Verification Commission had not taken into account the forced labour during his 41monthinternment in the Hammerstein (Czarne) camp. He submitted that he had been detained in particularly harsh conditions. 16. On 24 May 2002 the Appeal Commission (Komisja Odwoławcza) upheld the decision of the Verification Commission, holding that the applicant had not adduced any new evidence of persecution which could justify a change in his eligibility status. 17. In the letter accompanying the decision, the Appeal Commission informed the applicant that his request for consideration of his internment in the POW camp as falling under the 1st category of eligibility could not be granted. It stated that pursuant to section 11 § 3 of the GFA he was not eligible for compensation on account of his internment and forced labour in the POW camp. The Appeal Commission emphasised that, under the applicable regulations, the only persons who came under the 1st category of eligibility were the detainees of those camps which had been listed in the German Indemnification Act. However, the applicant's camp had not been listed in that Act. 18. On 12 August 2002 the applicant appealed against that decision. He submitted that he had been unlawfully detained in inhuman conditions and subjected to forced labour in the Hammerstein (Czarne) camp for 41 months following the outbreak of the German-Soviet war. In support of his appeal he relied on a number of documents which had already been filed with the Foundation. 19. One of those documents was a letter which had been sent to him by the Koszalin Regional Commission for the Examination of Nazi Crimes (Okręgowa Komisja Badania Zbrodni Hitlerowskich) on 16 August 1978, confirming that the Hammerstein (Czarne) camp had served as a POW camp for Soviet soldiers, who had been interned there following the outbreak of the German-Soviet war. However, the letter stated that a considerable number of Polish nationals who had not served in the Soviet army had been interned in the same camp. They had been captured by the German army in the pre-war Polish territories which had originally been occupied by the Soviet Union. 20. The applicant also relied on a letter received from the German Foundation in early 2002 regarding the eligibility conditions. The letter stated that persons eligible for compensation under the GFA were, inter alia, those who had been detained and subjected to forced labour in a concentration camp listed in the German Indemnification Act or detained in another place of confinement or a ghetto in conditions comparable to those existing in a concentration camp. The applicant further relied on two witness statements by individuals who had been interned with him. 21. In a letter of 2 September 2002 the German Foundation informed all Partner Organisations, including the Polish Foundation, about the new interpretation of the GFA. Pursuant to that interpretation, civilians who had been subjected to forced labour during their detention in a POW camp were henceforth, subject to certain conditions, entitled to receive payments. In consequence, the Foundation decided to recognise the period of the applicant's forced labour in the Hammerstein (Czarne) camp. 22. On 8 October 2002 the Appeal Commission, having reopened the proceedings in the applicant's case, held that the applicant was eligible for compensation on account of persecution coming under the 3rd category, that is, persons subjected to forced labour in the industrial and public sectors who had been deported to the Third Reich. The decision did not contain any reasoning. 23. On 7 January 2003 the Appeal Commission informed the applicant that he would receive payment from the funds of the German Foundation in the amount of DEM 4,400 (PLN 8,852.50) on account of his forced labour in the industrial or public sectors. It appears that the applicant did not appeal further. Article 4 Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them. They must be humanely treated. All their personal belongings, except arms, horses and military papers, remain their property. Article 6 The State may utilize the labour of the prisoners of war according to their rank and aptitude, officers excepted. The tasks, however, shall not be excessive and shall have no connection with the operations of the war. 24. Article 9 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997, states: “The Republic of Poland shall respect international law binding upon it.” Article 45 § 1 of the Constitution reads: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Chapter III of the Constitution, entitled “Sources of Law”, refers to the relationship between domestic law and international treaties. Article 87 § 1 provides: “1. The sources of the universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations. ...” Article 91, in so far as relevant, states: “1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute. 2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.” 25. Chapter VIII of the Constitution contains provisions related to the judiciary. Article 175§ 1 of the Constitution provides: “The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the ordinary courts, administrative courts and military courts.” Article 177 of the Constitution states: “The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts.” Article 184, in so far as relevant, provides: “The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration.” 26. On 16 October 1991 the Governments of the Federal Republic of Germany and the Republic of Poland concluded an agreement on the basis of which the German Government declared that, prompted by humanitarian considerations, it was prepared to contribute DEM 500 million for the benefit of the Polish-German Reconciliation Foundation. The Foundation was to be established by the Government of Poland with a view to providing financial assistance to victims of Nazi persecution who had been particularly wronged. The Foundation was to determine the necessary criteria for the granting of compensation payments, having regard both to serious damage to the victims' health and to difficulties in their current financial situation. The Government of Poland declared that it would not pursue further individual claims by Polish citizens arising out of Nazi persecution. Both Governments indicated that their agreement should not amount to limitation of the rights of citizens of either country. 27. Subsequently, on 27 November 1991, the Minister–Head of the Cabinet Office (Minister – Szef Urzędu Rady Ministrów) acting as a Founder, made a declaration before the State Notary on the establishment of the Foundation. He declared that, acting on the initiative of the Government of the Republic of Poland and on behalf of the State Treasury, he was establishing the Polish-German Reconciliation Foundation. The Foundation's aim was to provide assistance to the victims of Nazi persecution and to undertake other activities for the benefit of those persons. The Minister also declared that the Foundation's capital fund consisted of DEM 500 million, contributed by the German Government to the Polish Government. The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984, which regulates the activities of foundations in Poland. In principle, supervision of a foundation's activities is exercised by the regional governor (Wojewoda) or the competent minister. 28. The statutes of the Polish-German Reconciliation Foundation were drafted and subsequently registered by the Warsaw District Court on 24 February 1992. On that date the Foundation began its activities. Under paragraph 6 of the statutes, the Foundation's primary aim was to render direct financial assistance to those victims of Nazi persecution whose health had been seriously damaged and who were in a difficult financial situation as a result of that persecution. 29. The Foundation's organs were the Supervisory Board (Rada Nadzorcza) and the Management Board (Zarząd). The members of those organs were appointed and dismissed by the Founder (government minister) who exercised full control in this respect. The two other organs of the Foundation were the Verification Commission (Komisja Weryfikacyjna), and the Appeal Commission (Odwoławcza Komisja Weryfikacyjna). 30. From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland. 31. The parties to the Joint Statement acknowledged the intention of the Government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act. 32. According to the Joint Statement, the Government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace. 33. Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”). It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts. The disbursement of payments terminated at the end of 2006. 34. The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide: Recognising that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human-rights violations, that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it, that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility, that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments, that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime, the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations. ... (1) A legally recognised Foundation with the name 'Remembrance, Responsibility and Future' shall be established under public law. ... (1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period. ... (1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment. ... (1) Eligible under this Law are: 1. persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour; 2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions; ... (2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant's eligibility may be substantiated in some other way. (1) Specific characteristics of other places of confinement referred to in Section 11, Paragraph 1, Number 1 are inhumane conditions of detention, insufficient nutrition and lack of medical care. ...” 35. Section 42 § 2 of the German Indemnification Act (Bundesentschädigungsgesetz) provided that the German Government would issue a decree containing a list of concentration camps within the meaning of the Act. The German Government issued the decree in 1967 with an annex listing concentration camps. It was twice amended, most recently in 1982. The list of concentration camps does not contain the POW camp where the applicant was detained during the Second World War. 36. The Federal Constitutional Court examined a constitutional complaint against various provisions of the GFA which had been filed, among others, by a former Italian military internee and a civilian who had been subjected to forced labour. The complainants alleged, inter alia, that prior to the entry into force of the GFA they had had claims for compensation for forced labour against the Federal Republic of Germany, under German civil law in conjunction with international public law. They contended that the exclusion of judicial review of decisions by the International Organisation for Migration (one of the partner organisations) had violated their right to an effective remedy under Article 19 § 4 of the German Basic Law. Furthermore, they argued that the exclusion of former prisoners of war from the ambit of compensation under the Foundation Act was discriminatory. 37. On 28 June 2004 the Federal Constitutional Court held that the complaint was partly admissible, but unfounded. Referring to the Hague Convention on the Laws and Customs of War on Land (“The Hague Convention”) the court held that international public law had not established individual claims for compensation for forced labour. It noted, however, that it was not excluded that national law might establish such claims, but that in such a case the legislator enjoyed wide discretion. The court held further that the exclusion by section 11 § 3 of former prisoners of war from the scope of those eligible for benefits under the Foundation Act had not been discriminatory, since under the Hague Convention prisoners of war could be compelled to perform labour. In this respect the court observed that the legislator was allowed to distinguish, when awarding compensation, between victims of general hardships caused by the war and victims of particular ideological persecution by the Nazi regime, especially as the funds of the Foundation were limited. 38. In respect of the exclusion of judicial review by the Foundation Act, the Federal Constitutional Court found that Article 19 § 4 of the Basic Law required that a right did in fact exist, whose alleged violation could be examined by the courts. The court concluded that the legislator was free to decide not to establish an individual's claims vis-à-vis a public-law foundation and to exclude judicial review in this connection. 39. On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill, the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000. 40. On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the PolishGerman Reconciliation Foundation (“the partnership agreement”). Under its terms the PolishGerman Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the GFA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000. 41. The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3). 42. The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of compensation payments. The relevant parts provide: “Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government's efforts, former slave and forced labourers will receive in total DEM 1.812 thousand million, which constitutes a very positive outcome to the negotiations. The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.” 43. The statutes of the Polish-German Reconciliation Foundation was amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001. 44. The amended statutes stipulated that the Foundation was to disburse compensation payments to the victims specified in section 11 of the GFA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation's decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5). 45. Pursuant to paragraph 20 of the amended statutes, the Verification Commission was to determine individual claims for assistance filed by victims of Nazi persecution. Members and the president of the Verification Commission were to be appointed and dismissed by the Foundation's management board (paragraph 21.1). Detailed regulations as to the organisation of the Verification Commission and the rules and criteria on the granting of assistance were specified in the internal regulations of the Verification Commission, drafted by the management board and adopted by the supervisory board (paragraph 21.2). 46. Decisions taken by the Verification Commission could be appealed against to the Appeal Commission. Its president and members are appointed and dismissed by the Foundation's management board, having consulted the supervisory board. The Appeal Commission operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board (paragraph 23.2). The amended statutes stipulated that the decisions of the Appeal Commission were final (paragraph 23.3). 47. In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted resolution no. III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation's decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant's eligibility had been established but the benefit was not paid, a claim could arise under civil law. 48. In Resolution no. OPS 3/01 of 3 December 2001, the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that: “The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.” It further observed: “There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.” 49. On 27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation. The Supreme Court held that: “The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.” In the reasons for its Resolution the Supreme Court found, inter alia, that: “The procedure concerning examination of claims under the first and the second German fund ... may not be currently instituted. The relevant funds were allocated and the disbursement of payments has been finally concluded. ... There is no doubt that the current state of affairs resulting from the relevant case-law, under which those persons interested in challenging before a court the Foundation's refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule. ... The need for extensive interpretation of the individual's access to a court, or in other words, the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights, which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations.... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no. IV CSK 312/06, unpublished). The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court. The [civil] court also has jurisdiction where a case has the features of a civil case only in the formal sense.” 50. A certain S.K. filed a constitutional complaint with the Constitutional Court after the administrative court rejected his appeal against inactivity of the Foundation, stating that it did not have jurisdiction. He challenged the constitutionality of certain provisions of the Law of 25 July 2002 on the Structure of Administrative Courts and of the Law of 30 August 2002 on Procedure before Administrative Courts, which delineated the jurisdiction of the administrative courts. On 14 November 2007 the Constitutional Court discontinued the proceedings on procedural grounds. It found that the claimant had not obtained a “final decision” within the meaning of Article 79 of the Constitution, since he had mistakenly seized the administrative courts and not the ordinary courts to pursue his appeal against the Foundation's decision. The Constitutional Court relied on the constitutional presumption in favour of jurisdiction of the ordinary courts and the Supreme Court's Resolution of 27 June 2007.

train

001-5397

ENG

NOR

ADMISSIBILITY

HELLUM v. NORWAY

Inadmissible

The applicant is a Norwegian citizen, born in 1952 and resident in Fredrikstad. Before the Court he is represented by Mr Knut Rognlien, a lawyer practising in Oslo. The respondent Government are represented by its Agent, Mr Tolle Stabell, Attorney, Office of the Attorney General (Civil Matters). The facts of the case, as described mainly in the national courts’ judgments, may be summarised as follows. The applicant is a qualified teacher who also holds a degree in special educational needs. From 1980 to 1987 he worked as a teacher in a prison and, from 1987 to 1989, as a social environment worker (miljøterapeut) in a community home for young people. The applicant began working at the Østfold Central Hospital’s psychiatric division in Veum Hospital (“the hospital”) on 7 August 1989. His job was classified as a social environment worker in order for him to receive a salary corresponding to his qualifications but, de facto, he mainly served as a non-qualified nursing assistant. On recruiting him the hospital expressly retained the right to make changes to his “duty arrangements and place of service”. The applicant had applied for a job on the hospital’s security ward - Ward 11, which was to be opened following the closure of the national hospital for the care for particularly difficult and/or dangerous psychiatric patients and the decentralisation of the services provided by the latter. Veum hospital had sought to recruit psychiatric nurses but there was a shortage of qualified candidates. Awaiting the opening of Ward 11, the applicant served for a brief period on Ward 12. He worked on Ward 11 from 1 January 1990 until the autumn 1991, partly during the daytime and partly on night duty. During this period there was a certain amount of disturbance on the Ward, partly owing to the hospital’s use of physical restraint of the patients, particularly by means of devices such as belts and straps. In the view of the applicant, as well as other employees, the hospital used physical restraints too often and arbitrarily. He raised the matter internally and also in several letters to the Chief County Medical Officer and the Committal Complaint Board in 1991. The disturbances at the hospital were one of the reasons why, in October and November 1991, a special inspection was carried out of the hospital’s psychiatric division. As to the use of physical restraints, it was noted in the conclusions of the inspection report that “physical restraints are employed too much without proper reason... There has been no adequate supervision and control”. On 2 September 1991 the applicant wrote to the hospital management stating, inter alia, that the possibility of expressing professional disagreement had been exhausted, and that he therefore asked to be allowed to leave Ward 11. Accordingly, the applicant was temporarily transferred on 21 October 1991 to work on Ward 18. However, the applicant did not wish to work with patients needing nursing assistance and, again at his own request, was transferred on 6 January 1992 to work night shifts on Ward 10 on a one year temporary assignment. The applicant worked on Ward 10 until 16 April 1992, when he was granted sick leave. By this time serious problems had arisen between him and the other person working night shifts on that Ward and several unsuccessful meetings with superiors had been held to try to solve the problem. A further meeting was held in June 1992 with inter alia the hospital management, a union representative and the applicant, still on sick leave. Due to the acuteness of the problem, it was decided to place the applicant as a social environment worker in the hospital’s Activity Unit (serving the hospital at large) where, it was hoped, his pedagogic skills could be put to use. On his return to duty on 31 August 1992 he worked in the Activity Unit. The applicant was, however, not satisfied with his new functions and, on 19 October 1992, was again granted sick leave. By 1 November 1992 he was fit for work, but informed the hospital that he did not intend to return to the Activity Unit because he could not accept the transfer from night duty on Ward 10 with the resultant reduction in salary. The applicant later failed to resume work despite the fact that his employer had let it be known that this would be regarded as absence without leave. The applicant never returned to work at the hospital. No formal decision was ever made by the applicant’s employer concerning his dismissal. In late June 1994 the applicant sued the hospital for unlawful dismissal, but in a judgment of 30 January 1995 the Sarpsborg City Court found against him. On appeal, this judgment was upheld on 27 November 1995 by the Borgarting High Court, which concluded that he was himself responsible for having brought his employment to an end. As the City Court had done, the High Court praised the applicant for having aired his critical views on the use of coercive measures. However, it found no basis for associating the hospital’s treatment of him with the conflict on Ward 11. Nor was there anything to indicate that his transfer to the Activity Unit had been motivated by a desire to transfer an allegedly troublesome employee from a nursing ward. The High Court found that during the relatively brief periods the applicant had worked on Wards 10, 11, 12 and 18 there had, except for his brief assignment on Ward 18, been incidents perceived as negative by certain colleagues. This had been so even if there were colleagues with whom he had worked well. In general, the High Court noted, his relations with colleagues had showed a negative trend. The problems had come to a peak on Ward 10, where the situation had become untenable. A colleague had, at one point, passed on confidential information that the applicant had been depressed owing to the serious illness and death of a close relative. This information was later abused by a chief physician who had stated during a meeting on personnel policy matters that he considered the applicant mentally ill. The hospital Director later expressed regret about this occurrence, noting that the applicant had not requested any evaluation of his medical state at the said meeting. In this connection, the High Court stated: “[The applicant] argues that the chief physician of Ward 11 responded to his criticism of the conditions on the Ward by asserting that he was mentally ill. Statements of this kind – if it is correct that this was said – may result in liability for the employer under section 2-1 subsection 1, first paragraph, of the Damage Compensation Act, although it may rightly be questioned whether it was reasonable to expect the senior consultant to respond in such a manner… However, the High Court cannot see that [the applicant] has been able to establish as probable that this particular isolated incident, which was only touched upon during the submission of evidence before the High Court, has caused him any financial loss. As regards compensation for any non-pecuniary damage, the High Court notes that such a claim must be brought against the person who has caused the damage, i.e. the chief physician. It is accordingly unnecessary for the Court to go more closely into the procedural provisions laid down in section 61 A of the Working Environment Act.” The High Court, which heard the case anew, sat with three professional judges and two “lay” judges particularly qualified to handle labour disputes, one representing the employer’s side and another the employee’s side. Normally there shall be four such “lay” judges – two from each side – outnumbering the professional judges, unless the parties agree only to have two, like in the present case. The hearing before the High Court lasted for four days during which a total of 24 witnesses were heard (of whom six were heard for the first time in the case). On 15 April 1996 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal under Article 373 (3) no. 2 of the Code of Civil Procedure (tvistemålsloven). It observed that the appeal could not be upheld without the Supreme Court departing form the High Court’s judgment on a point where it was essential for the latter to hear evidence from the parties and witnesses or to carry out investigative measures, which it was not open to the Supreme Court to do.

train

001-58734

ENG

TUR

GRANDCHAMBER

CASE OF ILHAN v. TURKEY

Preliminary objection dismissed (victim);Preliminary objection dismissed (non-exhaustion);No violation of Art. 2;Violation of Art. 3;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Luzius Wildhaber

10. The facts of the case, particularly concerning events on 26 and 27 December 1992 when Abdüllatif İlhan, the applicant's brother, was apprehended by gendarmes during an operation at the village of Aytepe and went to hospital for emergency medical treatment of a serious head injury, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. The Commission delegates heard witnesses in Ankara from 29 to 30 September 1997 and on 4 May 1998. The witnesses included the applicant; his brother Abdüllatif İlhan; İbrahim Karahan, the villager who was apprehended during the same operation; Şeref Çakmak, the commander of the Mardin central gendarmerie, in charge of the operation at Aytepe; Ahmet Kurt, the commander of the local gendarmerie station at Konaklı; Selim Uz, a gendarme doing his military service at Konaklı; Dr Mehmet Aydoğan, the doctor who examined Abdüllatif İlhan at Mardin State Hospital; Dr Ömer Rahmanlı, who treated Abdüllatif İlhan at Diyarbakır State Hospital; Dr Selahattin Varol, from Diyarbakır State Hospital; Abdülkadir Güngören, the Mardin public prosecutor; and Nuri Ay, a soldier with paramedical training who had served at Mardin. 11. The Commission's findings of fact, which are accepted by the applicant, are set out in its report of 1 March 1999 and summarised below (Section A). The relevant domestic proceedings and the Government's submissions concerning the facts are also summarised below (Sections B and C). 12. Abdüllatif İlhan lived in the village of Aytepe, located in the south-east region of Turkey, about 60 to 70 km from the town of Mardin. It came under the jurisdiction of the gendarmerie command at Mardin. The nearest gendarmerie station was at Konaklı, several villages away. The central provincial gendarmerie commander, Şeref Çakmak, knew the village. He had been informed that the İlhan family cooperated with the PKK (Workers' Party of Kurdistan) who were very active in the region at this time. He also suspected the villager İbrahim Karahan of involvement with the PKK. 13. Aytepe village was located on high ground in a hilly area. There was a garden area below the village to the south, described as containing fruit trees and bushes. The descriptions of this area given by witnesses before the Commission's delegates varied. It was common ground that there were stone walls in the garden which were in places quite high. There were rivers or streams to the east and west of this area. 14. On 26 December 1992, shortly before dawn, the Mardin gendarmes, under Şeref Çakmak's command and assisted by men from Konaklı station, started an operation at Aytepe village. The report by Mardin central provincial gendarmerie command stated that a villager, Mehmet Koca, was wanted for harbouring two persons wanted for aiding and abetting the PKK. The weather was very cold, with snow on the ground. 15. Abdüllatif İlhan and İbrahim Karahan saw the soldiers approaching the village from the surrounding hills. From past experience, they feared that they might be beaten. They ran to hide in the gardens south of the village. They did not hear anyone shouting after them to stop. Ahmet Kurt, the Konaklı station commander, saw the two men running away through binoculars. He was ordered by the operation commander, Şeref Çakmak, to apprehend them. He took a team of seventeen men and went to the gardens. 16. The gendarmes found both men hiding under the bushes and trees in the garden area. İbrahim Karahan did not try to run away when he was found. He was beaten and kicked by the gendarmes. They found Abdüllatif İlhan hiding nearby and gathered round him. İbrahim Karahan saw the gendarmes kick him. He also saw them raise and lower their rifles as if striking Abdüllatif İlhan with the butts. He did not, however, see any rifle butt hitting him. Abdüllatif İlhan remembered that he was kicked many times and struck on the hip with the barrel of a G3 rifle which tore his skin all the way down. He was also struck on the right side of the head with a rifle butt. He lost consciousness and remembered little after that for about a week. The gendarmes doused him in the nearby river to revive him. 17. The Commission rejected as implausible and contradictory the testimony of the gendarmes concerning the apprehension of the two men. Neither Ahmet Kurt nor Şeref Çakmak witnessed the apprehension of İbrahim Karahan or Abdüllatif İlhan and their accounts lacked credibility. Selim Uz claimed that he had found Abdüllatif İlhan concealed in the bushes and that the latter had run away, falling twice near the river. The Commission, however, found that his testimony was inconsistent on a number of crucial points and that he gave his evidence in a clearly exculpatory manner. On being questioned in detail, he also admitted that he could not see exactly what had happened. The Commission therefore found that the Government had not produced a witness who could unequivocally state that he had witnessed Abdüllatif İlhan sustain injuries as a result of a fall. It accepted the testimony of Abdüllatif İlhan and İbrahim Karahan, which it found to be credible and convincing. 18. İbrahim Karahan and Abdüllatif İlhan were brought before the operation commander, Şeref Çakmak, who kept them outside the village until the end of the operation. A third man, Veysi Aksoy, was also apprehended for aiding and abetting the PKK. The Commission did not accept as credible testimony that a fire was lit to warm Abdüllatif İlhan. Nor were any dry clothes brought for him from the village. At this point, Abdüllatif İlhan had a visible injury to his head, with bruising around the left eye and a mark on the right-hand side of his head, which had bled. He was limping, showing an injury to the left leg. There were also noticeable irregularities in his manner of speaking when Şeref Çakmak questioned him at this time. 19. An incident report was drawn up by the gendarmes, dated 26 December 1992. It stated that İbrahim Karahan and Abdüllatif İlhan had failed to stop when ordered and that Abdüllatif İlhan had fallen down a slope, injuring his left eye and leg. The report was signed by Şeref Çakmak, Ahmet Kurt and Selim Uz. It also bore the apparent signatures of İbrahim Karahan and Abdüllatif İlhan. However, Abdüllatif İlhan was illiterate and unable to sign his name. He generally placed his thumbprint on documents. Although the report purported to have been drawn up and signed at the scene by the persons present, the Commission noted that Ahmet Kurt and Selim Uz recollected signing it later. It also found that it was an unreliable and misleading document, which did not correspond to the events as described orally by the gendarmes. 20. After completing the operation at the village, the gendarmes returned to the Konaklı station. Abdüllatif İlhan was unable to walk. İbrahim Karahan carried him to the next village, Ahmetlı, where a donkey was obtained. Abdüllatif İlhan rode on the donkey to Konaklı, with İbrahim Karahan helping to keep him in the saddle. They arrived at about 3.30 to 4 p.m. 21. At the station, Ahmet Kurt took the statements of both men. Abdüllatif İlhan was otherwise kept in the canteen while İbrahim Karahan was placed in the custody area. No custody record recording their detention was provided by the Government. At about 9 to 9.30 p.m., the Mardin gendarmes left in their vehicles to return to Mardin, taking İbrahim Karahan and Abdüllatif İlhan with them. 22. The gendarmes arrived in Mardin during the night, passing Mardin State Hospital on the way. Abdüllatif İlhan and İbrahim Karahan were put in the cafeteria of the Mardin central provincial gendarmerie station. İbrahim Karahan recalled that two men in civilian clothes had come to the cafeteria. One of them, who was apparently a doctor, had looked at Abdüllatif İlhan without examining him and said that he was faking his condition. Şeref Çakmak told the Commission delegates that he had called a doctor and a paramedic to examine Abdüllatif İlhan and that, after the examination, the doctor had stated that Abdüllatif İlhan was exaggerating his symptoms. The Commission asked for the doctor and the paramedic to be identified. The doctor identified by the Government failed to appear and give evidence. The paramedic appeared, but could not remember ever being called out to examine a detainee in the circumstances described. No infirmary or medical records were produced to substantiate that treatment was given. The Commission did not make any findings as to who had come to look at Abdüllatif İlhan. It did find that at most he had received only cursory first-aid treatment and that the purported doctor had discounted visible signs of distress, without taking any precautionary steps in respect of an evident trauma to the head. 23. Şeref Çakmak took further statements from the two men during the day of 27 December 1992, probably around 5 to 5.30 p.m. Abdüllatif İlhan's statement bore his thumbprint and the explanation that he did not have a signature. İbrahim Karahan described Abdüllatif İlhan's condition as worsening as the day progressed. He could not walk, needed to be supported and, before giving his statement, lost control of his bowels. 24. At 7.10 p.m. on 27 December 1992, some thirty-six hours after their apprehension, Abdüllatif İlhan and İbrahim Karahan were admitted for treatment at Mardin State Hospital. A document dated 27 December 1992 and signed by Şeref Çakmak requested that both be treated as they had fallen and hurt themselves. According to the hospital record, İbrahim Karahan was treated for trauma to the right ear. A report dated 27 December 1992 and signed by Dr Aydoğan stated that Abdüllatif İlhan's general condition was average, and that he was conscious and responsive. The report also stated that hemadermy was present in the left eye periorbital. It indicated that the life of the patient, who suffered from left hemiparesis, was threatened. 25. Abdüllatif İlhan was taken to Diyarbakır State Hospital, where his condition was found to be fair, though risk to life remained, with symptoms of concussion and left hemiplegia. The applicant arrived at the hospital to see his brother on 28 December 1992. He took Abdüllatif to a clinic, where he paid for scans to be taken. On the basis of these films, which disclosed, inter alia, cerebral oedema and left hemiparesis, Dr Rahmanlı decided that surgery was not necessary. Abdüllatif İlhan was treated with drugs and discharged from hospital on 11 January 1993. 26. Abdüllatif İlhan returned to the hospital for examination at about two-monthly intervals. On 11 June 1993 a report from Dr Rahmanlı and Dr Varol stated that he was suffering from a 60% loss of function on the left side. The applicant submitted to the Commission recent scans of his brain showing an area of brain atrophy. The Commission's delegates who saw Abdüllatif İlhan on 29 September 1997 noted that a loss of function on the left hand side was still visible. However, on the basis of the evidence of the doctors who testified before the delegates, the Commission found that the delay in treatment had not been shown to have appreciably worsened the long-term effects of the head injury. 27. The applicant and his brother did not lodge any complaint with the Mardin public prosecutor, Abdulkadir Güngören. The public prosecutor had been informed, however, that Abdüllatif İlhan had been injured at the time of his apprehension by Şeref Çakmak and he had received documents prepared by the gendarmes concerning the apprehension of Abdüllatif İlhan and İbrahim Karahan. In a written report dated 27 December 1992 to the public prosecutor, Şeref Çakmak had stated that both Abdüllatif İlhan and İbrahim Karahan had run away despite numerous warnings to stop. He described how both men had physically resisted the security forces and had fallen from the rocks while they were pushing the gendarmes. The public prosecutor had also spoken on the telephone with Şeref Çakmak and received oral explanations, inter alia, that İbrahim Karahan had in fact hidden without running away. 28. On 11 February 1993 the public prosecutor issued a decision not to prosecute which concluded that Abdüllatif İlhan's injury resulted from an accident for which no one was at fault, either intentionally or through negligence. He did not interview Abdüllatif İlhan or İbrahim Karahan or any gendarme who had witnessed the alleged accident before issuing his decision. 29. On the same day the public prosecutor drew up an indictment charging Abdüllatif İlhan with the offence of resistance to officers contrary to Article 260 of the Turkish Criminal Code (TCC). It stated that during an operation Abdüllatif İlhan had run away from the security forces, ignoring their orders to stop. He told the delegates that he did not charge İbrahim Karahan with any offence due to the oral explanations given by Şeref Çakmak. 30. On 30 March 1993 Abdüllatif İlhan appeared before the Mardin Justice of the Peace Court. The minutes recorded that he accepted that the charge was true. He was recorded as stating that, on the day of the incident, he did not understand the security forces' warning. Although he understood it afterwards, he ran away fearing that they would harm him. In its decision of that date, the court found that Abdüllatif İlhan had admitted that he had failed to comply with an order to stop and had thus resisted an officer contrary to Article 260 TCC. He was sentenced to a fine of 35,000 Turkish lira (TRL), which was suspended. The applicant stated to the Commission that he had not been allowed to accompany his brother into the courtroom and that his brother, who spoke Kurdish, was not provided with an interpreter. The court minutes made no reference to an interpreter being provided. 31. The Government relied on the incident report drawn up by the gendarmes and the statements taken from Abdüllatif İlhan and İbrahim Karahan by the gendarmes, as well as the oral testimony of the gendarmerie officers. 32. Abdüllatif İlhan was ordered to stop by the gendarmes conducting an operation at his village. He ran away and, due to the slippery terrain, fell and injured himself. İbrahim Karahan's evidence that Abdüllatif İlhan was beaten by the soldiers was unreliable and inconsistent, inter alia, as his son had joined the PKK. Both men had signed the incident report and statements drawn up by the gendarmes. The fact that Abdüllatif İlhan was illiterate did not mean that he was unable to sign documents if he wished. 33. After the accident, Abdüllatif İlhan was neither in danger of losing his life nor in a coma. He did not lose consciousness as alleged. He was able to make statements to the gendarmes and so did not appear to Şeref Çakmak to be seriously hurt. Dr Rahmanlı, who examined him at Mardin State Hospital, described him as responsive. In any event, Abdüllatif İlhan was not neglected but received medical treatment for his injuries in hospital. Such treatment was not available in the rural area where the accident occurred. 34. Abdüllatif İlhan had admitted before the Mardin Justice of the Peace Court that he had resisted the security forces and had had no difficulty in giving evidence. 35. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 36. Under the Turkish Criminal Code (TCC) all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a State employee to subject anyone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment). The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 37. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 38. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court. 39. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 38 above) also applies to members of the security forces who come under the governor's authority. 40. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 36 above) or with the offender's superior. 41. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 42. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 43. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 42), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 44. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations). 45. Article 258 of the TCC provides in its first paragraph: “Whoever, by force or threat, resists a public officer or his assistants during the performance of their official duties shall be punished by a term of imprisonment of not less than six months and not more than two years.” 46. Article 260 of the TCC provides: “Whoever exerts influence or force to prevent the execution of any of the provisions of a statute or regulation shall be punished by a term of imprisonment of not more than one year.”

train

001-106877

ENG

MKD

ADMISSIBILITY

SPASESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Inadmissible

Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The present application invokes a total of 24 applicants. Their personal details are set out in the annex to this decision. All applicants are Macedonian nationals. All applicants were represented before the Court by Mr B. Šokoski, with the exception of Mrs M. Mirceska and Mrs L. Koneska, who were represented by Mrs M. Kokaroska, both lawyers practising in Prilep. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. The first, second, third, fourth, eighth and ninth applicants are former employees of the private company P.O., and the remaining applicants of the private company Z.P. (“the former employers”). They all brought civil actions against the former employers claiming payment of employment-related benefits, namely annual-leave allowance (регрес за годишен одмор), food (хранарина) and travelling allowances that they had not received during their employment (“the reference period”). The only exception was that the first, second and third applicants did not claim payment of the travelling allowance. All claims were submitted to the Prilep Court of First Instance. The applicants’ cases were finally decided by the Bitola Court of Appeal with decisions rendered between 20 December 2006 and 11 June 2007. The relevant facts concerning the applicants’ claims, the reference period and the outcome of the domestic proceedings are contained in Tables 1, 2 and 3 below: Article 32 § 5 of the Constitution provides that employees’ rights are regulated by law and collective agreements. Under Article 101 of the Constitution, the Supreme Court is the highest court, providing for the uniform application of laws by courts. Under section 2 of the 1993 Employment Act, employment-related issues were regulated by this Act or other laws and collective agreements. Section 5 of this Act provided that an employer could not take any action or decision restricting employment-related rights regulated by the Constitution, law and collective agreements. Under section 113 § 1 (1) and (2) of the 2005 Employment Act, employees were entitled to food and travelling allowances. Under section 267, proceedings that were pending when this Act entered into force would be completed in accordance with the law valid at the relevant time, unless the present Act was more favourable for the employee. This Act entered into force eight days after it was published in the “Official Gazette of the Republic of Macedonia” on 28 July 2005 (section 273). Under section 35 of the 1995 Courts Act, the plenary session of the Supreme Court could adopt general legal opinions in order to ensure the uniform application of laws by the courts. The opinions were binding for all panels of the Supreme Court. The same provision appears in section 37 §§ 1 (1) and 2 of the 2006 Courts Act. Section 45 of the then valid General Business Collective Agreement provided for annual-leave, food and travelling allowances. Sections 131, 133 and 134 of the Bakery Collective Agreement provided for and specified the amount for annual-leave, food and travelling allowances. Section 51 of the Collective Agreement on the graphic and paper production industry provided for and specified the amount for annualleave, subsistence and travel allowances. (a) On 7 November 2002 the Supreme Court, in proceedings following a legality review request submitted by the public prosecutor, found that the employer in the case was not allowed to restrict the payment of the food allowance. That the allowance had not been paid to the claimant’s colleagues did not mean that he was not entitled to obtain that allowance (Gzz.no.30/2002). (b) On 7 October 2005 the civil department of the Bitola Court of Appeal adopted a “conclusion” according to which, inter alia, if a trade union disagreed with an employer’s decision restricting the payment of the food and annual-leave allowances, courts were required to establish the facts regarding the employer’s financial situation for each business year. (c) On an unspecified date in 2006, a joint opinion of the civil departments of all the Appeal Courts in the respondent State at the time (Skopje, Bitola and Štip) was published in the Judicial Journal (Судиски Информатор). According to this opinion, in case of reduced working hours due to employer’s business losses an employee was entitled to obtain the full amount of the annual-leave allowance. (d) On 17 January 2007 the Supreme Court, in proceedings following a legality review request submitted by the public prosecutor, dismissed a claim for the payment of annual-leave allowance on account of the employer’s business losses in the reference period (Gzz.no.37/2006). The Supreme Court decided likewise in another case where a legality review request had been submitted by the public prosecutor (Gzz.no.152/2006 of 6 June 2007). (e) On 2 March 2007 the civil departments of all three Courts of Appeal adopted a “conclusion” according to which courts were required, in cases concerning the payment of food and annual-leave allowances, to establish facts concerning the employers’ financial situation. (f) In “conclusion” dated 14 March and 4 May 2007, the civil department of the Bitola Court of Appeal stated that after the entry into force of the 2005 Employment Act, courts should accept claims for the payment of the employment-related allowances specified in section 113 of that Act (see above) irrespective of the employer’s financial situation. The only exception was the annual-leave allowance. The applicants submitted copies of several final decisions rendered before June 2005 in which the same first- and second-instance courts had accepted similar claims by the applicants’ colleagues (P.no.394/04; P.no.1244/04; P.no.1373/04; P.no.564/04; P.no.1108/04; P.no.302/04; and P.no.85/03). They further submitted copies of other final decisions adopted after September 2006, the relevant details of which are contained in the table below: Table 4 The Government also submitted copies of other decisions of the domestic courts, including the first- and second-instance courts, adopted after January 2008. All these cases concerned claims for the payment of the same employmentrelated allowances against the former and other employers. In these cases, the courts accepted claims for the payment of food and travelling allowances for reference periods that post-dated the entry into force of the 2005 Employment Act irrespective of the employer’s financial situation at the relevant time. The acceptance of identical claims for reference period that pre-dated the entry into force of that Act was dependent on the employer’s financial situation. This was also the case with claims concerning the payment of the annual-leave allowance, irrespective of the reference period. According to the Government, such practice was in compliance with both the Supreme Court’s decision of 17 January 2007 and the “conclusions” of the Bitola Court of Appeal of March and May 2007 (see above).

train

001-111995

ENG

UKR

ADMISSIBILITY

MIROSHNICHENKO v. UKRAINE

Inadmissible

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant, Mr Dmytro Vladyslavovych Miroshnichenko, is a Ukrainian national who was born in 1975 and lives in Lugansk, Ukraine. He was represented before the Court by Ms O. Seredynska, a lawyer practising in the same city. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, of the Ministry of Justice of Ukraine. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 July 2003 the applicant married Y. On 18 February 2006 their daughter was born. On 20 November 2006 the applicant’s wife attempted to commit suicide by jumping from a balcony. According to the applicant, on the same date his parents-in-law arrived and took away his nine-month-old daughter, whom the applicant had asked their neighbours to look after shortly before the incident. On 24 November 2006 the applicant’s wife died from her injuries without ever having regained consciousness. On 11 January 2007 the applicant instituted proceedings in the Artemivsky District Court in Lugansk seeking to have his daughter returned to him. The applicant’s parents-in-law lodged a counterclaim seeking to have full custody of the child. They alleged, in particular, that the applicant had ill-treated Y. and had taken poor care of his daughter. On 17 October 2007 the court found for the applicant. The court held that both the applicant and his parents-in-law were positively characterised and offered appropriate living conditions but that a father should be given priority over grandparents in determining the residence of a child. The court considered that it could not rely on various witnesses’ statements to the effect that the applicant had ill-treated his wife, because the witnesses were his wife’s friends, disliked the applicant and had never directly witnessed the events described by them. On 21 May 2008 the Lugansk Regional Court of Appeal quashed this decision and found against the applicant. It noted that on 16 February, 16 April and 9 October 2007 the Child Care Board for the Artemivsky District Council (“орган опіки та піклування Виконавчого комітету Артемівської районної у місті Луганську Ради”) had recommended that the applicant’s daughter should remain resident with the applicant’s parentsin-law as a change of home could lead to her suffering serious psychological trauma. According to the medical records submitted, the applicant’s daughter suffered from residual cerebral insufficiency and showed signs of “early childhood nervousness” syndrome. A medical expert assessment performed by the Lugansk Regional Forensic Medical Bureau (Луганське обласне бюро судово-медичної експертизи) on 14 November 2007 had concluded that a change of home could aggravate her state of health. The court also noted that a criminal investigation into whether the applicant had been culpable in Y.’s death (in particular, whether he had caused or contributed to her suicide) was still pending. The first-instance court had also erroneously disregarded the witnesses’ statements to the effect that the applicant had had a negative attitude towards his wife and his family. The applicant appealed, stating, inter alia, that his daughter’s illnesses had been diagnosed six months after she had been taken to live with his parents-in-law. On 1 October 2008 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation. On 10 November 2009 the Zhovtnevyy District Court rejected an application by the applicant’s parents-in-law, lodged in October 2008, to deprive the applicant of his parental rights and noted that they were preventing him from seeing his daughter. This decision was upheld on 1 February 2010 by the Lugansk Regional Court of Appeal. On 19 September 2007 the Leninskyy District Prosecutor’s Office, after several refusals, instituted criminal proceedings against the applicant on suspicion that he had caused his wife to commit suicide. In 2008 the same prosecutor’s office twice terminated the proceedings for want of evidence of a crime. It would appear that these decisions were quashed and the case remitted for fresh investigation. On 9 September 2010 the criminal proceedings against the applicant were finally terminated for want of evidence of a crime. It was concluded that the applicant’s wife had been depressed, that she had been under the influence of the teachings of an esoteric sect and that she had jumped from the balcony. According to a medical expert report, Y. had had no injuries other than those resulting from her fall. This decision was not appealed against. On 15 January 2009 the applicant instituted proceedings requesting contact with his daughter. On 15 May 2009 the applicant modified his claims, requesting the award of a residence order regarding his daughter. Between May 2009 and April 2010 twenty court hearings were scheduled. Nine of them were postponed because the defendants or their lawyers failed to appear or requested additional time to make copies of the case file or to prepare their case. Three hearings were postponed because both parties or their lawyers failed to appear. In February-April 2010 the defendants did not appear at four subsequent hearings for various reasons. On 15 April 2010 the Artemivskyy District Court decided to consider the case in the defendants’ absence finding no serious reason to justify such absence, and found in favour of the applicant. On 30 June 2010 the Lugansk Regional Court of Appeal quashed this decision and remitted the case for fresh consideration. The court noted that on 15 April 2010 the defendants had requested the postponement of the hearing because their lawyer was ill and the first-instance court had disregarded this request in breach of Article 6 § 1 of the Convention. Between June 2010 and January 2011 seven hearings were scheduled, only one of which was postponed because the parties failed to appear. On 25 January 2011 the Artemivskyy District Court found for the applicant and held that his daughter should live with him. According to the medical reports referred to by the court, since 2007 the child had had consultations with a neuropathologist and had been diagnosed with a number of nervous system disorders which had a prenatal origin. However, during 2009-2010 the child’s mental and emotional health had improved and her condition was now stable. Therefore, the court concluded that there was no threat that the child’s health would worsen because of a change of home. Moreover, it was considered that the absence of contact with her father might aggravate the child’s health problems. On 19 May 2011 the Lugansk Regional Court of Appeal upheld the decision of 25 January 2011. It appears that these decisions were appealed against in cassation and by August 2011 the case was pending before the Supreme Court of Ukraine. The decision of 25 January 2011 became enforceable and there is no evidence that the defendants requested that its enforcement be postponed pending the cassation proceedings. No further information about these proceedings and about the current place of residence of the applicant’s daughter was provided by the parties. 1. The parents enjoy preferential right for their minor child to live with them. 2. The parents have the right to demand taking a minor child from any person who keeps him/her not in accordance with law or judicial decision. 3. The court may refuse to remove a minor child and to give him/her to the parents or one of them if it is established that this is contrary to the child’s interest.”

train

001-83599

ENG

AUT

CHAMBER

CASE OF GIERLINGER v. AUSTRIA

Violation of Art. 6-1

Loukis Loucaides

4. The applicant was born in 1964 and lives in Neustift. 5. In December 1999 the Neustift community (Gemeinde) requested a permit from the Rohrbach District Administrative Authority (Bezirkshaupt-mannschaft) to enlarge its canalisation system. At a hearing scheduled on 4 May 2000 the applicant, who had not been summoned as a party, filed objections and submitted that the project would interfere with his property rights as it would affect the drainage system on his real estates. 6. On 15 June 2000, after having heard an official expert on water construction technology and biology, the Administrative Authority granted the requested permit. The applicant lodged an appeal with the Upper Austrian Regional Governor (Landeshauptmann). 7. In the subsequent proceedings the Regional Governor ordered the expert to supplement his opinion which was then submitted to the applicant for comment. 8. On 25 January 2001 the Regional Governor (Landeshauptmann) dismissed the applicant's appeal. Referring to the supplemented expert opinion, the Regional Governor found that the project at issue would not affect the drainage system on the applicant's premises. 9. On 16 March 2001 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof). 10. Having held an oral hearing, upon the applicant's request, the Administrative Court dismissed this complaint on 31 March 2005. It noted that the breach of the applicant's right to being summoned to be heard as a party before the District Administrative Authority had been remedied in the course of the proceedings. The applicant had been given an opportunity to submit comments and objections before the second instance and had thus been heard as a party. As to the remaining complaint concerning the alleged interference of the project with his property, the Administrative Court found that the applicant's general submissions could not disprove the conclusive findings of the expert. This decision was served on the applicant's counsel on 26 April 2005.

train

001-101894

ENG

TUR

ADMISSIBILITY

AYDEMIR AND OTHERS v. TURKEY

Inadmissible

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

The applicants are Turkish nationals and at the time of lodging their applications they were serving prison sentences in various establishments. The names and dates of birth of the applicants, as well as the names of their representatives, and the dates of introduction of the applications appear in the appendix. By a decision of the Izmir F-type Prison Disciplinary Board, dated 29 December 2004, the applicants were found guilty of breaching prison order by pressing emergency buttons in the cells and by refusing to participate in prison workshops. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicants were all prohibited from corresponding for fifteen days. Their appeal requests were rejected by the Enforcement Judge and subsequently by the Assize Court on 11 and 26 January 2005 respectively, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law no. 4675 on Enforcement Judges, of 16 May 2001. Section 4 of Law no. 4675, which lays down the competences of Enforcement Judges, provides that objections filed against disciplinary sanctions shall be dealt with by such a judge. Section 5 provides that the prisoner concerned, or his or her close relative or legal representative, can file an objection against a disciplinary sanction. Furthermore, Section 6 stipulates that the Enforcement Judge shall decide on the basis of the case file, without holding a hearing. That judge may conduct an examination ex officio or request further information from the parties if the interests of justice so require. An appeal against the decisions of Enforcement Judges lies to the nearest Assize Court. According to this recent law (Section 5), upon objection against a disciplinary sanction, the Enforcement Judge delivers his/her decision after hearing the defence submissions of the prisoner concerned and collecting all the evidence. The prisoner can present his/her defence submissions in person and/or in the presence of his/her lawyer or only through a lawyer. The law further provides a remedy for all those prisoners who had previously filed objections with the Enforcement Judges concerning disciplinary sanctions imposed on them before the adoption of this law (Provisional Article 1). Accordingly, those who had previously filed objections with Enforcement Judges against a prison disciplinary sanction now have the possibility of filing a fresh objection with the Enforcement Judge within six months following the adoption of this law, and their cases will be dealt with in accordance with the new procedures. In their additional observations, the Government provided two sample decisions delivered by the Ankara Enforcement Judge following the adoption of Law No. 6008. In these two cases (nos. E2010/777 K/2010/817 and E2010/935 K 2010/916), dated 24 August 2010 and 24 September 2010 respectively, the Ankara Enforcement Judge re-examined the objections filed by prisoners who had previously received disciplinary sanctions. In both cases, the Enforcement Judge heard the prisoners in person and re-examined the evidence in the case files. At the end of the proceedings, the Enforcement Judge annulled the disciplinary sanctions in dispute, clearing these prisoners from all of the consequences of the offence.

train

001-57429

ENG

ESP

CHAMBER

CASE OF BARBERÀ, MESSEGUÉ AND JABARDO v. SPAIN

Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Preliminary objection allowed (non-exhaustion of domestic remedies);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Just satisfaction reserved

C. Russo;J.A. Carrillo Salcedo;N. Valticos

8. The three applicants are Spanish nationals born in 1951, 1947 and 1955, respectively. Mr Francesc-Xavier Barberà Chamarro and Mr Antonino Messegué Mas are serving long sentences at Lérida Prison no. 2 (Lleida-2) and Barcelona Prison respectively and have the benefits of the open system. Mr Ferrán Jabardo García is at present living in Gironella in Barcelona Province. At about 3 p.m. on 9 May 1977, Mr José María Bultó Marqués, a 77-year-old Catalan businessman, was at his brother-in-law’s house in Barcelona in the company of his brother-in-law and his own sister, Mrs Pilar Bultó Marqués, when two men entered the flat under the pretext of being gas-board employees. They seized and held the maid, thus enabling other persons to enter. The latter threatened Mr Bultó with guns and shut him in a room, where they fixed an explosive device to his chest. They demanded a ransom of five hundred million pesetas from him, to be handed over within twenty-five days, and gave him instructions on how to pay it, saying that on payment he would be told how to remove the device safely. They then left the premises and departed in waiting cars. 10. Mr Bultó returned home in his car. Shortly before 5 p.m., the device exploded, killing him instantly. 11. On the same day, Barcelona investigating judge no. 13 commenced a preliminary investigation (diligencias previas - no. 1373/77) into these events. On 11 May, he placed the relevant documents in investigation file (sumario) no. 61/1977 but later relinquished jurisdiction on the ground that the crime was a terrorist act which came within the jurisdiction of the Audiencia Nacional in Madrid (see paragraph 45 below). The case was accordingly sent to central investigating judge no. 1 of that court (juez central de instrucción), who opened file no. 46/1977. 12. The police investigation led to the arrest on 1 July 1977 of four persons (not including any of the applicants) who were members of the E.PO.CA. (Catalan Peoples’ Army) and one of whom had been recognised by witnesses. On 29 July, they were charged with murder, with a terrorist act causing death and with possession of explosives. On 10 November 1977, however, the Audiencia Nacional decided to apply the amnesty law (no. 46 of 15 October 1977) to the accused owing to the political nature of their motives. They were at once released. 13. On an appeal by the public prosecutor, the Supreme Court set this decision aside on 28 February 1978 on the ground that by that stage of the proceedings it had not been established that the crime was politically motivated and not carried out for pecuniary gain. This judgment meant that investigation file no. 46/1977 was reopened. As the four accused did not appear, however, the judge ordered them to be sought by the police, and in July 1978 he provisionally suspended the proceedings. 14. In the course of their investigations into the killing of Mr Bultó, the police arrested Mr Jaime Martínez Vendrell, aged 63, and four other persons on 4 March 1979. They were placed in police custody and held incommunicado, in accordance with the anti-terrorist legislation then in force (see paragraph 46 below). Unassisted by a lawyer, Mr Martínez Vendrell was questioned at the police station during his custody there and on 11 March 1979 made a statement containing, in substance, the following: Until 1974 he had been a leading member of a Catalan nationalist organisation, the "Front Nacional de Catalunya", and from 1967 on had taken part in the creation and training of armed groups, with the object of fighting for the independence of the Catalan nation. In 1968, he had met three young men including a certain "Thomas", whom he identified as the applicant Messegué, and in late 1969 had begun their theoretical and practical military training. In 1973, he had established another group of young men, one of whom he identified as the applicant Barberà. Subsequently, several people, including "Thomas", had purchased weapons in Germany; they had brought them into Spain via France and hidden them in dumps known to them alone. In 1976, three groups had been established, one of which was commanded by "Thomas". The group members gave up all outside activities and were paid by the organisation. A network of flats and radio transmitters had been created later to allow contact between the groups. In February 1977, Mr Martínez Vendrell had been informed that an explosive device had been produced, which could be attached to a person’s body and subsequently defused on payment of an agreed ransom. The mechanical part of this device could have been designed by "Thomas" (Messegué) and another activist, and the electronic part by Mr Barberà and another person. "Thomas" and someone else had later shown the device to Mr Martínez Vendrell. In April 1977, they had revealed to him that the first victim chosen was Mr José María Bultó. Two days after the killing, he had met the commando leaders and had learned that eleven people had taken part in the operation and that Mr Barberà and Mr Messegué had attached the device to the victim’s chest. 15. When Mr Martínez Vendrell was brought before Barcelona investigating judge no. 6, in the presence and with the assistance of counsel, he amended his statement. In particular, he said that the bomb "might have" been made by the persons stated, but that he did not know the names of those who had carried out the attack on Mr Bultó. 16. These statements were sent to central investigating judge no. 1 in Madrid, who reopened file no. 46/1977 on 15 March 1979. On the next day he charged Mr Martínez Vendrell with murder and with possession of arms and explosives, and ordered him to be held in custody on remand. In a further decision on the same day he charged six others, including Mr Barberà and Mr Messegué, with murder, criminal damage and uttering forged documents, and issued a warrant for their arrest. As none of the six could be found, the proceedings continued solely against the co-defendants in custody. 17. During the investigation and again at the hearing, Mr Martínez Vendrell retracted his statement to the investigating judge as far as the identification of Barberà and Messegué was concerned. On 17 June 1980, the first section of the Criminal Division of the Audiencia Nacional sentenced him to one year and three months’ imprisonment for assisting armed gangs. It set aside the original charges, however, noting among other things that he had expressed disapproval when at the end of April 1977 he had been told of the proposed operation against Mr Bultó; that the preparations had occurred without his knowledge; and that he had only learned of the victim’s death through press reports. It also ordered his immediate release because the period of the sentence had already been spent in custody on remand. 18. Following an appeal on points of law by Mr Bultó’s son, acting both as a "private prosecutor" and as a party claiming civil damages, the Supreme Court quashed the judgment of the Audiencia Nacional on 10 April 1981. On the same day, it sentenced Mr Martínez Vendrell to twelve years and one day’s imprisonment for aiding and abetting a murder and ordered him to pay five million pesetas in damages to the victim’s heirs. It held that the influence he exerted on those who committed the crime was sufficiently great to amount to aiding and abetting and went far beyond merely assisting armed gangs; admittedly, he had made it clear that he was opposed to the crime, but he had done nothing to prevent it. A warrant was consequently issued - on 24 April 1981, according to the applicants - for Mr Martínez Vendrell’s arrest. Mr Martínez Vendrell has not so far been found by the police and has therefore not yet served his sentence. 19. The three applicants were arrested with other persons on 14 October 1980 and charged with belonging to the terrorist organisation E.PO.CA. Among items found at their homes were radio transmitters and receivers, a variety of implements, electronic equipment, publications of left-wing nationalist parties, files on leading politicians and businessmen, and books on topography, electronics and the chemistry of explosives. Section 2 of Law no. 56 of 4 December 1978 on the suppression of terrorism, as renewed by Royal Legislative Decree no. 19 of 23 November 1979, was applied to their case (see paragraph 46 below). This authorised the police to hold suspects in custody for longer than the normal period of seventy-two hours, with leave from the investigating judge. The applicants were moreover held incommunicado and not allowed to have the assistance of a lawyer. While in custody they signed a statement in which they admitted having taken part in Mr Bultó’s murder either as principals or as accessories; their account differed from Mr Martínez Vendrell’s, however. Furthermore, the police discovered stocks of arms and explosives at places indicated by Mr Barberà and Mr Messegué. 20. On 23 October 1980, the persons held in custody appeared before Barcelona investigating judge no. 8, who questioned them - without any defence lawyer being present in the case of Mr Barberà and Mr Jabardo. They retracted their confessions to the police and two of them - Jabardo and Messegué - complained of being subjected to physical and psychological torture while in police custody. By an order (auto) of the same day the judge directed that they should be held in custody on remand, and they were transferred to Barcelona Prison. 21. On 24 October 1980, the resulting documents were sent to central investigating judge no. 1 for inclusion in file no. 46/1977. On 12 January 1981, the latter judge charged the applicants and two other persons with murder and assisting armed gangs. He then sent letters rogatory to Barcelona for further inquiries to be made. Barcelona investigating judge no. 10 served the charges on the applicants and examined them on 22 January; they confirmed the statements they had made to investigating judge no. 8 and again alleged that their confessions had been obtained by means of torture. They were not, however, confronted with the prosecution witnesses or Mr Martínez Vendrell, who was then at liberty. Mr Barberà instructed an advocate and an attorney in Barcelona on 22 December 1980, but the central investigating judge in Madrid did not record these appointments until 20 January 1981. Mr Messegué and Mr Jabardo did not instruct lawyers until 21 February 1981; the investigation had been completed on 16 February. 22. The case was then committed for trial to the first section of the Criminal Division of the Audiencia Nacional. By an order of 13 March 1981, the court instructed the public prosecutor and the private prosecutor to make their interim submissions. They argued that the facts amounted to murder, possession of arms and explosives and forging identity documents; as evidence they offered the examination of the defendants, the hearing of eye-witnesses and the production of the entire case-file; no mention was made of Mr Martínez Vendrell. The file was sent to the attorney acting for Mr Jabardo on 27 May and to the ones acting for Mr Barberà and Mr Messegué on 1 June. Each of the defendants conducted his defence separately with counsel of his own choosing. All the defendants declared their innocence and offered to produce similar evidence, including, in Barberà and Messegué’s case, the statement made by Mr Martínez Vendrell retracting the one he had made to the police implicating Mr Barberà and Mr Messegué in the murder. Mr Messegué had been transferred to Madrid but he and his counsel managed to get him returned to Barcelona in order to prepare his defence. 23. By an order made on 27 October 1981, the court - on this occasion composed of Mr de la Concha (the presiding judge), Mr Barnuevo and Mr Infante - admitted the evidence offered and set the case down for trial on 12 January 1982. It also ordered that the accused should be brought to Madrid and appointed Mr Obregón Barreda and Mr Martínez Valbuena of the third section as additional judges to bring the number in the first section to five in view of the heavy sentences being sought (Article 145 para. 2 of the Code of Criminal Procedure). On 10 December 1981, defence counsel (all of whom were members of the Barcelona Bar) applied for the trial to take place in Barcelona on account of the needs of the defence and witnesses’ travel difficulties. Subsequently, a Catalan senator wrote to the court requesting it to at least postpone the transfer to Madrid until after Christmas. On 18 December 1981, the Audiencia Nacional, presided over by Mr Pérez Lemaur, who was sitting with Mr Barnuevo and Mr Bermúdez de la Fuente, refused the first application and confirmed that the hearing would be held in Madrid on 12 January 1982. 24. On the day before the trial, counsel for the defendants met the presiding judge of the first section of the Criminal Division (Mr de la Concha), in order to prepare for the hearing and discuss the possibility of an adjournment, as the applicants were still in prison in Barcelona. The presiding judge assured them that the defendants’ transfer was imminent and that the trial could therefore go ahead. The applicants stated that they left Barcelona on the evening of 11 January and arrived in Madrid at four o’clock the following morning, when the hearing was due to commence at 10.30; they said that they were in very poor shape after travelling more than 600 kilometres in a prison van. According to the Government, the journey took ten hours at most. That same morning of 12 January 1982, the presiding judge had to leave Madrid suddenly as his brother-in-law had been taken ill. As senior judge of the Division, Mr Pérez Lemaur took his place. In accordance with the legislation in force, so the Government asserted, the parties were not warned either of this substitution or of the replacement of Mr Infante - who no longer belonged to the first section - by Mr Bermúdez de la Fuente. 25. The trial was held on the appointed day in a high-security courtroom; in particular, the defendants appeared in a glass cage and were kept in handcuffs for most of the time. The record makes no mention of any protest by them, except as regards certain exhibits which were not produced in court. The court agreed to admit in evidence a number of documents submitted by the defence. When examined by the private prosecutor in regard to matters in their statements to the police, the accused again denied any participation in the murder and again complained of being subjected to torture while they were in custody. 26. The public prosecutor offered for examination the three witnesses who had been present at the time of the crime: the sister and brother-in-law of Mr Bultó, and their housemaid. The sister and the maid were very old and could not come to Madrid but the prosecutor asked that their statements to the police on the day after the crime should be taken into account. Mr Bultó’s brother-in-law gave evidence in court but did not recognise any of the applicants. The only documentary evidence produced by the public prosecutor was a copy of the file on the investigation. 27. For its part, the defence, with the court’s leave, called ten witnesses; some of them, who were arrested at the same time as the defendants, alleged that they too had been subjected to brutality while in police custody. All the parties agreed to treat the documentary evidence as if it had been produced (por reproducida - see paragraph 40 below). 28. The public prosecutor and the private prosecutor then confirmed their interim submissions; counsel for the defendants, on the other hand, amended theirs and submitted that the amnesty law should be applied (see paragraph 12 above). The hearing was adjourned until 4.30 p.m. and resumed with addresses by the three parties. The presiding judge finally asked the defendants if they had anything to add, and they answered in the negative. The hearing ended in the evening. 29. On 15 January 1982, the first section of the Criminal Division of the Audiencia Nacional sentenced Mr Barberà and Mr Messegué to thirty years’ imprisonment for murdering Mr Bultó; it also sentenced Mr Barberà to six years and one day’s imprisonment for unlawful possession of arms and to three months’ imprisonment and a fine of thirty thousand pesetas for uttering forged documents, and Mr Messegué to six years and one day’s imprisonment for possessing explosives. Mr Jabardo was sentenced to twelve years and one day’s imprisonment for aiding and abetting a murder. The court held it to have been proved that Mr Barberà and Mr Messegué had directly participated in fixing the device to the victim’s body and switching on the electric mechanism, after which they had given Mr Bultó instructions for the payment of a ransom, which was the condition on which he would be able to remove the device safely. The device had subsequently exploded for reasons that had never been properly established. Mr Jabardo had assisted the operation by gathering information about public figures in Catalonia, including Mr Bultó. In the same judgment the court refused to apply the amnesty law of 15 October 1977 to the applicants. Even if they had been acting from a political motive, that motive was the independence (and not merely the autonomy) of the Catalan nation and so did not fall within the scope of the amnesty. 30. The applicants appealed on points of law, relying on Articles 14 (right of all Spaniards to equality before the law), 17 (right to liberty and security of person) and 24 (right to effective judicial protection) of the Constitution. They described the circumstances of their arrest and custody and pointed out that when they were questioned by the police they did not have the assistance of lawyers and had not been informed of their rights; they had made confessions only because use had been made of coercion, threats and ill-treatment (see paragraphs 19-20 above). They also claimed that there was no evidence to rebut the presumption that they were innocent of Mr Bultó’s murder, as the physical violence to which they had been subjected rendered their confessions invalid. Moreover, there was no connection between the facts found by the Audiencia Nacional and the evidence adduced before it, and its judgment did not explain how it had arrived at its decision. The applicants also criticised the Audiencia Nacional for not having determined all the issues raised in the defence submissions (Article 851 para. 3 of the Code of Criminal Procedure - see paragraph 43 below): it had ignored their allegations that their statements to the police were invalid and had given no indication of the evidential value it attached to those statements, having regard to the material produced during the trial. Mr Messegué submitted, moreover, that he was implicated solely by confessions extracted by force from Mr Martínez Vendrell, who had later retracted them before the judge; the Audiencia Nacional had again not expressed an opinion as to their validity. Furthermore, the Audiencia Nacional had made an error of fact in assessing the evidence (Article 849 para. 2 of the Code of Criminal Procedure - see paragraph 42 below), because there was no conclusive evidence to refute their protestations of innocence before the judge. Referring to Article 24 para. 2 of the Constitution (see paragraph 36 below), which enshrines the principle of the presumption of innocence, and to the Supreme Court’s case-law on the subject, the applicants asserted that not only had the evidence been wrongly evaluated but no such evidence in fact existed. They further submitted that the Audiencia Nacional had not indicated its reasons for holding that the facts had been established, as required by Supreme Court precedents, even though the main defence submission had been that there was no evidence. There could only be one explanation for this, namely that the court had allowed itself to be influenced by the defendants’ alleged confessions to the police, which had been obtained in clear breach of the fundamental rights guaranteed in Articles 3 and 17 of the Constitution. Mr Jabardo also criticised the Audiencia Nacional for not having sought during the hearing to inquire further into the facts. He said that the only prosecution witness who had given evidence in court had not recognised the defendants and that important evidence was lacking, such as identification and the confrontation of witnesses and accused or a reconstruction of the events. Lastly, he pointed to a discrepancy between the judgment of 17 June 1980 convicting Mr Martínez Vendrell (see paragraph 17 above) and the judgment given in the instant case on 15 January 1982 (see paragraph 29 above); in his submission, this discrepancy showed that he, Mr Jabardo, could not have taken part directly in the attack on Mr Bultó. 31. On 27 December 1982, the Supreme Court dismissed the appeals of Mr Barberà and Mr Messegué. As to the validity of the confessions obtained by the police, including Mr Martínez Vendrell’s, it noted that the alleged defects related solely to the findings of fact and accordingly did not give rise to the procedural irregularity complained of, which related only to points of law. The court said the following about the presumption of innocence (translated from the French translation provided by the Government): "The evidence offered by the public prosecutor, the private prosecutor and the defence includes, as written evidence, the complete file on the investigation, containing: (a) the statement made to the judge by Mr Jaime Martínez Vendrell, assisted by his lawyer (doc. no. 572 in the file), in which he confirmed the following facts from his first statement to the police: the defendants Barberà Chamarro and Messegué Mas were members of an armed group designed to be the nucleus of a revolutionary army to free the Catalan nation; they were very closely associated with Mr Martínez Vendrell, particularly Mr Messegué; they had been thoroughly trained in urban guerrilla tactics; they lived ‘freed from all external obligations’, being paid by the organisation to devote all their energies to its work, in accommodation provided by the organisation; they communicated with each other by means of transmitters and used false identity documents and assumed names; Mr Messegué was in charge of one of the direct-action groups which, together with others, formed an organised unit or brigade; both men had important positions in the organisation and had received training such that they ‘might have’ constructed the explosive device (Mr Barberà the electronic component and Mr Messegué the mechanical component) used for the ‘business operations and in particular the one of which Mr Bultó Marqués was the victim - Mr Martínez Vendrell did not know the identity of or the methods used by the persons forming the groups which took part in that operation’; (b) finding of fact in the Audiencia Nacional’s judgment of 17 June 1980 in the same case (doc. no. 138 in the file), confirmed unchanged in the Supreme Court’s judgment of 10 April 1981 convicting Mr Jaime Martínez Vendrell: ‘At an unspecified date at the beginning of that year (he is referring to 1977) three of the young men whom he saw most frequently and whom the defendant (Mr Martínez Vendrell) knew to be heads of armed groups told him they considered that the time had come to go into action and that they were contemplating operations to finance the members of the groups. They told him that they had adjustable explosive devices which could be fixed to the skin of selected victims so that the latter would be obliged to pay the money asked for in order to avoid the risk of an explosion entailed by removing a device without the instructions and equipment in the possession of those who had put it in place. At the end of April, two of these group leaders told him that they were thinking of a businessman, Mr José María Bultó Marqués, on whom to use this device for the first time’; (c) the statement made to the judge by Mr Francisco Javier Barberà Chamarro, assisted by his lawyer (doc. no. 903): he admitted being a member of the Catalan National Liberation Army, working together with Mr Martínez Vendrell, being in possession of arms and knowing of the existence of stocks of arms; (d) the statement made to the judge by Mr Antonino Messegué Mas, assisted by his lawyer (doc. no. 906): he belonged to the armed organisation, had been trained in urban guerrilla tactics by Mr Martínez Vendrell and knew of the existence of a stock of explosives; (e) the official report on a search of the flat at no. 1 Pinos Street, Hospitalet de Llobregat (doc. no. 890), and from the file on the investigation a statement by Mrs Dolores Tubau Molas (doc. no. 904) to the effect that the defendant Barberà Chamarro lived in the flat with other activists and that there were found there (inter alia) a transmitter, electronic equipment, lathes, tools and files containing press cuttings and information about a number of prominent people, and books on topography, the chemistry of explosives, and electronics; (f) the official report on a search of the flat at no. 27 Parlamento Street, Barcelona (doc. no. 892), occupied by Mr Antonino Messegué Mas and Mrs Concepción Durán Freixa (statement in doc. no. 908) and where a transmitter and receiver, medicines, wigs and stiff paper of the type used for national identity cards and for driving licences were seized; (g) the official report on the discovery of an arms dump and two radio transmitters at three places indicated by the defendant Barberà (doc. no. 882); (h) the official report on the discovery of an explosives dump indicated by Mr Messegué and the destruction of the explosives on the spot (docs. nos. 833 and 899). The mere existence of this evidence, irrespective of its implications and the way in which it is assessed, is sufficient to rebut the presumption of innocence relied on by the defendants Barberà Chamarro and Messegué Mas, and we therefore reject grounds five and four respectively of their appeals; the facts established in paragraph 1 of the recital finding that they were directly and immediately involved in the homicidal operation must consequently be confirmed in toto. The description of the facts as murder under Article 406 para. 3 of the Criminal Code with an aggravating circumstance under Article 10 para. 6, which was allegedly incorrectly applied according to Barberà’s sixth ground of appeal and Messegué’s fifth ground of appeal, was therefore correct and their appeals under section 849(1) of the Procedure Act must therefore be dismissed." On the other hand, the Supreme Court quashed the Audiencia Nacional’s judgment in respect of Mr Jabardo, holding that the established facts amounted not to the crime of aiding and abetting murder but to the lesser offence of assisting armed gangs. It accordingly delivered another judgment on the same day acquitting him on the first charge but sentencing him to six years’ imprisonment on the second charge. Lastly, it confirmed that the applicants were not covered by the amnesty law and it ordered an inquiry into their allegations of ill-treatment. This inquiry was begun in 1984 by investigating judge no. 13 in Barcelona and led in 1985 to a discharge order being made by the Audiencia Provincial. 32. The three convicted men appealed to the Constitutional Court alleging a violation of Articles 17 para. 3 (right of everyone arrested to be informed of the reasons for his arrest and to be assisted by a lawyer), 24 para. 2 (right to a fair trial and to be presumed innocent) and 14 (right of all Spaniards to equality before the law) of the Constitution (see paragraphs 30 above and 36 below). As regards the factors taken into account by the Supreme Court, they made the following submissions. 1. Mr Martínez Vendrell’s statement could be regarded only as witness evidence, yet it had not been offered as such nor had it been confirmed at the hearing. If one accepted that it had been produced by means of the phrase "por reproducida", the unacceptable consequence followed that all the actions and confessions contained in the police report would likewise have to be admitted as evidence, since they too appeared in the file on the investigation. In any case, the material statement did not provide any indication that the defendants had had any involvement in the murder. 2. The Audiencia Nacional’s judgment of 17 June 1980 merely stated, in its second recital, that Mr Martínez Vendrell did not know the actual course of the relevant events. 3. Mr Barberà’s statement to the investigating judge should not have been admitted in evidence, since he had made it without counsel’s assistance; furthermore, he merely denied that he had participated in the crime. 4. Similarly, Mr Messegué had declared to the investigating judge that he was innocent. 5. The items found at the homes of Mr Barberà and Mr Messegué and the statements by their female companions had no connection with the murder. The items, moreover, had never amounted to real evidence as it did not appear from the file that they had been given to the judge or assessed by the court - one of the defence counsel had indeed protested at this during the trial; as to the documents, these had never been appended to the police report nor placed elsewhere in the file on the investigation, so the court could not take them into account. 6. The discovery of arms and explosives at the places indicated by Mr Barberà and Mr Messegué was relevant to the offences of unlawful possession of weapons and explosives but not to the murder. In sum, none of the factors listed by the Supreme Court could rebut the presumption of innocence in respect of the main charge, the attack on Mr Bultó. For the rest, the applicants repeated in substance the submissions they had made before the Supreme Court. 33. On 20 April 1983, the Constitutional Court declared the appeal (recurso de amparo) inadmissible as being manifestly ill-founded. As regards the presumption of innocence it gave the following reasons for its order (auto): "As the assessment of the evidence lies within the exclusive jurisdiction of the judges and courts, the Constitutional Court cannot find a violation of this provision unless there has been a failure to produce a minimum of evidence against the accused. In the instant case, however, this minimum of evidence was produced, namely in the statements made with the assistance of a lawyer to the investigating judge, the official reports on the searches made and on the real evidence discovered and in the facts as established in another judgment. The Constitutional Court cannot therefore review the criminal courts’ assessment of the evidence." 34. In March 1984, the applicants were transferred from Carabanchel Prison in Madrid to Lérida Prison (Lleida-2). In September, the Audiencia Nacional granted Mr Jabardo parole. Since January 1987, Mr Barberà and Mr Messegué have been held in an open prison. 35. The police rearrested two of the persons originally prosecuted (see paragraph 12 above), Mr S and Mrs T, and the investigation was resumed on 8 February 1985. Mr S was sentenced to thirty years’ imprisonment as being responsible for Mr Bultó’s murder together with the applicants Barberà and Messegué. He appealed on points of law to the Supreme Court, which dismissed his appeal on 28 November 1986, holding that the evidence produced was sufficient to rebut the presumption of innocence. His subsequent appeal to the Constitutional Court was declared inadmissible on 1 April 1987. As for Mrs T, she was sentenced to four years’ imprisonment for assisting armed gangs. 36. By Article 24 of the Spanish Constitution, "1. Everyone has the right to effective protection by the judges and courts in the exercise of his legitimate rights and interests, and in no case may the right to a defence be curtailed. 2. Everyone, further, has the right to be heard by the tribunal established by law, the right to a defence and to the assistance of a lawyer, the right to be informed of any charges against him, the right to a public trial without undue delay and attended by all safeguards, the right to make use of evidence relevant to his defence, the right not to make statements against himself and not to confess himself guilty, and the right to be presumed innocent. ..." 37. In view of the Constitutional Court’s case-law in this area, the Supreme Court has extended the scope of proceedings in appeals on points of law. It has held that the presumption of innocence can be relied upon before it in respect of an infringement of the law resulting from an error made by the trial court when assessing the evidence (see paragraph 42 below), or on some other ground. According to a judgment of 3 November 1982, the Supreme Court’s review of the evidence is directed only to the question whether or not evidence was produced and taken and not to the criminal court’s final, unappealable assessment of that evidence. 38. Article 53 para. 2 of the Constitution provides for an appeal (recurso de amparo) whereby the protection of the rights laid down in Articles 14 to 30 may be secured. 39. According to the preamble to the Code of Criminal Procedure, the file on the judicial investigation is "the corner-stone of the hearing and the judgment". It is not a substitute for the hearing but a preparation for it. Since the reform of 4 December 1978 (Law no. 53/1978), the adversarial nature of criminal proceedings applies to the investigation stage; this enables the accused, assisted by his advocate, to intervene in respect of steps concerning him (Articles 118 and 302). In order to exercise this right, the accused must appoint an advocate (abogado) and an attorney (procurador). The investigating judge has to build up his file under the direct supervision of the appropriate public prosecutor’s office (Article 306). He includes the evidence put forward by the public prosecutor and the other parties if he considers it relevant. He can also order evidence to be produced of his own motion, but in that case he adds to the file only such evidence as proves to be of value (Article 315). Once the investigation is concluded, the judge forwards the documents to the relevant court (Article 622 para. 1), which takes the final decision to close the investigation after it has heard the public prosecutor and the private prosecutor (Article 627). 40. Before the hearing, the public prosecutor and the private prosecutor make their interim submissions - in writing and in numbered paragraphs - on the punishable offences disclosed by the case-file, on their classification in criminal law, on the circumstances that may affect the accused’s responsibility and on the penalty which he may incur. The defence, in its turn, presents its view of the classification in law of the facts disclosed by the case-file (which is placed at its disposal) and must reply by indicating, likewise in numbered paragraphs corresponding to the prosecution’s submissions, whether it accepts or rejects each of them; in the latter case, it makes its own alternative submissions (Articles 650, 651 and 652). The prosecution and the defence must, when making their interim submissions, indicate the evidence they propose to adduce (Articles 656 and 657), and this evidence is scrutinised by the reporting judge and admitted or rejected by the court (Articles 658 and 659). The hearing takes place in public, failing which it will be null and void (Article 680). It cannot begin or be continued unless the accused is present. For this purpose, the law allows the accused to be transferred, if necessary, to the town in which the hearing is to be held. Evidence is taken in the order in which the parties have offered it. The court may also take such evidence as it considers necessary for the discovery of the truth (Article 729 para. 2). Furthermore, "at the request of any of the parties, documents relating to evidence which, for reasons beyond the parties’ control, cannot be produced at the hearing may be read out" (Article 730). Where all or part of the file on the judicial investigation is adduced in evidence, there is an established practice that it will be regarded as having been produced (por reproducida) without having been read out if all those concerned so agree. Immediately after the evidence has been taken, the parties may make written amendments to their interim submissions or else make them final. The presiding judge calls the representatives of the public prosecutor and of the private prosecutor (Article 732). In their pleadings, these representatives must set out the facts they consider proved at the hearing, their classification in criminal law, the part played in them by the accused and the civil liability flowing from them (Article 734). The presiding judge then immediately calls the defence; its pleadings must be consistent with its final written submissions (Articles 736 and 737). Lastly, the presiding judge gives the accused the opportunity of addressing the court in case he wishes to add anything in his defence (Article 739). After that, the presiding judge declares the hearing closed. 41. The judges deliberate immediately after the hearing, or at the latest on the following day (Article 149), and a reporting judge (magistrado ponente) is designated for the purposes, inter alia, of informing the court, examining the evidence and preparing a draft judgment (Articles 146-147 of the Code of Criminal Procedure). The final decision is written and signed within three days (Article 203). In drawing it up, the court has to assess in all conscience the evidence adduced during the hearing, the submissions of the prosecution and the defence, and the statements of the defendants (Article 741). 42. An ordinary appeal does not lie against judgments of the Audiencia Nacional; only the special remedy of an appeal on points of law or procedure is available. By Article 849, the law is deemed to have been violated (1) where, having regard to the facts declared proved in the judgment appealed against, there has been an infringement of a substantive provision of criminal law or any other legal rule of the same kind which has to be complied with when the criminal law is being applied; or (2) where an error of fact has been made in assessing the evidence and this appears clearly from authentic documents not contradicted by other evidence. It has been held by the Supreme Court that in the second of these two eventualities the principle of the presumption of innocence can be prayed in aid (see paragraph 37 above). 43. Non-compliance with procedural requirements includes cases in which: (a) the judgment appealed against does not clearly state the facts deemed to have been established or discloses a manifest discrepancy between them or else mentions as proved facts "concepts" which, by their legal nature, prejudge the decision to be taken (Article 851 para. 1); (b) the judgment does not dispose of all the issues raised by the prosecution and the defence (Article 851 para. 3); and (c) one of the judges who participated in the judgment was challenged but without success, although the challenge was made within time, in the proper manner and for a legally valid reason (Article 851 para. 6). 44. The Audiencia Nacional and the Supreme Court both comprise several divisions with specific jurisdictions (civil, criminal, administrative), each of which is in turn divided into three-judge sections if the number of judges allows. Members of each division are always available to replace fellow members, and the president of a division can be replaced by the presiding judge of a section or by the senior judge. Section 648 of the Judicature Act 1870 (Ley orgánica del Poder Judicial) provides that where the judges designated to complete a section do not come from the Criminal Division, the parties must be informed of their identity at least twenty-four hours before the public hearing begins. By the same section of the Act, no challenge may normally be made after the hearing has begun. Under Article 56 of the Code of Criminal Procedure, however, a challenge may be made at any stage of the proceedings but in no circumstances after the beginning of the oral stage unless on the ground of subsequent events. A judge may be challenged on the following legal grounds among others: that he is related by blood or marriage to one of the parties; that one of the parties has either lodged a complaint or brought a prosecution against him or once did so in the past; that the judge has himself lodged a complaint or brought a private prosecution against the person making the challenge, or once did so in the past; that he is involved in litigation with the person making the challenge; that he is or has been the guardian or ward of one of the parties or has had custody of him; that he has taken part in the proceedings as advocate, legal adviser, member of the public prosecutor’s office, expert, witness or investigating judge; that he has a direct or indirect interest in the proceedings; that he is a close friend or else obviously hostile (Article 54). 45. The Audiencia Nacional was given jurisdiction in terrorist cases on 4 January 1977 (Royal Legislative Decree no. 3/77). The court, which was created by legislative decree on the same date (no. 1/77), sits at Madrid and its criminal jurisdiction also extends to organised crime, business crime and offences whose effects reach beyond the territory of a single province. The judicial investigation of such offences is carried out by specialist judges (jueces centrales de instrucción). 46. At the time the applicants and Mr Martínez Vendrell were arrested, Law no. 56 of 4 December 1978 provided for a range of measures not permitted by the ordinary law in respect of terrorist acts committed by armed groups. This Law, which was originally intended to be in force for a year, was renewed by Royal Legislative Decree no. 19 of 23 November 1979. Section 2 of the Law makes provision for holding people in police custody for up to ten days (instead of seventy-two hours). Furthermore, the judicial authority which has ordered detention can also order that the person concerned be held incommunicado for the length of time needed to complete the judicial investigation, without prejudice to the rights of the defence (same section). There are also special provisions on searches and the monitoring of correspondence, including communications by telegraph and telephone (section 3).

train

001-58897

ENG

TUR

CHAMBER

CASE OF SEVTAP VEZNEDAROĞLU v. TURKEY

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

Feyyaz Gölcüklü

8. The facts of the case as submitted by the applicant are summarised below. The Government dispute the applicant’s account. 9. The applicant was at the relevant time a research student in public law at Diyarbakır University and married to a lawyer who had been the provincial president of the Diyarbakır Human Rights Association in 1990. According to the applicant she was constantly followed by the police on account of her husband’s position. 10. On 4 July 1994, at about 3 p.m., the applicant was arrested by 8 policemen at her home on suspicion of membership of the Kurdistan Workers Party (“PKK”), an illegal organisation. 11. The applicant was taken to the forensic doctor to be examined. Following the doctor’s examination she was blindfolded and taken to an unknown destination where she was placed in a cell. After a certain period of time, she was again blindfolded and taken to another room to be interrogated. 12. The applicant was interrogated by approximately 15 policemen and accused of forming links with and of working for the PKK abroad. She was then undressed and hung by her arms. She was given electric shocks to her mouth and sexual organs. After half an hour she was taken down as she had fainted. The interrogators, while threatening her with death and rape, told her not to work on human rights matters. She was then taken to her cell. The next day she was again tortured and threatened with death and rape. The torture continued for four days. During the first two days of her custody the applicant was not given anything to eat. Thereafter she was only given a piece of bread and a few olives. 13. During her detention the applicant was requested to sign some documents. She was told that she would be tortured and raped if she did not agree to sign them. The applicant signed the documents. In the documents, by way of explanation for the marks of torture on her body, it was stated that the applicant had fallen while indicating a place used by the PKK. The policemen applied cream to the applicant’s injuries. 14. On 13 July 1994 the police officers brought her to the forensic doctor who drew up a report which stated: “Upon the examination of Sevtap Veznedaroğlu, violet-coloured bruises were identified on the left upper arm 1 by 1 cm and on the right tibia 3 by 1 cm”. 15. On 15 July 1994 the applicant, accompanied by police officers, was taken to the Diyarbakır State Hospital where she was examined by a forensic doctor. In his report dated 15 July 1994 the doctor noted the presence of the same bruising on the applicant’s arm and leg as indicated in the earlier report of 13 July 1994. The report concluded that the applicant’s health was not at risk and that she was fit to work. 16. On 15 July 1994 the applicant was brought before the public prosecutor at the Diyarbakır State Security Court. Her file contained the medical reports dated 4, 13 and 15 July 1994. The applicant maintained before the public prosecutor that she had signed the confession statement under pressure and as a result of being tortured while in detention. The public prosecutor recorded in the file that the applicant did not acknowledge the statement which she gave to the police. 17. On the same day the applicant appeared before a substitute judge attached to the Diyarbakır State Security Court. The applicant repeated to the judge that she did not acknowledge the statement taken from her by the police “since she had been tortured and held under duress for many days ... and that the police had held her wrist and forced her to sign the police statement”. The applicant’s statement was recorded in the minutes of the hearing before the judge. The judge directed that the applicant be released from custody. The public prosecutor for his part ordered that the applicant stand trial before the Diyarbakır State Security Court on a charge of being a member of the PKK. 18. On 18 July 1994 the applicant was given a certificate by the Medical Faculty Hospital of Dicle University indicating that she was unable to work for 20 days. According to the medical report the applicant was suffering from bronchopneumonia. 19. On 30 October 1995 the applicant was acquitted by the Diyarbakır State Security Court on the ground of lack of evidence. The applicant was not in court on that day. In its ruling the court noted as follows the declarations made by the applicant during a court hearing held on 13 October 1994 and which was recorded in the minutes. “Although the accused admitted to the offence with which she was charged in her statements to the police, at a later stage during the proceedings before the judicial organs she claimed that she had made them under duress and even torture and had signed them without having read them.” 20. The Turkish Criminal Code makes it a criminal offence to subject an individual to torture or ill-treatment (Articles 243 and 245 respectively, the latter provision applying to allegations made against civil servants). 21. Complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate criminal offences reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 22. If the alleged author of a criminal offence is a State official or civil servant, permission to prosecute must be obtained from the local administrative council (the Executive Committee of the Provincial Assembly). The decision of a local council may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.

train

001-78879

ENG

DEU

ADMISSIBILITY

FODOR v. GERMANY

Inadmissible

Peer Lorenzen

The applicant, Mr Istvan Fodor, is a German national, who was born in Budapest in 1920 and lives in Cologne. He is represented before the Court by Mr. Klausbodo Hartung, a lawyer practising in Niederkassel. The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialrätin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In October 1941 the applicant, who was then a Hungarian national, was compelled to forced labour by the German authorities. In June 1942 he was transferred to the east front, where he carried out forced labour for the German army. In January 1943 he was captured by the Soviet army and detained as a prisoner of war until July 1945. In 1969 he entered the territory of the Federal Republic of Germany and obtained German citizenship in 1978. In 1975 the Cologne Chief Administrative Officer (Regierungs-präsident) granted the applicant compensation for the deprivation of liberty for the period of October 1941 to January 1943 pursuant to section 43 of the Federal Act on Compensation for Victims of Nazi Persecution (Bundesentschädigungsgesetz), hereinafter referred to as the Federal Compensation Act. On 20 January 1981 the Pension Office (Versorgungsamt) rejected the applicant’s request for benefits for the damages caused to his health. On 22 April 1982 the Düsseldorf Regional Court confirmed this decision. It based its decision on internist, orthopaedic and neurological expert opinions stating that the damages caused by the forced labour and the detention as a prisoner of war amounted only to a reduction of the ability to work (Minderung der Erwerbsfähigkeit) of 10 %. In November 1985 the applicant requested a pension pursuant to section 1 of the Federal Act on the Social Benefits for Victims of War (Bundesversorgungsgesetz), hereinafter referred to as the Federal Benefits Act (see “Relevant domestic law” below). The applicant submitted that he had performed forced labour for the German army. On 29 January 1987 the Pension Office rejected his request, finding that the applicant had not performed a military or quasi-military service while he was subjected to forced labour. On 31 January 1989 the Cologne Social Court rejected the applicant’s claim. On 26 March 1991 the North Rhine-Westphalia Social Court of Appeal confirmed this decision, refusing the applicant leave to appeal. On 31 October 1991 the Federal Social Court dismissed the applicant’s complaint against the refusal of leave to appeal as inadmissible. On 26 March 1991 the applicant filed a request for a pension based on a different provision of the Federal Benefits Act, namely section 6. On 3 November 1992 the Pension Office rejected his request stating that the applicant’s forced labour could not be likened to military or quasi-military service. The Pension Office elaborated that section 6 of the Federal Benefits Act was supposed to complement the definitions of the terms “military or quasi-military service” in sections 2, 3 and 5, but was not meant to extend that provision’s scope. On 17 June 1993 the Pension Office dismissed the applicant’s objection. On 23 June 1993 the applicant brought an action in the Cologne Social Court. On 22 February 1994 the court rejected the applicant’s action. It stated that the decision whether the applicant had performed a military or quasi-military service within the meaning of section 6 of the Federal Benefits Act was a discretionary decision (Ermessensentscheidung) to be taken by the Pension Office. The court went on to say that it could only review if the Pension Office had exceeded or misused its margin of discretion (Ermessensüberschreitung oder Ermessensfehlgebrauch). The court found that there had been no such error in the exercise of the Pension Office’s discretion. Referring to the case-law of the Federal Social Court the court confirmed that the forced labour carried by the applicant was not similar to the military or quasi-military service mentioned in sections 2, 3 and 5 of the Federal Benefits Act. The court found that the applicant’s forced labour therefore fell rather within the ambit of the Federal Compensation Act, but not within the scope of the Federal Benefits Act. The court noted in this respect that the applicant had already received compensation for the forced labour under the Federal Compensation Act. On 23 March 1994 the applicant lodged an appeal with the North-Rhine Westphalia Social Court of Appeal. The Federal Republic of Germany (“FRG”) was summoned as an interested party to those proceedings (beigeladen). The Federal Ministry of Labour and Social Affairs, which represented the FRG in those proceedings, submitted by letter of 1 September 1994 that the applicant might be entitled to benefits under section 89 (1) of the Federal Benefits Act, since the applicant fell within the scope of the circular of 2 May 1994. By letter dated 1 December 1994 the Pension Office informed the Social Court of Appeal that the Federal Ministry of Labour and Social Affairs had consented to the grant of benefits under section 89 of the Federal Benefits Act. However, the Pension Office pointed out that medical examinations of the applicant were necessary in order to determine the nature and the extent of benefits. The Social Court of Appeal therefore examined whether the applicant’s ability to work had been reduced. On 9 December 1994 the court therefore ordered the taking of orthopaedic and internist expert opinions. On 25 January 1996 the Social Court of Appeal ordered a neurological expert opinion to be taken as well. The medical examinations took place in February and June 1996. On 20 January 1998 the Social Court of Appeal conducted a hearing. On 15 April 1999 the court ordered an additional orthopaedic expert opinion to be taken. On 5 May 1999 the court changed the expert who should perform the examinations. On 23 December 1999, upon the applicant’s request, the court ordered an additional neurological expert opinion to be taken at the applicant’s expense. On 18 December 2001 the applicant and the Pension Office concluded a friendly settlement before the Social Court of Appeal. It stipulated that the applicant was to receive a pension pursuant to section 89 of the Federal Benefits Act assuming a reduction of 30 % of his ability to work. The pension was awarded retrospectively, beginning March 1991. Section 1 of the Federal Benefits Act provides relief for the victims of war whose health or financial standing have been adversely affected by the performance of military or a quasi-military service or by an accident that occurred during the performance of such service. Sections 2, 3 and 5 of the Federal Benefits Act define the term “military” or “quasi-military service”. If, however, an individual does not qualify under section 1 of the Federal Benefits Act, because he did not perform military or quasi-military service within the meaning of sections 2, 3 and 5 of the Federal Benefits Act, section 6 provides for an exception. It reads as follows: “With the consent of the Federal Ministry of Labour and Social Affairs, a military or quasi-military service or direct consequences of war may be recognised in other particular well-founded cases not covered under sections 2, 3 and 5.” If those requirements are not met, section 89 (1) of the Federal Benefits Act provides for a further exception, which reads as follows: Should particular hardships arise in other cases due to the provisions of this Act, compensation may be awarded with the consent of the Federal Ministry of Labour and Social Affairs. In a circular dated 2 May 1994 the Federal Ministry of Labour and Social Affairs decided, within the scope of discretion granted to it under section 89 (1), that compensation of this nature may also be granted to German-speaking Jews from Southeast Europe and to persons persecuted under the Nazi regime, if their military service was completed in a foreign army.

train

001-97058

ENG

POL

CHAMBER

CASE OF MAGOCH v. POLAND

Violation of Art. 6-1

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

4. The applicant was born in 1950 and lives in Łódź. 5. On 27 July 1995 the applicant instituted civil proceedings for payment against the Łódź Municipality. 6. On 8 April 1998 the Łódź Regional Court (Sąd Wojewódzki) gave judgment. The court partly allowed the applicant’s claim. The defendant appealed. 7. On 28 September 1998 the Łódź Court of Appeal (Sąd Apelacyjny) quashed the impugned judgment and remitted the case. 8. On 11 August 2005 the Łódź Regional Court (Sąd Okręgowy) dismissed the applicant’s claim against the Łódź Municipality. The applicant appealed. 9. On 22 March 2006 the Łódź Court of Appeal dismissed her appeal. The applicant lodged a cassation appeal against the appellate court’s judgment. 10. On 12 January 2007 the Supreme Court (Sąd Najwyższy) refused to entertain her cassation appeal. 11. On an unspecified date the applicant lodged with the Łódź Court of Appeal a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). 12. On 16 September 2005 the Łódź Court of Appeal acknowledged the excessive length of the proceedings before the Łódź Regional Court finding that there had been several periods of unjustified inactivity for which the Łódź Regional Court had been responsible. It referred to the periods between 29 January and 16 April 2004, 24 June and 27 October 2004, 12 January and 18 May 2005 and qualified them as unjustified delays. The court did not examine, however, the period prior to the entry into force of the 2004 Act. 13. The court awarded the applicant 1,000 Polish zlotys (PLN) (approx. 285 euros (EUR)) in just satisfaction. 14. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.

train

001-95607

ENG

BGR

CHAMBER

CASE OF KOLEVI v. BULGARIA

Violation of Art. 5-3;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 2;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

6. Mr Kolev was a high-ranking prosecutor. Between 1994 and 1997 he was Deputy Chief Public Prosecutor of Bulgaria and, thereafter, a prosecutor at the Supreme Cassation Prosecution Office and later at the Supreme Administrative Prosecution Office. 7. His wife, Mrs Nanka Koleva, the second applicant, is a high-ranking prosecutor. 8. On 10 January 2001 Mr Kolev was dismissed from his position by decision of the Supreme Judicial Council, on an application by the Chief Public Prosecutor, Mr F. The decision ordered Mr Kolev's retirement. 9. During the months preceding Mr Kolev's dismissal, several other high-ranking prosecutors were dismissed and ordered to take early retirement. 10. Mr Kolev lodged an appeal before the Supreme Administrative Court against his dismissal, stating, inter alia, that he had never applied for retirement and that he had not reached retirement age. By a judgment of 23 May 2001 a chamber of the Supreme Administrative Court quashed the dismissal as contrary to the law, noting that Mr Kolev had not reached retirement age and that even though he was eligible for early retirement this could only be ordered if requested by the person concerned. 11. On appeal, that judgment was upheld on 10 December 2001 by a five-member chamber of the Supreme Administrative Court. 12. On an unspecified date in 2002 Mr Kolev resumed his office as a prosecutor. He started work at the Supreme Administrative Prosecution Office. 13. Between 1999 and 2006 Mr F. was the Chief Public Prosecutor of Bulgaria. 14. According to Mr Kolev, the real reason for attempting to force him to retire was a conflict between him and the Chief Public Prosecutor. Mr Kolev allegedly knew the Chief Public Prosecutor very well as they had been in the same class as university students and had worked together for an unspecified period. Observing the behaviour of the Chief Public Prosecutor, Mr Kolev gradually formed the opinion that he was suffering from a psychiatric disorder. Also, a conflict between the two allegedly erupted in relation to plans – which Mr Kolev resisted – to allow public access to the archives of the military intelligence service dating from the communist period. According to Mr Kolev's statements, supported by several other public figures, the conflict also arose from the fact that the Chief Public Prosecutor had developed an authoritarian style and had repeatedly ordered other prosecutors to act unlawfully against persons whom the Chief Public Prosecutor perceived as his enemies. In particular, on numerous occasions the Chief Public Prosecutor had ordered his subordinate colleagues to open criminal proceedings against other persons on fabricated charges. 15. On 23 February 2001 the Chief Public Prosecutor met Mr Kolev and allegedly ordered him to withdraw his appeal against the dismissal order of 10 January 2001 (see paragraph 8 above), threatening him with arrest and criminal prosecution if he did not comply. 16. In March and April 2001 Mr Kolev made public his suspicions about the mental health of the Chief Public Prosecutor. In interviews for the press he stated that the Chief Public Prosecutor constantly feared plots, mistrusted his colleagues and regularly ordered unlawful actions to put pressure on persons whom he considered to be against him. He referred to the recent suicide of a high-ranking prosecutor, who had left a note stating that the Chief Public Prosecutor should resign. Also, in January 2001 the Chief Public Prosecutor had allegedly been very irritated by journalists who had reported that his brother had been arrested in Germany on suspicion of smuggling ancient coins and had ordered a series of criminal investigations and reprisals against the journalists and other persons connected with them. The car of one of the journalists had been set on fire soon after the reports had been published. Many persons had been summoned for questioning and various charges brought against some of them. 17. Mr Kolev also wrote to the President of Bulgaria, informing him of his suspicions concerning the mental health of the Chief Public Prosecutor. 18. At the relevant time other public figures also voiced the opinion that the Chief Public Prosecutor was suffering from a mental disorder and had committed numerous serious criminal acts. In 2002 Mr E.S., a former member of Parliament known for his publications about alleged crimes committed by high-ranking officials, published an open letter to the Supreme Judicial Council and other institutions, stating that the Chief Public Prosecutor had committed crimes and that he had a mental disorder. One of the allegations was that in February 2000 the Chief Public Prosecutor had murdered Mrs N.G., a lawyer who had allegedly served as an intermediary for the payment of bribes by criminals to prosecutors. Several public figures, including prosecutors, made statements to the press on the matter, some of them supporting the allegations. 19. The Chief Public Prosecutor and other politicians denied the allegations and stated that they were the victims of a campaign by criminal groups which sought to destabilise the country and hamper pending investigations. 20. In January 2002 Mr Kolev initiated proceedings before the Supreme Administrative Court seeking a declaration that the decision of the Supreme Judicial Council of 1999 to propose that the President of Bulgaria appoint Mr F. as Chief Public Prosecutor had been invalid because of procedural irregularities. In January 2002 the Chief Public Prosecutor requested a ruling from the Constitutional Court on the question whether the Supreme Judicial Council's proposals to the President were amenable to appeal before the Supreme Administrative Court. On 28 March 2002 the Constitutional Court ruled that those proposals were not amenable to appeal. On 18 May 2002 the proceedings before the Supreme Administrative Court were discontinued. 21. Allegedly in reaction to Mr Kolev's public accusations, within a short period several sets of criminal proceedings were instituted against him and members of his family. It appears that prior to these events, Mr Kolev had never been the object of criminal investigations. 22. On 8 March 2001 Mr Kolev was charged with illegal possession of weapons, as a handgun and a hand grenade had been found in his former office after his dismissal. The proceedings were terminated by the Sofia District Court on 29 June 2001 on the ground that Mr Kolev, who was still a prosecutor as the decision ordering his retirement had not yet entered into force, enjoyed immunity from prosecution. 23. In April 2001 criminal proceedings were instituted against Mr Kolev on charges that he had breached the law in connection with an investigation he had conducted in 1991. Those proceedings were terminated by a decision of the Sofia City Court of 9 August 2001. 24. In June 2001 criminal proceedings were opened against Mr Kolev's father on charges of illegal possession of fifty cartridges for a hunting rifle. Mr Kolev's father was later indicted. On 2 October 2002 he was acquitted. By a judgment of 13 January 2005 of the Sliven District Court the prosecuting authorities were ordered to pay Mr Kolev's father nonpecuniary damages for the anxiety caused by his indictment on charges that had proved unfounded. 25. In June 2001 criminal proceedings were instituted against Mr Kolev in relation to a telephone conversation of 31 May 2001 (see paragraph 28 below). Those proceedings were terminated by the Sofia District Court on 2 August 2001. 26. In June 2001 Mr Kolev was charged with aiding and abetting the murder of Mrs N.G. in February 2000 (of which others had accused the Chief Public Prosecutor). According to the charges, he had provided advice which had facilitated the commission of the offence. 27. In September 2001 criminal proceedings were instituted against Mr Kolev and his son on charges that between 1995 and 1998 Mr Kolev had abused his office to provide his son with a handgun free of charge. Those proceedings were terminated on 18 July 2003 on the grounds that Mr Kolev had died and that it could not be considered that his son had acted wilfully. 28. On 31 May 2001 Mr Kolev wrote to the Minister of the Interior and also gave interviews to the press in which he stated that he had learned that the Chief Public Prosecutor had ordered the fabrication of criminal charges against him, which would consist of drugs being “planted” on him with the aim of having him arrested on drug charges and silencing him. This information was published widely. On the same day Mr Kolev telephoned a former colleague and told him not to participate in this planned operation. In connection with that conversation, in June 2001 Mr Kolev was charged with having attempted to put undue pressure on an official (see paragraph 25 above). 29. Mr Kolev repeated his accusations in a complaint he sent to the Supreme Judicial Council on 12 June 2001. He gave details, indicating the names of several persons who were allegedly involved in the plot and insisted, as he had done in previous complaints, that the Supreme Judicial Council should appoint a commission to investigate the crimes allegedly committed by the Chief Public Prosecutor. 30. On 20 June 2001 Mr Kolev was arrested in Sofia in front of his home by officers of the anti-terrorist squad accompanied by Mr P. and Mr Ts.I., two high-ranking prosecutors. Immediately after the arrest Mr Kolev's flat and a vehicle belonging to Mr Kolev's son were searched. According to the record drawn up on that occasion and the charges brought later, several paper envelopes containing 2.6 grams of heroin and 1.89 grams of cocaine were found in Mr Kolev's pockets and in the car. The authorities seized a handgun lawfully owned by Mr Kolev's wife, and other belongings. A handgun and eight cartridges were found in Mr Kolev's son's car, according to the official record. The searches and seizures were approved the next day by a judge at the Sofia City Court. 31. On 20 June 2001 a prosecutor ordered Mr Kolev's provisional detention for a period of 72 hours, relying on Article 202 (1)(1) and (1)(3) of the Code of Criminal Procedure. 32. On the expiry of the 72-hour period, on 23 June 2001 another prosecutor issued a fresh order for Mr Kolev's provisional detention for another period of 72 hours, without mentioning the order of 20 June 2001. The new order was based on Article 152a (2) and (3) of the Code of Criminal Procedure. 33. On 23 June 2001 Mr Kolev was charged with illegal possession of drugs and a firearm. 34. On 24 June 2001 a lawyer acting for Mr Kolev protested against his detention in a complaint filed with the Supreme Judicial Council. 35. On 25 June 2001 Mr Kolev was brought before a judge at the Sofia City Court. 36. The prosecutor asked the court to order Mr Kolev's pre-trial detention. Mr Kolev and his lawyer stated that the detention was unlawful and was the result of a plot. Mr Kolev stated that he had seen prosecutors P. and Ts.I., who had been present during his arrest, placing two small paper packets among his belongings. Shortly after that the same persons had placed, in Mr Kolev's presence, a handgun in his son's car. Mr Kolev requested a fingerprint test, stating that such a test would prove his allegations. 37. Mr Kolev also invoked immunity from prosecution on the strength of the fact that he was still a prosecutor. He also complained that he had been detained unlawfully after the expiry on 23 June 2001 of the 72-hour statutory period. 38. The Sofia City Court remanded Mr Kolev in custody. The court found that the record drawn up during the arrest, which showed that drugs and a handgun had been found, was sufficient evidence to establish a reasonable suspicion that Mr Kolev had committed a serious offence. It also noted that several sets of criminal proceedings were pending against him (see paragraphs 21-27 above), which pointed to a danger of him committing an offence. The court considered that Mr Kolev did not have immunity from prosecution following his dismissal. 39. The court refused to rule on the lawfulness of Mr Kolev's detention during the period before 25 June 2001, stating that it was not subject to judicial control and that its lawfulness had no bearing on the issue to be decided by the court, namely whether or not to remand Mr Kolev in custody. 40. On 28 June 2001 Mr Kolev's lawyer submitted a complaint to the Supreme Judicial Council stating that on 21 June 2001 Mr Ts.I., a highranking prosecutor, had told him that he risked having criminal charges brought against him if he persisted in defending Mr Kolev. A week later, the lawyer had been asked to appear before a prosecutor and “furnish explanations” in relation to a case he had worked on in 1992 as investigator. The lawyer stated that inadmissible pressure had been brought to bear on him and requested an investigation. 41. On 3 July 2001 the Sofia Court of Appeal dismissed a consequent appeal by Mr Kolev. One of the three judges gave a dissenting opinion. 42. The majority stated that the court had no power to deal with Mr Kolev's allegations that the drugs and firearm found during his arrest had been “planted” by prosecutors, as that was a question which concerned the merits of the criminal case and could not be discussed in relation to Mr Kolev's detention. 43. The dissenting judge stated that Mr Kolev enjoyed immunity from prosecution and that in any event, having regard to all the available information, Mr Kolev's detention had not been justified. 44. On 7 August 2001 Mr Kolev submitted a fresh appeal against his continuing pre-trial detention. In accordance with the relevant procedural requirements, the appeal was lodged with the Sofia Investigation Service, which was in charge of the investigation against him. On 14, 23 and 28 August 2001 Mr Kolev and his lawyers complained, in submissions to the Sofia Investigation Service and the Sofia City Prosecutor's Office, of the delay in the examination of the appeal, which should have been transmitted to the Sofia City Court. As the appeal was not transmitted, on 5 September 2001 Mr Kolev lodged an appeal directly with the Sofia City Court. The court heard the case on 13 September 2001 and decided to release the applicant from custody and place him instead under house arrest. 45. On an unspecified date an indictment was submitted to the Sofia City Court against Mr Kolev on charges of illegal possession of drugs and a firearm. 46. On 22 November 2001 the Sofia City Court terminated the proceedings before it and referred the case back to the prosecuting authorities. The court noted that Mr Kolev enjoyed immunity from prosecution, his dismissal not having entered into force. 47. On 29 November 2001, on an appeal by Mr Kolev against his house arrest, the Sofia City Court ordered his release. 48. On 4 February 2002, following a final judgment of 10 December 2001 quashing the order for Mr Kolev's dismissal from his position as a prosecutor (see paragraphs 10 and 11 above), the Sofia Court of Appeal terminated the criminal proceedings against him as he enjoyed immunity from prosecution. That decision was upheld on 30 April 2002 by the Supreme Court of Cassation. 49. The courts found that the criminal proceedings against Mr Kolev had been inadmissible from the outset. Pending examination of his appeal against his dismissal, the immunity conferred on him by the Constitution had not been removed. In such cases criminal proceedings could be brought and pre-trial detention ordered only if the Supreme Judicial Council had given its authorisation. That had not been done in Mr Kolev's case. 50. Another set of criminal proceedings against Mr Kolev was terminated by the courts on 9 July 2002 on the same grounds. 51. In November 2002 the Supreme Judicial Council agreed to deal with the public allegations against the Chief Public Prosecutor submitted by Mr E.S., a former member of Parliament. 52. On an unspecified date Mr Kolev requested leave to appear and speak before the Supreme Judicial Council about the alleged unlawful activities of the Chief Public Prosecutor. The request was refused. 53. On 4, 11 and 18 December 2002 the Supreme Judicial Council heard several statements and examined documentary material. The Chief Public Prosecutor was also invited to speak, but he did not attend. 54. Mr A.A., the Head of the National Security Service, testified that in June 2001 Mr F., the Chief Public Prosecutor, and another high-ranking prosecutor, Mr. Ts.I., had given instructions that a cargo aeroplane loaded with military equipment be allowed to leave Bulgaria despite suspicions that the shipment violated a UN-imposed arms embargo. Mr F. had personally explained in private to Mr A.A. that he had intervened at the request of the President of Ukraine, Mr Kuchma, as the latter's son was co-owner of the company to which the aircraft belonged. Mr A.A. had refused to approve the actions of the prosecutors and had informed the President of Bulgaria and the Minister of the Interior. Since these events, two sets of criminal proceedings had been opened against Mr A.A. by prosecutors. 55. Mr E.I., a former Interior Minister, testified that Mr F. had threatened him with bringing criminal proceedings against him. In 2001 he had been summoned to appear before high-ranking prosecutors and questioned about the purchase of several cars by the Ministry of the Interior. Mr E.I. also testified that while he was Minister of the Interior, numerous sets of criminal proceedings had been opened on dubious grounds against Ministry officials working with him, including his press officer. 56. Mr V.M., a prosecutor from the Varna Appeals Prosecution Office, stated that he had been the victim of intimidation and threats ordered by Mr F., the Chief Public Prosecutor. He stated that Mr F. had created a climate of fear and submission in the prosecution service. Terrorising subordinates had become the usual method of management and unconditional submission to the Chief Public Prosecutor was the most valued quality of a subordinate prosecutor or staff member. Mr F. and his small circle of trusted individuals ruled the prosecution service. There was a practice of giving unlawful orders orally, with which prosecutors and staff were required to comply. Refusal was punished by arbitrary transfers of prosecutors to other functions and towns and the bringing of criminal charges against members of their families. Mr V.M. cited examples in this respect. Mr V.M. also spoke about specific cases of unlawful termination of criminal proceedings and unlawful intervention by high-ranking prosecutors in private disputes. 57. Mrs V.S., a prosecutor from Pleven, testified that she and several of her colleagues had been improperly prevented from working on a case involving a substantial financial interest. She complained to the Supreme Judicial Council, whereupon she was summoned to furnish explanations before the Deputy Chief Public Prosecutor, Mr H.M., and three other highranking prosecutors, and was told to withdraw her complaint. Having heard her refusal, the Deputy Chief Public Prosecutor said: “A second case of a prosecutor committing suicide may occur”, apparently referring to the suicide, three months earlier, of a high-ranking prosecutor. After this meeting, disciplinary proceedings were instituted against Mrs V.S. and she was deprived of salary bonuses. Following appeals by Mrs V.S., these measures were set aside by the courts. 58. Mr I.I., an investigator, testified that he had investigated the murder of Mrs N.G., a lawyer from Yambol, who had had a close relationship with the Chief Public Prosecutor. In this context, Mr I.I. discovered evidence of criminal acts committed by prosecutors. His efforts to secure evidence and investigate were frustrated, however, apparently as a result of repeated information leaks. Since the only persons who knew about the planned searches and seizures had been the Chief Public Prosecutor and five highranking prosecutors from his close circle, the leak must have come from them. The Chief Public Prosecutor personally supervised the course of the investigation despite his close relationship with the victim. Also, Mr I.I. discovered that two persons probably implicated in the murder had fled the country with the help of the Chief Public Prosecutor. As “punishment” for his probing into these facts, Mr I.I. was later unlawfully ordered to retire. 59. The Supreme Judicial Council heard evidence from other prosecutors who also testified about an atmosphere of fear and submission in the prosecution service, unlawful oral orders issued by high-ranking prosecutors and repression against dissenters in the form of deprivation of salary bonuses, transfers and threats. 60. Two other persons who gave evidence to the Supreme Judicial Council did not share these views. 61. Following heated debates, during which divergent views were expressed by members of the Council, on 18 December 2002 it adopted a decision in which it stated, inter alia, that the Chief Public Prosecutor had introduced an authoritarian style and unlawfully “punished” prosecutors by transferring them or depriving them of salary bonuses, and that an atmosphere of fear was paralysing the normal functioning of the prosecution system. On the basis of these and other findings concerning specific violations of the administrative rules, the Council called on Mr F. to resign. The 25-member Council adopted the decision by thirteen votes to nine with one abstention. The decision was not legally binding, as at the relevant time the constitutional grounds for termination of the Chief Public Prosecutor's appointment were very limited (see paragraphs 128-131 below). Mr F. refused to resign. 62. In his application to the Court, dated 17 December 2001, Mr Kolev complained under Article 5 of the Convention about his detention earlier that year. He stated that the violations of his rights were the result of a merciless campaign against him orchestrated by the Chief Public Prosecutor and that he had fears for his and his family's safety. 63. Mr Kolev repeatedly voiced in public and in letters to State institutions his fear that he might be eliminated physically. 64. On 28 December 2002 in the evening Mr Kolev was shot dead by an unknown assailant in front of his home in Sofia. 65. The police were alerted immediately by passers-by. Several police officers and an investigator from the Sofia Investigation Service arrived at the scene, searched the area for several hours and interviewed passers-by. 66. At the scene the police found and collected bullets and cartridges, a revolver and a hand grenade which had not exploded. 67. The Deputy Chief Public Prosecutor, the Interior Ministry Secretary and other high-ranking officials visited the scene the same evening. 68. On the same day an investigator from the Sofia Investigation Service opened an investigation into the murder of Mr Kolev. 69. On 29 December the police and another investigator from the Sofia Investigation Service searched the area again in daylight. 70. On 29 December 2002 the case was entrusted to an investigator from the Sofia Investigation Service. On the same day the investigator ordered ballistic and other expert reports and an autopsy. 71. The autopsy carried out on 29 December revealed that Mr Kolev had received eight shots, some of them in the head. 72. On 29 December the investigator interviewed twelve persons who had been in the area at the time of the murder. Some of them had noticed two to four men shortly before the shooting, but had not seen their faces. 73. On 29 December the Deputy Chief Public Prosecutor appointed prosecutor A.I., Head of Division at the Supreme Cassation Prosecution Office, to supervise the investigation in the case. The case was registered as under “special supervision” by that office. 74. On 30 December 2002 a senior officer of the national anti-terrorist squad, Mr V.D., was shot and killed by an unknown assailant. In statements they made later, the second applicant and other persons stated that his murder was probably connected with Mr Kolev's murder, since Mr V.D. had allegedly possessed information about Mr Kolev's murderer. 75. On 29 December 2002 Mr E.S., a former member of Parliament who had previously accused the Chief Public Prosecutor of committing crimes, appeared before the investigator as he wished to help with the murder investigation. He had met Mr Kolev many times as both of them had been interested in investigating the crimes allegedly committed by the Chief Public Prosecutor. Their last meeting had been on 22 or 23 December 2002. 76. Mr E.S. passed to the investigator information he had obtained from Mr Kolev, with several supporting documents. In particular, he stated that at their last meeting Mr Kolev had spoken about his findings implicating the Chief Public Prosecutor in the murder of the lawyer Mrs N.G. in February 2000. Mr Kolev had promised to put Mr E.S. in contact with a fugitive who had been falsely charged with that murder. 77. Mr E.S. also stated that Mr Kolev, who had engaged for a certain period in unlawful activities ordered by the Chief Public Prosecutor, had later refused to continue and had started collecting evidence about those activities. Owing to his mental disorder the Chief Public Prosecutor constantly feared plots and considered as his enemy anyone who criticised him or did not execute his orders. Thus, Mr Kolev had been asked to open criminal proceedings on fabricated charges against persons the Chief Public Prosecutor considered his enemies, or even to commit murder. Among those “enemies” had been Mr V.M., a prosecutor at the Varna Appeals Prosecution Office and a former candidate for the post of Chief Public Prosecutor, as well as journalists who had revealed that the brother of the Chief Public Prosecutor had been charged in Germany with illegal trading in coins. Mr Kolev had told Mr E.S. that a number of high-ranking prosecutors at the Supreme Cassation Prosecution Office and other persons spent their time organising “revenge” against the “enemies”. Mr Kolev had named Mr A.P., an officer of the national anti-terrorist squad, as one of the Chief Public Prosecutor's “confidants”. Mr A.P. had blackmailed a banker, Mr G.P.Ts., and had managed to obtain large amounts of money from him. The banker had finally complained but “in response” had been arrested on fabricated charges and later a bomb had been found in his flat. Mr E.S. submitted to the investigator a copy of a written statement made by the banker in December 2000. 78. Mr E.S. described in detail several more cases of alleged crimes committed by Mr A.P. and the Chief Public Prosecutor, about which he had learned from Mr Kolev. He gave the names of the persons involved. 79. Mr E.S. also gave the name of an investigator who had told him that he had been threatened by the Chief Public Prosecutor and who had allegedly witnessed the latter's fits of insane rage. The investigator had also learned that electronic files from the hard drive of the computer found in the office of Mrs N.G., the lawyer murdered in February 2000, had been deleted in the course of the investigation because they had contained information implicating prosecutors. 80. Mr E.S. affirmed that Mr Kolev had told him that he feared for his life and considered that the Chief Public Prosecutor had instructed Mr A.P. to have him killed. 81. On 2 January 2003, a former trade union leader, Mr P.S., who had been charged with criminal offences on allegedly fabricated grounds, made public statements and also wrote to the investigation authorities. He stated, inter alia, that he had had numerous conversations with Mr Kolev, the last one having been on the day of his murder. Mr Kolev had told him about his efforts to collect information incriminating the Chief Public Prosecutor. Mr P.S. suggested that the records of those conversations could be found, as he was convinced that his and Mr Kolev's telephones had been tapped. 82. On 15 January 2003 the second applicant, Mr Kolev's wife, a prosecutor from the Supreme Cassation Prosecution Office, made a public statement addressed to the Supreme Judicial Council. A copy was also sent to the investigator in the case. She accused Mr F., the Chief Public Prosecutor, of having ordered her husband's murder, together with Mr F.S. and Mr A.P. of the national anti-terrorist squad. In her view, the Chief Public Prosecutor was suffering from a mental disorder. Her late husband had refused to engage in unlawful acts ordered by the Chief Public Prosecutor and had revealed the latter's mental problems publicly, which had triggered a merciless campaign against him. Mr Kolev had been arrested on fabricated charges and several sets of criminal proceedings had been brought in 2001 and 2002 against him and his family members. 83. The second applicant called on the Supreme Judicial Council to initiate proceedings for the removal of the Chief Public Prosecutor from office and to entrust the investigation of Mr Kolev's murder to independent prosecutors. That was vitally necessary in her view, having regard to the hierarchical structure of the prosecution system, which allowed total control by the Chief Public Prosecutor, and the atmosphere of fear which reigned among prosecutors and investigators. 84. On 2 January 2003 prosecutor A.I. appointed a team of five investigators to work on the case. Three of them were from the Sofia Investigation Service and the other two from the National Investigation Service. 85. In the following days the experts appointed by the investigator submitted their reports, describing in detail their findings and conclusions. In particular, the shots that had killed Mr Kolev had been fired at very close range, between 20 and 80 cm. The bullets found in his body and at the scene had all been fired from the same weapon, a 9 mm calibre handgun. Comparison with data kept by the police had not linked the bullets with a weapon previously used to commit another criminal offence. The revolver found next to Mr Kolev's body had a different calibre. It could not be linked to information about weapons used in criminal offences. The experts did not find traces of powder on Mr Kolev's fingers or hand. The expert who analysed the hand grenade noted that it was of a type used in the army and the police and also considered that it had been placed next to the body. It was further established that the hair taken from the victim's clothes was Mr Kolev's hair. 86. On 6 January 2003 the second applicant, Mr Kolev's wife, appeared before the investigator but refused to answer his questions and challenged the independence of the investigation. 87. In January 2003 the investigator searched Mr Kolev's office. 88. At the beginning of February 2003 the investigator interviewed persons who had seen Mr Kolev on 28 December 2002 and also obtained from the police information about telephone calls made from or received by Mr Kolev's home telephone on the day of the murder. The calls were traced and the persons who had received them or made them interviewed. One of the calls had been made from a mobile telephone whose number was no longer valid and whose holder could not be identified. 89. On the basis of witness statements it was established that on the evening of 28 December 2002 Mr Kolev had left his home intending to buy food in a nearby shop. He had been shot on his way back from the shop. 90. In February 2003 the investigators questioned a man serving a prison term who had allegedly told other persons that he had bribed Mr Kolev in order to obtain release from prison. The man denied having said or done so. Also in February 2003, a man who walked into a police station and confessed to the murder of Mr Kolev was detained, but released shortly after it was established that he suffered from a mental disorder. 91. In January and February 2003 several persons who had been passing in the area at the time of the murder were questioned for a second time. The police officer who had arrived first at the scene was also questioned. A politician whose telephone number had been dialled from Mr Kolev's home on the day of the murder was also questioned. 92. The investigator also questioned a journalist who had known Mr Kolev. The journalist stated that Mr Kolev had shared his fears with him, stating that Mr F., the Chief Public Prosecutor, and two senior officers of the national anti-terrorist squad – Mr A.P. and Mr F.S. – wanted to liquidate him. The journalist further stated that Mr F., the Chief Public Prosecutor, suffered from a mental disorder and that guards from the National Guard Service and the Sofia chief of police could testify to that. 93. In March 2003 the investigators questioned another journalist, who had published a book based on conversations with the notorious boss of a criminal gang, Mr I.K. According to the journalist, Mr I.K. had told her that Mr Kolev had worked for another criminal gang. In 1995 the two gangs had clashed over a consignment of illegally imported cigarettes and Mr Kolev had tried to use his position to have Mr I.K. moved to another detention facility, allegedly intending to use the opportunity to have him killed. The transfer had been prevented by two investigators of the National Investigation Service. 94. On 26 September 2003 the investigator reported that it had not been possible to identify the perpetrator, and proposed that the proceedings be stayed. He transmitted the file to Mr Ts.I. from the Supreme Cassation Prosecution Office since the case was under “special supervision” by that office. The file was then transmitted to the Sofia Prosecutor's Office, which decided on 8 October 2003 to stay the proceedings. 95. Mr Kolev's relatives, including the second applicant, appealed. 96. On 16 June 2004 the Sofia City Court quashed the decision to stay the proceedings and instructed the prosecuting authorities to take additional measures. That decision was upheld by the Sofia Appeal Court on 12 July 2004. The courts found that the investigation had not taken all the measures that could lead to identifying the perpetrator. In particular, Mr Kolev's wife, the second applicant, had not been questioned. Having regard to her statement addressed to the Supreme Judicial Council, it was important to question her and then carry out further investigative measures to verify her allegations. In addition, the investigator had not attempted to establish whether there might be a link between Mr Kolev's murder and persons affected by high-profile cases he had worked on. The courts also noted that contrary to the relevant procedural rules, the case file did not contain information about any efforts on the part of the investigator to continue his inquiry after the proceedings had been stayed and report periodically. The courts also considered that ballistic and other experts should try to establish further details. 97. On 27 July 2004 the Sofia Prosecutor's Office instructed the investigator to undertake further investigations. 98. On 25 August 2004 the second and third applicants were questioned. They stated that they would not testify in the absence of their lawyer. The second applicant was summoned again and appeared on 21 September 2004 but refused to discuss the case, stating that the case should be investigated independently by the National Investigation Service. 99. In September 2004 the experts appointed to clarify details about the shooting submitted their report. 100. The investigator also requested and received from the Supreme Administrative Prosecution Office a list of cases of “public interest” on which Mr Kolev had worked after his reinstatement in 2002. 101. On 13 October 2004 the investigation was suspended by a decision of the Sofia Prosecutor's Office on the ground that it had proved impossible to identify the perpetrator. 102. The applicants appealed. They stated, inter alia, that the investigation was fully under the control of the Chief Public Prosecutor and gave the authorities' failure to secure the independence of the investigation as their reason for refusing to testify. 103. By decisions of 13 July and 22 August 2005 the Sofia City Court and the Sofia Court of Appeal quashed the order staying the investigation and instructed the prosecuting authorities to undertake further investigations. 104. The courts stated that the applicants were not entitled to refuse to testify, regardless of their fears that the investigation was not independent. Therefore, the applicants should be summoned again and questioned. The applicants' request for Mr F., the Chief Public Prosecutor, and several highranking prosecutors to be questioned should be considered afterwards. The courts also instructed the investigation authorities to collect information about cases that Mr Kolev had handled at the Supreme Cassation Prosecution Office, where he had worked earlier in his career. 105. In so far as the applicants had insisted that the investigation should be handled by the National Investigation Service, which in their view was more independent, the courts stated that that request was inadmissible. The choice of investigators was at the discretion of the prosecutor supervising the case. The courts lacked the power to control that choice or to examine the applicant's allegations, namely that the investigation was not independent owing to the hierarchical structure of the prosecution system and the personal involvement of the Chief Public Prosecutor in the case. 106. The second applicant was questioned on 19 October 2005. She made the same statements as those contained in her open letter of January 2003 to the Supreme Judicial Council (see paragraph 82 above). She stated her conviction that her husband had been killed because he had known too much about the Chief Public Prosecutor and had been working to secure his removal from office. Following the appointment of Mr F. as Chief Public Prosecutor, Mr Kolev had initially obeyed some of his unlawful orders, such as to put pressure on Mr V.M., a prosecutor from the Varna Appeals Prosecution Office. However, at some point Mr F. had asked Mr Kolev to kill Mr V.M. and he had refused. He had later refused to obey other orders and had thus become an “enemy” in Mr F.'s eyes. The Chief Public Prosecutor had first tried to intimidate him and silence him through dismissal and fabricated criminal charges and had later decided to eliminate him physically. 107. Mrs Koleva also stated that she had herself witnessed the atmosphere of fear and paranoia created by the Chief Public Prosecutor among her colleagues. She insisted that all high-ranking prosecutors should be questioned, including the Chief Public Prosecutor. She also requested the questioning of Mr F.S., the head of the national anti-terrorist squad. 108. Mrs Koleva also stated that the murder, two days after Mr Kolev's death, of Mr V.D., a senior officer at the national anti-terrorist squad with whom Mr Kolev had been in contact in the context of his private inquiry, had not been a coincidence. Mrs Koleva also noted that Mr Ts.I. and Mr P., the prosecutors who had participated in planting drugs and arresting Mr Kolev on fabricated charges in June 2001, had been promoted soon thereafter and that the arrest had been effected by officers of the national anti-terrorist squad loyal to the Chief Public Prosecutor. 109. In October 2005 the investigator questioned three persons who had been Mr Kolev's lawyers. One of them, the former Chief Public Prosecutor, Mr I.T., assessed as absurd the suggestion that Mr F., the Chief Public Prosecutor, had been responsible for Mr Kolev's death. 110. In November 2005 the investigator questioned Mr Kolev's son, who confirmed his mother's views. He also stated that his father had received threats by telephone. He stated that the investigation should look for a link between his father's murder and the murder, committed only two days after that, of Mr V.D. of the anti-terrorist squad. 111. In November 2005 the investigator also questioned Mr V.M., a prosecutor from the Varna Appeals Prosecution Office and a former candidate for the post of Chief Public Prosecutor (see paragraph 56 above). He described in detail events dating from 2000, when Mr Kolev had asked him to resign and threatened him with proceedings, allegedly on the instructions of the Chief Public Prosecutor. Mr V.M. had refused, whereupon he had been transferred to a small town by order of the Chief Public Prosecutor. Mr V.M.'s complaint against the transfer, examined by the Supreme Judicial Council in 2000, had been widely publicised. Shortly after that, on 24 April 2000, his wife's notary office had been set on fire. On 25 May 2000 a bomb had exploded in the same office. Mr V.M. considered that those attacks had been part of the Chief Public Prosecutor's campaign against him. Mr V.M. stated that later, in 2001, Mr Kolev had contacted him and spoken openly about his conflict with the Chief Public Prosecutor. He had shared his fears, telling him that Mr A.P. of the anti-terrorist squad was probably organising an attempt on his life. 112. In November 2005 the investigator questioned another prosecutor, who stated that he knew Mr Kolev only vaguely. 113. On 17 February 2006 the Sofia City Prosecutor's Office ordered the investigation to be stayed on the grounds that the identity of the perpetrator could not be established. 114. In February 2006 the seven-year term of Mr F. as Chief Public Prosecutor expired. 115. On 11 and 17 October 2006, the second and third applicants, Mr Kolev's wife and son, were questioned again. They reiterated the facts on the basis of which they believed that Mr F., the Chief Public Prosecutor, and persons close to him, such as Mr F.S. and Mr A.P. of the national anti-terrorist squad, had been involved in Mr Kolev's murder. They also gave further details about criminal acts allegedly committed by the former Chief Public Prosecutor. 116. On unspecified dates after February 2006 the investigators questioned Mr F.S. and Mr A.P. of the national anti-terrorist squad. They also questioned five other officers of the same service who had participated in Mr Kolev's arrest on 20 June 2001. The investigators also received information from the Sofia police that Mr G.G., one of those five officers of the national anti-terrorist squad, had been named as the murderer by a “voluntary informant” who had refused, however, to disclose his name and would not testify, even as a protected witness. On 24 September 2008 a prosecutor of the Sofia Prosecution Office ordered the suspension of the investigation, considering that there was insufficient evidence to bring charges in relation to Mr Kolev's murder. 117. Articles 202 (1) and 203 of the Code of Criminal Procedure 1974 (“CCP 1974”), as in force at the relevant time, provided that a suspect might be held in custody without official charges for up to 72 hours by a decision of a prosecutor. 118. Article 152a of the CCP 1974 provided that a person officially charged with having committed a criminal offence might be detained provisionally for up to 72 hours by a decision of a prosecutor. Within that time-limit the accused person had to be brought before a court. 119. There is no reported domestic case-law on the question whether or not the 72-hour detention periods under Articles 202 and 152a may be consecutive. 120. Under Article 152b of the CCP 1974, as in force at the relevant time, appeals against remand in custody must be submitted to the relevant investigator or prosecutor, who is under a duty to transmit them to the competent court “immediately”. The court must hold an oral hearing in the matter within three days of receipt of the appeal. 121. Until September 2003, all judicial officers, including prosecutors, enjoyed immunity from prosecution. According to Article 132 of the Constitution, as in force until September 2003, read in conjunction with its Article 70, criminal proceedings against prosecutors could only be instituted if their immunity had been lifted by decision of the Supreme Judicial Council. The Judiciary Act 1994 (section 27(1)(6) and section 134(3)) provided that the power to make proposals to the Supreme Judicial Council for the lifting of a judicial officer's immunity was vested in the Chief Public Prosecutor. 122. Since immunity could only be lifted on a proposal by the Chief Public Prosecutor, which meant that it was not possible to lift the immunity of the Chief Public Prosecutor against his will, in 1998 Parliament amended the Judiciary Act 1994 empowering the Presidents of the Supreme Court of Cassation and the Supreme Administrative Court and the Minister of Justice to submit to the Supreme Judicial Council proposals to lift the immunity of any judicial officer. On 14 January 1999 the Constitutional Court struck down the amendment finding that it violated Article 127 (1) of the Constitution, which vested in the prosecuting authorities the exclusive power to bring charges and maintain the accusation against suspected offenders (реш. № 1 по к.д. № 34/1998). 123. In June 2002 Parliament adopted another amendment aimed at remedying the deficiency in the law. During the debates on the amendment, several members of Parliament considered that it was unconstitutional in view of the 1999 judgment of the Constitutional Court and expressed the view that the deficiency had its origins in the text of the Constitution and that it could only be remedied by amending the Constitution. Parliament nevertheless adopted a text according to which one fifth of the members of the Supreme Judicial Council could propose to the full Council that the immunity of any judicial officer be lifted. 124. On 16 December 2002 the Constitutional Court set aside the amendment (реш. № 13 по к.д. № 17/2002) referring to the reasons given in its 1999 judgment. The Constitutional Court did not comment on the question whether the resulting impossibility of lifting the immunity of the Chief Public Prosecutor was compatible with the constitutional principle of legality and the fundamental rights protected by the Constitution. 125. The deficiency was remedied with effect from 30 September 2003 when Parliament amended the Constitution, introducing, under Article 132 (4), the possibility for one fifth of the members of the Supreme Judicial Council to seek a decision by that Council authorising the bringing of charges and the detention of any judicial officer. Furthermore, Article 132 of the Constitution as amended no longer used the term “immunity” and limited the number of cases in which the authorisation of the Supreme Judicial Council was needed. According to the amended text, such prior authorisation was only necessary for the bringing of charges against judges and prosecutors where the charges concerned criminal offences allegedly committed by them in the exercise of their functions. Such authorisation was also necessary for detention orders against judges and prosecutors, regardless of the nature of the charges underlying the detention request. The Judiciary Act was amended with effect from 9 April 2004 to reflect these new constitutional provisions. 126. Following the above-mentioned amendments, in theory any prosecutor or investigator could bring charges against the Chief Public Prosecutor without prior authorisation in respect of a criminal offence unrelated to the exercise of the latter's functions. However, the Chief Public Prosecutor could set aside any such decision taken by a subordinate prosecutor or investigator. Also, the Supreme Judicial Council's authorisation remained necessary for the Chief Public Prosecutor to be remanded in custody. 127. By further amendment of the Constitution in February 2007 all the procedural limitations specific to criminal proceedings against judicial officers were abolished. The new Judiciary Act 2007 reflects this amendment in its provisions. Since February 2007, in theory any prosecutor or investigator has the power, without prior authorisation, to bring charges against the Chief Public Prosecutor or request the relevant court to order his pre-trial detention where there is sufficient information that he may have committed a criminal offence. As mentioned above, however, the Chief Public Prosecutor may set aside any such decision taken by a subordinate prosecutor or investigator. 128. Under the 1991 Constitution, all prosecutors have the status of judicial officers (магистрати) and are thus part of the judicial system. After three years of service they obtain tenure. Appointment and dismissal of judicial officers is only possible if decided upon by the Supreme Judicial Council (see paragraphs 136 and 137 below). The Chief Public Prosecutor, who is also a judicial officer, is appointed by the President of Bulgaria on a proposal by the Supreme Judicial Council for one non-renewable seven-year term of office. Before the expiry of his term of office, the same grounds for dismissal apply as for all other judicial officers. He can be dismissed by the President of Bulgaria on a proposal by the Supreme Judicial Council. 129. Under Article 129 of the 1991 Constitution, as in force until 30 September 2003, judicial officers with tenure, including prosecutors, could only be dismissed upon retirement, in cases of permanent physical incapacity or where they had been sentenced to deprivation of liberty following a final conviction on charges concerning a wilfully committed offence. 130. Since 30 September 2003, when the Constitution was amended, dismissal is also possible on grounds of “a serious breach of, or systematic non-compliance with, the judicial officer's duties” and in cases of “acts harming the stature of the judiciary”. In 2006 Parliament adopted an amendment to the Constitution according to which not only the Supreme Judicial Council but also two thirds of the members of Parliament could propose to the President to dismiss the Chief Public Prosecutor or the Presidents of the two Supreme Courts on the grounds mentioned above. On 13 September 2006 the Constitutional Court struck down the amendment ruling that it purported to change the balance between the branches of power, whereas the Constitution required that such changes should be adopted by a Grand National Assembly. Several dissenting justices considered that the amendment was indispensable as the existing legal regime did not offer sufficient safeguards against unlawful acts committed by high-ranking prosecutors or judges. In her dissenting opinion, one of the justices noted the following: “Having regard to the fact that the Supreme Judicial Council includes members who are subordinate to the [Chief Public Prosecutor and the Presidents of the two Supreme Courts] or are in friendly relations with them, it is very likely that the Supreme Judicial Council would not be able to form a majority in favour of the dismissal of those three high-ranking judicial officers ... despite breaches of the law committed by them ... Prior to [the impugned constitutional amendment] the domestic legal order was helpless in such situations and the unlawful behaviour of judicial officers had to be endured over long periods. Tolerating lack of control and unaccountability is contrary to the spirit of the Constitution. [Unfortunately], as a consequence of [the majority's decision in the case under examination] the control over the activities of high-ranking judicial officers will remain ineffective, since it is exercised by themselves and their subordinates.” 131. Under the Judiciary Act 1994 (section 40) and the Judiciary Act 2007 (section 230), the Supreme Judicial Council has the power to remove temporarily from office any judicial officer against whom criminal charges have been brought. 132. The prosecution system in Bulgaria is centralised. All prosecutors are under the authority of and report to the Chief Public Prosecutor (section 112 of the Judiciary Act 1994, in force until 2007, and section 136 of the Judiciary Act 2007). 133. The Chief Public Prosecutor, as the highest prosecutor in the hierarchy, has the power to issue binding orders concerning the work of every prosecutor, including work on particular cases, or to take over a case handled by another prosecutor (section 116 of the Judiciary Act 1994, in force until 2007, and sections 139 and 143 of the Judiciary Act 2007). 134. The Chief Public Prosecutor has the power to submit to the Supreme Judicial Council proposals for the promotion, dismissal or disciplinary punishment of prosecutors (sections 27, 30 and 172 of the Judiciary Act 1994, in force until 2007, and section 38 and 312 of the Judiciary Act 2007). 135. Under the CCP 1974, in force until 2006, the prosecutor controlled the investigation (Article 48 (3) of the CCP 1974). This included the power to give specific instructions, overrule the investigator or take over the entire investigation (Article 176 (1) of the same Code). The CCP 2006 reinforced the prosecutors' control and direct participation in the investigation of criminal offences. Furthermore, as a result of constitutional and legislative amendments of 2006, 2007 and 2009, the investigation service was integrated into the prosecution system and is now administratively subordinate to the Chief Public Prosecutor (Articles 127 and 128 of the Constitution and sections 136, 148-153 of the Judiciary Act 2007). In 2009 the Constitutional Court rejected a motion to declare unconstitutional the 2009 amendments to the Judiciary Act which provided for such subordination. 136. The Supreme Judicial Council has 25 members. The Presidents of the Supreme Court of Cassation and of the Supreme Administrative Court and the Chief Public Prosecutor are members ex officio. Parliament elects eleven members, among whom there may be judges, prosecutors, investigators and lawyers. The remaining eleven members are elected at separate delegates' assemblies of judges (electing six members), prosecutors (electing four members) and investigators (electing one member) (Article 130 of the Constitution, sections 17-20 of the Judiciary Act 1994, in force until 2007 and sections 17 and 20-26 of the Judiciary Act 2007). 137. Decisions concerning, inter alia, the dismissal of a judicial officer or a proposal to the President of Bulgaria to dismiss the Chief Public Prosecutor must be taken by the members of the Supreme Judicial Council by secret ballot. Until September 2003, when Article 131 of the Constitution was amended, that was not the case in respect of decisions concerning the lifting of judicial officers' immunity from prosecution, which were taken by an open voting procedure. Between September 2003 and February 2007 those decisions had to be taken by secret ballot as well. Since February 2007 the Supreme Judicial Council's authorisation is no longer necessary for the bringing of charges of any kind against a judicial officer (see paragraph 127 above). 138. The following paragraphs describe the relevant aspects of several member States' legal systems, with the emphasis on the guarantees that exist to secure the effective and independent investigation of cases involving suspicion against high-ranking prosecutors. The report was prepared on the basis of an overview of the legal systems of Croatia, Cyprus, Estonia, France, Germany, Greece, Ireland, Italy, Malta, Russia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia and the United Kingdom. 139. As regards the status of high-ranking prosecutors, in many jurisdictions they are part of the executive branch of the government, within which they enjoy functional independence. In a few countries, such as Italy and Greece, they are considered as part of the judiciary. 140. In three countries special permission is required for the institution of criminal proceeding against the Chief Public Prosecutor. These are Croatia (from Parliament), Russia (from a panel of three Supreme Court judges on a proposal by the President of Russia) and Switzerland (from the Federal Department of Justice and Police). In Switzerland, authorisation can only be refused if the proceedings concern petty offences and it is estimated that a disciplinary sanction would be sufficient. The decision not to grant authorisation is subject to appeal before the Federal Court. 141. In all other countries there are no such specific procedural obstacles to bringing charges against the highest-ranking prosecutors. 142. The prosecution systems of the countries surveyed are structured hierarchically with higher-ranking prosecutors having the power to give orders and instructions to the lower-ranking prosecutors. Despite this structure, a number of safeguards are in place in the legal systems of member States to ensure the effectiveness and independence of the organs in charge of criminal investigations in respect of high-ranking prosecutors. These safeguards include: – transfer of the case to another entity within or outside the prosecution system; – special investigation procedure in cases involving suspicion against high-ranking prosecutors; – suspension of the prosecutor under suspicion from his duties (in the case of the highest-ranking prosecutor this decision would be made by the political bodies in charge of his appointment); and – general safeguards such as guarantees ensuring functional independence of prosecutors from their hierarchy and judicial control of the acts of the prosecution service. 143. In particular, in Sweden, a special unit within the prosecution system, the national police-related crimes unit, handles the investigation and subsequent indictment of prosecutors and police officers. The prosecutor handling the investigation must have, if this is possible, a higher rank than the one being investigated. If a head prosecutor or his deputy is suspected of having committed a crime the case is handled by the Prosecutor-General. The Parliamentary Ombudsman or the Chancellor of Justice, two independent bodies outside the prosecution system, will carry out the investigation if the Prosecutor-General is concerned. 144. In Malta the inquiry may be assigned to an ad hoc body in cases concerning the conduct of public officers or of officers or servants of a statutory body. 145. According to the law in Spain, criminal proceedings against the highest-ranking prosecutors (Fiscal General del Estado, Fiscales de Sala del Tribunal Supremo) fall within the competence of the Criminal Section of the Supreme Court. In criminal proceedings against judges, judicial officers and prosecutors in general for crimes committed in the exercise of their functions, the competence lies with the Criminal Section of the High Court of each region. In both these cases the investigating judge is chosen from among the members of the section. 146. The Code of Criminal Procedure in Italy has introduced a special mechanism for determining the competent judge in cases where judges or prosecutors are parties, with the aim of ensuring the autonomy of the judge's decision in cases in which his or her colleagues are involved. 147. In a number of other countries, the investigation in cases involving suspicion against high-ranking prosecutors is carried out following the ordinary criminal procedure (Cyprus, England and Wales, Estonia, France, Germany, Greece, Ireland and the Former Yugoslav Republic of Macedonia). Nonetheless, there exist rules governing the distribution of cases aiming at ensuring independence. In Germany, in cases where the competent public prosecutor is subordinate to the public prosecutor under suspicion, the case may be entrusted to a prosecutor who is not bound by the instructions of the public prosecutor under suspicion. Moreover, by agreement between the Länder, the investigation can be taken over by another prosecution entity which has no personal connections to the prosecutor under suspicion and which is neither his subordinate nor his superior in the hierarchy. 148. General procedural safeguards applicable in most countries include provisions guaranteeing the institutional or functional independence of public prosecutors, whether they are members of the judiciary or civil servants. In England and Wales the institution of public prosecution is based on a model described by academics as that of institutional dependence and functional independence. In Ireland, prosecutors are entirely independent in the performance of their functions. 149. Prosecutors are protected from undue pressure through additional safeguards such as the obligation to prosecute all offences except petty offences (Germany, Switzerland, Italy, Spain and Greece). In England and Wales and France, which recognise the principle of discretionary prosecution, importance is attached to the transparency of official guidelines. 150. Many of the countries studied (Cyprus, Estonia, Germany, Greece, Ireland, Italy, the Former Yugoslav Republic of Macedonia and Spain) provide for the transfer or suspension of public prosecutors during the course of criminal proceedings against them. 151. Finally, in the legal system of England and Wales, any prosecutor's decision made “corruptly” or considered as grossly unreasonable can be challenged by judicial review or through the procedure of abuse of process. In Switzerland all procedural acts of the Federal Public Prosecutor are subject to appeal before the Federal Criminal Court. Judicial control of the acts of the prosecution service is an important safeguard also in Germany. If necessary, this control can be transferred to another court outside the radius of action of the prosecution service concerned. 152. The Council of Europe Commissioner for Human Rights has issued an Opinion concerning independent and effective determination of complaints against the police, published on 12 March 2009 (document CommDH(2009)4). The document describes as best practice in that area the operation of an independent complaints body, with responsibility for the investigation of complaints which may concern Articles 2 or 3 of the Convention. The Commissioner further noted that in some member states, in order to address concerns about lack of independence of prosecutors when they work on cases against the police with whom they might have a close working relationship, specialist criminal prosecution authorities with their own investigators had been established. The example of ombudsman institutions which possess powers to bring charges before the court on their own authority was cited in this respect.

train

001-22740

ENG

TUR

ADMISSIBILITY

YÜGÜRÜK v. TURKEY

Inadmissible

Ireneu Cabral Barreto;Mark Villiger

The applicant, Mr Bayram Yüğrük, is a Turkish national, who was born in 1974 and lives in Kütahya. The facts of the case, as submitted by the parties, may be summarised as follows. Following an administrative ordinance issued by the General Staff (Genel Kurmay Başkanlığı) on 20 June 1995 the applicant and his family were denied to access to the military premises on the grounds that a photo showing his wife wearing an Islamic scarf was not acceptable for the military and social security identity cards. The applicant’s close relatives wearing Islamic scarves were also not allowed into the military buildings. On 3 December 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94(b) of Law 926. The Government submit the following in the light of the intelligence reports concerning the applicant: The applicant, a sergeant, adopted extreme religious ideology and was considered as an undisciplined and insubordinate soldier by his superiors. He had an antisocial character and his wife wore an Islamic scarf. He refused to participate in social gatherings and followed extreme religious publications. The applicant was sentenced to four days’ confinement for lack of discipline and to four days’ confinement for being absent when called out. A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion. The relevant provisions of the Constitution are as follows: “None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.” “Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ... No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.” “All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review. ...” Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control. Section 22 (c) of the Military Legal Service Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act. ... Where their conduct and attitude reveal that they have adopted unlawful opinions.” Section 50 (c) of the Military Personnel Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.” Section 94 (b) of the Military Personnel Act provides: “(b) Discharge from the army for the acts of insubordination and immoral conduct: Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.” Article 99 of the Regulations on assessment of officers and non-commissioned officers provides: “Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held: ... (e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”

train

001-96983

ENG

BGR

ADMISSIBILITY

ILIEV v. BULGARIA

Inadmissible

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Anton Stefanov Iliev, is a Bulgarian national who was born in 1977 and lives in Ruse. He was represented before the Court by Mr A. Kazakov, a lawyer practising in Ruse. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Kotzeva, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 January 1997 the applicant was conscripted into the Bulgarian armed forces to complete his military service. He was physically fit at the time. The applicant served primarily with the Air Force and was stationed in several garrisons. On 1 April 1997 he was transferred to garrison no. 26600 in the town of Yambol to attend a radiotelegraph training course. A medical examination of 2 April 1997 pronounced the applicant physically fit. According to the applicant his platoon commander in Yambol, Lieutenant A., started to systematically ill-treat him because he failed to meet the performance standards required of him. The applicant visited the garrison’s infirmary on 8 and 10 May 1997. He was diagnosed with “neurosis” and prescribed antidepressants. One morning in May 1997 the applicant was ordered to the office of the platoon officers. Lieutenant A., Senior Sergeant H. and Sergeant P. were present. According to the applicant, they criticised him for his low performance in the training course and, as punishment, ordered him to do twenty pushups. When he got down and started the pushups, Lieutenant A. and Senior Sergeant H. started to kick him with their military boots. He was allegedly kicked numerous times in the head, neck and stomach. Sergeant P. allegedly witnessed the beating. The officers then warned the applicant not to tell anyone what had happened. According to the applicant, soon after that he started having problems with his vision and had pain in his neck. On an unspecified date the applicant visited the garrison’s infirmary. It is unclear whether any injuries were found on his person. The garrison doctor apparently diagnosed the applicant with cervical spondylosis and redirected him to the Sliven Military Hospital for an X-ray examination. On 27 May 1997 the applicant was examined in the Sliven Military Hospital where the diagnosis of cervical spondylosis was confirmed. The applicant visited the garrison’s infirmary on 28 and 30 May and again on 3 June 1997 when he was diagnosed with “neurosis”. He was redirected to the Sliven Military Hospital where he was hospitalised for an undetermined number of days. Upon his discharge from the hospital he was given home leave on medical grounds. Upon expiration of the home leave, on 10 July 1997 the applicant returned to his former garrison in the village of Bezmer. The applicant continued to seek medical treatment. He visited the garrison’s infirmary in Bezmer on 16 and 17 July and 11 and 13 August 1997. On each occasion he was diagnosed with “neurosis” and was prescribed antidepressants. After a medical examination on 3 November 1997 the applicant was pronounced physically fit. On 25 November 1997 the applicant suffered his first seizure involving convulsion of the limbs, frothing at the mouth and loss of consciousness. The applicant was taken to the Sliven Military Hospital where he was hospitalised from 25 November to 10 December 1997. He suffered a second seizure while in hospital and was diagnosed with “suspected epilepsy”. Upon being discharged from the hospital the applicant was given home leave on medical grounds. While on home leave he suffered a third seizure on 21 December 1997. After returning to his garrison, the applicant had a follow-up examination at the Sliven Military Hospital on 5 January 1998. He was apparently redirected to the Neurological Department of the Military Medical Academy in Sofia (“MMA”), where he was hospitalised from 7 to 9 January 1998. The applicant was diagnosed with: “Neurovegetative dystonia. Syncope. [Observed] pro-epilepsy”. On 10 January 1998 the applicant was discharged from the military as the term of his military service had expired. On an unspecified later date he was pronounced unfit for active military service on medical grounds and was removed from the military’s reserve list. Following the applicant’s discharge from the military his medical condition continued to deteriorate and the number and frequency of the seizures increased. Following a fourth seizure on 15 January 1998 the applicant was hospitalised at the MMA from 23 January to 18 February 1998. He was diagnosed with: “Epilepsy – acute seizures. Lymphadenitis generalised non-specific”. On 25 February 1998 a CAT scan was performed on the applicant’s head at the Pleven Medical University. It was discovered that he had a cerebral oedema. The applicant was again hospitalised at the Neurological Unit of the Ruse District Hospital from 2 to 25 March 1998 and then from 28 July to 2 August 1999. During his first stay he was diagnosed with: “Head contusion. Symptomatic [of epilepsy].” During his second stay the diagnosis was: “[Epilepsy] – acute seizures. Massive functional cumulation.” Between 25 June and 9 July 2001 the applicant was hospitalised at the MMA. On 3 July 2001 he underwent an operation during which a cavernous angioma (a benign vascular malformation which can be caused by a trauma to the spinal cord) was removed from his brain. On an unspecified date in early 1998 the applicant’s mother complained to the General Staff of the Bulgarian armed forces (the “General Staff”) of the deterioration in her son’s health while he was in the military. In response, by letter of 23 March 1998, the General Staff informed her that her son had received all the medical assistance required. In September 1999, at the applicant’s request, a doctor drew up an expert report on his state of health. On the basis of the relevant medical documents and the applicant’s explanations, he concluded that the applicant had developed epilepsy during the time of his military service but that it could not be established with certainty whether its cause had been related to the alleged beating of the applicant in May 1997. On 5 January 2000 the applicant himself complained to the General Staff. He apparently named the officers involved in the alleged beating in the Yambol garrison and Sergeant P., who had allegedly witnessed it. By order of 15 December 2000 the Chairman of the General Staff of the Air Force set up an internal commission to investigate the applicant’s accusations. In the course of its work, the commission questioned Lieutenant A., Senior Sergeant H. and the doctor at the Yambol garrison’s infirmary. Sergeant P. was not sought out for questioning because he had left the military in 1998. The officers questioned denied that the applicant had been ill-treated or that they had beaten him. The garrison’s doctor also denied that she had seen any injuries on the applicant during the medical examinations performed at the time. By letter of 16 January 2001 the General Staff informed the applicant that the investigation had concluded that his accusations were unfounded and that his complaints would not be followed up any further. On 15 November 2000 the applicant also filed a complaint with the Sliven military prosecutor’s office, which opened a preliminary investigation and questioned Senior Sergeant H. and the doctor at the Yambol garrison, who both said that they did not remember the applicant. Sergeant H. denied ever beating or hitting soldiers and the garrison doctor denied any knowledge of ill-treatment of the applicant. Sergeant P. was not questioned as he had not been found at his known address. On 19 January 2001 a prosecutor from the Sliven military prosecutor’s office refused to open criminal proceedings in relation to the alleged illtreatment of the applicant. On the basis of the testimonies obtained, the applicant’s medical records and the medical expert report drawn up in 1999, he concluded that it had not been established that the applicant had been beaten in the Yambol garrison or that his medical condition had resulted from a trauma allegedly sustained during that beating. On appeal by the applicant, on 11 September 2001 that decision was upheld by the military appellate prosecutor’s office in Sofia. It appears that the applicant did not appeal against that decision to the Chief Public Prosecutor’s Office. By decision of 5 March 2001, the Ruse Labour-Expert Medical Commission (“the LEMC”) assessed the applicant’s medical condition and recognised him to be disabled with 69.75% disability. Upon appeal, by decisions of 22 June and 22 October 2001, the Central Labour-Expert Medical Commission (“the CLEMC”) quashed the decision of the LEMC and assessed the applicant to be disabled with 90% disability. The starting date of the disability was determined to be 11 December 1997. In its decisions, the CLEMC referred to the applicant’s allegations that he had been beaten in May 1997 but did not conclude that this had caused his medical condition. In December 2001 the applicant started to receive an army pension. His disability was reassessed by the LEMC on 20 February 2003. The commission found that the number and frequency of his seizures had decreased and assessed the applicant to be disabled with 74.80% disability. Upon appeal, by decision of 13 November 2003, the CLEMC quashed the decision of the LEMC and further decreased the applicant’s percentage of disability to 50%. Once again the CLEMC referred to the applicant’s alleged beating in May 1997 but did not state that it considered this to be the cause of his medical condition. The applicant was entitled to appeal against the decision of the CLEMC but apparently failed to do so. Apparently, as a result of the reduction of his disability level, on 1 June 2004 the applicant’s army pension was decreased from an unspecified amount to 60.95 Bulgarian levs (the equivalent of 31 euros). On 2 August 2001 the applicant filed a complaint with the prosecutor’s office, challenging the grounds for his discharge from the military on 10 January 1998. By letter of 6 August 2001 the Sliven regional prosecutor’s office informed him that it was not competent to rule on the matter and that instead he should initiate an administrative action challenging the order for his discharge. It does not appear that the applicant initiated any such action. The applicant filed several more complaints to various authorities seeking compensation for the damage caused as a result of the illness he developed while in the military. In response, by letters of 4 and 8 February 2001 from the Ministry of Defence, letters of 9 February and 5 March 2001 from the General Staff and a letter of 17 October 2001 from the MMA, he was informed of the procedure and formalities required to claim the special compensation provided for in section 249 § 1 of the Armed Forces Act, in force at the time. In particular, the applicant was advised of the need to obtain an evaluation of his medical condition by the Military Medical Commission, which apparently he did not do. Neither did he bring an action before the civil courts to seek compensation, as he was expressly entitled to do under section 249 § 6 of the Armed Forces Act, in force at the time.

train

001-70505

ENG

DEU

ADMISSIBILITY

KALDIK v. GERMANY

Inadmissible

The applicant, Ms Hayriye Kaldik, is a Turkish national of Kurdish origins who was born in 1970 and lives in Solingen in Germany. She was represented before the Court by Mr K. Roβ, a lawyer practising in Essen. In December 2001 the applicant’s husband entered German territory, where he unsuccessfully lodged an asylum request. Following her husband’s departure, the applicant had been visited several times by Turkish security officers who interrogated her about her husband’s whereabouts. In April 2002, Turkish soldiers took her to a military station and raped her. This became known to the applicant’s family and to the whole village. Following this incident, the applicant suffered a post-traumatic stress disorder (PTSD, posttraumatische Störung) and considered suicide. On 14 June 2002 the applicant, together with her two children, born in 1999 and 2001, travelled by plane from Ankara to Düsseldorf in Germany. She had been assisted by her father and other relatives, who had helped her to obtain false passports. On 10 July 2002 the applicant lodged an asylum request with the Federal Refugee Office (Bundesamt für die Anerkennung ausländischer Flüchtlinge). She alleged that she had been persecuted because of her husband’s activities in support of the Kurdish separatist movement. She further submitted that men from her village had urged her father to kill her in order to restore the honour of her family. Later on the applicant submitted a medical report from her attending physician Dr Z. dated 11 September 2002, who drew the following conclusions: “According to our...examinations, Ms Kaldik suffers from symptoms of anguish and a depressive disorder with dissociative symptoms and somatic disorders based on a severe post-traumatic stress disorder following suppression, abuse, threats and rape in Turkey. In order to carry out psychotherapy, it is necessary to provide a stable environment, because the treatment of traumas necessitates security and stability. Ms Kaldik is in need of both psychological and psychotherapeutic treatment. An antidepressant medication (Doxepin 100 mg) has been started. The psychotherapy will last approximately two or three years. A continuing treatment with supportive conversations is necessary in order to stabilise her mental condition and to avoid an aggravation. In case of lack or interruption of treatment there is the risk of an aggravation of the illness, a decompensation of the condition, or suicide. An escalation of her situation with respect to her right to stay would very probably lead to an aggraviation of Ms Kaldik’s clinical symptoms and thus to a mental decompensation and suicidal tendencies (Bei einer aufenthaltsrechtlichen Zuspitzung der aktuellen Situation ist eine weitere Verschärfung der klinischen Symptome bei Frau Kaldik und damit eine psychische Dekompensation mit suizidalen Verhaltensweisen als extrem wahrscheinlich einzuschätzen). In case of an expulsion to Turkey, it has to be assumed that she could carry out her suicide thoughts and the expulsion to Turkey has to be regarded as a re-traumatisation.” In June 2003 the applicant was temporarily hospitalised in a psychiatric clinic. On 29 July 2003 the applicant submitted further medical attestations according to which her situation had aggravated. On 27 August 2003 the Federal Refugee Office rejected the applicant’s asylum request, ordered the applicant to leave the German territory within one month and announced expulsion in case of non-compliance. They found that the applicant had failed to establish that her rape had been politically motivated. According to the Refugee Office, there was no concrete risk that the applicant would, once again, be abused on her return to Turkey. With respect to the alleged risk to be killed by family members in order to restore the family’s honour, the Office noted that the Turkish State prosecuted so-called “crimes of honour” and that there existed the possibility to obtain protection in women’s refuges. Furthermore, the Office did not attach much credence to the applicant’s submissions relating to the risk of persecution by her family. Referring to a report by the German Foreign Office dated 9 October 2002 and to a further report dated 12 June 2002, the Refugee Office further found that the necessary medical treatment for the applicant’s illness was available in all major psychiatric clinics, such as the university clinics in Ankara and Istanbul and the public hospital in Istanbul. According to the Refugee Office, these clinics applied internationally approved diagnostic standards and offered the same therapeutic concepts which were common in Western Europe. In case of need, it was possible to obtain free medical treatment with the so called “green card”. This did also apply in case of a possible retraumatisation. The Federal Refugee Office further found that it was not competent to examine if the applicant’s deportation as such could lead to suicide attempts, as this primarily concerned the question of the feasibility of deportation. The applicant, represented by counsel, lodged a motion with the Düsseldorf Administrative Court (Verwaltungsgericht). She argued, inter alia, that the necessary medical treatment was not available in practice. In support of her allegations, she submitted a report by the German Consulate in Istanbul on the medical care provided for persons with mental illnesses dated 16 July 2003. This report noted, inter alia, that care for mentally ill patients was provided for in the major cities and provincial centres of Turkey. On the other hand, there was a lack of possibilities of long-term treatments for adult patients. The last paragraph of the report reads as follows: “Countrywide there are 137 hospitals in 68 towns which are entitled to issue medical attestation for handicapped and/or mentally ill persons... It follows that there is not in every province the possibility to obtain specialist medical treatment. One of the most serious problems is the almost complete hopelessness (“fast völlige Ausweglosigkeit”) of certain groups of patients – in particular adults – to obtain adequate treatment: this concerns traumatised persons, raped women, persons suffering from anguish traumas, highly suicidal persons, to name but a few. The local Health Ministry confirmed that while the purely medical care of handicapped or mentally ill people could be provided, it was generally (in der Regel) impossible to offer continuing therapy for lack of professional and financial resources. It is not possible to continue therapies for patients returning from Germany or the Netherlands, as follows already from the different therapeutic concepts of these countries.” The applicant further alleged that her return to Turkey would, with a high probability, lead to her re-traumatisation, which would eventually endanger her life. She submitted a further medical report by Dr Z. dated 6 February 2004, which reads as follows: “I am treating Ms Kaldik since 25 June 2002. Ms Kaldik is a severely traumatised person, who suffers from typical disturbances caused by a posttraumatic stress disorder (ICD 10 F43.1) with extreme nervousness and attacks of fear and panic. Ms Kaldik is regularly treated with supportive conversations which take place at 14 days intervals. Additionally, she is treated with antidepressant medication, currently with 100 mg Trimipramin per day. The patient’s state of health has further deteriorated. She increasingly complains about insomnia and gives credible accounts of suicidal thoughts. She reports about the escalation of her situation with respect to her right to stay. This scares her additionally. She suffers from serious losses of self-esteem. On the basis of today’s conversation, a further aggravation of her clinical symptoms and thus a mental decompensation with suicidal behaviour has to be regarded as being extremely likely.” On 1 March 2004 the Düsseldorf Administrative Court rejected the applicant’s motion. That court found that the applicant had neither a right to asylum as guaranteed by Article 16a of the Basic Law, nor was she protected from expulsion as a political refugee pursuant to section 51 of the Aliens Law (Ausländergesetz, see relevant domestic law below). The Administrative Court accepted the applicant’s submissions that she had been raped and subsequently suffered from a post-traumatic disorder. It further assumed that the applicant’s persecution had been politically motivated. While the applicant had failed to establish that she herself or her husband had been persecuted as suspects of supporting the Kurdish separatist movement, the Court accepted that the applicant’s rape may have been related to her Kurdish origins. However, the applicant did not risk further persecution, as she would be safe if she travelled to the Western part of Turkey (inländische Fluchtalternative). As neither the applicant nor her husband could be regarded as being suspected of separatist activities, there was no indication that the security forces would persecute her there. The Administrative Court further found that the applicant had not established that she risked falling victim to a “crime of honour” in the Western part of Turkey, taking into account that her father had helped her to escape to Germany. The Administrative Court further found that there was no impediment to the expulsion under section 53 (6) of the Aliens Act for lack of a serious and concrete risk for her life or physical integrity. According to consistent reports (nach ständiger Auskunftslage), there was a possibility to treat mental illnesses in Turkey. Referring to a judgment of the North RhineWestphalia Court of Appeal and considering all material in its possession, the Administrative Court followed this assessment. It found, in particular, that the applicant was not restricted to seek medical treatment in her home region, but could also be expected to expand her search into her further environment and into Western Turkey. The applicant had not established that her illness could not be treated in Western Turkey. The Administrative Court finally considered that the possibility of a retraumatisation could in principle constitute an impediment to expulsion. According to the Administrative Court, however, it could not be deduced from the medical attestations submitted by the applicant that this applied to the applicant for the time being. It found that in the report dated 11 September 2002 Dr Z. indicated that the applicant’s deportation as such might aggravate her medical condition. This might lead to an impediment to deportation relating to German territory (inlandsbezogenes Abschiebungshindernis), but not to a danger in the receiving country (zielstaatsbezogenes Abschiebungshindernis). In his more recent medical attestation dated 6 February 2004, Dr Z. more generally stated that a further aggravation of her clinical symptoms and thus a mental decompensation with suicidal behaviour had to be regarded as being extremely likely. This indicated that the aggravation of the applicant’s illness was independent from her return to Turkey. The Administrative Court finally found that the other medical attestations submitted by the applicant did not lead to other conclusions. The question if the applicant’s deportation as such would cause a danger to her health had to be examined separately by the local Aliens Office (Ausländerbehörde). The Administrative Court further noted that the applicant could seek the Aliens Office’s and the German Embassy’s assistance in finding the necessary health facilities. On 1 April 2004 the applicant lodged a request to be granted leave to appeal. She alleged, in particular, that the Administrative Court had failed to consider the report of the German Consulate of 16 July 2003 which, according to the applicant, raised serious doubts if her illness could be treated in Turkey. She further complained that the Administrative Court had failed to consider her submissions with respect to the risk of retraumatisation. On 4 January 2005 the North Rhine-Westphalia Administrative Court of Appeal (Oberverwaltungsgericht) refused the applicant’s request. It found, in particular, that the Administrative Court had duly examined the possibility to obtain medical treatment in Turkey. It noted that the Administrative Court had found that the applicant was not restricted to her home area, but could be expected to search medical care in Western Turkey. Under these circumstances, the Administrative Court did not have to refer explicitly to the German Consulate’s report. The Court of Appeal further found that the Administrative Court had duly considered the expert reports on the applicant’s state of health. On 3 February 2004 the applicant, represented by counsel, lodged a constitutional complaint. She alleged that the administrative courts had violated her right to a fair hearing and her right to asylum as guaranteed by the Basic Law. She complained, in particular, that the Administrative Court had failed to duly consider the fact that the applicant, according to the medical report dated 11 September 2002, risked re-traumatisation on her return to Turkey. She further complained that the Administrative Court had failed to hear expert opinion on the risk of re-traumatisation. On 27 April 2005 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s complaint. The applicant, her husband and children subsequently lodged a request with the North Rhine-Westphalia Commission for the Prevention of Hardships (Härtefallkommission). No decision has yet been given. These proceedings do not have a suspensive effect; the Commission’s recommendations are not binding on the domestic authorities. By order of 31 May 2005 the Langenfeld Regional Court (Amtsgericht) placed the applicant into a psychiatric hospital. The Regional Court found a strong indication that the applicant suffered from a psychotic disorder which necessitated treatment and which could pose a danger to her life or integrity. According to a medical report of that same day, she had recently been suicidal. The Regional Court further ordered the preparation of an expert opinion on the applicant’s state of health. Article 16a(1) of the German Basic Law (Grundgesetz) provides that persons persecuted on political grounds enjoy the right of asylum. Section 51 of the Aliens Act – as in force at the relevant time – prohibits the deportation of aliens to a state where they would face political persecution. Section 53 prohibits deportation into a state where the alien faces a serious risk of being subjected to torture. Section 53(4) of the Aliens Act further prohibits any expulsion which would be contrary to the provisions of the Convention. If the preconditions for the application of section 53(4) are not met, protection may be granted under section 53(6) of the Aliens Act, which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life, personal integrity or liberty of an alien. According to the case-law of the Federal Administrative Court (Bundesverwaltungsgericht) the Federal Refugee Office, during asylum proceedings, only examines if the alien would be in danger in the receiving country (zielstaatsbezogene Abschiebungshindernisse). Other impediments to deportation, which could arise on German territory (inlandsbezogene Abschiebungshindernisse) have to be examined in separate proceedings by the local Aliens Office.

train

001-102352

ENG

MNE

ADMISSIBILITY

KAVAJA v. MONTENEGRO

Inadmissible

Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

1. Following the financial crisis in the former Socialist Federal Republic of Yugoslavia, as well as the subsequent collapse of the banking system in the 1990s, in 1998, 2002, 2003 and 2006 the Federal Republic of Yugoslavia, as well as the respondent State itself, adopted specific legislation accepting the conversion of foreign currency deposits in certain banks, including the Jugobanka in Podgorica, into a public debt. The legislation set the time-frame (2017) and the amounts, including interest, to be paid back to the banks’ former clients (see paragraphs 20-25 below). 2. The applicants are Mr Branko Kavaja (the first applicant), at the time a national of the State Union of Serbia and Montenegro, who was born in 1940 and lives in Nikšić, and Mr Dragutin Miljanić (the second applicant), a Montenegrin national, who was born in 1949 and has a registered residence in Podgorica. The second applicant was represented before the Court by Mr M. Čizmović, a retired lawyer from Podgorica. 3. The facts of the case, as submitted by the applicants, may be summarised as follows. 4. On a number of separate occasions the applicant deposited a certain amount of his foreign currency savings with the Jugobanka in Podgorica (Montenegro), the Inos bank in Paraćin (Serbia) and the Karić bank in Belgrade (Serbia). 5. On 17 February 2003 the applicant was informed that his savings, including interest, had been converted into a public debt pursuant to the 1998 and 2002 legislation and that the method of its payment would be further regulated by Montenegrin law, which was to be adopted shortly (see paragraphs 14-25 below). 6. In October 2003 Montenegro passed the Act on the Citizens’ Foreign-Currency Savings, envisaging that the savings would be released gradually, in annual instalments, by 2017 (see paragraphs 20-25 below). 7. As of 2004 the applicant appears to be receiving regularly his savings in specified annual instalments. 8. On an unspecified date the applicant sought the release of his funds deposited with the Inos bank. In November 2003 the insolvency committee of the bank contested the debt and instructed the applicant to initiate civil proceedings in order to have the debt established. There is no information in the case file as to whether the applicant actually did so. 9. There is no information in the case file as to what happened to the funds deposited with the Karić bank. 10. In July 1982 the applicant deposited 55,000 German Marks in total with the Jugobanka in Podgorica with the stipulated interest rate of 12.5%. 11. On 19 April 2005 the applicant instituted proceedings against the State seeking the release of his funds. 12. On 26 October 2006 the Court of First Instance (Osnovni sud) in Podgorica ruled against the applicant stating that his funds were being released gradually in annual instalments as specified in the Act on the Citizens’ Foreign-Currency Savings 2003. 13. On 12 February 2008 and 10 May 2008, respectively, the High Court (Viši sud) and the Supreme Court (Vrhovni sud) in Podgorica upheld this judgment. 14. Articles 1, 2, 3 and 4 provided that all foreign-currency savings deposited with the “authorised banks”, including the Jugobanka in Podgorica, before 18 March 1995 were to become a public debt. 15. Under Article 10 the State’s responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame. 16. Pursuant to Articles 13 - 19 the banks’ clients could make use of their deposits converted into Government bonds in order to pay taxes or, in advance of the said time-frame, for a number of purposes such as buying State property or taking part in the privatisation of State-owned businesses and banks. The former clients of the banks in question could also sell the said bonds, such trading being exempted from taxation. 17. This Act repealed the Act described above. It modified the time-frame for honouring the debt in question (from 2012 to 2016) and specified amended amounts, plus 2% interest, to be paid annually. The annual amounts were EUR 276,10 in 2002, EUR 380 in 2003 and EUR 530 in 2004, while the exact amount of the remaining instalments was to be calculated applying a geometrical progression rate of 10% and a corresponding coefficient for that particular year, the coefficients themselves also increasing annually. The minimum such amount could not be less than EUR 500. 18. Pursuant to Article 13, the banks’ clients could make use of their deposits converted into Government bonds in order to pay taxes or, under Articles 12 and 14, in advance of the said time-frame, for a number of purposes such as buying State property, taking part in the privatisation of State-owned businesses and banks, as well as, under certain conditions and up to a specified amount, for the payment of medical treatment, medication and funeral costs. In accordance with Articles 10 and 11, the former clients of the banks in question could also sell the said bonds, such trading being exempted from taxation. 19. This Act was subsequently amended on two occasions, but these amendments concerned peripheral issues unrelated to the savers’ above-described status. 20. Article 3, inter alia, defines “foreign-currency savings” as all foreign currency deposited by natural persons with one of the “authorised banks based in the territory of the Republic of Montenegro” as recognised as a public debt of the Federal Republic of Yugoslavia (see paragraphs 14 and 17 above). 21. Articles 14 and 15 provide that Montenegro shall honour this debt by 2017, and specify the amounts, plus 2% interest, to be paid annually in Euros. The annual amounts were EUR 380 in 2004 and EUR 530 in 2005, while the exact amount of the remaining instalments shall be calculated applying a geometrical progression rate of 10% and a corresponding coefficient for that particular year, the coefficients themselves also increasing annually. The minimum such amount may not be less than EUR 500 should the instalment be less than that. 22. Pursuant to Article 18, the banks’ clients may, in advance of the said time-frame and under certain conditions, make use of their deposits converted into Government bonds in order to pay taxes, buy State property or take part in the privatisation of State-owned businesses. 23. Under Articles 16 and 17 former clients of the banks in question can also sell the said bonds to other natural or legal persons. Such trading is exempt from property taxation and capital gains taxation. 24. Articles 16 § 5 and 18 § 2 provide that the Government of Montenegro shall adopt additional technical regulations concerning the bonds in question. 25. This Act entered into force on 9 October 2003 and its amendments on 28 February 2004. 26. Articles 1, 2 and 3 provide that this Act shall regulate the reimbursement of foreign-currency savings deposited by individuals residing in Montenegro with the authorised banks based outside Montenegro, which funds were then further deposited with the National Bank of Yugoslavia (Narodna banka Jugoslavije). 27. Article 8 provides that Montenegro shall honour this debt by 2017, and specifies the amounts, plus 2% interest, to be paid annually in euros. The first instalment, to be paid within 90 days as of this Act’s entry into force, was EUR 380, the second instalment due in 2008 was EUR 530, while the exact amount of the remaining instalments shall be calculated by multiplying the foreign-currency deposits with a corresponding coefficient for that particular year, the coefficients themselves increasing annually. The minimum such amount may not be less than EUR 500, except for the last instalment. 28. Article 4 explicitly provides that the foreign-currency sums deposited with, inter alia, the Inos bank in Paraćin and “other private banks” are not considered foreign-currency savings within the meaning of this Act.

train

001-109017

ENG

ALB

ADMISSIBILITY

URUCI v. ALBANIA

Inadmissible

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

1. The applicant, Mr Dashamir Uruçi, is an Albanian national who was born in 1948 and lives in Tirana. He is represented before the Court by Mr S. Puto, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agents, Ms S. Meneri and Ms E. Hajro. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 5 June, 3 July and 14 October 2001 the applicant and his wife were the subject of articles in the daily newspaper “Rilindja Demokratike” (“the newspaper”). 4. On 29 October 2001 the applicant initiated criminal proceedings against B. K, the author of the press article which was published on 14 October 2001. On 4 July 2002 the proceedings were discontinued by a decision of the Tirana District Court (“the District Court”) pursuant to the Amnesty Act of 2002. 5. On 3 October 2002 the applicant lodged a civil action against the newspaper’s editorial board (redaksia e gazetës) represented by its editor-in-chief and sought non-pecuniary damage. On 21 January 2003 the Tirana District Court decided that the applicant’s personality and honour had been seriously tarnished by the press articles. It ordered the payment of 1,000,000 Albanian leks (approximately 7,000 euros at the time) to the applicant. 6. On an unspecified date Rilindja Demokratike sh.p.k. (“the company”), a limited liability company registered under Albanian law and which is the owner of the newspaper, filed an appeal. The appeal was signed by the newspaper’s editor-in-chief. The company argued, inter alia, that the editorial board did not constitute a legal entity and could not be a party to the said legal proceedings. Therefore, the court was under a duty to replace the defendant by summoning the company in its place, an act which was never carried out. 7. On 22 May 2003 the Tirana Court of Appeal (“the Court of Appeal”) upheld the District Court’s decision. It held that since the articles had been selected for publication by the editorial board, the latter was liable in its obligations towards third parties. 8. On 20 June 2003 the company appealed to the Supreme Court, relying on the same grounds of appeal as before the Court of Appeal. The appeal was signed by the newspaper’s editor-in-chief. On 23 April 2004 the Supreme Court declared the appeal inadmissible as it did not include any of the grounds of appeal prescribed by the Code of Civil Procedure (“CCP”). 9. On 11 July 2003 the District Court issued an execution writ in respect of the District Court’s decision of 21 January 2003. On the same day the bailiff notified the newspaper’s editorial board to comply with the judgment within ten days from its notification. The bailiff drew their attention to the mandatory enforcement of the judgment, should they fail to comply with the judgment voluntarily. 10. On 30 September 2003, following the failure of the editorial board to comply with the judgment, the bailiff ordered the attachment of the funds in the newspaper’s bank accounts. According to the information received by the banks involved, it was apparent that the newspaper’s editorial board had no bank accounts, except for one at the National Commercial Bank, which had virtually no available funds. 11. On 5 July 2004 the bailiff decided to discontinue the enforcement proceedings (pushojë ekzekutimin) on the ground that the newspaper’s editorial board had no assets. 12. The applicant contested the order and it would appear that he applied again to the bailiff. On 18 November 2004 and 21 April 2005, respectively, the bailiff ordered the seizure of funds in the newspaper’s editorial board’s bank accounts and served the order on the banks concerned in the territory of Albania. 13. The banks concerned reconfirmed that the newspaper’s editorial board did not hold any accounts. On 4 May 2005 the National Commercial Bank informed the bailiffs that there were no funds in the newspaper’s editorial board’s bank account. 14. On 1 November 2005 the applicant sent a letter to the Minister of Justice informing him of the continuous non-enforcement of the District Court’s judgment of 21 January 2003. 15. On 17 November 2005 the General Bailiff’s Directorate informed the applicant that their efforts in 2003 and 2005 had been unsuccessful owing to the lack of available funds in the newspaper’s editorial board’s bank account. 16. On an unspecified date it would appear that the applicant lodged a complaint with the Constitutional Court on account of the non-enforcement of a final court judgment. 17. On 14 December 2005 the Constitutional Court by way of an administrative letter informed the applicant that it had examined his request and had decided that the issues raised therein were outside its jurisdiction. 18. On 15 April 2009 the Government informed this Court of a District Court’s decision of 18 December 2007 which had declared invalid the writ of execution of 11 July 2003. The proceedings in question were brought by the newspaper’s company, following – it would appear – the attempted enforcement of the decision against the company. The applicant had been summoned to intervene as a third party to those proceedings. In its decision, which was given in absentia, the District Court stated that the writ could not be enforced against the newspaper’s company as it had never been a party to the domestic legal proceedings. The District Court further added that, since the newspaper’s editorial board was neither a legal entity nor a physical person, having regard to the development and application of the law as it stood at the material time in 2007, the writ of execution remained non-enforceable. 19. The Albanian Constitution, in so far as relevant, reads as follows: “In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “The Constitutional Court shall determine: ... (f) complaints by individuals alleging a violation of their constitutional rights to a fair hearing, provided all legal remedies for the protection of those rights have been exhausted.” 20. Section 30 of the Constitutional Court Act stipulates the deadline for the submission of applications before that court. Individual applications for alleged violations of constitutional rights must be submitted no later than two years after the commission of the violation. 21. The same time-limit of two years applies in the event of the notification of a final judicial decision. 22. The Constitutional Court first accepted that the non-enforcement of a final court decision constituted a breach of an appellant’s right to a fair hearing in judgment no. 6/06 of 31 March 2006. Prior to that, the Constitutional Court used to dismiss such applications as falling outside its jurisdiction. 23. A detailed outline of the Constitutional Court’s case-law as regards the non-enforcement of final court decisions has been described in this Court’s judgment in Gjyli v. Albania, no. 32907/07, §§ 21-27, 29 September 2009. 24. Article 451/a of the CCP provides that a final court judgment is binding on the parties, their heirs, the court that adopted the judgment and other courts and institutions. 25. Article 458 of the CCP provides for the possibility of a party to seek leave to appeal out of time. 26. Article 510 of the CCP stipulates that a judgment can be enforced only on the basis of an execution title, which includes, inter alia, a final court judgment. Under Article 511 of the CCP, an execution title is executed at the request of the creditor. An execution writ is issued for this purpose. In the wording of Article 515 of the CCP, an execution writ is enforced by the bailiff at, inter alia, the request of the creditor. The bailiff invites the debtor to comply voluntarily with the execution writ in accordance with the time-limits laid down in Article 517 of the CCP. Should the debtor fail to comply with a voluntary enforcement within the prescribed time-limits, the bailiff proceeds with a mandatory enforcement in accordance with Article 519 of the CCP. 27. Under Article 527 the bailiff is empowered to seize the debtor’s loans as well as movable and immovable property to the extent necessary for the enforcement of monetary obligations. At the debtor’s request, seizure may also be imposed on another property if the bailiff considers that it satisfies the creditor’s needs pursuant to Article 528. 28. Under Article 610 of the CCP, the parties may complain to the court of an act or failure to act by the bailiff within five days of the said act or omission. There is a right of appeal against the court decision in accordance with Article 611 of the CCP. The appeal has no suspensive effect on the execution. 29. The bailiff may decide to discontinue execution in accordance with Article 616 of the CCP if: a) the debtor complies with the execution writ; b) the creditor renounces, in writing, his right to the enforcement; c) the execution writ is repealed; ç) the debtor’s civil action in accordance with Article 610 of the CCP has been accepted by a final court decision; d) the bailiffs alone or in cooperation with the creditor do not find any assets belonging to the debtor within 6 months from the start of the enforcement proceedings. The parties may challenge the bailiff’s decision to discontinue enforcement at the district court in accordance with Article 617 of the CCP.

train

001-102947

ENG

DNK

CHAMBER

CASE OF T.N. v. DENMARK

Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka)

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

5. The applicant was born in 1972 in the vicinity of Jaffna in the north of Sri Lanka. She currently lives in Ellebæk, Denmark. She is of Tamil ethnicity and Hindu. 6. The applicant's parents died in 1978 and 1983. 7. On 27 March 2004, she married a Sri Lankan man who had lived in Denmark since 1986 and who returned to Colombo to attend the wedding. 8. On 30 January 2005, under the rules on family reunification, the Aliens Authorities (Udlændingestyrelsen) granted the applicant a residence permit to join her husband in Denmark. Accordingly, on 16 March 2005 the applicant entered the country on a valid passport issued on 11 February 2004. 9. Less than a year later, on 31 January 2006, the Aliens Authorities decided to withdraw the applicant's residence permit on the ground that the applicant and her husband had separated. This decision was confirmed by the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration) on 6 October 2006 and the applicant was ordered to leave Denmark no later than 9 November 2006. The applicant did not challenge this decision before the ordinary courts. 10. On 1 November 2006 the applicant applied for asylum in Denmark. In support of her application she submitted that her marriage had been arranged, and that once she had arrived in Denmark her husband had taken her passport and been abusive by beating her and depriving her of food. After four months, she had fled to a women's shelter. By a judgment of 17 October 2005 her husband was convicted of abuse and sentenced to 40 days' imprisonment. Her passport had been returned. Subsequently, on one occasion when she had seen him on the street, he had threatened to kill her. He came from a wealthy family in Colombo with good connections to the authorities and the military and she was afraid that he had told the Sri Lankan authorities about her five years between 1988 and 1994 as a soldier for the Liberation Tigers of Tamil Eelam, hereafter the LTTE. She had participated and been injured in battle. Having contracted malaria, in 1995 she had had to leave the organisation. Between 1995 and 1999, she had moved around because of the instability in the country. In 1999 she had settled in Colombo where she had worked as a carer for an elderly gentleman. In January 2004 she had met her husband and agreed to marry him to secure her future. She had a sister in Sri Lanka but had heard no news from her since the tsunami in 2004. She had no other relatives in her home country. 11. By a judgment of 21 June 2007 the applicant was convicted for two incidents of malicious damage to her husband's car and flat, and sentenced to six day fines. 12. On 28 June 2007 the Aliens Authorities rejected her application for asylum. It found that the grounds invoked by the applicant were not such that she would face a real risk of persecution or ill-treatment if returned to Sri Lanka. 13. On appeal to the Refugee Appeals Board (Flygtningenævnet), the applicant explained, among other things, that her mother died when she was five years old and her father died when she was eight years old. After her father's death she had been sent to a boarding school. She could only stay at school until she turned 16. She did not have any relatives or others with whom she could stay. When she was 16 years of age, she had joined the LTTE. She had been in combat on five occasions when she was between 16 and 18 years old and had been hit by shell splinters. Consequently she had a small shell splinter under the skin by her left eye and part of one finger was missing. The LTTE had accepted that she leave the organisation after she contracted malaria. She married on 27 March 2004, in Colombo. Her husband was an ethnic Tamil resident in Denmark. Prior to her entry into Denmark she became pregnant. Her spouse's family took her to a clinic and forced her to have an illegal abortion. Her spouse's family treated her very badly prior to her entry into Denmark. Her spouse was an alcoholic and beat her every day. After she left her spouse, he had threatened to have her sent back to Sri Lanka where she would end up in the street. If she were to return to her country of origin she feared her former spouse's family who lived in Colombo. She had neither family members nor a place to stay in Sri Lanka. Her former spouse's family had a good relationship with the Sri Lankan army. She also feared the authorities, should she return to Sri Lanka, as persons who had been attached to the LTTE were not allowed to leave the country without the permission of the authorities. She feared that her former spouse would inform the Sri Lankan authorities about her return and that she would be arrested at the airport as a result. On the basis of her scars the authorities would be able to conclude that she had been attached to the LTTE. 14. By a decision of 13 August 2007, the Refugee Appeals Board refused to grant the applicant asylum. It first noted that the applicant had arrived in Denmark on a passport which was still valid and that she had had no problems with the authorities before she left Sri Lanka. 15. The fact that she had been a member of the LTTE at a very young age could not in itself justify the granting of asylum. Moreover, she had not held any prominent position in the organisation and her attachment to the LTTE ended after she had developed malaria. She had had no problems with the LTTE since she left in 1995 and she had not in any way attracted attention to herself. 16. Finally, the applicant's problems with her former husband were of a private nature and there was no indication that the Sri Lankan authorities would be unable or unwilling to help and protect her if necessary. 17. In conclusion, the Refugee Board therefore found that on her return to Sri Lanka she would not run any particular risk of persecution within the scope of section 7(1) of the Aliens Act, or any real risk of outrages within the scope of section 7(2) of the Aliens Act. 18. On 6 November 2007 the Refugee Appeals Board rejected the applicant's request to reconsider the case finding that no new essential information or aspects had been added to the case. The fact that on 21 October 2007 the UNHCR had requested the Refugee Appeals Board to suspend the return of Tamils from northern and eastern Sri Lanka had not given rise to a general suspension of the return of ethnic Tamils to northern and eastern Sri Lanka, and the Board did not find either that it should give rise to a postponement of the time-limit for the applicant. 19. By a court order of 16 November 2007 the applicant divorced. It appears that shortly thereafter the applicant married a Singhalese man who lived in Denmark. Their daughter was born on 5 September 2008. 20. In the meantime, on 2 April 2008, the applicant again requested a reopening of her asylum case. In support she referred to the fact, inter alia, that the Sri Lankan authorities had issued a birth certificate to her in October 2007. Her friends had arranged for the certificate to be issued and had subsequently sent it to her in Denmark. The authorities in Sri Lanka were thus aware of what she had told the Danish authorities in connection with her asylum application. She also referred to the fact that she had contracted a Hindu marriage with a Singhalese man during her residence in Denmark. She finally referred to her pregnancy and to having been hospitalised in Norway on 9 or 10 March 2008 due to dehydration. By a letter of 9 April 2008 she added that she had fled the LTTE in 2002 and hidden with her future husband's brother in Vavuniya. From there she had gone to Colombo to stay with her future husband's sister. Subsequently, she heard that on several occasions members of the LTTE had approached her brother-in-law in order to find her. Furthermore, the LTTE had detained one of her brother-in-law's children for three months. She had only learned about this later on. Finally, her former spouse refused to return her national identity papers to her; instead, he had passed her identity card to the Sri Lankan army. She had received this information recently. Consequently, the military was waiting to arrest her in Sri Lanka where she was wanted. If she succeeded in going to Vanni she would be arrested by the LTTE. 21. On 14 April 2008, the Refugee Appeals Board again refused to reopen the asylum case, finding that no essential new information or aspects had been added in relation to the information which had been available when the case was considered by the Board in the first place. The Refugee Appeal Board did not find it probable that the Sri Lankan authorities had become acquainted with the applicant's statements given to the Danish immigration authorities since that information was private and covered by the regulations of the Criminal Code (straffeloven) concerning the professional secrecy of public authorities. The fact that the applicant was pregnant and had married in Denmark had no bearing on her asylum case and therefore could not lead to a different evaluation of the matter. Her statement about recently having learnt that her former brother-in-law had been approached by the LTTE seemed unreliable, notably because during the original asylum case hearing before the Refugee Appeals Board she had stated that she left the LTTE because she had developed malaria. Consequently, this “new” information could not be taken into account. The Refugee Appeals Board could not take into account either the statement that her former spouse had passed on her identity card to the Sri Lankan authorities as this information had been submitted at a very late date and seemed fabricated for the occasion. Her problems with her former spouse were of a private law nature and thus could not lead to a different evaluation of her asylum case. 22. By letter of 25 April 2008, once more the applicant requested that her case be reopened and submitted in support thereof a letter from the European Court of Human Rights to the United Kingdom dated 23 October 2007 requesting the latter to suspend the return of all Tamils to Sri Lanka, and an e-mail of 16 April 2008 concerning the suspension of deportation cases in Switzerland on the basis of the above-mentioned letter. 23. On 28 April 2008, the Refugee Appeals Board again refused to reopen the asylum case. It stated that it was acquainted with the letter of 23 October 2007 but found that the letter alone could not bring about a general suspension of cases concerning Sri Lankan nationals of Tamil ethnicity. Nevertheless, the letter and the UNHCR's recommendations formed part of the background material on Sri Lanka which was available to the Refugee Appeals Board and which was a constituent part of the basis for the Board's decisions. 24. On 28 April 2008, upon the applicant's request, the Court of Human Rights decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court's decision. 25. On 10 June 2008, the Ministry of Refugee, Immigration and Integration Affairs refused the applicant's application for a residence permit on humanitarian grounds under section 9b(1) of the Aliens Act. 26. On 11 February 2009 the applicant's passport expired. 27. On 29 April 2009, referring to the deterioration in the security situation in Sri Lanka and UNHCR Eligibility Guidelines for Assessing the international Protection Needs of Asylum-Seekers from Sri Lanka from April 2009, the applicant requested that the Refugee Appeals Board reopen her asylum case. 28. On 11 June 2009, anew, the Refugee Appeals Board refused her request, concluding as follows: “... In April 2009, the Refugee Appeals Board received the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka from April 2009, which have been included in the background material of the Refugee Appeals Board. In addition, the Refugee Appeals Board has subsequently added the following reports to its background material: Human Rights Watch, War on the Displaced, Sri Lankan Army and LTTE, Abuses against Civilians in the Vanni, February 2009; United Kingdom, Home Office, UK Border Agency, Country of Origin Information Report - Sri Lanka, 18 February 2009; U.S. Department of State, 2008 Human Rights Report: Sri Lanka, 25 February 2009; United Kingdom, Home Office, UK Border Agency, Operational Guidance Note - Sri Lanka, April 2009; and United Kingdom, Home Office, UK Border Agency, Operational Guidance Note, April 2009. It should be noted in that respect that the Refugee Appeals Board makes its decisions in asylum proceedings upon a concrete and individual assessment of the individual asylum-seeker's statement about his asylum motive compared with the background information available at any time about the conditions in the asylum-seeker's country of origin. It should also be noted that, as appears from NA. v. the United Kingdom, no. 25904/07, § 127, the Refugee Appeals Board places substantial emphasis on the information of the UNHCR Position Papers about the situation in Sri Lanka. The Position Papers are necessarily broadly phrased and contain general descriptions about the varying risks for each of Sri Lanka's ethnic groups. The views expressed in the Position Papers cannot in themselves be conclusive evidence for the assessment by the national authorities or the European Court of Human Rights of the risk for ethnic Tamils returning to Sri Lanka. The Refugee Appeals Board observes that the general conditions for ethnic Tamils from northern Sri Lanka, including single women, do not in themselves justify asylum. It should be noted in that connection that the European Court of Human Rights stated in NA. v. the United Kingdom (quoted above, § 125 that, in the assessment of the Court, the deterioration in the security situation and the increase in human rights violations in Sri Lanka did not create a general risk to all Tamils returning to Sri Lanka. The Court further observed in § 128 that both the assessment of the risk to ethnic Tamils of certain profiles and the assessment of whether individual acts of harassment would cumulatively amount to a serious violation of human rights could only be made on an individual basis. Your statement to the effect that your client may risk having an explanatory problem upon her arrival at Colombo as a consequence of the scars acquired by her in connection with military operations against the government forces does not lead to a revised assessment of the case. In this respect, the Refugee Appeals Board refers to the Danish Government's written observations of 5 January 2009 stating that your client had not been detained or subjected to outrages or to other acts contrary to Article 3 of the Convention before her departure as opposed to the applicant in NA. v. the United Kingdom. Nor had your client been recorded by the authorities in connection with detention, or photographed, fingerprinted or anything else so that the authorities might be presumed to know of her, and therefore your client could not be considered to be at risk of being subjected to outrages or other acts contrary to Article 3 of the Convention upon her arrival at Colombo Airport in the same way as the applicant in the above judgment. Nor does your statement about your client's affiliation with the LTTE until 2002 and not, as originally stated, until 1994, when your client left the LTTE because she contracted malaria, lead to a revised assessment of the case. It should be noted in that connection that the new information appeared at a very late stage of the asylum proceedings after your client had been refused asylum, having had several opportunities to provide this information without having done so. The Refugee Appeals Board still finds that there is no reasonable explanation for her changed statement. In that connection, the Refugee Appeals Board has also placed some emphasis on the fact that your client only applied for asylum in Denmark almost one year and eight months after her entry into Denmark and only after her residence permit under the family reunification rules had been revoked and she therefore had to leave Denmark. Concerning your statement about your client suspecting her former spouse or his family of having disclosed information to the Sri Lankan authorities about her, it should be noted that the Refugee Appeals Board finds that it has not been rendered probable that the Sri Lankan authorities have gained knowledge of your client's statements to the Danish immigration authorities. In this respect, it should be noted that the information given by your client in connection with the asylum proceedings is comprised by the rules of the Danish Criminal Code on the duty of confidentiality of public authorities. The fact that your client was married at a religious ceremony in Denmark and has given birth to a daughter is not relevant under asylum law and thus does not lead to a revised assessment of the case either. Against this background, the Refugee Appeals Board fully relies on its decisions of 13 August 2007, 6 November 2007 and 14 and 28 April 2008. No time-limit for departure is fixed as, on 29 April 2008, the Refugee Appeals Board suspended your client's time-limit for departure for the time being.” 29. On 16 June 2009 the Refugee Appeals Board decided to suspend the examination of asylum cases concerning Tamils from northern Sri Lanka, including the applicant's case. 30. On 16 December 2009, on the basis of the most recent background information concerning Sri Lanka including, inter alia, a Memorandum of 26 October 2009 prepared by the Ministry of Foreign Affairs, the Refugee Appeals Board decided to review the suspended cases, including the applicant's case. 31. On 12 March 2010 the Refugee Appeals Board refused to reopen the applicant's case as it found that the most recent general background information would not lead to a revised assessment of the case. More specifically in its letter to the applicant's representative it stated as follows: The Refugee Appeals Board observes that as her asylum motive your client has stated, inter alia, that, in case of return, she fears outrages committed by the LTTE because she left without permission. She also fears the Sri Lankan military forces. Due to the injuries incurred by her during military operations, she fears that the Sri Lankan army will suspect her of being a member of the LTTE. Moreover, your client fears that her former family-in-law, with whom she is on bad terms and who live in Sri Lanka and have good connections with the Sri Lankan military forces, have informed on her to the Sri Lankan authorities and that she will therefore be unable to enter the country without becoming an object of interest to the authorities. Her former spouse living in Denmark has her ID card, and she fears that he will travel to Sri Lanka and do something that may harm her. Finally, your client has stated that, as a single woman without family or social network, she will be unable to manage in her country of origin. By decision of 13 August 2007 the Refugee Appeals Board stated, inter alia, that your client had left Sri Lanka in possession of her own national passport without problems and that she had not, prior to her departure, been subjected to outrages or the like of a nature to warrant asylum. The Board found that the fact that your client was affiliated with the LTTE as a child soldier when very young did not in itself warrant granting asylum. In that connection, the Refugee Appeals Board emphasised the length of the time passed and the fact that your client was deemed not to have made herself stand out in any way. Moreover, the Board found that the general situation for single women in Sri Lanka could not justify granting a residence permit under section 7 of the Aliens Act. The Board observed that your client's problems with her former spouse were of a private law nature and therefore recommended that she seek the protection of the authorities in case of conflicts. The Board finally found that it had not been rendered probable that your client would be unable to seek the protection of the authorities and that therefore the information on her former family-in-law could not lead to a revised assessment. The Refugee Appeals Board still finds that your client's fear of the LTTE and the Sri Lankan authorities and the conflict with her former family-in-law do not warrant a residence permit under section 7 of the Aliens Act. In that connection, the Refugee Appeals Board refers to your client's statement during the asylum proceedings to the effect that she did not have any problems with the LTTE at any time prior to her departure, including in connection with her leaving the LTTE. On the contrary, she stated that the LTTE accepted her leaving the organisation. The Board observes that several years have passed since your client left the LTTE, and therefore the Board cannot find as a fact that former LTTE members would pursue her because she had left the country without permission from the LTTE. Additionally, the Sri Lankan military forces defeated the LTTE in May 2009. Moreover, it appears from the background information available to the Board that it is hardly likely that former low-ranking members of the LTTE or persons who have previously supported the LTTE will risk reprisals from the LTTE, see United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009. The possibility that as an ethnic Tamil from northern Sri Lanka your client risks being questioned and investigated by the authorities upon entry into her country of origin does not lead to a revised assessment of the case under asylum law. The individuals at particular risk of being detained and investigated upon entry in Colombo are young Tamils, men in particular, from northern and eastern Sri Lanka; those without ID; those not resident or employed in Colombo; and those recently returned from the West, see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 - 29 August 2009. Similarly, although your client risks being detained at the airport, the Refugee Appeals Board finds that this cannot warrant asylum. In that connection, the Board refers to your client's statement during the asylum proceedings to the effect that she was an ordinary, rank-and-file member of the LTTE and that she has not had any conflicts with the Sri Lankan authorities at any time, or been registered in any way. She departed lawfully from Sri Lanka in possession of her own Sri Lankan national passport for the purpose of family reunification in Denmark. Moreover, several years have passed since your client carried out activities for the LTTE. Against that background, the Refugee Appeals Board finds that it has not been rendered probable that the Sri Lankan authorities would take a special interest in your client upon return, regardless of her scars. In this connection, the Refugee Appeals Board refers to the fact that it appears from the background material available to the Board that, in general, individuals who have supported the LTTE on a lower level are not of interest to the authorities. Thus, generally, only high-profile members of the LTTE who are still active and wanted, or individuals wanted for serious criminal offences are of interest to the authorities, see United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009, and Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 2329 August 2009. Your client has also stated that her former family-in-law has good connections with the Sri Lankan army and that she has reason to believe that the family has informed on her to the Sri Lankan authorities. The Board does not consider this information a fact. The information is thus not substantiated in detail, and your client has not given a more accurate account of which member of her former family-in-law is involved and when that member has allegedly spoken to the authorities about your client. Nor does the Refugee Appeals Board find that the fact that your client's former spouse has taken your client's ID card from her, and that she will have to have her national passport renewed and might thereby attract attention to herself, can lead to any other assessment. As in the previous decisions in the case, the Refugee Appeals Board still finds that the general situation in Sri Lanka is not of such nature as to warrant in itself the grant of a residence permit under section 7 of the Aliens Act. Thus, the Refugee Appeals Board fully relies on the decisions of 13 August 2007, 6 November 2007, 14 April 2008, 28 April 2008 and 11 June 2009. Against that background, the Board still finds that it has not been rendered probable that, in case of return to Sri Lanka, your client would be at concrete and individual risk of persecution as covered by section 7(1) of the Aliens Act, or that your client would be at a real risk of outrages as covered by section 7(2) of the Aliens Act. It should be noted that your client's time-limit for departure is still suspended until further notice on the basis of the request of 28 April 2008 from the European Court of Human Rights. If your client's lawful stay in Denmark lapses, she must leave the country immediately, see section 33(1) and (2) of the Aliens Act. As appears from the decision of the Refugee Appeals Board of 13 August 2007, your client may be forcibly returned to Sri Lanka if she does not leave voluntarily, see section 32a, cf. section 31, of the Aliens Act. 32. By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the former Aliens Authorities (now called the Immigration Service) and in the second instance by the Refugee Appeal Board. 33. Pursuant to section 56, subsection 8 of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board's decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority. 34's country of origin or first country of asylum. For this purpose, the Refugee Appeals Board has a comprehensive collection of general background material on the situation in the countries from which Denmark receives asylumseekers. The material is up-dated and supplemented on a continuous basis. The background material of the Refugee Appeals Board is obtained from various authorities, in particular the Danish Ministry of Foreign Affairs and the Danish Immigration Service. In addition, background material is procured from various organisations, including the Danish Refugee Council, Amnesty International and other international human rights organisations and the UNHCR. Also included are the annual reports of the US State Department (Country Reports on Human Rights Practices) on the human rights situation in a large number of countries, reports from the British Home Office, reports from the documentation centre of the Canadian Refugee Appeals Board, reports from the Swedish Ministry for Foreign Affairs, reports from EURASIL (European Union Network for Asylum Practitioners), reports from the authorities of other countries and to some extent articles from identifiable (international) journals. Moreover, the Board may request the Danish Ministry of Foreign Affairs to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms. The Refugee Appeals Board also retrieves some of its background material from the Internet. Internet access also enables the Board to obtain more specific information in relation to special problems in individual cases. 35. Usually, the Refugee Appeals Board assigns counsel to the applicant. Board hearings are oral and the applicant is allowed to make a statement and answer questions. The Board decision will normally be served on the applicant immediately after the Board hearing, and at the same time the Chairman will briefly explain the reason for the decision made. 36. Extensive information about Sri Lanka can be found in NA. v. the United Kingdom, no. 25904/07, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009. 37. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country's parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE's leadership had been killed. 38. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons' camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya. 39. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict. “Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.” 41. A Human Rights Watch [HRW] press release, dated 28 July 2009, reported that: “The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.” 42. A further Human Rights Watch press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave. 43. In August 2009, the first post-war local elections were held in Northern Sri Lanka. The British Broadcasting Corporation reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People's Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place. 44. On 7 September 2009, James Elder, the official spokesman for the United Nations Children's Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps. 45. On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes. 46. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities. 47. On 21 November 2009, the Sri Lankan Government announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009. 48. In its Global Appeal 2010-2011, the UNHCR reported that: “The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions. The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed. Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries. The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities. With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.” 49. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement. 50. Human Rights Watch, in their report, World Report 2010, estimated that six months after the main fighting ended, the Government continued to hold more than 129,000 people (more than half of them women and girls) in the camps. Over 80,000 of these were children. The camps were severely overcrowded, many of them holding twice the number recommended by the UN. As a result, access to basic requirements such as food, water, shelter, toilets and bathing, had been inadequate. These conditions imposed particular hardships on the elderly, children and pregnant women. The camps were under military administration, and effective monitoring by humanitarian agencies was lacking. The authorities failed to provide camp residents with sufficient information about the reason for their continued detention, the whereabouts of relatives, or the criteria and procedure for their return home. 51. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows: 4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to “extra-legal detention centres” maintained by the military and observed: “These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, 'the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary'. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will detained for a further period of 'rehabilitation' and then released.” ... 4.25 Referring to the “at least 11,000 people” detained “in so-called 'rehabilitation centers” because of their alleged association with the LTTE, the HRW [document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees' fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities' consistent failure to inform families of the basis for the detainees' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been 'disappeared'.” 4.31 The UNHCR 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka', 5 July 2010 reported that “In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps” adding that “According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females.” and noted that “Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.” 52. The November 2010 COI Report also set out: 4.09 The EIU [The Economist Intelligence Unit], Country Report, Sri Lanka, July 2010 reported: “The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country's ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka's covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. “The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN's appointment of a three-member panel to examine possible human rights violations during the island's civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.” ... 4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: “The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island's civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ... 4.12 On 17 September 2010 the UN News Service reported that “Secretary-General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.” The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.” 53. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission – hereafter “BHC”, Colombo, on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed: “[T]he correct procedure for [Department of Immigration and Emigration [DIE]] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer's office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department [CID], or allowed to proceed. The office of the State Intelligence Service [SIS] is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED [Immigration and Emigration Department] and take details in order to ascertain in [sic] the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.” 54. The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows: “Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder's nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.” 55. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official's opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival. 56. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested. 57. The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention: - Outstanding arrest warrant - Criminal record - Connection with the LTTE - Bail jumping/escape from custody - Illegal departure from Sri Lanka - Scarring - Involvement with media or NGOs - Lack of an ID card or other documentation 58. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 set out the following: 33.20 The BHC letter of 30 August 2010 went on to observe that: “At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. “The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.” ... 33.22 A British High Commission letter of 14 September 2010 reported: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.” 59. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad. 60. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there must register with the local police station with a national ID card or full passport, and details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police. “The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.” “The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.” 64. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010, which superseded the April 2009 Guidelines contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that: “given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.” 65. In summary, the following were UNHCR's recommendations: all claims by asylum seekers from Sri Lanka (i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) journalists and other media professionals; (iii) civil society and human rights activists; (iv) women and children with certain profiles; and (v) lesbian, gay, bisexual and transgender (LGBT) individuals. It was also stated that in the light of Sri Lanka's 26 year internal armed conflict, and a record of serious human rights violations and transgressions of international humanitarian law, exclusion considerations under Article 1F of the 1951 Convention Relating to the Status of Refugees may arise in relation to individual asylum seeker claims by Sri Lankan asylum seekers. 66. The BBC reported in March 2010 that the Colombo police force had opened four special units in Colombo suburbs able to take statements in Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans had to rely on a friend to translate their complaints into Sinhala.

train

001-88965

ENG

RUS

CHAMBER

CASE OF DYUNDIN v. RUSSIA

Remainder inadmissible;Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award

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

5. The applicant was born in 1952 and lives in the town of Orsk in the Orenburg Region. He is a journalist. 6. On 21 August 2002 the applicant published an article in issue no. 128\382 of the Orskiy Vestnik newspaper. The article appeared under the headline ‘Tortured suspects confessed to the theft they had not committed’ (“Под пыткой подозреваемые сознались в краже, которой не совершали”). It concerned an investigation into the theft of property of a private company. The company director had identified three of his former employees as prime suspects. Mr S., one of those three, had gone to the Leninskiy District police station of his own will to clear himself of suspicion. The story then switched to a first-person narrative by Mr S., which was preceded by the author’s statement, in bold and in italics: “I switched on the dictaphone recording of S[.]’s story”. 7. Mr S. said that he had been detained overnight at the Leninskiy District police station. The following morning he had been brought to an office where five police officers had been present; Mr G. had been among them. Mr S. continued as follows: “It was a Saturday. They [the police officers] planned to go to a wedding party after lunch; they reeked of fresh alcohol, it looked like they had already been drinking. They discussed how to torture me - using a crow-bar or otherwise? They tied me to a chair, my legs fastened to the chair legs and my arms cuffed behind the chair back. At first they punched me in the chest with their fists, it hurt. I was in a state of shock. Then, a sudden, stunning blow to the neck... I could not see who delivered the blow and with what object. Someone said: ‘What now? The crow-bar?’ G[.] says: ‘Well, but do not stain my table’. And he took all the magazines off the table. One of them, who squinted a bit, took out a tool that looked like a tyre lever. I do not know how they wanted to torture me. G[.] says: ‘No, let’s try a gas mask first’. They put a gas mask on me... I could not breathe in or out, I felt faint and my head shook...” (emphasis added, see below). 8. The article further continued to relate Mr S.’s story as told by him. After a while Mr S. had signalled his readiness to confess. He had been taken to the office next door, where a young man in civilian clothes had written down his statements. Thereafter, Mr S. had been locked in the basement cell of the police station. Switching back to author’s speech, the applicant introduced Mr M., a friend of Mr S., who had gone to the police station to confirm Mr S.’s alibi. With the words “Let us give [M.] the floor”, the story continued as narrated by Mr M.: “At the Leninskiy District police station they took me into office no. 18 on the second floor. The interview was conducted by the investigator G[.], a tall athletic man with red hair. – Where is the snatch? – What snatch? – ...Your friends have already confessed. You are the ‘weak link’. You are an ‘MDP’ – a morally degraded person... He began beating me. Every word was followed by a blow... – Where is the loot? You will tell me! I am a paratrooper. I used to crush people like you and I will do the same to you! Ever heard about disappearances? You will be one of them if you do not give back the loot! ...I heard that if the police accidentally break the leg or arm [of a detainee], operational officers have to finish the victim off and secretly bury him so as to hide the traces of torture... G[.] says: ‘Stop talking like a parrot. Counsel, counsel... Counsel will be at trial, but now you are under pre-trial investigation. Take him to the cell where the faggots are! They are hungry, let them explain to him what he is.’ But he did not hit me. Just banged his fist on the table. As if they started to realise that they had made a mistake and were at a loss what to do next.” (emphasis added, see below). 9. In the conclusion the applicant quoted from a medical report which noted multiple bruises and abrasions on Mr S.’s body. He criticised the passive attitude of supervising prosecutors who had refused to initiate a criminal case against Mr G. and the other police officers, and noted that the prosecutors’ refusals were being appealed against to a court. The real perpetrator had later been identified and convicted of the theft. 10. The senior operational officer of the Leninskiy District police station, Mr G. sued the applicant and the newspaper’s founder for defamation before the Leninskiy District Court of Orsk. Considering that the extracts in bold above were untrue and damaging to his honour, dignity and professional reputation, he sought compensation for non-pecuniary damage and legal costs. He denied that he had ever used violence against Mr S. or Mr M. 11. The applicant maintained that the contested extracts had been a verbatim reproduction of the personal stories of Mr S. and Mr M. and represented their value judgments on these events. He had acted in good faith and verified that neither Mr S. nor Mr M. had a reason to slander or denigrate Mr G. The extracts either did not refer to Mr G. personally (such as “they reeked of fresh alcohol...”) or did not contain any information damaging to his reputation (such as the statement about him being a paratrooper). The applicant produced in evidence a dictaphone recording of his conversation with Mr S., when Mr M. had been also present. He also relied on the medical report noting Mr S.’s injuries, on the records of the confessions made by Mr S. and Mr M. at the Leninskiy District police station, and on their complaints about ill-treatment lodged with the prosecutor’s office. 12. The District Court took oral evidence from Mr S. and Mr M. Mr S. confirmed the accuracy of the story as reproduced in the article. Responding to questions from both parties, he testified that police officers but not Mr G. had reeked of alcohol, that he had been tied to a chair, that Mr G. had indeed warned them against staining his table, that Mr G. had not used violence against him but had been “merely present”. Mr M. also confirmed his story as narrated in the article. 13. On 29 April 2003 the Leninskiy District Court of Orsk granted Mr G.’s action in part. It noted firstly that the applicant and the newspaper could not claim an exemption from liability for defamation on the ground that they had merely reproduced statements made by others, because no such exemption was provided for in the Mass Media Act. Accordingly, they were required to prove the accuracy of the contested statements. However, in the District Court’s view, neither the medical reports noting injuries on Mr M.’s and Mr S.’s bodies, nor their interview records, nor their oral testimony could be considered relevant evidence or proof of the truthfulness of the allegations that Mr G. had tortured them or made intimidating remarks. Furthermore, “...it follows from S[.]’s oral testimony that G[.] had not been in an inebriated state during the interview, that he had not suggested using a gas mask, that he had not resorted to physical violence and that S[.] had not told [the applicant] about that. A comparison of the dictaphone recording of S[.]’s story with the narrative in the article leads to the conclusion that the events were retold in the article in a different chronological order and that the author creatively rewrote S.’s statements, increasing the emotional intensity and emphasising G[.]’s leading part in the use of violence towards the detainees.” 14. The District Court, however, accepted that the statement about Mr G.’s being a paratrooper was not damaging to his reputation and that Mr M.’s statement about the victims being “finished off” by the police did not concern Mr G. personally. The remaining extracts were found damaging to his reputation and liable to rectification. 15. The District Court awarded Mr G. 2,000 Russian roubles (about 70 euros) and legal costs against the applicant. 16. On 31 July 2003 the Orenburg Regional Court, on an appeal by the applicant and the newspaper, upheld the judgment. 17. Article 152 of the Civil Code provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. 18. Article 1100 provides that compensation for non-pecuniary damage is payable irrespective of the tortfeasor’s fault if damages were sustained through dissemination of information damaging dignity, honour or reputation.

train

001-76989

ENG

TUR

CHAMBER

CASE OF MÜRVET FİDAN AND OTHERS v. TURKEY

Violation of P1-1;Not necessary to examine under Art. 6-1;Remainder inadmissible;Pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings

5. All of the applicants live in Baskil, Turkey. 6. On 19 July 1993 each of them brought separate actions before the Baskil Civil Court against the National Water Board. They alleged that their plots of land were illegally seized by the administration for a dam construction without any payment, and requested compensation. 7. On 18 November 1993 the court ruled that the cases should be characterised as compensation claims arising from de facto expropriations rather than claims for illegal seizures. The court established that a committee of experts had assessed the value of the expropriated land in advance and that the authorities had paid the resulting amounts to the owners registered in the local land registry. The court ordered the administration to pay the applicants an amount of increased compensation, plus interest at the statutory rate, starting from 1986 when the land was submerged in the waters of the dam. 8. On 6 October 1994 the Court of Cassation quashed these judgments, holding that the cases could not be characterised as compensation claims arising from expropriation. Upon the applicants' request, however, the Court of Cassation reversed its decision and held, on 10 March 1995, that the cases could in fact be characterised as compensation claims arising from expropriation. It proceeded to quash the judgments of the first-instance court only in respect of the date from which the statutory rate of interest began to run. 9. By decisions of 21 December 1995 and 25 January 1986, the Baskil Civil Court ordered the administration to pay the applicants a certain amount of compensation, plus interest running from 1986, despite the earlier rulings of the Court of Cassation regarding the starting date from which interest was to be calculated. 10. On 20 November 1996 the Plenary Court of Cassation quashed the judgments of the Baskil Civil Court. The same court rejected the applicants' rectification request on 2 May 1997. 11. On 9 October 1997 the Baskil Civil Court ordered the administration to pay the applicants 315,650,000, 297,439,800, 265,571,250, 404,680,000 and 708,190,000 Turkish liras (TRL) respectively, plus interest at the statutory rate running from 19 August 1993, the date on which the land was transferred to the National Water Board. 12. On 17 March 1998 the Court of Cassation upheld these judgments. On 2 April 1998 the Court of Cassation's rulings were served on the applicants. 13. On 9 December 1998 the administration paid TRL 934,027,000 to Ms Mürvet Fidan, 884,579,000 TRL to Mr Murat Fidan, TRL 790,746,000 to Mr Hikmet Fidan, TRL 1,190,092,000 to Ms Zehra Fidan and TRL 2,041,230,000 to Ms Elif Özbilge. 14. The relevant domestic law and practice are set out in the Akkuş v. Turkey judgment of 9 July 1997 (Reports of Judgments and Decisions 1997IV).

train

001-60914

ENG

ITA

CHAMBER

CASE OF CORDOVA v. ITALY (No. 2) [Extracts]

Violation of Art. 6-1;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Christos Rozakis

9. The applicant was born in 1936 and lives in Naples. 10. In 1993 he worked as a prosecutor at the Palmi public prosecutor's office. 11. At an election meeting in Palmi on 13 March 1994, Mr Vittorio Sgarbi, a member of the Italian parliament, made the following speech: “I had heard of Palmi because of the misdeeds of a prosecutor called Cordova, who gave it its only claim to fame with the inquisition he conducted and is still conducting there, while being defamatory of the South. I will pursue my fight against those judges who are in cahoots [collusi] with the [political] parties, who just want to wage political battles instead of defending justice. ... I remember something unacceptable ...: out of a delusion of omnipotence and wish to dominate, this prosecutor sent two carabinieri ... to seize the membership lists of the Rotary Club. Bugger off, Cordova, bugger off [vaffanculo Cordova, vaffanculo]! You should not tolerate a judge spending your money for his own greater glory, just to assert himself.” 12. At a second meeting, which took place in Palmi on 6 June 1994, Mr Sgarbi made another speech, the following extracts of which are relevant to the present case: “The first town in Italy to do so, Palmi nominated a candidate for the 'Miss Italia' competition, thus creating a contrast with that ugly mug Cordova, who has brought a complaint against me ... You know there are some complaints I am proud of, but I simply said something about this Mr Cordova which he knows is true, that he is nicknamed 'bulldog' [mastino]; and I said he looked so much like an actor that he could play both the policeman and the police dog, and he brought a complaint against me; I thought he didn't have much of a sense of humour, but I'm not worried about the complaint, because if someone is happy to be nicknamed 'bulldog', and he really looks a bit like one, it's hard to understand why he gets annoyed over one of my jokes; but, to show how the national legal service take advantage of their power, he has brought a complaint against me, and I've even been sent for trial.” 13. As he considered that his honour and his reputation had been attacked by Mr Sgarbi's remarks, the applicant lodged a complaint for aggravated defamation. 14. By an order of 15 December 1994, the Palmi public prosecutor's office committed Mr Sgarbi for trial before the Palmi District Court and set the hearing date for 6 March 1995. On the latter date the applicant joined the proceedings as a civil party. 15. In a judgment dated 6 March 1995, the text of which was lodged with the registry on 6 June 1995, the District Court gave Mr Sgarbi a suspended sentence of two months' imprisonment, and ordered him to compensate the applicant for the damage suffered, with quantum to be determined at a civil trial. It also awarded the applicant an immediate payment of 20,000,000 Italian lire (roughly 10,329 euros) to be offset against the total award of damages. 16. The District Court began by stating that it had not considered it necessary to stay the proceedings in order to seek the opinion of the Chamber of Deputies. It was clear simply on reading the charges that the remarks in issue had not been made in the exercise of parliamentary functions; they were therefore not protected by the constitutional safeguard of parliamentary immunity (Article 68 § 1 of the Constitution). In relation to the merits of the case, the District Court observed that, leaving aside the plainly vulgar and insulting expressions (the word “vaffanculo” in particular), Mr Sgarbi's allegations tended to depict the applicant as a self-regarding prosecutor who used his office and public money exclusively in pursuit of his own greater glory, and who did not serve the interests of justice but those of certain political parties. In the circumstances, there could be no doubt that Mr Sgarbi's allegations were defamatory. Although, like any other citizen, he was entitled to criticise a member of the national legal service, he should do so in polite terms and refer to objective and precise facts, which he had not done. On the contrary, Mr Sgarbi had started a personal quarrel by alleging, in an entirely unspecific and unjustified manner, that the applicant had behaved unethically. 17. Mr Sgarbi appealed against that judgment. He applied for the proceedings to be stayed and the file to be remitted to the Chamber of Deputies. That application was founded on Article 2 § 4 of Legislative Decree no. 116 of 1996 (as then in force), under which if a court rejects a defence based on the applicability of Article 68 § 1 of the Constitution pleaded by one of the parties, it is required immediately to forward a copy of the file to the legislative chamber to which the parliamentarian belongs. Once the file has been forwarded the proceedings are thereby stayed until the legislative chamber concerned has debated the issue. Such a stay may on no account last for more than a total of one hundred and twenty days. 18. By a judgment of 28 March 1996, the Reggio di Calabria Court of Appeal upheld the first-instance decision. In relation to the application for a stay, it observed that the District Court had already remitted the file to the Chamber of Deputies, which had thus had an opportunity to debate the question of the applicability of Article 68 § 1 of the Constitution. Moreover, the statutory time-limit of one hundred and twenty days had long since expired. 19. Mr Sgarbi appealed on points of law. 20. By an order of 23 October 1996, the Court of Cassation stayed the proceedings and ordered the file to be remitted to the Chamber of Deputies. The question was first examined by the Immunities Commission (Giunta per le autorizzazioni a procedere), which proposed a finding that the facts on the basis of which Mr Sgarbi had been tried did not concern opinions expressed in the exercise of his functions, and that Article 68 of the Constitution was therefore not applicable. 21. On 22 October 1997, after a debate on the issue, the Chamber of Deputies in plenary session rejected the Immunities Commission's proposal by 197 votes to 154, with 60 abstentions. 22. In a written submission dated 26 February 1998, the applicant, considering that the decision of the Chamber of Deputies had wrongly encroached on the jurisdiction of the courts, requested the Court of Cassation to raise a conflict of State powers before the Constitutional Court. 23. By a judgment of 6 May 1998, the text of which was lodged with the registry on 17 July 1998, the Court of Cassation quashed the judgments of the Reggio di Calabria Court of Appeal and the Palmi District Court, declaring them null and void on the ground that the accused had been acting in the exercise of his parliamentary functions. 24. The Court of Cassation observed that two interests enshrined in the Constitution were in conflict: on the one hand, the autonomy and independence of Parliament, and, on the other, the right of all citizens to ask the courts to uphold their right to have their reputation protected. A resolution by which a legislative chamber recognised that a certain act or statement was covered by Article 68 § 1 of the Constitution halted all criminal, civil or administrative proceedings against the parliamentarian responsible for that act or statement, and therefore resulted in the first interest prevailing over the second. Such resolutions could not be quashed by the ordinary courts. However, the courts could raise a conflict of State powers before the Constitutional Court if they considered that, in the particular circumstances of a given case, Parliament had wrongly exercised its powers, arbitrarily encroaching on and restricting the institutional jurisdiction of the courts. 25. In the opinion of the Court of Cassation, the resolution of the Chamber of Deputies of 22 October 1997 had been neither arbitrary nor manifestly unreasonable. Although it had widened the protection afforded by Article 68 § 1 of the Constitution to cover views expressed outside the ambit of parliamentary activities in the strict sense, a broad interpretation of the concept of “parliamentary functions” encompassing all politically inspired acts, even those occurring outside Parliament, had often been adopted in the past, and was not per se manifestly contrary to the spirit of the Constitution. The Chamber of Deputies had thus been entitled to opt for such an interpretation without thereby exceeding its powers. Accordingly, the Court of Cassation considered it unnecessary to raise a conflict of powers before the Constitutional Court and quashed Mr Sgarbi's conviction. ... [The relevant domestic law and practice are set out in Cordova v. Italy (no. 1), also reported in this volume]

train

001-99015

ENG

DEU

GRANDCHAMBER

CASE OF GÄFGEN v. GERMANY

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);No violation of Art. 6-1 and 6-3

Anatoly Kovler;Christos Rozakis;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Luis López Guerra;Margarita Tsatsa-Nikolovska;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Sverre Erik Jebens;Volodymyr Butkevych;Zdravka Kalaydjieva

9. The applicant was born in 1975 and is currently detained in Schwalmstadt Prison, Germany. 10. J. was the youngest son of a banking family in Frankfurt am Main. He got to know the applicant, a law student, as an acquaintance of his sister. 11. On 27 September 2002 the applicant lured J., aged 11, into his flat in Frankfurt am Main by pretending that the child’s sister had left a jacket there. He then killed the boy by suffocating him. 12. Subsequently, the applicant deposited a ransom note at J.’s parents’ place of residence stating that J. had been kidnapped and demanding one million euros. The note further stated that if the kidnappers received the ransom and managed to leave the country, then the child’s parents would see their son again. The applicant then drove to a pond located on a private property near Birstein, approximately one hour’s drive from Frankfurt, and hid J.’s corpse under a jetty. 13. On 30 September 2002 at around 1 a.m. the applicant picked up the ransom at a tram station. From then on he was under police surveillance. He paid part of the ransom money into his bank accounts and hid the remainder of the money in his flat. That afternoon, he was arrested at Frankfurt am Main airport with the police pinning him face down on the ground. 14. After having been examined by a doctor at the airport’s hospital on account of shock and skin lesions, the applicant was taken to the Frankfurt am Main police headquarters. He was informed by detective officer M. that he was suspected of having kidnapped J. and was instructed about his rights as a defendant, notably the right to remain silent and to consult a lawyer. He was then questioned by M. with a view to finding J. Meanwhile, the police, having searched the applicant’s flat, found half of the ransom money and a note concerning the planning of the crime. The applicant intimated that the child was being held by another kidnapper. At 11.30 p.m. he was allowed to consult a lawyer, Z., for thirty minutes at his request. He subsequently indicated that F.R. and M.R. had kidnapped the boy and had hidden him in a hut by a lake. 15. Early in the morning of 1 October 2002, before M. came to work, Mr Daschner (“D.”), deputy chief of the Frankfurt police, ordered another officer, Mr Ennigkeit (“E.”), to threaten the applicant with considerable physical pain, and, if necessary, to subject him to such pain in order to make him reveal the boy’s whereabouts. D.’s subordinate heads of department had previously and repeatedly opposed such a measure (see also paragraph 47 below). Detective officer E. thereupon threatened the applicant with subjection to considerable pain at the hands of a person specially trained for such purposes if he did not disclose the child’s whereabouts. According to the applicant, the officer further threatened to lock him in a cell with two huge black men who would sexually abuse him. The officer also hit him several times on the chest with his hand and shook him so that, on one occasion, his head hit the wall. The Government disputed that the applicant had been threatened with sexual abuse or had been physically assaulted during the questioning. 16. For fear of being exposed to the measures he was threatened with, the applicant disclosed the whereabouts of J.’s body after approximately ten minutes. 17. The applicant was then driven with M. and numerous other police officers to Birstein. He had refused to go with detective officer E. The police waited for a video camera to be brought to the scene. Then, the applicant, on the communicated order of the police officer in command and while being filmed, pointed out the precise location of the body. The police found J.’s corpse under the jetty at the pond near Birstein as indicated by the applicant. The applicant claimed that he had been obliged to walk without shoes through woods to where he had left the corpse and, on the orders of the police, he had had to point out its precise location. The Government disputed that the applicant had had to walk without shoes. 18. Upon forensic examination of the scene, the police discovered tyre tracks left by the applicant’s car near the pond near Birstein. Under questioning by detective officer M. on the return journey from Birstein the applicant confessed to having kidnapped and killed J. He was then taken by the police to various other locations indicated by him where they secured J.’s school exercise books, a backpack, J.’s clothes and a typewriter used for the blackmail letter in containers. An autopsy carried out on J.’s corpse on 2 October 2002 confirmed that J. had died of suffocation. 19. Having returned to the police station, the applicant was then permitted to consult his lawyer, En., who had been instructed to act on his behalf by his mother and who had tried, in vain, to contact and advise the applicant earlier that morning. 20. In a note for the police file dated 1 October 2002, the deputy chief of the Frankfurt police, D., stated that he believed that that morning J.’s life had been in great danger, if he was still alive at all, given his lack of food and the temperature outside. In order to save the child’s life, he had therefore ordered the applicant to be threatened by detective officer E. with considerable pain which would not leave any trace of injury. He confirmed that the treatment itself was to be carried out under medical supervision. D. further admitted that he had ordered another police officer to obtain a “truth serum” to be administered to the applicant. According to the note, the threat to the applicant was exclusively aimed at saving the child’s life rather than furthering the criminal proceedings concerning the kidnapping. As the applicant had disclosed the whereabouts of J.’s body, having been threatened with pain, no measures had in fact been carried out. 21. A medical certificate issued by a police doctor on 4 October 2002 confirmed that the applicant had a haematoma (7 cm x 5 cm) below his left collarbone, skin lesions and blood scabs on his left arm and his knees and swellings on his feet. A further medical certificate dated 7 October 2002 noted that, following an examination of the applicant on 2 October 2002, two haematomas on the left-hand side of the applicant’s chest of a diameter of around 5 cm and 4 cm were confirmed, together with superficial skin lesions or blood scabs on his left arm, his knees and his right leg and closed blisters on his feet. According to the certificate, these discreet traces of injuries indicated that the injuries had been caused a few days before the examination. The precise cause of the injuries could not be diagnosed. 22. During subsequent questioning by the police on 4 October 2002, by a public prosecutor on 4, 14 and 17 October 2002, and by a district court judge on 30 January 2003 the applicant confirmed the confession he had made on 1 October 2002. 23. In January 2003 the Frankfurt am Main public prosecutor’s office opened criminal investigation proceedings against the deputy chief of the Frankfurt police, D., and detective officer E. on the basis of the applicant’s allegations that he had been threatened on 1 October 2002. 24. On 9 April 2003, the first day of the hearing, the applicant, represented by counsel, lodged a preliminary application for the proceedings to be discontinued. The basis of his claim was that during interrogation and prior to confessing he had been threatened by detective officer E. with being subjected to severe pain and sexual abuse. He argued that this treatment had been in breach of Article 136a of the Code of Criminal Procedure (see paragraph 61 below) and Article 3 of the Convention and warranted the discontinuation of the proceedings against him. 25. The applicant also lodged an alternative preliminary application seeking a declaration that, owing to the continuous effect (Fortwirkung) of the threat of violence against him on 1 October 2002, all statements which he had made to the investigation authorities should not be relied upon in the criminal proceedings. Moreover, the applicant sought a declaration that on account of the violation of Article 136a of the Code of Criminal Procedure, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities because of the confession extracted – the so-called “fruit of the poisonous tree” – was prohibited (Fernwirkung). 26. On 9 April 2003, in response to the first preliminary application, the Frankfurt am Main Regional Court dismissed the applicant’s application for the discontinuation of the criminal proceedings. The court noted that in the applicant’s submission, detective officer E. had threatened that a specialist was on his way to the police station by helicopter who, without leaving any traces, would inflict on him intolerable pain the likes of which he had never before experienced, if he continued to refuse to disclose J.’s whereabouts. To underpin the threat, E. had imitated the sound of the rotating blades of a helicopter. E. had further threatened that the applicant would be locked up in a cell with two big “Negroes” who would anally assault him. He would wish that he had never been born. The court found as a fact that the applicant had been threatened with the infliction of considerable pain if he refused to disclose the victim’s whereabouts. However, the court did not find it established that the applicant had also been threatened with sexual abuse or had been otherwise influenced. The threat to inflict pain upon the applicant had been illegal pursuant to Article 136a of the Code of Criminal Procedure, and also pursuant to Article 1 and Article 104 § 1 of the Basic Law (see paragraphs 59-60 below) and in violation of Article 3 of the Convention. 27. However, notwithstanding this breach of the applicant’s constitutional rights, the court found that the criminal proceedings were not, in consequence, barred and could proceed. It found that the use of the investigation methods in question, though prohibited in law, had not so restricted the rights of the defence that the criminal proceedings could not be pursued. In view of the seriousness of the charges against the applicant on the one hand, and the severity of the unlawful conduct during investigation on the other, there had not been such an exceptional and intolerable violation of the rule of law as to bar the continuation of the criminal proceedings. 28. In response to the applicant’s second preliminary application, the Frankfurt am Main Regional Court found that, in accordance with Article 136a § 3 of the Code of Criminal Procedure, all confessions and statements hitherto made by the applicant before the police, a public prosecutor and a district court judge were inadmissible as evidence in the criminal proceedings because they had been obtained through the use of prohibited methods of interrogation. 29. The court found that on 1 October 2002 detective officer E. had used prohibited methods of interrogation within the meaning of Article 136a § 1 of the Code of Criminal Procedure by threatening the applicant with intolerable pain if he did not disclose the child’s whereabouts. Therefore, any statements which the applicant had made as a consequence of this forbidden investigative measure were inadmissible as evidence. This exclusion of evidence (Beweisverwertungsverbot) did not only comprise the statements made immediately after the unlawful threat. It covered all further statements which the applicant had made to the investigation authorities since that date in view of the continuous effect of the violation of Article 136a of the Code of Criminal Procedure. 30. The procedural irregularity caused by the use of a prohibited method of investigation could only have been remedied if the applicant had been informed before his subsequent questioning that his earlier statements made as a consequence of the threat of pain could not be used as evidence against him. However, the applicant had only been instructed about his right not to testify, without having been informed about the inadmissibility of the evidence that had been improperly obtained. He had therefore not been given the necessary “qualified instruction” (qualifizierte Belehrung) before making further statements. 31. However, the court limited the inadmissible evidence to the above-mentioned statements. It went on to dismiss the applicant’s application for a declaration that, on account of the prohibited investigation methods, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities as a consequence of the statements extracted from the applicant ought to be excluded from trial (Fernwirkung). The court found as follows: “... there is no long-range effect of the breach of Article 136a of the Code of Criminal Procedure meaning that the items of evidence which have become known as a result of the statement may likewise not be used [as evidence]. The Chamber agrees in this respect with the conciliatory view (Mittelmeinung’s fundamental rights – in the present case the threat of physical violence – and the seriousness of the offence he was charged with and which had to be investigated – the completed murder of a child – makes the exclusion of evidence which has become known as a result of the defendant’s statement – in particular the discovery of the dead child and the results of the autopsy – appear disproportionate.” 32. Following the above ruling on the applicant’s preliminary applications lodged on the opening day of the trial, the proceedings continued. The next day, in his statement on the charges, the applicant admitted having killed J., but stated that he had not initially intended to do so. His defence counsel submitted that by confessing, the applicant wanted to take responsibility for his offence notwithstanding the interrogation methods used on 1 October 2002. As the trial proceeded, all further items of evidence found as a consequence of the applicant’s original statement and which the applicant sought to have excluded were adduced. At the close of the trial on 28 July 2003 the applicant admitted that he had also intended from the outset to kill the child. He described his second confession as “the only way to accept his deep guilt” and as the “greatest possible apology for the murder of the child”. 33. On 28 July 2003 the Frankfurt am Main Regional Court convicted the applicant, inter alia, of murder and kidnapping with extortion causing the death of the victim. It sentenced him to life imprisonment and declared that his guilt was of particular gravity, warranting a maximum sentence (see paragraph 63 below). 34. The court found that at the hearing the applicant had been instructed anew about his right to remain silent and about the fact that none of his earlier statements could be used as evidence against him and had thereby been given the necessary qualified instruction. However, the applicant had, following the qualified instruction, confessed that he had kidnapped and killed J. His statements at the trial concerning the planning of his offence formed the essential, if not the only, basis for the court’s findings of fact. They were corroborated by the testimony of J.’s sister, the blackmail letter and the note concerning the planning of the crime found in the applicant’s flat. The findings of fact concerning the execution of the crime were exclusively based on the applicant’s confession at the trial. Further items of evidence showed that he had told the truth also in this respect. These included the findings of the autopsy as to the cause of the child’s death, the tyre tracks left by the applicant’s car near the pond where the child’s corpse had been found, and the discovery of money from the ransom which had been found in his flat or paid into his accounts. 35. In assessing the gravity of the applicant’s guilt, the court observed that he had killed his 11-year-old victim and demanded one million euros in ransom in order to preserve his self-created image of a rich and successful young lawyer. It did not share the views expressed by the public prosecutor’s office and the private accessory prosecutors that the applicant’s confession “was worth nothing” as the applicant had only confessed to what had in any event already been proven. The fact that the applicant had volunteered a full confession at the trial, even though all his earlier confessions could not be used as evidence pursuant to Article 136a § 3 of the Code of Criminal Procedure, was a mitigating factor. However, even without his confession, the applicant would have been found guilty of kidnapping with extortion causing the death of the victim. The applicant had been kept under police surveillance after he had collected the ransom, which had later been found in his flat or paid into his accounts. Furthermore, it had been proved by the autopsy on J.’s corpse that the boy had been suffocated, and tyre tracks left by the applicant’s car had been detected at the place where J.’s body had been found. 36. The court further observed that in questioning the applicant, methods of interrogation prohibited under Article 136a of the Code of Criminal Procedure had been employed. Whether and to what extent detective officer E. and the deputy chief of the Frankfurt police, D., were guilty of an offence because of these threats had to be determined in the criminal investigations then pending against them. However, their allegedly illegal acts did not mitigate the applicant’s own guilt. The misconduct of police officers, belonging to the executive power, could not prevent the judiciary from assessing findings of fact in accordance with the law. 37. On the day following his conviction, the applicant lodged an appeal on points of law with the Federal Court of Justice. He complained that the Regional Court, in its decision of 9 April 2003, had refused his preliminary application to discontinue the criminal proceedings against him. It had further refused to declare that the use in the criminal proceedings of all other items of evidence, such as the child’s corpse, which had become known to the investigation authorities because of the statements unlawfully extracted was prohibited. The applicant included a full copy of these applications of 9 April 2003, including the grounds given for them. He further included a copy of the Regional Court’s decision of 9 April 2003 dismissing his application for the proceedings to be discontinued and argued in respect of the police’s threats of torture against him that, developing the case-law of the Federal Court of Justice, such conduct “leapt beyond” the exclusion of evidence and led to an impediment to the proceedings (dass ein derartiges Verhalten das Verwertungsverbot “überspringt” und ein Verfahrenshindernis begründet). 38. In his observations dated 9 March 2004 the Federal Public Prosecutor objected that the applicant’s appeal on points of law was manifestly ill-founded. He argued that the use of prohibited methods of interrogation did not lead to an impediment to the criminal proceedings. Article 136a of the Code of Criminal Procedure expressly provided that the use of any of the prohibited methods enumerated entailed only the exclusion of evidence. The applicant had not complained of a breach of Article 136a § 3 of the Code of Criminal Procedure. In any event, there would be no grounds for such a complaint as the Regional Court had only used the applicant’s confession at the trial, which he had made after having been informed that his previous statements had not been admitted as evidence. 39. On 21 May 2004 the Federal Court of Justice, without giving further reasons, dismissed the applicant’s appeal on points of law as ill-founded. 40. On 23 June 2004 the applicant lodged a complaint with the Federal Constitutional Court. Summarising the facts underlying the case and the content of the impugned decisions, he complained under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law about the way in which he had been questioned by the police on the morning of 1 October 2002. He argued that he had been threatened with being subjected to torture and sexual abuse if he did not disclose the child’ 104 § 1 of the Basic Law. It also violated his absolute right to human dignity under Article 1 of the Basic Law, which lay at the heart of the provisions in question. These unjustifiable human rights violations ought to have been a bar to the criminal proceedings for murder and a prohibition on using the evidence obtained as a consequence of the confession extracted from him by means of prohibited measures. 41. On 14 December 2004 the Federal Constitutional Court, sitting as a panel of three judges, held that the applicant’s constitutional complaint was inadmissible. 42. Firstly, in so far as the applicant complained of the failure of the criminal courts to discontinue the proceedings against him, the court found that he had not sufficiently substantiated his complaint. It observed that the Regional Court had already stated that the police’s threat to inflict pain on the applicant had violated Article 136a of the Code of Criminal Procedure and Article 3 of the Convention and that the applicant’s rights under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law had been disregarded. 43. However, the violation of fundamental rights outside the trial did not necessarily warrant the conclusion that the judgment delivered by a criminal court, which was based on the findings made during the trial, breached constitutional law. In the present case, the criminal courts had found that the methods of investigation used by the police had been prohibited, but had differed from the applicant as to the legal consequences that flowed from that finding. They had taken the view that the statements obtained as a result of the measures in question could not be used but that there was no bar to the specific criminal proceedings being pursued. 44. According to the Federal Constitutional Court, the procedural flaw of having used prohibited investigation measures could be regarded as having been remedied by the criminal courts, because they had prohibited the admission of the statements obtained thereby. Such a prohibition was prescribed by Article 136a § 3 of the Code of Criminal Procedure in order to compensate for a prior infringement of the rights of the person concerned. However, the circumstances in which substantial procedural irregularities might entail a bar to criminal proceedings were not laid down in law. In these circumstances, the applicant had failed to explain why the contested methods of investigation had not only required a prohibition on using the statements obtained thereby as evidence, but should also lead to a bar to criminal proceedings against him. 45. Secondly, the Federal Constitutional Court found that, in so far as the applicant complained that the Regional Court had refused to exclude the use in the proceedings of all items of evidence obtained as a result of the confession extracted under duress, his constitutional complaint was likewise inadmissible. It held that the applicant had failed to raise this issue in the proceedings before the Federal Court of Justice. 46. The decision was served on the applicant’s lawyer on 22 December 2004. 47. On 20 December 2004 the Frankfurt am Main Regional Court delivered judgments against the deputy chief of the Frankfurt police, D., and detective officer E. The court found that on the morning of 1 October 2002 D. had ordered that the applicant was to be questioned while being subjected to pain in the manner set out in his subsequent note for the police file (see paragraph 20 above). By doing so, he had acted against the advice of all his subordinate heads of department entrusted with the investigation into J.’s kidnapping. The heads of department had opposed this measure, which D. had previously ordered on the evening of 30 September 2002 and then twice on the morning of 1 October 2002. The heads of department had resisted the orders, proposing instead further questioning and confrontation of the applicant with J.’s family. D. had then issued an order to detective officer E. directing him to comply with his instructions that the applicant should be threatened with torture and, if necessary, subjected thereto. The subjection to pain was to be carried out under medical supervision, without any traces being left, by another specially trained police officer, who would be brought to the police station by helicopter. A police doctor had agreed to supervise the execution of D.’s order. The court noted that the measure had been aimed at finding out where the applicant had hidden J., whose life D. believed was at great risk. Therefore, E. had threatened the applicant in the manner ordered by D. and had also informed him that a “truth serum” would be administered. After approximately ten minutes, the applicant confessed that he had hidden J.’s body under a jetty at a pond near Birstein. 48. The Regional Court observed that the method of investigation had not been justified. It rejected the defence of “necessity” because the method in question violated human dignity, as codified in Article 1 of the Basic Law. Respect for human dignity also lay at the heart of Article 104 § 1, second sentence, of the Basic Law and Article 3 of the Convention. The protection of human dignity was absolute, allowing of no exceptions or any balancing of interests. 49. The Frankfurt am Main Regional Court convicted detective officer E. of coercion committed by an official in the course of his duties. However, in terms of penalty, it cautioned the defendant and imposed a suspended fine of 60 euros (EUR) per diem for 60 days, which the defendant would be required to pay if he committed another offence during the probation period. Furthermore, the court convicted the deputy chief of the Frankfurt police, D., of having incited E., a subordinate, to commit coercion in the course of his duties. It also cautioned D. and imposed on him a suspended fine of EUR 120 per diem for 90 days. The applicant had given evidence as a witness in these proceedings. 50. In determining the sentences, the Regional Court considered that there were significant mitigating factors to be taken into account. It took into consideration that the defendants’ sole concern had been to save J.’s life and that they had been under extreme pressure because of their respective responsibilities vis-à-vis the superior authority and the public. They had been exhausted at the relevant time and had acted in a very tense and hectic situation. They did not have any previous convictions. Moreover, D. had taken responsibility for his acts by admitting and explaining them in a note for the police file on the same day. The proceedings had lasted a long time and had attracted immense media attention. The defendants had suffered prejudice in their professional career: D. had been transferred to the Hessian Ministry of the Interior, and E. had been prohibited from acting in the prosecution of criminal offences. Furthermore, it was the first time that a conflict situation such as the one in the defendants’ case had been assessed by a German criminal court. The court took into consideration as aggravating factors that D. had not acted spontaneously as he had already directed the use of force on the evening before he had given the order to E. Moreover, by their acts, the defendants had risked compromising the applicant’s conviction for murder. The court further found that the preservation of the legal order did not warrant the enforcement of the fines imposed. Through the defendants’ criminal conviction it had been made clear that an order by a State agent to use force to obtain information was illegal. 51. The judgment became final on 20 December 2004. 52. Subsequently, D. was appointed chief of the Police Headquarters for Technology, Logistics and Administration. 53. On 28 December 2005 the applicant applied to the Frankfurt am Main Regional Court for legal aid for bringing official liability proceedings against the Land of Hesse for the payment of compensation. He claimed that he had been traumatised and in need of psychological treatment because of the methods deployed during the police investigation. 54. In its submissions dated 27 March 2006 the Frankfurt am Main police headquarters contested that E.’s conduct when questioning the applicant in the morning of 1 October 2002 was to be legally classified as coercion and amounted to a breach of official duties. 55. On 28 August 2006 the Frankfurt am Main Regional Court dismissed the applicant’s application for legal aid and the applicant appealed. 56. On 28 February 2007 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed, in particular, that police officers D. and E., when threatening the applicant, had infringed human dignity, which was inviolable, and had thus breached their official duties. However, the applicant would face difficulties establishing causation between the threats of torture and alleged mental damage allegedly necessitating psychological treatment. The officers’ threat was negligible compared to the traumatisation caused by the fact of having killed a child. Moreover, even assuming that the applicant would be able to prove that detective officer E. had shaken him, causing him to hit his head against a wall, or had once hit him on the chest, allegedly causing a haematoma, such physical damage would be too minor to necessitate the payment of compensation. Furthermore, the violation of his human dignity by the threat of torture did not warrant the payment of compensation since the applicant had obtained sufficient satisfaction for this by the exclusion of his statements as evidence and the criminal conviction of the police officers. 57. On 19 January 2008 the Federal Constitutional Court, allowing a constitutional complaint by the applicant, quashed the Court of Appeal’s decision and remitted the case to that court. It found that in refusing to grant the applicant legal aid, the Court of Appeal had violated the principle of equal access to court. In particular, that court had speculated that the applicant would not be able to prove that the threat to torture him had led to mental damage. In addition to that, it was not obvious that the physical injuries the applicant claimed to have suffered in the course of the interrogation, during which he had been handcuffed, could be considered to be of minor importance. Moreover, the question whether the violation of the applicant’s human dignity necessitated the payment of damages despite the satisfaction he had already obtained was a difficult legal question on which no precedent existed in a judgment of a court of final instance. It should, therefore, not be determined in an application for legal-aid proceedings. 58. The remitted proceedings are still pending before the Frankfurt am Main Regional Court. 59. Article 1 § 1 of the Basic Law, on the protection of human dignity, reads as follows: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all State authorities.” 60. Article 104 § 1, second sentence, of the Basic Law, on the rights of persons in detention, provides: “Persons taken into custody may not be subjected to mental or to physical ill-treatment.” 61. Article 136a of the Code of Criminal Procedure, on prohibited methods of interrogation (verbotene Vernehmungsmethoden), provides: “1. The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception or hypnosis. Coercion may be used only in so far as it is permitted by the law on criminal procedure. Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited. 2. Measures which impair the accused’s memory or ability to understand and accept a given situation [Einsichtsfähigkeit] shall not be permitted. 3. The prohibition under sub-paragraphs 1 and 2 shall apply even if the accused has consented [to the proposed measure]. Statements obtained in breach of this prohibition shall not be used [in evidence], even if the accused has agreed to their use.” 62. According to Article 211 of the Criminal Code, the intentional killing of a person is to be classified as murder if certain aggravating elements are present such as cupidity, treachery or intent to cover up another offence. Murder is punishable by life imprisonment. 63. A declaration by the sentencing court that the defendant’s guilt is of a particular gravity may, inter alia, have a bearing on a subsequent decision regarding suspension of the latter part of the defendant’s prison sentence on probation. Article 57a of the Criminal Code states that the court is to suspend the remainder of a life sentence on probation if the convicted person has served fifteen years of his sentence, provided that this can be justified in the interests of public security and the particular gravity of the defendant’s guilt does not warrant the continued execution of the sentence. 64. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the United Nations Convention against Torture”), which was adopted by the United Nations General Assembly on 10 December 1984 (Resolution 39/46) and which came into force on 26 June 1987, provides: “1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person 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, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. ...” “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” “1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment. ...” 65. Several institutions which monitor observance of the prohibition of torture and of other inhuman or degrading treatment have addressed the question of the scope of that prohibition in the context of threats of subjecting a person to physical harm. 66. The Inter-American Court of Human Rights, in its judgment of 27 November 2003 (Merits, Reparations and Costs) in the case of Maritza Urrutia v. Guatemala (Series C No. 103), found: “85. With regard to the treatment that the State officials afforded to Maritza Urrutia while she was unlawfully and arbitrarily detained, the court has considered proven that the alleged victim’s head was covered by a hood, she was kept handcuffed to a bed, in a room with the light on and the radio at full volume, which prevented her from sleeping. In addition, she was subjected to very prolonged interrogations, during which she was shown photographs of individuals who showed signs of torture or had been killed in combat and she was threatened that she would be found by her family in the same way. The State agents also threatened to torture her physically or to kill her or members of her family if she did not collaborate. To this end, they showed her photographs of herself and her family and correspondence from her to her former husband ... Lastly, Maritza Urrutia was obliged to film a video, which was subsequently broadcast by two Guatemalan television channels, in which she made a statement against her will, the contents of which she was forced to ratify at a press conference held after her release ... 92. An international juridical regime of absolute prohibition of all forms of torture, both physical and psychological, has been developed and, with regard to the latter, it has been recognised that the threat or real danger of subjecting a person to physical harm produces, under determined circumstances, such a degree of moral anguish that it may be considered ‘psychological torture’. ... ... 98. In light of the foregoing, the court declares that the State violated Article 5 of the American Convention [on Human Rights], in relation to Article 1 § 1 thereof, and the obligations established in Articles 1 and 6 of the Inter-American Convention against Torture, to the detriment of Maritza Urrutia.” 67. The United Nations Special Rapporteur for the Commission on Human Rights found in his report of 3 July 2001 to the General Assembly on the question of torture and other cruel, inhuman or degrading treatment or punishment (UN Doc. A/56/156) as follows: “As stated by the Human Rights Committee in its General Comment No. 20 (10 April 1992), on Article 7 of the International Covenant on Civil and Political Rights, the Special Rapporteur would like to remind governments that the prohibition of torture relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim, such as intimidation and other forms of threats.” (paragraph 3) He pointed out that “the fear of physical torture may itself constitute mental torture” (paragraph 7). Furthermore, the Special Rapporteur was of the opinion that: “... serious and credible threats, including death threats, to the physical integrity of the victim or a third person can amount to cruel, inhuman or degrading treatment or even to torture, especially when the victim remains in the hands of law enforcement officials.” (paragraph 8) 68. The United Nations Human Rights Committee, in its Views adopted on 29 March 1983 in the case of Estrella v. Uruguay (Communication No. 74/1980), found as follows regarding the author of the communication, a concert pianist: “The author was subjected to severe physical and psychological torture, including the threat that the author’s hands would be cut off by an electric saw, in an effort to force him to admit subversive activities.” (paragraph 8.3) The Human Rights Committee held that the author had been subjected to torture in violation of Article 7 of the International Covenant on Civil and Political Rights (ICCPR) (paragraph 10). 69. Materials before the Court show that there is no clear consensus in the States Parties to the Convention on the scope of the exclusionary rule. 70. The United Nations Human Rights Committee stated in its General Comment No. 7 on torture or cruel, inhuman or degrading treatment or punishment (Article 7 of the ICCPR) of 30 May 1982: “1. ... it follows from Article 7, read together with Article 2 of the Covenant, that States must ensure an effective protection through some machinery of control. Complaints about ill-treatment must be investigated effectively by competent authorities. Those found guilty must be held responsible, and the alleged victims must themselves have effective remedies at their disposal, including the right to obtain compensation. Among the safeguards which may make control effective are ... provisions making confessions or other evidence obtained through torture or other treatment contrary to Article 7 inadmissible in court; ...” 71. General Comment No. 7 was replaced by General Comment No. 20 concerning prohibition of torture and cruel treatment or punishment of 10 March 1992. In the latter, it is stated: “12. It is important for the discouragement of violations under Article 7 that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.” 72. The United Nations Committee against Torture, which monitors the implementation of the United Nations Convention against Torture, stated in its Concluding Observations on Germany of 11 May 1998 (UN Doc. A/53/44) as follows: “The Committee recommends that further legislative attention be paid to the strict enforcement of Article 15 of the Convention and that all evidence obtained directly or indirectly by torture be strictly prevented from reaching the cognisance of the deciding judges in all judicial proceedings.” (paragraph 193) 73. The prohibition on using, in any manner prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of State agents (the so-called doctrine of the “fruit of the poisonous tree”) is firmly rooted in the legal tradition of the United States of America (see, for instance, US Supreme Court, no. 82-1651, Nix v. Williams, decision of 11 June 1984, 467 US 431 (1984), pp. 441 et seq.; US Supreme Court, no. 82-5298, Segura v. United States, decision of 5 July 1984, 468 US 796 (1984), pp. 796-97 and 815; and US Supreme Court, no. 07-513, Herring v. United States, decision of 14 January 2009, 555 US ... (2009), part II. A., with further references). The prohibition applies to information obtained from coerced confessions (see, on the issue of coercion, US Supreme Court, no. 50, Blackburn v. Alabama, decision of 11 January 1960, 361 US 199 (1960), pp. 205-07, and US Supreme Court, no. 8, Townsend v. Sain, decision of 18 March 1963, 372 US 293 (1963), pp. 293 and 307-09), meaning that if the confession leads to additional evidence, such evidence is also inadmissible in court in addition to the confession itself (compare Nix, cited above, p. 441, and Segura, cited above, p. 804). The evidence is to be excluded, however, only if the illegality is the proximate cause of the discovery of the evidence. In other words, evidence will be excluded if it can be shown that “but for” the illegal conduct it would not have been found. The exclusionary rule does not apply where the connection between the illegal police conduct and the discovery of the evidence is so remote as to dissipate the taint. This is the case, for example, where the police relied on an independent source to find the evidence (see Nix, cited above, pp. 441-44, and Segura, cited above, pp. 796-97, 804-05 and 815, with further references) or where the evidence would ultimately or inevitably have been discovered even had no violation of any constitutional provision taken place (see Nix, cited above, pp. 441-44). 74. The exclusionary rule is also applied in other jurisdictions. The Supreme Court of Appeal of South Africa found in its recent judgment of 10 April 2008 in the case of Mthembu v. The State, case no. 379/2007, [2008] ZASCA 51 as follows: “Summary: The evidence of an accomplice extracted through torture (including real evidence derived from it) is inadmissible ... ... 33. ... The Hilux and the metal box were real evidence critical to the State’s case against the appellant on the robbery counts. Ordinarily, as I have mentioned, such evidence would not be excluded because it exists independently of any constitutional violation. But these discoveries were made as [a] result of the police having tortured Ramseroop. There is no suggestion that the discoveries would have been made in any event. If they had the outcome of this case might have been different. 34. Ramseroop made his statement to the police immediately after the metal box was discovered at his home following his torture. That his subsequent testimony was given apparently voluntarily does not detract from the fact that the information contained in that statement pertaining to the Hilux and metal box was extracted through torture. ... therefore, there is an inextricable link between his torture and the nature of the evidence that was tendered in court. The torture has stained the evidence irredeemably. ... 36. To admit Ramseroop’s testimony regarding the Hilux and metal box would require us to shut our eyes to the manner in which the police obtained this information from him. More seriously, it is tantamount to involving the judicial process in ‘moral defilement’. This ‘would compromise the integrity of the judicial process (and) dishonour the administration of justice’. In the long term, the admission of torture-induced evidence can only have a corrosive effect on the criminal justice system. The public interest, in my view, demands its exclusion, irrespective of whether such evidence has an impact on the fairness of the trial. 37. For all these reasons I consider Ramseroop’s evidence relating to the Hilux and metal box to be inadmissible. ...”

train

001-97372

ENG

ROU

CHAMBER

CASE OF NICOLESCU TRAIAN-CONSTANTIN v. ROMANIA

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

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

4. The applicant was born in 1929 and formerly lived in Slatina. 5. On 24 October 1991, the Slatina Local Commission responsible for the application of Law 18/1991 (“the local commission”) issued in the applicant's favour an ownership certificate (“adeverinţă de proprietate”) for a plot of land measuring 2.13 hectares located in the city of Slatina, but did not put him into possession of the land. 6. The applicant brought administrative proceedings against the local commission, seeking to take possession of the land granted to him by the ownership certificate. On 19 January 1998, the Olt County Court allowed the action and ordered the local commission to enable him to take possession of the land on the original placement held by his father. That judgment became final. 7. In 2000, the applicant filed another action against the local commission, the Olt County Commission responsible for the application of Law 18/1991 (“the county commission”) and a natural person, D.E., seeking to take possession of the 2.13 hectares of land, to obtain the ownership title for that land and the partial annulment of an ownership title issued in favour of D.E. for the area of 0.75 hectares that should have been restored to him in accordance with the final judgment of 19 January 1998. The District Court of Slatina allowed the action on 12 February 2001. Appeals filed by the commissions and D.E. were dismissed by the Olt County Court on 27 September 2001. By a decision of 2 April 2002, the Craiova Court of Appeal allowed an appeal on points of law filed by the commissions, quashed the decision rendered in appeal and remitted the file to the Olt County Court for a fresh examination of the appeals. The appeals were again dismissed on 4 June 2002. On 23 September 2002, the Craiova Court of Appeal allowed the appeal on points of law filed by the local commission. It partially dismissed the action filed by the applicant with respect to the obligation of the commissions to authorise him to take possession of the land and to issue the ownership title, on the ground that the judgment of 19 January 1998 rendered in his favour had the force of res judicata. 8. By an interlocutory judgment of 2 December 2002, the Slatina District Court allowed the applicant's claim for the payment of 300,000 Romanian lei (ROL) in damages per day of delay until the enforcement of the final judgment of 19 January 1998. 9. In 2003, the applicant filed another action against the local commission seeking to obtain payment by the latter of damages for the loss of profit caused by the non-enforcement of the final judgment of 19 January 1998. On 7 November 2003, the Slatina District Court partially allowed the applicant's claim and awarded him 18,898,880 ROL. The judgment was upheld by Olt County Court on 26 November 2004. 10. On 31 November 2003, the county commission issued two ownership titles, but for other plots of land than those to which the applicant was entitled. The applicant lodged an action seeking to obtain the annulment of the ownership titles and new ownership titles in accordance with the judgment of 19 January 1998, namely on the former placement. During the proceedings, on 6 June 2005, the applicant died and his daughter, Ms Mariana Dinu, expressed her wish to pursue the action. The Slatina District Court allowed the applicant's claim on 31 March 2006. It ordered the county commission to issue on behalf of the applicant's daughter an ownership title for 2.13 hectares of land on the former placements. The judgment became final. 11. Following the judgment of 31 March 2006, the local commission authorised the applicant to take possession of the land, a minute (proces verbal) being drafted to that effect on 3 October 2008. 12. On October 2008, the Slatina City Council forwarded to the Slatina Land Office (Oficiul de Cadastru şi Publicitate Imobiliară) all the documents necessary for the issue of the ownership title in accordance with the judgment of 19 January 1998. 13. The proceedings for the issue of the ownership title are pending. So far the applicant's daughter has not received an ownership title. 14. The relevant domestic law is summarised in the judgments of Sabin Popescu v. Romania (no. 48102/99, §§ 42-46, 2 March 2004) and Drăculeţ v. Romania, no. 20294/02, § 29, 6 December 2007).

train

001-6023

ENG

HRV

ADMISSIBILITY

BAKARIC v. CROATIA

Inadmissible

Georg Ress

The applicant, Josip Bakarić, is a Croatian citizen, born in 1928 and living 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 in the Yugoslav People’s Army (YPA) and in 1983 retired from service. His military pension was assessed according to his rank and years of service and was paid from the Yugoslav Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia. However, on 12 December 1992, the Social Security Fund, Zagreb Office (Republički fond mirovinskog i invalidskog osigurnaja radnika Hrvatske, Područna služba u Zagrebu), assessed the applicant’s pension, as from 1 October 1992, to 63,22 % of the amount he had received in December 1991. After the ensuing applicant’s appeal was dismissed, he instituted proceedings with the Administrative Court (Upravni sud Republike Hrvatske). The applicant claimed that the decisions to decrease his military pension were unlawful and discriminatory and impaired his property rights. The Administrative Court dismissed the applicant’s claim on 17 December 1993. It found that the lower bodies applied the provisions of the laws regulating pension rights of the former YPA officers correctly. They based their decision on the Act of 31 December 1991 which provided that the former YPA officers’ pensions were to be assessed to 63,22 % of what they received in December 1991. Furthermore, the applicant’s property rights were not impaired by the Croatian authorities as the Yugoslav Federal Fund stopped paying the applicant’s pension. The Croatian authorities accepted the payment of his pension according to the relevant provisions of the Acts regulating that matter. The applicant failed to lodge a constitutional complaint against the Administrative Court’s decision. Instead, the applicant challenged the constitutionality of the laws enacted in 1991 and 1992 regulating pension rights of the former YPA officers. On 4 February 1998 the Constitutional Court terminated those proceedings as on 18 October 1993 the Croatian Parliament had passed a new law concerning that matter - the Former YPA Officers Pension Act (Zakon o ostvarivanju prava iz mirovnskog i invalidskog osiguranja pripadnika bivše JNA - Official Gazette no. 96/1993). In the meantime, on 1 February 1994 the applicant lodged another constitutional claim challenging the constitutionality of the above 1993 Act. He complained that the 1993 Act impaired his property rights in that it provided that his military pension be reduced and in that it discriminated against him in so far as pensions of other categories of citizens were not reduced. On 20 January 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) terminated the proceedings concerning the applicant’s claim as on 1 January 1999 new legislation was again enacted regulating pension rights of all Croatian citizens. The relevant provisions of the 1991 Constitutional Act on the Constitutional Court (hereinafter the “1991 Constitutional Court Act” - Ustavni zakon o Ustavnom sudu, Official Gazette 13/1991) read as follows: “Every person has a right to institute proceedings challenging the constitutionality of the laws...” “Each person whose rights have been violated by a decision based on the legislation declared unconstitutional or unlawful may ask the body that took the decision to vary it...” “The Constitutional Court shall terminate proceedings concerning the constitutionality of legislation that has been repealed or brought into line with the Constitution and statute law while those proceedings are pending before the Constitutional Court.” “Every person, who considers that any of his constitutional rights have been violated by a decision of judicial or administrative body or any other body invested with public authority, may lodge a constitutional complaint with the Constitutional Court.” “By a decision accepting a constitutional complaint the Constitutional Court quashes the contested decision and remits a case for re-trial.”

train

001-107251

ENG

TUR

CHAMBER

CASE OF DİNÇER AND OTHERS v. TURKEY

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

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

4. The applicants were born in 1921, 1941, 1946, 1948 and 1946 respectively and lived in Bursa. 5. In 2004 the General Directorate of Highways seized a plot of land belonging to the applicants without any formal expropriation, for the construction of a highway. The applicants brought an action before the Karacabey Civil Court to obtain compensation for the de facto expropriation of their property. They requested 5,500 Turkish liras (TRY) as compensation from the court and reserved their right to increase this claim in due course. 6. On 15 June 2006 the Karacabey Civil Court awarded the applicants TRY 5,500 as compensation for the de facto expropriation of their land, as requested, plus interest. The applicants initiated execution proceedings before the Bursa Execution Office to obtain that amount (file no. 2009/2819). 7. On 13 March 2007 the Court of Cassation upheld the judgment of the first-instance court. 8. The applicants subsequently brought an additional action (“ek dava”) before the Karacabey Civil Court to obtain further compensation for their land in the light of the expert report obtained during the previous proceedings, which had valued the land at a rate higher than that initially requested by them. 9. On 24 May 2007 the Karacabey Civil Court awarded the applicants TRY 372,445.25, plus interest. The applicants initiated another set of execution proceedings before the Bursa Execution Office to obtain the amount awarded (file no. 2007/6190). 10. On 16 October 2007 the Court of Cassation upheld the judgment of the Karacabey Civil Court, however reduced the amount awarded to the applicants to TRY 340,949.81. 11. On 26 March and 13 November 2009 the administration paid TRY 8,925 and 485,173 respectively to the files before the Bursa Execution Office. According to the information provided by the applicants, there has been no debt outstanding in the execution files.

train

001-114269

ENG

HUN

COMMITTEE

CASE OF GUTMAN v. HUNGARY

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)

András Sajó;Paulo Pinto De Albuquerque

4. The applicant was born in 1936 and lives in Budapest. 5. On 14 May 2001 the applicant submitted a request to the Ministry of Youth and Sport concerning Olympic annuity as being the coach of an Olympic medal winner. He was informed that according to the legal regulation in force, he could not request the annuity as it was the medal winner who should make a proposition for the beneficiary of such annuity. In the meanwhile the Ministry established the annuity for another coach. 6. On 16 August 2001 the Public Prosecutor’s Office submitted an objection to the Ministry’s decision on the applicant’s behalf, which was dismissed by the Minister on 6 October 2001. 7. The Prosecutor’s Office sought judicial review of the Minister’s decision before the Budapest Regional Court. The applicant intervened in the proceedings. The Regional Court dismissed the action on 8 January 2003. In the review proceedings the Supreme Court quashed the Minister’s decision and remitted the case to the administrative authority on 1 June 2004. 8. In the resumed proceedings the administrative authorities dismissed the applicant’s request on both levels. The applicant sought judicial review of the Ministry’s decision before the Budapest Regional Court. It dismissed his action on 14 May 2007. 9. The applicant lodged a petition for review with the Supreme Court. Finding that the applicant should have initiated the action against the Minister, it quashed the first-instance judgment and discontinued the proceedings on 25 June 2008. 10. The applicant therefore again initiated the judicial review of the administrative decisions mentioned in paragraph 8 above before the Budapest Regional Court, this time bringing the action against the Minister. His action was finally dismissed by the Supreme Court on 17 November 2010.

train

001-106291

ENG

RUS

ADMISSIBILITY

LADYGIN v. RUSSIA

Inadmissible

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant, Mr Oleg Vyacheslavovich Ladygin, is a Russian national who was born in 1964 and lives in Moscow. On 26 April 2004 the applicant arrived at the Savelovskiy District Court of Moscow to meet with the president of that court. It appears that the applicant attempted to enter the president’s waiting room ahead of the queue of visitors causing their dissatisfaction. The president’s assistant called an usher who invited the applicant to leave the waiting room and to wait in the corridor. As the applicant refused to comply, the usher forced him out and drew up a report stating that the applicant had committed an offence punishable under Article 17.3 § 2 of the Russian Code of Administrative Offences, that is, disobeyed the usher’s order aimed at maintaining public order on the court’s premises. According to the applicant, he was unable to meet the president of the court on that date as a result of those events. On 28 April 2004 the applicant lodged a claim against the bailiffs’ service with the Savelovskiy District Court. It appears that he sought compensation for non-pecuniary damage. In a decision of 31 May 2004 the Savelovskiy District Court declined to examine the applicant’s claim, stating that it fell outside its territorial jurisdiction and that the applicant should apply to the Golovinskiy District Court of Moscow. The Golovinskiy District Court of Moscow also declined to examine the applicant’s claim in a decision of 1 July 2004, stating that it fell within the jurisdiction of the Savelovskiy District Court. In a letter of 1 June 2004 the prosecutor’s office of the Northern Administrative District of Moscow informed the applicant that they had examined his complaint and established that the usher’s actions had been lawful and that he had acted within his competence. On 18 September 2004 the applicant again filed a claim with the Savelovskiy District Court. It appears that he complained that he had endured emotional and physical suffering as a result of the usher’s actions on 26 April 2004 and requested that the court hold the usher liable under administrative and criminal law and to award the applicant compensation for non-pecuniary damage. On 24 March 2005 the Savelovskiy District Court declined to examine the applicant’s claim, stating that it could not be examined in civil proceedings, as the applicant had asked the court to hold the usher liable for abuse of power, that is, for a criminal offence. The court noted that the applicant should thus lodge his request with a prosecutor’s office. On 16 May 2005 the Moscow City Court upheld the above decision on appeal. Article 46 of the Russian Constitution of 1993 provides that decisions and actions or lack of action of state bodies, bodies of local self-government, public associations and officials may be appealed against in court. Article 53 of the Constitution provides for the right to be compensated by the state for damage caused as a result of the unlawful actions (or omission) of state bodies and their officials. Article 151 of the Russian Civil Code provides that compensation in respect of non-pecuniary damage is payable only in the event that physical or psychological damage has been inflicted on a person in violation of his rights.

train

001-79264

ENG

TUR

CHAMBER

CASE OF YUMAK AND SADAK v. TURKEY

No violation of P1-3

7. The applicants were born in 1962 and 1959 respectively and live in Şırnak. They stood for election in the parliamentary elections of 3 November 2002 as candidates of the People’s Democratic Party (DEHAP) in the province of Şırnak, but neither of them was elected. 8. Following the 1999 earthquakes Turkey went through two serious economic crises in November 2000 and February 2001. There then followed a political crisis, due firstly to the state of health of the then Prime Minister and secondly to the numerous internal divisions within the governing coalition, a grouping of three political parties. 9. It was in that context that on 31 July 2002 the Grand National Assembly of Turkey (“the National Assembly”) decided to bring forward the date of the next parliamentary elections to 3 November 2002. 10. In early September three left-wing political parties, HADEP, EMEP and SDP, decided to form a “Labour, Peace and Democracy Block” and to form a new political party, DEHAP. The applicants began their electoral campaign as the new party’s leading candidates in the province of Şırnak. 11. The results of the elections of 3 November 2002 in the province of Şırnak gave the DEHAP list 47,449 of the 103,111 votes cast, a score of about 45.95%. However, as the party had not succeeded in passing the national threshold of 10%, the applicants were not elected. The three seats allocated to Şırnak province were shared as follows: two seats for the AKP (Adalet ve Kalkınma – the Justice and Development Party, a party of the conservative right), which had polled 14.05% (14,460 votes), and one seat for Mr Tatar, an independent candidate who had polled 9.69% (9,914 votes). 12. Of the eighteen parties which had taken part in the elections only the AKP and the CHP (Cumhuriyet Halk Partisi – the People’s Republican Party, a left-wing party) succeeded in passing the 10% threshold. With 34.26% of the votes cast, the AKP won 363 seats, 66% of those in the National Assembly. The CHP, which polled 19.4%, obtained 178 seats, or 33% of the total. Nine independent candidates were also elected. 13. The results of these elections were generally interpreted as a huge political upheaval. Not only did the proportion of the electorate not represented in parliament reach a record level in Turkey (approximately 45%) but in addition the abstention rate (22% of registered voters) exceeded 20% for the first time since 1980. As a result, the National Assembly which emerged from the elections was the least representative since 1946, the year in which a multi-party system was first introduced. Moreover, for the first time since 1954, only two parties were represented in parliament. 14. To explain the National Assembly’s unrepresentativity, some commentators have referred to the cumulative effect of a number of factors over and above the existence of a high national threshold. For example, because of the protest vote phenomenon linked to the economic and political crisis, the five parties which had obtained seats in the 1999 parliamentary elections were unable to reach the 10% threshold in 2002 and were accordingly deprived of representation in parliament. Similarly, electoral fragmentation had an effect on the results in that numerous attempts to form pre-electoral coalitions had come to nothing. 15. The electoral system is one of the subjects which have been the most debated in Turkey; it still remains highly controversial. 16. The elections of 1950, 1954 and 1957 – in which the majority representation system was used – were unable to ensure an institutional balance between the majority in parliament and the opposition. This imbalance was one of the main reasons for the 1960 coup d’état. Following the intervention of the armed forces parliament adopted proportional representation, using the D’Hondt method, to strengthen pluralism and the political system. As a result, the elections in 1965 and 1969 produced stable majorities in the National Assembly while enabling small parties to be represented. However, in the elections of 1973 and 1977 the main political movements were unable to establish stable governments, although they had wide electoral support. That period of government instability was marked by the formation of one coalition after another, each made fragile by the disproportionate influence of the small parties on government policy. 17. Following the military regime of the years 1980 to 1983 Law no. 2839 on the election of members of the National Assembly, enacted on 13 June 1983, re-established proportional representation, with two electoral thresholds. To the 10% national threshold was added a provincial threshold (the number of electors divided by the number of seats to be filled in each constituency); in 1995 the Constitutional Court declared the provincial threshold null and void. In the 1983 parliamentary elections the Motherland Party (ANAP) obtained an absolute majority in parliament. 18. The parliamentary elections of 29 November 1987 likewise enabled the ANAP, with 36.31% of the vote, to form a stable parliamentary majority. Two other parties also won seats. About 19% of votes were cast in favour of parties which ultimately failed to reach the 10% threshold. In the elections of 20 October 1991 five parties gained seats in parliament. This result was due in particular to the fact that three small political parties (MÇP, IDP and HEP) had taken part in the elections under the banner of other political parties with the aim of circumventing section 16 of Law no. 2839, which makes it illegal to form joint lists before elections. The proportion of the votes cast in favour of parties not represented in the new parliament thus fell to 0.5%. The Government was based on a coalition of two parties. In those elections the eighteen candidates of the HEP (People’s Labour Party – pro-Kurdish) were elected to parliament on the list of the (social-democratic) SHP party; they later resigned from the SHP to join the ranks of their own party, the HEP. 19. In the general election of 24 December 1995 five parties gained seats in parliament. However, as none of them had a parliamentary majority, a coalition was formed. The proportion of the votes cast in favour of parties not represented in parliament came to 14%. 20. The 1999 parliamentary elections again resulted in no party having a parliamentary majority. Five political parties won seats in the National Assembly. A coalition of three parties formed a government. The proportion of the votes cast in favour of parties not represented in parliament came to 18%. 21. At present, numerous proposals to correct the effects of the 10% threshold have been put forward, both in parliament and by leading figures of civil society. 22. Article 67 § 6 of the Constitution, as amended on 23 July 1995, provides: “Electoral laws must strike a balance between fair representation and governmental stability.” 23. Article 80 of the Constitution provides: “Members of the Grand National Assembly of Turkey shall represent the whole nation and not the regions or persons which have elected them.” 24. Law no. 2839 on the election of members of the National Assembly, published in the Official Gazette on 13 June 1983, lays down the rules of the system for parliamentary elections. 25. The Turkish National Assembly has 550 members, elected in 85 constituencies in a single round of voting. They take place throughout the national territory, on the same day, under the proportional representation system. The suffrage is free, equal, universal and secret. Counting the votes and recording the results is done in public. Each province forms one electoral constituency. 26. Section 16 of Law no. 2839 provides: “... [P]olitical parties may not present joint lists...” 27. Section 33 of Law no. 2839 (as amended on 23 May 1987) provides: “In a general election parties may not win seats unless they obtain, nationally, more than 10% of the votes validly cast... An independent candidate standing for election on the list of a political party may be elected only if the list of the party concerned obtains sufficient votes to take it over the 10% national threshold...” 28. In allocating seats the D’Hondt system of proportional representation is used. That method – under which the votes cast for each list are first divided by a series of whole numbers (1, 2, 3, 4, 5 etc.) and seats then allocated to the lists which have the highest quotients – tends to favour the majority party. 29. In a judgment of 18 November 1995 (E. 1995/54, K. 1995/59) the Constitutional Court had the opportunity to rule on the constitutionality of section 34/A of Law no. 2839. That section, which referred to section 33 of the same law, also imposed the electoral threshold of 10% for the allocation of the seats for Assembly members elected in the “national constituency”. 30. The Constitutional Court declared the provisions establishing the national constituency null and void, but held that the 10% national threshold could be regarded as compatible with Article 67 of the Constitution. The relevant passages of the judgment read as follows: “... [T]he Constitution defines the Turkish State as a Republic... The constitutional structure of the State, which is based on national sovereignty, is a product of the nation’s will, mediated through free elections. That choice, emphasised in the various Articles of the Constitution, is set forth clearly and precisely in Article 67, entitled ‘The right to vote, to be elected and to engage in political activities’. Paragraph 6 of Article 67, as amended, provides that electoral laws must be framed in such a way as to strike a balance between the principles of ‘fair representation’ and ‘governmental stability’. The aim is to ensure that the electors’ will is reflected as far as possible [in] the legislature. ... [In order to] choose the system whose methods are most conducive to the expression of the collective will and the taking of collective decisions in the legislature, ... enacting the appropriate legislation in the light of the country’s specific circumstances and the requirements of the Constitution, it is necessary to opt for [the system] which is most compatible with the Constitution or to reject any system incompatible with it. The impact of a representative democracy is visible in various fields. The effect of unfair systems adopted with the intention of ensuring stability is to hamper social developments. ... Where representation is concerned, the importance attached to fairness is the main condition for governmental stability. Fairness ensures stability. However, the idea of stability, in the absence of fairness, creates instability. The principle of ‘fair representation’ with which the Constitution requires [compliance] consists in free, equal, secret and universal [suffrage], with one round of voting and public access to the counting of votes and the recording of results, and produces a number of representatives proportional to the number of votes obtained. The principle of ‘governmental stability’ is perceived as a reference to methods designed to reflect votes [within] the legislature so as to guarantee the strength of the executive power. The ‘governmental stability’ which it is sought to ensure through the threshold (described as a ‘hurdle’), just like ‘fair representation’ ..., is protected by the Constitution. In elections ... importance must be attached to combining these two principles, which seem antinomic in certain situations, in such a way [as to ensure] that they counterbalance and complement each other... In order to achieve the goal of ‘governmental stability’, set forth in the Constitution, a national [threshold] has been introduced... Clearly, the [threshold] of 10% of the votes cast nationally laid down in section 33 of Law no. 2839 ... came into force with the approval of the legislature. Electoral systems must be compatible with constitutional principles ..., and it is inevitable that some of these systems should contain strict rules. Thresholds which result from the nature of the systems and [are expressed] in percentages, and [which] at national level restrict the right to vote and to be elected, are applicable [and] acceptable ... provided that they do not exceed normal limits... The [threshold] of 10% is compatible with the principles of governmental stability and fair representation...” Three judges of the Constitutional Court disagreed with the arguments of the majority, considering that the 10% national threshold was incompatible with Article 67 of the Constitution. 31. In the same judgment, however, the Constitutional Court declared null and void an electoral threshold of 25% for the allocation of seats within provinces (provincial threshold). Holding that such a threshold was inconsistent with the principle of fair representation, it observed: “Although a national threshold is imposed in parliamentary elections in accordance with the principle of ‘governmental stability’, imposing in addition a threshold for each electoral constituency is incompatible with the principle of ‘fair representation’.” 32. The Government referred to the report of the Ad hoc Committee for the Observation of Parliamentary Elections in Turkey (3 November 2002), produced on 20 December 2002. The relevant parts of the report read as follows: “As widely reported by the media, two parties only out of 18 found their way into the new TBMM; the AKP (Justice and Development) and CHP (Republican People’s Party), leaving out all other parties, which had been represented so far in the parliament because they could not meet the 10% threshold. The party in government until the elections received only 1% of the votes. Economic and corruption problems were determining in the elections. A clear and absolute majority has emerged with 362 seats for the AKP, 179 seats for the opposition and 9 seats for independent members. (These independent members are elected in small towns where they have a good reputation.) It should be recalled that AKP had 59 seats in the previous parliament, and the CHP three (1999 elections). This situation might create probably greater stability in the country by avoiding complicated and unstable coalitions. On Monday 4 November 2002 the Turkish stock exchange went up by 6.1%. However, it also means that approximately 44% of the voters have no representation in the Parliament. The results must thus be considered as a clear protest vote against the establishment as a whole, since none of the three parties in the old governing coalition got enough votes for a single seat!” 33. The Council of Europe has not issued any binding standards for electoral thresholds. The question has not been raised in the organisation’s standard-setting texts. On the other hand, the Code of good practice in electoral matters, adopted by the Venice Commission, makes recommendations on the subject (see Venice Commission, “Code of good practice in electoral matters: Guidelines and explanatory report”, Opinion no. 190/2002). As a general principle, the Code requires suffrage to be direct, but in the case of a bicameral parliament it permits one of the Chambers to be elected by indirect suffrage. As for the electoral system to be used, the Code’s guidelines state that any system may be chosen. 34. Paragraphs 6 and 23 of Resolution 1380 (2004) on “Honouring of obligations and commitments by Turkey”, adopted by the Parliamentary Assembly of the Council of Europe on 22 June 2004, are worded as follows: “6. With regard to pluralist democracy, the Assembly recognises that Turkey is a functioning democracy with a multiparty system, free elections and separation of powers. The frequency with which political parties are dissolved is nevertheless a real source of concern and the Assembly hopes that in future the constitutional changes of October 2001 and those introduced by the March 2002 legislation on political parties will limit the use of such an extreme measure as dissolution. The Assembly also considers that requiring parties to win at least 10% of the votes cast nationally before they can be represented in parliament is excessive and that the voting arrangements for Turkish citizens living abroad should be changed. ... 23. The Assembly therefore invites Turkey, as part of its authorities’ current reform process, to: ... ii. amend the electoral code to lower the 10% threshold and enable Turkish citizens living abroad to vote without having to present themselves at the frontier; ...” 35. Although there is no uniform classification of types of ballot and electoral systems, it is usual to distinguish three main types: majority vote systems, proportional systems and mixed systems. In majority vote systems the winner is the candidate or list of candidates obtaining the majority of the votes in the decisive round of voting. This type of ballot makes it possible to vote in governments with clear parliamentary majorities, but at the same time it militates against the representation of minority political parties. Thus, for example, in the United Kingdom the use over many decades of a single round of voting in a single-member majority-vote system (“first past the post”), combined with the existence of two dominant political parties, has had the effect of giving few seats to other parties in relation to the number of votes that they obtain. There are other similar cases, in France for instance, where there is a majority-vote system spread over two rounds of voting. At the opposite extreme, the aim of the proportional representation system is to ensure that the votes cast are reflected in a proportional number of seats. Proportional representation is generally considered to be the fairest system because it tends to reflect more closely the various political forces. However, the disadvantage of proportional representation is that it tends to lead to fragmentation among those seeking electoral support and thus makes it more difficult to establish stable parliamentary majorities. 36. Currently, proportional systems are the most widely used in Europe. By way of example, Denmark, Spain, Estonia, Ireland, Luxembourg, Malta, Moldova, Norway, Poland, Portugal, the Czech Republic, Romania, Sweden, Bulgaria and Turkey have opted for one or other variant of proportional representation. There are also mixed systems containing various combinations of the two types of ballot (in Italy, Lithuania, Russia, Ukraine and Germany, for example). 37. In order to ensure stable majorities in legislatures elected by proportional representation, statutory electoral thresholds are often used. Thresholds are “limits, fixed or variable, defined in terms of the electoral result, which determine the share of a list or candidate in the distribution of seats”. However, the role played by thresholds varies in accordance with the level at which they are set and the party system in each country. A low threshold excludes only very small groupings, which makes it more difficult to form stable majorities, whereas in cases where the party system is highly fragmented a high threshold deprives many voters of representation. 38. Among the member States of the Council of Europe which use one or other variant of proportional representation in the context of a mixed system, and which set an electoral threshold, the following examples may be found. In Sweden a party must gain 4% of the votes cast nationally or 12% of the votes cast in the base constituency in which the seat is to be allocated. In Bulgaria a national threshold of 4% is imposed. In Liechtenstein it is necessary to pick up 8% of the votes cast nationally. In Denmark parties must either pick up 2% of the votes cast nationally or obtain a particular number of votes in two of the country’s three geographical zones. In the Netherlands there is a national threshold fixed at 0.67% of the votes cast. 39. As a general rule, the threshold fixed does not apply as such to coalitions, which must pass higher thresholds. In the Czech Republic, for example, the threshold for one party is 5%, whereas in the case of a coalition it is raised by 5% for each of the constituent parties. In Romania the base threshold of 5% is raised by 3%, and only a further 1% for coalitions with three or more members. In Poland the electoral threshold varies between 5% for local lists and 8% for national lists; for a coalition the threshold is set at 8% whatever the number of constituent parties. Following the same logic, the threshold for independent candidates is lower – 3% in Moldova, for example.

train

001-59564

ENG

AUT

CHAMBER

CASE OF LAMANNA v. AUSTRIA

Preliminary objection joined to merits (victim);No violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

Nicolas Bratza

8. On 11 March 1993 the applicant was arrested by the Belgian police in Brussels on the basis of an international arrest warrant issued by the Salzburg Regional Court (Landesgericht) on 14 May 1992. The applicant was suspected of attempted murder. Following his extradition by the Belgian authorities, he was placed in Salzburg Prison on 2 July 1993 and remanded in custody. 9. On 13 January 1994 the Salzburg Public Prosecutor’s Office referred the applicant’s case to the Salzburg Regional Court, charging him with attempted murder, aggravated robbery and the unlawful possession of a weapon. 10. On 10 October 1994 an assize court (Geschwornengericht) sitting at the Salzburg Regional Court acquitted the applicant of all the charges against him. The operative provisions and grounds of the judgment read as follows: “Salvatore Lamanna is acquitted of the charges brought against him, namely that, on 2 May 1992 in Wagrain, acting as an accomplice to his brother A.Lamanna, who was prosecuted in separate proceedings, 1. he had attempted to murder Dani and Pedro N. by stabbing Dani N.’s left thigh, left hand, upper part of the body and throat and by shooting at his head which had been grazed by a bullet, ... 2. he had taken unlawfully by force, as described under point 1.), and with a weapon the luggage of Dani and Pedro N. which contained about ATS 250,000 in different currencies; 3. he had unlawfully possessed and carried a revolver; ... in accordance with section 336 of the Code of Criminal Procedure (Strafprozessordnung). Grounds The acquittal is founded on the jury’s verdict.” 11. According to the record of the jury’s deliberations (Niederschrift), as regards the attempted murder charge, the jury found, in dubio pro reo, that the applicant’s defence could not be refuted. In this respect, they noted that the applicant had been alone and the weapon had been in the possession of Dani and Pedro N. who had not testified at the trial. As regards the second charge of taking property by force, the jury considered that the applicant had had no intention to commit a robbery. Finally, concerning the unlawful possession of a revolver, they noted that the weapon had been in the possession of Dani and Pedro N. and that the applicant had only taken it in the course of the fight. 12. Upon pronouncement of the judgment, at the same hearing, defence counsel applied for the applicant’s release and for compensation for pecuniary damage caused by his detention on remand. The prosecutor opposed the claim. The hearing was interrupted for the court to deliberate, but the compensation decision was not announced there and then as the judgment was not yet final. On resumption, the applicant’s release was ordered and the trial closed. 13. The decision of the assize court of 10 October 1994, dismissing the applicant’s request for compensation, was served upon the applicant’s counsel on 4 November 1994. In that decision, the assize court found that the conditions laid down by section2(1)(b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz – “the 1969 Act”) were not satisfied. In its opinion, “A claim to compensation under section 2(1)(b) of the Compensation (Criminal Proceedings) Act ... is conditional on the applicant being cleared of the suspicion of which he was the object in the proceedings. A person who has been detained is so cleared only if all the suspicious circumstances telling against him have been satisfactorily explained, so that they cease to constitute an argument for the suspect’s guilt. Having regard to the record of the jury’s deliberations, who expressly referred to the principle of ‘in dubio pro reo’ when answering the first main question, it had to be assumed that the suspicion against the applicant had not been dispelled. This circumstance was decisive for the decision of the assize court to refuse the request for compensation.” 14. On 18 November 1994 the applicant appealed to the Linz Court of Appeal (Oberlandesgericht), arguing that the reasoning of the assize court was wrong. Reference was also made to Article 6 § 2 of the Convention and the judgment of 25 August 1993 of the European Court of Human Rights in the case of Sekanina v. Austria (Series A no. 266-A). 15. On 1 February 1995 the Linz Court of Appeal, sitting in private, dismissed the appeal as being unfounded. The reasons for its decision started with a summary of the Regional Court’s decision. They went on to refute the applicant’s objections as to the Regional Court’s interpretation of the record of the jury’s deliberations, confirming that the conditions of section 2 § 1 (b) of the 1969 Act were not met. Further, it was stated that the applicant’s reference to the judgment of the European Court of Human Rights in the Sekanina case was not relevant as there was no new and independent assessment of guilt in the present case. Finally, it was held that the Regional Court had correctly refused to take further evidence. 16. Following the Court’s admissibility decision of 29 February 2000, the Supreme Court (Oberster Gerichtshof), upon the Attorney General’s plea of nullity for the preservation of the law as regards the lack of publicity (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), found on 9 November 2000 that there had been a violation of section 6 § 4 of the 1969 Act, taken in conjunction with Article 6 § 1of the Convention, in that the Salzburg Regional Court’s decision of 10 October 1994 had not been pronounced publicly, a deficiency which had not been remedied by the Linz Court of Appeal when taking its decision of 1 February 1995. Therefore, the Supreme Court ordered the Linz Court of Appeal to pronounce its decision of 1 February 1995 in public. 17. On 9 February 2001 the Linz Court of Appeal complied with this order, pronouncing its decision of 1 February 1995 at a public hearing. 18. Under section 336 of the Code of Criminal Procedure, the assize court must acquit the accused as soon as the jury has answered the question of guilt in the negative. 19. The relevant provisions of the Compensation (Criminal Proceedings) Act 1969 read as follows: “(1) A right to compensation arises: ... (b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or the prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...” Section 6 “(2) A court which acquits a person or otherwise frees him from prosecution ... (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions for compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3. If the judgment was based on the verdict of a jury, the bench shall decide together with the jury. ... (4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and on the public prosecutor ... (5) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within two weeks. ...” 20. As a general rule, there is no public hearing in the Court of Appeal. The Court of Appeal rules after sitting in private. 21. In its judgment of 29 September 1994 the Constitutional Court ruled on the constitutionality of section 2 (1)(b) of the 1969 Act. It found that this provision in itself did not violate Article 6 § 2 of the Convention which, under Austrian law, has the force of constitutional law. In the light of the Sekanina v. Austria case (judgment of 25 August 1993, Series A no. 266A), it held that it was not the refusal of a claim for compensation which was contrary to the Convention, but the re-examination of the question of guilt after a final acquittal. In the Constitutional Court’s view only the separate re-assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence. Nevertheless, the Constitutional Court observed that it would be desirable to amend section 2 (1)(b) of the 1969 Act in order to clarify the law.

train

001-67835

ENG

RUS

ADMISSIBILITY

BIRYUKOV v. RUSSIA

Inadmissible

Christos Rozakis

The applicant, Yevgeniy Stepanovich Biryukov, was a Russian national who was born in 1938 and lived in Krasnodar. Mr Biryukov died on 13 June 2003 and Mrs N. V. Polyakova, his widow, pursued his application before the Court. The applicant is represented before the Court by N. B. Kolomiets, a lawyer practising in Krasnodar. The respondent Government are represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. From 1991 the applicant worked as a worker in a private company. In June 1996 he was dismissed for absence from work. On 28 June 1996 the applicant brought proceedings before the Oktyabrskiy District Court of Krasnodar against his former employer requesting reinstatement, pecuniary and non-pecuniary damages and legal costs. On 29 August 1996 the court accepted the case for consideration. On 18 September 1996 the court held a hearing at which the applicant was requested to produce additional evidence. The next hearing scheduled for 30 September 1996 was adjourned on the respondent company's request because its lawyer was ill. On 17 October 1996 the hearing was postponed to 4 November 1996 as the applicant failed to appear. On 4 November 1996 the hearing was cancelled as the judge was ill. On 19 November 1996 the respondent asked for additional evidence to be produced by the applicant. The court granted the request and scheduled the hearing for 22 November 1996. By judgment of 22 November 1996 the District Court found in the applicant's favour and ordered the employer to reinstate the applicant and pay him 10,000 Russian Roubles (RUR) by way of non-pecuniary damages and RUR 5,000 by way of legal costs. On 28 November 1996 the respondent appealed. On 20 May 1997 the Krasnodar Regional Court quashed the judgment and ordered a fresh examination of the case. On 30 June 1997 the case was assigned to another judge of the Oktyabrskiy District Court. From that date and until the hearing on the merits on 10 February 1999 the case was adjourned fourteen times. Eight of the adjournments were either requested or caused by the respondent, its representative being ill, on vacation or unavailable for other reasons. One of the adjournments which lasted one month was requested by the applicant whereas four of the adjournments related to the District Court itself. None of the adjournments, which occurred after 5 May 1998, exceeded a period of two and a half months. A hearing on the merits took place on 10 February 1999. By judgment of the same day the district court dismissed the applicant's claim for reinstatement as the employer had by that time been liquidated and ordered the employer's owner to pay to the applicant RUR 18,825.33 of wages lost due to the unlawful dismissal and RUR 1,000 by way of nonpecuniary damages. On 16 February 1999 the respondent, i.e. the owner of the now liquidated company, appealed and on 30 March 1999 it lodged an additional appeal. On 8 April 1999 the applicant submitted his observations. On 10 June 1999 the Krasnodar Regional Court disallowed the appeal and upheld the judgment. On 9 July 1999, following the respondent's request for supervisory review of the judgment, a deputy regional prosecutor ordered a stay of the execution of the judgment pending the supervisory review proceedings. On 29 July 1999 the Chairman of the Krasnodar Regional Court lodged an application for supervisory review of the judgment and the relevant appeal decision. On 12 August 1999 the Presidium of the Krasnodar Regional Court quashed the judgment of 10 February 1999 and the decision of 10 June 1999 in so far as they related to the compensation for wages lost due to the unlawful dismissal. The Presidium considered that the court had incorrectly determined the period for the calculation of the lost wages and that it had not indicated grounds for ordering the payment from the owner of the now liquidated company. A new examination of the case was ordered. Following the quashing of the judgment on supervisory review the case commenced anew before the Oktyabrskiy District Court. From September 1999 until September 2000 the case was adjourned nine times. Seven of the adjournments were caused by the respondent whose representative was ill, on vacation or unavailable for other reasons. Two of the adjournments, which lasted a total of approximately four and a half months, were caused by the applicant. By judgment of 14 September 2000 the District Court found in the applicant's favour ordering the respondent company's owner to pay to the applicant RUR 2,750 of lost wages and RUR 500 by way of non-pecuniary damages. Both parties appealed. On 2 November 2000 the Regional Court quashed the judgment on appeal and remitted the case to the District Court for a fresh examination. The case was assigned to another judge of the Oktyabrskiy District Court. The hearing scheduled for 24 November 2000 was adjourned to 6 December 2000 as the applicant did not appear. On 6 December 2000 the applicant did not appear either and the court decided to refuse to entertain his claim and closed the case. On 1 February 2001 the applicant lodged a request with the District Court for the continuation of the proceedings in the case as he had not been informed of the hearings which he had not attended. On 16 February 2001 the court granted the applicant's request and scheduled the hearing for 22 February 2001. On 22 February, 15 March, 11 April and 3 May 2001 the hearings were postponed because of the failure of the respondent's representative to appear. On 16 and 30 May 2001 an adjournment was granted in view of the illness of the respondent's representative. The court fixed 26 June 2001 as a new date for the hearing. On 26 June 2001 the hearing was adjourned to 9 July 2001 on the applicant's request. On 9 July 2001 the court held a hearing at which both parties were heard. The hearing was to be continued the next day but the applicant did not appear. On 26 July 2001 the hearing was adjourned due to the failure of the lawyers of both sides to attend. On 13 August 2001 the proceedings in the case were adjourned because the respondent's representative was leaving for vacation. On 30 October 2001 the hearing was postponed to 12 November 2001 as the applicant requested the court's assistance in gathering additional evidence. On 12 November 2001 the District Court held a hearing on the merits where the applicant was present. He was awarded RUR 20,072.95 of lost wages and RUR 1,500 by way of legal costs. The applicant's claim for nonpecuniary damages was rejected because it was granted earlier by the judgment of 10 February 1999 which in this part remained in force. On 20 December 2001 the Krasnodar Regional Court, on appeal, reduced the amount recovered as lost wages to RUR 4,527 and upheld the judgment for the remainder. The applicant's representative was present at the appeal hearing.

train

001-81829

ENG

TUR

CHAMBER

CASE OF KURNAZ AND OTHERS v. TURKEY

No violation of Art.2;Violation of Art. 3

Nicolas Bratza

9. The application was initially introduced by Mehmet Kurnaz who was born in 1956 and was living in Antalya. Following his death on 22 December 1997, his parents, brothers and sister (hereinafter: “the applicants”) expressed their intention to pursue the application on 30 June 1998. The applicants were born in 1927, 1929, 1954, 1950 and 1958 respectively and live in Antalya.

train

001-57608

ENG

GBR

CHAMBER

CASE OF YOUNG, JAMES AND WEBSTER v. THE UNITED KINGDOM

Violation of Art. 11;No separate issue under Art. 9 and 10;No violation of Art. 13;Just satisfaction reserved

C. Russo

12. Mr. Young, Mr. James and Mr. Webster are former employees of the British Railways Board ("British Rail"). In 1975, a "closed shop" agreement was concluded between British Rail and three trade unions, providing that thenceforth membership of one of those unions was a condition of employment. The applicants failed to satisfy this condition and were dismissed in 1976. They alleged that the treatment to which they had been subjected gave rise to violations of Articles 9, 10, 11 and 13 (art. 9, art. 10, art. 11, art. 13) of the Convention. In general 13. In essence, a closed shop is an undertaking or workplace in which, as a result of an agreement or arrangement between one or more trade unions and one or more employers or employers’ associations, employees of a certain class are in practice required to be or become members of a specified union. The employer is not under any legal obligation to consult or obtain the consent of individual employees directly before such an agreement or arrangement is put into effect. Closed shop agreements and arrangements vary considerably in both their form and their content; one distinction that is often drawn is that between the "pre-entry" shop (the employee must join the union before engaged) and the "post-entry" shop (he must join within a reasonable time after being engaged), the latter being more common. In the United Kingdom, the institution of the closed shop is of very long standing. In recent years, closed shop arrangements have become more formalised and the number of employees covered thereby has increased (3.75 million in the 1960’s and 5 million in 1980, approximately). Recent surveys suggest that in many cases the obligation to join a specified union does not extend to existing non-union employees. The law in force until 1971 14. There was no legislation explicitly directed to the practice of the closed shop until 1971. Nevertheless, the courts had since the 1920’s recognised the legitimacy of the trade union object of advancing the union’s interests even to the point of enforcing the dismissal, or a ban on the hiring, of non-union employees. However, it was an unlawful conspiracy at common law to pursue a closed shop against individuals beyond the point which the courts regarded as the defence of genuine trade union interests (Huntley v. Thornton [1957] 1 All England Law Reports 234; Morgan v. Fry [1967] 2 All England Law Reports 386). The Royal Commission on Trade Unions and Employers’ Associations, which reported in 1968, whilst rejecting the possibility of prohibiting the closed shop, considered the question of safeguards for individuals in a closed shop situation. In particular, a majority of that Commission took the view that an existing employee who was dismissed for refusal to join a union following the introduction of a closed shop should be able to succeed against his employer in a complaint of unfair dismissal so long as he could show that he had reasonable grounds for that refusal. 15. Prior to 1971, the rights and liabilities of the parties to a contract of employment were for the most part governed by common law. Leaving aside cases of justified summary dismissal, it was lawful to dismiss an employee, even without cause, provided that he was given due notice. The remedy open to an employee dismissed without due notice was merely to sue for the balance of wages he would have earned during the appropriate notice period; the courts would not order his employer to re-engage him. These principles applied, for example, to dismissals motivated by an employee’s joining, or refusing to join, a trade union. The Industrial Relations Act 1971 16. Since 1971, there has been increased Parliamentary intervention in the areas under consideration, and changes of Government have led to changes in the scope and content of the legislation in force. The first major enactment was the Industrial Relations Act 1971 which radically altered the common law position in two respects. 17. In the first place, the 1971 Act conferred on employees (with certain exceptions) the right not to be unfairly dismissed. Dismissal of an employee without cause became unlawful, even if he had been given due notice. An individual who considered that he had been unfairly dismissed could present a complaint to an industrial tribunal; unless the dismissal had been motivated by one or more reasons specified in the Act (for example, qualifications, conduct, redundancy) or some other substantial reason and unless the employer was found to have acted reasonably in treating that or those reasons as a sufficient reason for dismissal, the tribunal could award compensation to the employee or recommend that he be re-engaged. The employee’s common law rights were unaffected by the Act, although after 1971 little reliance was placed on them in practice by those entitled to the new right. 18. In the second place, the 1971 Act introduced specific provisions which were designed to make the operation of the majority of closed shops unlawful. In addition to stipulating that pre-entry closed shop agreements were void, the Act, subject to certain exceptions, gave every worker the right to be a member of no trade union or to refuse to be a member of any particular union. In the context of the rules on unfair dismissal and in contrast to the position at common law (see paragraph 15 in fine above), the Act laid down that dismissal motivated by the employee’s exercise of, or intention to exercise, that right was be to regarded as unfair. 19. A Green Paper on Trade Union Immunities, published by the British Government in January 1981, states that the 1971 Act "met considerable resistance from trade unions and in practice its closed shop provisions were circumvented by many employers and unions. The closed shop continued much as before". The law in force at the time of the events giving rise to the applicants’ complaints 20. The industrial Relations Act 1971 was repealed by the Trade Union and Labour Relations Act 1974 ("TULRA"). The provisions of TULRA relevant to the present case came into force on 16 September 1974. 21. The repeal of the Industrial Relations Act 1971 removed from the statute book both the prohibition on closed shops and the employee’s right not to belong to a union. However, the law did not fully return to its pre-1971 condition. This was because TULRA maintained the protection against unfair dismissal; since one result of a closed shop is that an individual who declines to join a specified union may have his employment terminated, it was necessary to spell out the precise conditions in which dismissal for this reason was to be regarded as fair. Accordingly, TULRA: (a) set out - by reference to the concept of "union membership agreement", which it defined - the circumstances in which a closed shop situation was to be regarded as existing; (b) laid down the basic rule that, if such a situation existed, the dismissal of an employee for refusal to join a specified union was to be regarded as fair for the purposes of the law on unfair dismissal; (c) provided that, by way of exceptions, such a dismissal was to be regarded as unfair if the employee genuinely objected (i) on grounds of religious belief to being a member of any union whatsoever; or (ii) on any reasonable grounds to being a member of a particular union. 22. The powers of an industrial tribunal under the 1971 Act to award compensation to an unfairly dismissed employee were also re-enacted by TULRA. However, the power to recommend his re-engagement was later replaced, by the Employment Protection Act 1975, by a discretionary power to order reinstatement or re-engagement in certain circumstances (notably, where this was considered "practicable"). It was provided that, if the order were not complied with, the employee should be awarded the normal compensation for unfair dismissal and, in specified cases, an additional sum. 23. TULRA was modified in various respects by the Trade Union and Labour Relations (Amendment) Act 1976 ("the Amendment Act") which came into force on 25 March 1976. In particular, the second of the exceptions mentioned in paragraph 21 (c) above was abolished, so that the action for unfair dismissal remained available only to genuine religious objectors. With the object of achieving greater flexibility, the Amendment Act also modified the concept of "union membership agreement". Subsequent legislative developments 24. The Employment Protection (Consolidation) Act 1978 repealed and re-enacted the then existing provisions concerning unfair dismissal. The 1978 Act was in turn amended, without retroactive effect, by the Employment Act 1980. It remains the basic rule that the dismissal of an employee for refusal to join a specified union in a closed shop situation is to be regarded as fair for the purposes of the law on unfair dismissal. However, with effect from 15 August 1980, this rule became subject to three exceptions whereby such dismissal is to be regarded as unfair if: (a) the employee objects on grounds of conscience or other deeply-held personal conviction to being a member of any or a particular union; or (b) the employee belonged, before the closed shop agreement or arrangement came into effect, to the class of employees covered thereby and has not been a member of a union in accordance therewith; or (c) in the case of a closed shop agreement or arrangement taking effect after 15 August 1980, either it has not been approved by the vote in a ballot of not less than 80% of the employees affected or, although it is so approved, the employee has not since the balloting been a member of a union in accordance therewith. A Code of Practice, issued with the authority of Parliament and coming into effect on 17 December 1980, recommended, inter alia, that closed shop agreements should protect basic individual rights and be applied flexibly and tolerantly and with due regard to the interests of individuals as well as unions and employers. The Code is admissible in evidence, but imposes no legal obligations. 25. The green Paper on Trade Union Immunities (see paragraph 19 above) rehearsed arguments for and against various proposals and indicated that the Government would welcome views on whether further changes in legislation affecting the closed shop were desirable and would be likely to prove effective. 26. Since 1971, there has been statutory protection of the right to belong to a trade union. The exact content of the provisions has varied over the years, but their essence is that an employee is entitled to compensation if he is dismissed or penalised for, or deterred or prevented from, being or seeking to become a member or taking part in the activities of a trade union (Industrial Relations Act 1971, section 5; TULRA, Schedule 1, paragraph 6 (4); Employment Protection Act 1975, section 53; Employment Protection (Consolidation) Act 1978, sections 23 and 58). 27. At the end of 1979, there were 477 trade unions in the United Kingdom, with 13.5 million members; in 1980, 108 unions with 12.1 million members, were affiliated to the Trades Union Congress. The Congress adopted in 1939 a series of morally binding recommendations ("the Bridlington Principles") designed to minimise, and laying down procedures for dealing with, disputes between affiliated unions over membership questions. The current version of the Principles states, inter alia, that dual membership is valid only if the two unions concerned have jointly agreed to it. 28. The Trade Union Act 1913, as amended, attaches certain conditions to the application by a union of its funds for a number of political objects specified in section 3 (3), without prejudice to the furtherance of any other political objects. In particular, payments for the specified object must be made out of a separate "political fund" and any member of the union has the right to exemption from contributing thereto. A person so exempted may not be placed at any disadvantage as compared with other members, and contribution to the said fund may not be made a condition for admission to the union. 29. In 1970, British Rail had concluded a closed shop agreement with the National Union of Railwaymen ("NUR"), the Transport Salaried Staffs’ Association ("TSSA") and the Associated Society of Locomotive Engineers and Firemen ("ASLEF"), but, with the enactment of the Industrial Relations Act 1971 (see paragraph 18 above), it was not put into effect. The matter was, however, revived in July 1975 when British Rail concluded a further agreement with the same unions. It was provided that as from 1 August 1975 membership of one of those unions was to be a condition of employment for certain categories of staff - including the applicants - and that the terms of the agreement were "incorporated in and form[ed] part of" each contract of employment. Like other staff of British Rail, Mr. Young, Mr James and Mr. Webster had, it appears, been supplied when engaged with a written statement containing a provision to the effect that they were subject to such terms and conditions of employment as might from time to time be settled for employees of their category under the machinery of negotiation established between their employer and any trade union or other organisation. The membership requirement did not apply to "an existing employee who genuinely objects on grounds of religious belief to being a member of any Trade Union whatsoever or on any reasonable grounds to being a member of a particular Trade Union". The agreement also set out the procedure for applying for exemption on these grounds and provided for applications to be heard by representatives of the employer and the unions. 30. In July/August 1975, notices were posted at the premises of British Rail, including those where the applicants were then working, drawing the attention of staff to the agreement with the unions and the change in conditions of employment. A further notice of September 1975 stated that it had been agreed that the exemption on religious grounds would be available only where a denomination specifically proscribed its members from joining unions. The notice added that "confining exemption only to religious grounds depends upon the passing through Parliament of the Trade Union and Labour Relations (Amendment) Bill" and that staff would be advised further on this point. As recorded in paragraph 23 above, the Amendment Act came into force on 25 March 1976. On the same date, a further agreement between British Rail and the railway unions came into effect. It was in identical terms to the July 1975 agreement, except that the words "or on any reasonable grounds to being a member of a particular Trade Union" (see paragraph 29 above) were omitted. 31. The applicants and the representative of the Trades Union Congress informed the Court that NUR, TSSA and ASLEF were the only unions actually operating in 1975 in those sectors of the railway industry in which Mr. Young, Mr. James and Mr. Webster worked. According to the Government, other unions did have members in, although they were not recruiting amongst, the relevant grades. It appears that, prior to the conclusion of the 1975 closed shop agreement, between 6,000 and 8,000 British Rail employees, out of a total staff of 250,000, were not already members of one of the specified unions. In the final event, 54 individuals were dismissed for refusal to comply with the membership requirement. 32. The applicants were not eligible for membership of ASLEF. As regards NUR and TSSA, intending members were required to sign an application form which, at the relevant time, embodied an undertaking to abide by the Rules of the union and "loyally to promote" its objects (NUR), or to use their "best endeavours to promote its objects and interests" (TSSA). The stated objects of NUR included the following: "... to secure the complete organisation of all workers employed by any Board, Company or Authority in connection with railways and other transport and ancillary undertakings thereto in the United Kingdom; to improve the conditions and protect the interests of its members; ... To further, if and when and so far as the same shall be or become a lawful object of a Trade Union, the interests of members by representation in Parliament and on local governing bodies, and to employ the Political Fund of the Union procuring such representation. To work for the suppression of the capitalist system by a Socialistic order of society. ... To make grants to and share in the management and control of any college or institution having for its object to educate and train Trade Unionists in social science in, and to take part in, the political and industrial life of the Labour Movement. ..." The stated objects of TSSA included the following: "(a) To organise the whole of the Clerical, Supervisory, Administrative, Professional and Technical employees in all Departments of any British or Irish Railway undertaking, or of any Railway Carting Agency, associated or other undertaking as defined in Rule 2. (b) To improve the conditions and protect the interests of its members. ... (g) To establish a Fund, or Funds, including the Political Fund referred to in Rules 45 and 46. ... (i) To secure or assist in securing legislation and the more effective administration of the existing laws which may affect the general and material welfare of its members and of any other workmen. (j) To provide financial assistance and to lend money, with or without interest or other equivalent, to any such organisation (incorporated or not incorporated) as the Executive Committee may deem advisable in the interests of or for carrying out the objects of the Association, and so far as the law for the time being in force may permit. ..." The objects of both unions also included the furtherance of the political objects specified in section 3 of the Trade Union Act 1913 and their Rules contained provisions reflecting that Act’s requirements in the matter of a political fund (see paragraph 28 above). In the case of TSSA, payments from its political fund could not be made unless the beneficiary was an individual member of the Labour Party or the purpose of the payment was in support of Labour Party policy; its general funds could be used for providing financial assistance for political purposes other than the "political objects" listed in the 1913 Act. 33. Mr. Young, who was born in 1953, commenced employment with British Rail in 1972. 34. In September 1975, he had a meeting with his supervisor and a representative of TSSA who informed him about the closed shop agreement - the effect of which in his case was that, as a clerical officer, he was required to join either TSSA or NUR - and of the grounds of exemption applicable at that time (see paragraph 29 above). The applicant objected, though not on grounds of religious belief, to being a member of any trade union and in particular of TSSA or NUR. He believed that union membership should be a matter of personal choice based on conscience and political conviction. His reasons for not wanting to join TSSA, which he said also applied to NUR, may be summarised as follows: (a) he did not subscribe to the political views of TSSA; (b) money from the main union fund was used to produce a monthly newspaper biased in favour of the Labour Party and he had not received sufficient assurances that that fund was not utilised for other political purposes; (c) he disapproved of TSSA’s support for nationalisation of industry and its forcing of inflationary pay awards; he also objected to being obliged to participate in strikes, this being action which in the case of a key service industry he saw as collective blackmail of the country as a whole; (d) TSSA showed itself intolerant of the expression of individual freedom by seeking to enforce a closed shop and it acquired by that means an unacceptably extensive control over the hiring and firing of employees. 35. On 17 October 1975, Mr. Young submitted a written claim for exemption. On 30 April 1976, that is after the entry into force on 25 March 1976 of the Amendment Act (see paragraph 23 above), he was informed by letter that his claim would be heard on 5 May. On that day, he appeared before an appeal body composed of three persons representing, respectively, British Rail, TSSA and NUR. By letter of 27 May, British Rail advised the applicant that the claim had been disallowed and gave him notice of dismissal - of one month, in accordance with his contract - expiring on 26 June 1976. 36. Mr. James, who was born in 1928, was engaged by British Rail on 27 March 1974 as a leading railwayman. He had previously been employed by British Rail for two periods of some years. 37. In 16 October 1975, he had a meeting with his immediate superior and a representative of NUR who informed him that, as a result of the closed shop agreement, he was required to join NUR and that, as a shunter, he was not eligible for membership of any other union. Mr. James was willing to join - in fact, he had previously been a member of NUR - but he was not convinced that membership was advantageous and he believed in freedom of choice. He deferred his final decision pending clarification of a question, submitted by one of his colleagues to NUR, regarding an apparent difference between his salary and that of his colleague who was working the same hours. Before applying for membership, Mr. James wished to see NUR’s reply in order to assess how members’ problems were dealt with. In the event, he formed the view that the union’s examination of the matter and explanation of its conclusions were unsatisfactory and that it had not looked after its member’s interests properly; therefore he did not wish to join the union. 38. By letter of 18 December 1975, the applicant indicated that he refused to join the union since it had not replied to his own query about his hours of work. On 23 February 1976, he received a dismissal notice stating that, by reason of his non-compliance with the July 1975 agreement, his services would no longer be required as from 5 April 1976. 39. On 8 April 1976, Mr. James presented a complaint of unfair dismissal to an industrial tribunal, before which he appeared on 18, June. On 6 July, he received a copy of its decision rejecting his complaint. The grounds were, firstly, that the applicant had never sought exemption from union membership in accordance with the procedure laid down in the closed shop agreement and, secondly, that as he had at no time based his refusal to join NUR on religious grounds, the tribunal was bound under paragraph 6 (5) of Schedule 1 to TULRA (as modified by the Amendment Act) to find that the dismissal was fair. 40. Mr. Webster, who was born in 1914, commenced employment with British Rail on 18 March 1958. 41. At the time of the conclusion of the 1970 closed shop agreement (see paragraph 29 above), the applicant had objected to joining a union on grounds which he set out in a letter to the Administrative Services Officer. However, as that agreement was not put into effect, he was not called upon to appear before the appeal body to which he had agreed to submit his claim. 42. In or around September 1975, the applicant had a meeting with his immediate supervisor and the local representative of TSSA who informed him about the closed shop agreement - the effect of which in his case was that, as a clerical officer, he was required to join either TSSA or NUR - and of the grounds of exemption applicable at that time (see paragraph 29 above). 43. Mr. Webster was opposed to joining a union for reasons - in his eyes equally valid for TSSA and NUR - which included the following: (a) he was opposed to the trade union movement as it currently operated since it was unrepresentative, had detrimental effects - particularly through unjustified collective wage demands - in the economic, industrial and social spheres, and did not act in the best interests of workers or of the country in general; he also found it utterly repugnant to be obliged to participate in any strike which caused loss to the general public or workers elsewhere; (b) he believed that the individual should enjoy freedom of choice as regards union membership and should be able to express and abide by his opinions and convictions without being threatened with the loss of his livelihood as a result of the closed shop practice, which practice would not remedy the disabilities inherent in the trade union system. 44. On 29 October 1975, Mr. Webster wrote to his supervisor explaining some doubts which he had as to the courses open to him to claim exemption and seeking guidance on certain aspects. He said that he wished to apply for exemption on conscientious grounds (other than specifically religious grounds) and he asked that, if this was still possible, his 1970 submissions be accepted as his case, though he also indicated that he would again wish to present a full and closely argued case. He added that he was an opponent of the trade union movement "as it operates today". On 2 April 1976, that is after the entry into force on 25 March 1976 of the Amendment Act (see paragraph 23 above), he was advised by letter that his application would be examined four days later by representatives of British Rail and the unions in accordance with the procedure prescribed in the 1975 agreement. The applicant requested two weeks’ postponement to enable him to prepare written submissions. On 28 April, by which time he had received replies, through his solicitors, to only some of the questions posed in his October letter, he was instructed to attend a hearing on 6 May. On that day, he appeared before an appeal body composed of three persons representing, respectively, British Rail, TSSA and NUR. On 3 June 1976, Mr. Webster received a dismissal notice stating that his application had been disallowed and that his contract of employment would terminate on 28 August 1976.

train

001-23543

ENG

POL

ADMISSIBILITY

OLSZEWSKI v. POLAND

Inadmissible

Matti Pellonpää

The applicant, Mr Grzegorz Olszewski, is a Polish national, who was born in 1958 and lives in Lucień, Poland. He was represented before the Court by Mr Piotr Sendecki, a lawyer practising in Lublin, Poland. The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki. The following account of facts is based on the applicant’s submissions made to the Court and the Polish prosecution service. On 29 September 1998 the applicant got involved in a domestic dispute between his wife and stepdaughter. No violence was used during the dispute. Subsequently, the applicant’s stepdaughter called the police. When the police officers arrived they woke up the applicant and informed him that he would be taken to a sobering-up centre (izba wytrzeźwień). Although the applicant had drunk wine before the dispute started, he was sober when the police officers arrived. He therefore told the officers that he was not drunk and refused to follow them to the sobering-up centre. The police officers pushed the applicant on the floor and handcuffed him. The applicant and the police officers started to swear at each other. The applicant was placed in a police car. He quarrelled with the officers and they continued to swear at each other. The police car stopped. The police officers kicked the applicant three or four times in his abdomen. Subsequently, the police car was driven to Gostynin where it was parked for a while near the District Police Station (Komenda Rejonowa Policji). The applicant stayed inside the car. He was then being taken to the sobering-up centre in Płock. The applicant and the police officers continued to exchange insults. The applicant asked the police officers to take his handcuffs off because they were too tight and his hands were swollen but his request was ignored. His request to be let out to relieve himself was also ignored. When the car arrived at the sobering-up centre the police officers left it. The applicant urinated in his underwear. When the police officers came back and saw that he had wetted himself, they said “they will see pissed scum.” Subsequently, the applicant was dragged by the police officers inside the building. While being pulled, he lost his shoes and trousers, which he had lowered before he had urinated. The police officers laughed at the applicant. Once inside the premises of the Płock sobering-up centre, the applicant asked for a doctor but his request was ignored. The applicant was given a breathalyser test. During the test an employee of the centre started to insult him and the applicant replied in offensive language. One of the police officers hit the applicant with a fist in the right part of the face. The blow made the applicant’s teeth loose. The applicant was then knocked down. He tried to stand up but was hit with an opened hand. The applicant fell down again. While he was lying on his back, an employee of the centre said “we do not like roughnecks here” and stepped on his testicles with a heavy boot. Subsequently, the applicant was taken to a cell where the employees of the centre started to put a straightjacket on him. At this point, the police officers were not present on the scene. While a straightjacket was being put on the applicant, a struggle evolved. The applicant heard somebody saying: “beat so that marks do not show”. He was hit with a knee in his abdomen. He was also hit in his nose and started to bleed. The applicant was kicked in testicles and fainted. When he regained consciousness he was in a straightjacket and was tied up with elastic bandages. The applicant’s face was covered with a dirty cloth. The employees of the centre twisted and squashed his testicles. The applicant fainted for the second time during the night. The employees then burned his scrotum. During the night the applicant was shouting “give me a doctor” but his requests were ignored. From time to time, somebody would shout in reply “go to sleep you whore”. On 30 September 1998 the applicant was released from the sobering-up centre. He visited a doctor in Płock but was refused admission because he did not have documents. The applicant was then seen by Dr Łudczak at the Gostynin health centre (ośrodek zdrowia). He described the applicant’s injuries in his medical file. He also pointed to the applicant that he had burns on his scrotum and referred him to Dr Gierżyński, the Chief Surgeon of the Gostynin Hospital. When Dr Gierżyński saw the applicant, he initially considered that the applicant should stay in the hospital because of the discharge of yellow fluid from his nose and the symptoms of brain concussion. However, he later changed his mind, examined the applicant and issued a forensic medical certificate. According to the applicant, the certificate does not indicate the following injuries: a bruise on his thigh and swollen testicles. On 1 October 1998 the applicant worked on a construction site. He was in pain but decided to report to work since it was the first day on a new job, which he had got with great difficulty. On 29 September 1998 the applicant got involved in a domestic dispute. He was drunk, behaved aggressively and threatened to kill his stepdaughter and mother-in-law. The stepdaughter called the police. Subsequently, both women left the house and waited for the police outdoors. When the police arrived the applicant woke up. The attending officers informed him about the reasons for their intervention. The applicant began to behave aggressively. He used abusive language towards the police officers and threatened to kill his stepdaughter and mother-in-law in their presence. Both women asked the officers to take the applicant to a sobering-up centre. The police officers ordered the applicant to follow them to the centre but he refused and started a fight. The officers pushed the applicant on the floor and handcuffed him. At that moment, the applicant suffered a skin abrasion on his forehead. The applicant was resisting the officers while they were taking him to the police car. Once placed inside the car, the applicant kicked it. Subsequently, the applicant was brought to the Gostynin District Police Station where the police officers collected H.S. in order to escort him to the Płock sobering-up centre. The police officers testified that they had not stopped the car on the way to the sobering-up centre and had not assaulted the applicant. Their testimony was confirmed by the documentation of the Płock sobering-up centre. On the way to the centre the applicant behaved aggressively and kicked the car. When it arrived to the centre, the applicant refused to leave it. Therefore, the police officers had to drag the applicant inside the building. The applicant continued his aggressive behaviour inside the building. He used abusive language and tried to fight with the employees of the centre. The medical staff of the centre tried to carry out a breathalyser test but the applicant was too intoxicated to provide a specimen of breath. As a result of the applicant’s aggressive behaviour, he was forced to wear a straightjacket between 11.15 p.m. and 5 a.m. The applicant was shouting for almost the whole night. He asked to unbind the straightjacket. The applicant was released from the sobering-up centre on 30 September 1998 at 7.00 a.m. On 1 October 1998 the applicant worked on a construction site. On 1 October 1998 the applicant was examined by a doctor, who made an entry in his medical file kept by the Gostynin health centre and referred him to Dr Gierżyński. On the same day Dr Gierżyński issued a medical certificate. The Detention Card (karta pobytu) no. 001959, which contains the record of the applicant’s presence in the Płock sobering-up centre, provides the following description of his medical condition: “INITIAL MEDICAL OPINION As a result of the initial medical examination I confirm that the client: 1. is intoxicated and qualifies for a detention in the sobering-up centre, 2. requires a referral to a public medical facility /hospital, emergency service, other/, 3. does not require to be present in the sobering-up centre. The examination with a device detecting intoxication (breathalyser, alcohol test, blood test) showed: Unable to blow a breathalyser. Lack of stability. Alcohol breath. Signature of a doctor-paramedic on duty in the sobering-up centre (illegible signature)” None of the points 1 to 3 was marked on the card. “PRESENCE IN THE SOBERING-UP CENTRE I. MEDICAL EXAMINATION The client was subjected to medical examination at 23:10 hours. 1. Medical (circumstantial) background: a) circumstances, the amount of consumed alcohol, behaviour during medical examination: Does not reveal the circumstances of drinking and the amount of consumed alcohol, psychomotor agitation during examination. Stands up to beat the employees of the sobering-up centre. 2. Subject examination: a) behaviour: conscious, quarrelling, aggressive b) mood: agitated c) walk: unstable d) speech: slurring e) traces of vomit: not visible f) pulse: regular, little tense 74/minute g) heart: regular beat, clear sound h) pupil: normal, weakly reacting i) skin: proper perfusion j) condition of abdominal cavity: without changes k) injuries: slight skin abrasion on the right temple l) disease symptoms: does not disclose m) description of the condition of the examined person: high degree of intoxication. II. OTHER APPLIED TREATMENTS AND MEDICATIONS 1. dressings 2. drugs (injections) 3. water bath 4. solitary confinement 5. strapping down 6. straightjacket from 23.15 hours to 5.00 hours because of psychomotor agitation 7. medical condition and behaviour a) psychiatric condition – psychomotor agitation b) physical condition – good physical condition Signature of a doctor-paramedic (Illegible signature) RELEASE FROM THE SOBERING-UP CENTRE I. MEDICAL EXAMINATION After applying the aforesaid treatments and medications, as a result of medical examination (give a degree of sobering-up, psychiatric and medical condition): satisfactory sobering-up. Good health condition. I. conclude that the person mentioned hereinafter: 1. can be released from the centre 2. requires a referral to a public medical facility: no Signature of a doctor-paramedic (Illegible signature)” According to the card the applicant was released from the soberingup centre on 30 September 1998 at 7.00 a.m. On 1 October 1998 Dr Przemysław Łudczak, a surgeon, made the following entry in the applicant’s medical file kept by the Gostynin health centre: “The patient submits that he has been beaten 2 days ago by police officers. Referred to Dr Gierżyński. - face abrasion - (two illegible words) - burn of scrotum (?)” On 1 October 1998 Dr Andrzej Gierżyński, general practitioner and specialist surgeon, issued a forensic medical certificate, which is worded as follows: “Medical examination of Olszewski Grzegorz, 40 years old, identity card no. WL 5281575 residing in Zaborów Stary. On 30.09.98 suffered the following injuries: a skin abrasion on the right temple measuring 4 x 2 centimetres, loose front teeth upper 1 and lower 1, skin abrasions on the right side of groin, a first/second-degree burn on the scrotum measuring 6-8 mm. The aforesaid injuries qualify for Article 157 paragraph 2.” On 9 October 1998 the applicant requested the prosecution service to initiate criminal proceedings against the police officers and the employees of the sobering-up centre who had ill-treated him on 29 and 30 September 1998. On 19 October 1998 the applicant appeared before the Gostynin District Prosecutor K. As the applicant smelled with alcohol and declared that he had welded a tank, which used to be filled with alcohol, the prosecutor postponed the interview until the next day. On 20 October 1998 prosecutor K. interviewed the applicant. He advised the applicant about his rights and took from him a statement requesting the prosecution of the police officers and the employees of the soberingup centre. The applicant also made a statement in which he described the events of 29 and 30 September 1998. On 20 October 1998 prosecutor K. decided to initiate an investigation of the allegations made by the applicant. On 26 October 1998 prosecutor K. took statements from the applicant’s wife, mother-in-law and stepdaughter. Their testimony concerned the police intervention in the applicant’s house. The witnesses confirmed that the responding police officers were calm and did not assault the applicant. They handcuffed him because he was aggressive and used abusive language. On 27 October 1998 the Director of the Płock sobering-up centre informed the prosecutor that the following staff had been on duty in the centre at the time of the applicant’s detention: (i) Mr B., depositary, (ii) Mr M., carer and (iii) Mrs L., paramedic. The Director also submitted a detention card containing the record of the applicant’s presence in the centre. On 28 October 1998 the Deputy Police Chief of the Gostynin District Police Station informed the prosecutor that Sergeant G. and Constable W. had responded to the applicant’s house on 29 September 1998 and had taken him to the sobering-up centre. On 17 November 1998 prosecutor K. interviewed Constable W. The witness made a two-page statement in which he gave his account of the intervention in the applicant’s house and his transfer to the soberingup centre. In particular, he stated that the applicant had been aggressive and had used abusive language. Therefore, he had been handcuffed and had suffered skin abrasion on his cheek or forehead. The applicant had remained aggressive in the police car where he had continued to use abusive language and had kicked the car. The applicant had not been assaulted by any of the responding police officers. After he had been turned over to the employees of the sobering-up centre, he had been bound in a straightjacket because of his aggressive behaviour. On 17 November 1998 prosecutor K. also interviewed the second responding police officer, Sergeant G. He made a page-long statement in which he confirmed the account of events given by Constable W. In addition, he confirmed that the applicant had urinated in the police car. On 19 November 1998 prosecutor K. interviewed B. The witness stated that he was an employee of the Płock sobering-up centre. He also said that he remembered the surname of Grzegorz Olszewski but did not remember his presence in the centre. The prosecutor asked the witness the following question: “Do you remember that he was aggressive and had a straightjacket put on?” The witness replied that there were many situations of that nature and that straightjackets and strapping down would be used in respect of aggressive individuals. However, he did not remember the applicant’s presence and behaviour in the sobering-up centre. Subsequently, the applicant’s detention card was shown to the witness but he repeated that he did not remember the applicant’s presence in the centre. On 19 November 1998 prosecutor K. also interviewed L., a paramedic who was on duty in the Płock sobering-up centre at the time of the applicant’s detention. She made the following statement: “I am on duty in the Płock sobering-up centre 24 hours a week. During the night of 29/30 September 1998 I received in the centre a patient from Gostynin. The patient was aggressive and made threats against the employees of the centre. He was heavily intoxicated. There were three attempts to use breathalyser. He was unable to blow. In view of his aggressive behaviour and for the sake of his safety a straightjacket was put on him.” At this point, the witness was shown a copy of the applicant’s detention card. After consulting it, she continued: “According to the card Grzegorz Olszewski wanted to beat the centre staff and on his body there were skin abrasions on the right temple – they had existed at the time of admission. I do not remember anything else. I would like to add that the patient had spent a long time in a straightjacket, which shows that for a very long time he had shown psychomotor agitation. A patient, who is in a straightjacket, is under strict control of a doctor on duty. After two hours straps were eased. They were repeatedly eased during the whole period of his presence. While the patient was in a straightjacket he was aggressive and insulted and cursed everybody. I do not remember his release from the centre.” On 30 November 1998 prosecutor K. interviewed M. The witness made the following statement: “I was on duty in the sobering-up centre between 29 and 30 September 1998. From what I remember Grzegorz Olszewski was brought by the police officers from Gostynin, he was taken from a domestic dispute. While he was being taken out of a police car, he quarrelled, i.e. resisted the police officers, did not want to get in. They had to make him get in by using force. We had to use force while we were undressing him. He was aggressive and therefore we had to bind him in a straightjacket. He was insulting us, pulling us, wanted to fight with us, waved his hands, was saying that he was sober. In the room, while he was lying in a straightjacket, he was shouting, insulting, threatening us that he would finish us and those who had brought him. Other patients were asking to calm him because he was yelling all the time. He was shouting without any break during two hours. I do not know for how long he was lying in a straightjacket but it was a long period. That is all I remember.” On 24 November and 11 December 1998 prosecutor K. and assistant prosecutor S. took statements from two witnesses, who had been detained in the Płock sobering-up centre on 29 and 30 September 1998. The first witnesses confirmed that he had heard somebody shouting during the night. That person shouted “hitlerites”, “murderers” “people, help me” and was asking to unbind his straightjacket. Other individuals present in the centre shouted back to let them sleep and asked the staff to unbind the yelling individual’s straightjacket. The second witness testified that at the end of September 1998 he was drunk and was taken to a police station. At the station, he saw a man who was calm. They were taken together to a sobering-up centre. However, he did not remember the man’s behaviour on the way to the sobering-up centre and in the centre. The witness also stated that he did not know whether anybody had used violence against the man while he had been detained in the sobering-up centre. On 21 December 1998 prosecutor K. discontinued the investigation of the allegations made by the applicant and refused to prosecute the police officers and the employees of the Płock sobering-up centre involved in the applicant’s arrest and detention on 29 and 30 September 1998. In addition to the evidence taken from witnesses, he relied on the applicant’s detention card and the medical certificate issued by Dr Gierżyński. The prosecutor also took into account the applicant’s medical file kept by the Gostynin health centre, which contained the following entry: “15 VIII 98. Dental caries. Swollen face. Referred to a dentist.” The reasoning of the prosecutor’s decision gave firstly an overview of the evidence collected in the course of the investigation. It then stated the following conclusions: “The collected evidence leads to two versions of events – (1) a version of the complainant Grzegorz Olszewski [and] (2) a version described by the witnesses with respect to the behaviour of Grzegorz Olszewski – members of his family, the police officers, the staff of the sobering-up centre. The evidence taken from the members of the complainant’s family shows that he was drunk and during the police domestic intervention (intervention took place after the police officers had been called by the complainant’s stepdaughter) Grzegorz Olszewski was an aggressive and attacking party and cursed and insulted the members of [his] family and the police officers. The account of events given by the members of the family was confirmed by the police officers. The responding police officers used force against the complainant because of his aggressive behaviour. Using the so-called overpowering grips, they pushed him down and handcuffed him. As a result of the complainant’s fall, he suffered face injuries on the right side in the form of skin abrasions. The aforesaid injuries suffered by the complainant were described in the statements made by the police officers, they were recorded in the detention card of the sobering-up centre, an entry in the health centre medical file and the forensic medical opinion. The police officers testified consistently that they had taken Grzegorz Olszewski from [his] home to a police car and transported him to Gostynin and then to Płock. In addition, they took from Gostynin one more person in order to transport it to the sobering-up centre. They denied that during transporting the complainant from his place of residence in Gostynin, they stopped or beat him, they did not hit him 34 times in the abdomen, he was held in the police car in a separate room. This denies entirety of the complainant’s testimony. In the same way, the evidence taken from the employees of the sobering-up centre confirmed by a person present in the centre rebuts the complainant’s version of events. The version submitted by the employees of the sobering-up centre is confirmed by the entries – notes in the sobering-up centre’s detention card concerning the complainant. As for the injuries on the complainant’s body described in the forensic medical certificate it should be stated that the skin abrasions on the right side of the face resulted from the use of force by the police officers when they were overpowering Grzegorz Olszewski in his home. Loose upper and lower teeth could result from caries and related swelling of the face already in August 1998 – note in the medical file of the health centre. However, it is not possible to establish in what circumstances the complainant’s scrotum was burned. Twenty-four hours elapsed between the release of the complainant from the sobering-up centre and the diagnosis of [the burns] by the doctor who issued the forensic medical certificate. The use of physical force and handcuffs against Grzegorz Olszewski constituted an activity resulting from the rights of the police to use the measures of direct coercion against the complainant under Article 16 section 1 point 1 of the Police Act of 6.4.1990. In view of the above considerations, it should be stated that the police officers from the Gostynin District Police Station who intervened, did not exceed their powers and did not act against the private interest. Also the employees of the sobering-up centre did not exceed their powers and did not beat the complainant. For those reasons, it should be stated that the behaviour of the police officers and the employees of the sobering-up centre did not constitute an offence under Articles 231 § 1 and 158 § 1 of the Criminal Code. On the basis of the above considerations I have decided as in the operative part [of the decision].” The applicant filed with the Płock Regional Prosecutor (Prokurator Okręgowy) an appeal against the decision of the District Prosecutor. On 12 March 1999 the Regional Prosecutor advised the applicant that he had not seen any grounds for allowing his appeal and had therefore transmitted it together with the case file to the Gostynin District Court (Sąd Rejonowy). On 8 April 1999 judge S. of the Gostynin District Court dismissed the applicant’s appeal. The reasoning of the decision was worded as follows: “The appeal is unsubstantiated. In the course of the investigation no breach of law by the intervening police officers was found. The evidence taken from the witnesses shows that G. Olszewski, while intoxicated, behaved aggressively, whereas the police used measures provided by law. The court shares the arguments contained in the reasoning of the prosecutor’s decision and having regard to the above decides as in the operative part [of the decision].” On 22 April 1999 the President of the Gostynin District Court rejected the applicant’s appeal against that decision because no appeal lay against it. 5. The applicant’s pre-trial detention Between 28 December 1998 and 14 July 1999 the applicant was held in pre-trial detention on a charge of robbery. Article 157, in so far as relevant, provides: “§ 2 A person who causes bodily harm or ill health lasting no longer than 7 days, shall be liable to a fine, a penalty of the restriction of liberty or imprisonment for a term not exceeding 2 years. § 3 If a person who committed an act described in (...) § 2 acts without intent, he shall be liable to a fine, a penalty of the restriction of liberty or imprisonment for a term not exceeding 1 year. § 4 The prosecution of a crime described in § 2 or 3, if bodily harm or ill health occasioned lasted no longer than 7 days, shall take place under private indictment. ...” Article 158 § 1 provides: “A person who takes part in affray or battery, which creates a direct danger of loss of life or consequences described in Art. 156 § 1 or Art. 157 § 1, shall be liable to imprisonment for a term not exceeding 3 years.” Article 231 § 1 provides: “A public official, who by abusing his powers or by failing to fulfil his duties, acts to the detriment of public or private interest, shall be liable to imprisonment for a term not exceeding 3 years.” Article 417 § 1 provides: “The State Treasury shall be liable for damage caused by a state official during the execution of duties entrusted to him.” Article 16 of the Police Act of 6 April 1990 reads, in so far as relevant, as follows: “1. If a lawful order given by a police authority or a policeman has not been complied with, policemen may apply the following coercive measures: 1) physical, technical and chemical means of restraining or escorting persons or of stopping vehicles; 2) truncheons; 3) water cannons; 4) police dogs and horses; 5) rubber bullets fired from fire-arms; 2. Policemen may apply only such coercive measures that correspond to the exigencies of a given situation and are necessary to have their orders obeyed.” Paragraph 5 of the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police provides: “1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order. 2. When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against life, health or property of others.” Paragraph 6 of the Ordinance provides, in so far as relevant, as follows: “Handcuffs may be used (...) in order to prevent an escape or to prevent an active assault or active resistance. ...” According to Article 39 of the Law of 26 October 1982 on Education in Sobriety and Counteracting Alcoholism sobering-up centres are operated by local authorities. Article 40 of the Law provides, in so far as relevant: “1. Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons’ life or health, may be taken to a sobering-up centre or a public health care facility, or to their place of residence. (...) 3. [Intoxicated] persons who have been taken to a sobering-up centre or a police station shall remain there until they become sober but no longer than twenty-four hours. ...” Article 42 provides, in so far as relevant: “1. Direct force in the form of holding and immobilising may be used against persons admitted to a sobering-up centre, who create danger to their own or the third persons’ life or health [or] destroy objects in their vicinity. 2. Holding means a temporary and short immobilisation of a person by using physical force. 3. Immobilising means a longer lasting overpowering of a person by using straps, holders, sheets or a straightjacket. 4. Direct force may last only until such time as the reasons for its application cease to exist. ...” On 23 October 1996 the Minister of Health and Social Services issued an Ordinance, which regulates the organisation of the sobering-up centres. The relevant provisions of the Ordinance are as follows: “§1.1. Intoxicated persons, whose behaviour causes offence, whose circumstances threaten their life or health or who threaten the life or health of other persons, may be taken to a sobering-up centre (...) by the police officers, the employees of the centre or other persons.” “§8.1. A person brought to the centre shall be immediately subjected to medical examination. 2. A doctor (paramedic) after examining a person detained in the centre shall assess: 1) medical reasons for placing in the centre, first aid that may be given in the centre, hygiene-sanitary procedures, taking into account the symptoms of intoxication and the lack of contraindications to the detention in the centre, or 2) medical reasons for referring to a hospital or another public health care facility – taking into account the symptoms of intoxication and the existence of indications for hospitalisation, or 3) the lack of symptoms of intoxication justifying a detention in the centre.” “§12.1. If an employee of the centre (...) finds that a person [who was admitted to the centre]: 1) [has] injuries on his body (...) - the centre shall immediately inform the police and notify the time-limit of his presence in the centre.” “§15. Rooms in which persons intoxicated are present are constantly monitored by the authorised employees of the centre. The employee of the centre shall immediately inform a doctor (paramedic) about symptoms pointing to a deterioration of health of an intoxicated person (...).”

train

001-60645

ENG

GBR

CHAMBER

CASE OF NERVA AND OTHERS v. THE UNITED KINGDOM

No violation of P1-1;No violation of Art. 14+P1-1

Gaukur Jörundsson;Nicolas Bratza

8. The applicants were employed as waiters at the material time. When the applicants received a tip in cash directly from a customer, the money was placed in a box called a “tronc” and distributed proportionately among the waiters at the end of the week by the “tronc master”. 9. Initially, tips left by customers which were paid to the restaurant by way of an addition to a sum paid by cheque or credit card were dealt with by removing from the cash register a sum equivalent to the tip paid by cheque or credit card and placing it in the tronc, out of which it would be distributed at the end of the week in the same way as cash tips. 10. In 1979, following an inspection from the tax authorities, the applicants’ employer was required to treat tips left by cheque or credit card within the “Pay-As-You-Earn” (“PAYE”) system. Under the PAYE system an employer had to ensure that employees’ income tax and national insurance contributions were deducted from the sums paid, and that employers’ national insurance contributions were paid on those sums. In the applicants’ view, the tax authorities in 1979 were simply insisting that as cheque and credit card tips passed through the hands of the employer the latter was responsible for distribution and should be responsible for ensuring that tax and national insurance were properly deducted through PAYE. 11. Rather than distributing cash sums equivalent to those left by customers on cheque and credit card vouchers, the applicants’ employer included “additional pay” in their weekly pay slip. It would appear that the method of distribution was the same as the method hitherto applied to tronc money. 12. Although initially opposed, this new system was eventually agreed to by the staff. The first applicant was already a staff member at the time of the introduction of the system. The remaining applicants agreed to the system when they took up employment. The applicants submitted that the staff agreement to the new system was not intended to alter the fact that the gratuities were to be paid in full to employees. 13. The cheque and credit card gratuities were the subject of deductions by the employer in respect of tax and national insurance contributions. The employer bore the charges of the credit card companies, varying at the time from 3% to 5% on the amount of the gratuities. When a credit card voucher was improperly completed and rejected by a credit card company, the employer wrote off the amount and, it would appear, did not seek to recover any sums distributed to waiters in respect of any gratuity included on the voucher; it does not appear either that the employer sought to recover from the waiters any sums which it did not receive as a result of dishonoured cheques. The applicants highlighted their view that this was not a new practice, but that it applied before 1979. 14. At the relevant time there was a legal requirement that various categories of workers, including waiting staff like the applicants, be paid a minimum sum as remuneration. This requirement was embodied first in the Wages Councils Act 1979 and then, as from 1 January 1987, in the Wages Act 1986. 15. The applicants sued their employer for breach of contract and challenged the employer’s right to count the tips included in cheque or credit card payments as part of their statutory minimum remuneration. The applicants’ claim covered the six-year period prior to 6 March 1989 and therefore straddled both of the above-mentioned Acts. In the Government’s view, the issue between the parties was whether the “additional pay” constituted money paid to them by their employer. If the applicants’ claim was upheld, the consequence would have been that their employer had been paying them remuneration less that the statutory minimum over a period of years, in breach of contract, entitling them to substantial damages. The applicants maintained that the dispute centred on whether the “additional pay” constituted money paid to the applicants by their employer or, they emphasised, by their employer in respect of time worked. 16. On 25 May 1994 a High Court judge, Mr Justice Mance, held on a preliminary point that tips included in cheque and credit card transactions did count against the minimum remuneration requirement. Mr Justice Mance rejected the applicants’ submission that the tips paid in this manner were held in trust for them by the employer. In his judgment, the employer obtained the legal title to a tip paid by credit card or cheque, with the result that it became the employer’s property. 17. The applicants appealed to the Court of Appeal. By the time of the hearing before the Court of Appeal, the applicants had accepted that property in the cheque and credit card tips passed to their employer and no longer relied on the argument that they were to be considered beneficiaries of money held on trust for them by the employer. 18. In its judgment of 15 May 1996, the Court of Appeal dismissed the applicants’ appeal. 19. Lord Justice Staughton observed that it was not disputed that the relevant legislation (the Wages Councils Act 1979 and the Wages Act 1986) embodied the rule that what was paid by the employer and not by any other person counted as remuneration for the purpose of that legislation. For that reason, tips paid in cash to waiters or to the tronc did not count as remuneration. However, he considered that the same reasoning could not apply to tips which were built into payments made by cheque or credit card to their employer since the amounts became the latter’s property. The employer thereafter paid an equivalent amount to the applicants. In his view, tips paid in this manner should count against the minimum remuneration requirement. Lord Justice Staughton rejected the attempts of the applicants’ counsel to interpret the applicable legislation differently. He further rejected counsel’s argument that the applicants had a right to the cheque and credit card tips as money had and received for their use. In Lord Justice Staughton’s opinion, it was decisive that the employer was paying the tips with its own money even if they had been paid by the customers to the employer in the belief that the latter would pass the tips on to the waiters and on the understanding that it would do so. 20. As to the issue of the customers’ intention when adding the tip to the cheque or credit card payment, Lord Justice Staughton considered: “This is relevant ... in deciding whether the money became the property of the employers or the waiters. But it is clear and (in this court) uncontroverted in this case that it became the property of the employers. Beyond that, as it seems to me, the intention of the customers has no part to play. ... ” 21. Mr Justice Douglas Brown concurred. As to the applicants’ reliance on customer intention, Mr Justice Douglas Brown stated that the intention of the different customers could only be the subject of speculation. 22. Lord Justice Aldous dissented. As to tips paid by cheque or credit card, Lord Justice Aldous accepted that the amount was paid to the employer and therefore it could not be said that the tip so paid never became the employer’s property. However, in his opinion the intention of the customer was the same when paying a tip by credit card or cheque as when paying by cash and, in either case, the customer had no intention of giving anything to the employer. Lord Justice Aldous stated: “It was paid to the employer by the customer as a gratuity with the intention that it should be passed to the staff in the same way as cash payments would be and was accepted upon that basis as was apparent from the way that it was operated. The money added to the slip was taken out of the till and added to the tronc. That being so, I do not believe that tips paid by way of cheque or credit card should be considered ‘remuneration’ when cash tips would not be.” 23. Lord Justice Aldous further observed that there was no difference in principle between tips paid in cash and tips paid by cheque or credit card. In his opinion, the only difference was that in the latter cases the employer acted as agent for the customer and, when doing so, had to carry out its duties under the relevant tax legislation to ensure that tax was levied on the tips. However, the fact that tax on cheque and credit card tips was deducted under the PAYE system, instead of being paid by the waiters, did not affect the relationship between the customer and the employee and the intention of the customer that his tip would find its way into the hands of the employee rather than enriching the employer’s bank account. 24. On 14 June 1996 the applicants applied for leave to appeal to the House of Lords. On 28 October 1996 the applicants were informed that the Appeal Committee had provisionally decided that leave to appeal should be given and that the applicants’ employer was invited to submit objections to the applicants’ petition before 11 November 1996. On 4 February 1997 the Appeal Committee referred the matter for an oral hearing before three Law Lords. 25. On 20 February 1997 the hearing was held. The applicants’ counsel was given the opportunity to speak to the petition for leave and to address the employer’s written objections. The hearing lasted five minutes. On the same day the Appeal Committee refused leave to appeal without giving reasons. 26. Section 1 of the Wages Councils Act 1979 provided for the establishment of wages councils by order of the Secretary of State for Employment in respect of those workers described in the order and their employers. Under section 14, wages councils were empowered, inter alia, to fix the rate of remuneration for any workers in relation to which they operated. Under section 15, contracts of employment providing for payment of less than the minimum remuneration prescribed by a wages council would have effect as if the contractual rate were superseded by the statutory minimum rate. A wages council was established for workers in licensed residential establishments and licensed restaurants. Minimum remuneration for those workers was laid down in the Wages (Licensed Residential Establishment and Licensed Restaurant) Order 1982. Paragraph 3 of the 1982 Order specified the minimum rate to be paid for forty hours’ work as well as the rates for overtime, night work, etc. Paragraph 12 of the 1982 Order provided that if in any week in which a worker performed some work for his employer the total amount of gratuities from customers received by the worker was less that 8.40 pounds sterling (GBP), the employer had to pay the worker such sum as the amount of gratuities fell short of GBP 8.40. There had to be a written agreement between the worker and the employer to this effect. Where such an agreement existed, the worker had to be paid the appropriate amount reduced by twenty-one pence per hour for the first forty hours worked by him in any week. 27. Section 17 of the Wages Councils Act 1979 defined remuneration as the amount obtained or to be obtained in cash by the worker from his employer after allowing for the worker’s necessary expenditure, if any, in connection with his employment. 28. The definition of remuneration under section 17 of the Wages Act 1986 also took as its starting-point the total amount of any money payments made by the employer to the worker. The applicants draw attention to the terms of section 17(I)(a), which provided: “For the purposes of determining, for the purposes of this Part, the amount of remuneration paid to a time worker by an employer in respect of time worked by the employee in any week there shall be added together - (a) the total amount of any money payments made by the employer to the worker, on or before the relevant pay day, by way of remuneration in respect of time worked by him in that week ...” 29. The applicants stressed in the above connection that they were regarded as time workers at the material time. 30. The Wages Act 1986 made provision for the continued existence of wages councils, although with reduced powers. Under section 16, a worker could claim as additional remuneration the difference between a statutory minimum set by a wages council and the amount he was actually paid under contract. 31. Under section 1 of the Wages Act 1986 (now re-enacted in section 13 of the Employment Rights Act 1996), employers were prevented from making deductions from the wages properly payable to their employees, save in certain defined circumstances and, in particular, where the employee had given prior consent to the deduction in writing. 32. In Saavedra v. Aceground Ltd t/a Terazza Est ([1995] Industrial Relations Law Reports 198), the Employment Appeal Tribunal held that a restaurant owner who kept for himself a proportion of the sums paid by customers as a service charge had contravened section 1 of the Wages Act 1986. Whilst it was at the restaurant owner’s discretion how the tronc was allocated, this did not extend to permitting him to allocate some of the money to himself.

train

001-57638

ENG

SWE

CHAMBER

CASE OF HÅKANSSON AND STURESSON v. SWEDEN

Violation of Art. 6-1;No violation of P1-1 and 14+P1-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

C. Russo

7. Mr Gösta Håkansson is resident at Höör and a police officer by profession, and Mr Sune Sturesson is resident at Skånes Fagerhult and a farmer by profession. 8. On 4 December 1979 the applicants bought for 240,000 Swedish crowns (SEK) at a compulsory sale by auction (exekutiv auktion; "the 1979 auction") an agricultural estate called Risböke 1:3 in the municipality of Markaryd. Their main competitors at the auction, Mr Bertil Bjarnhagen and Mr Michael Borg, bid 235,000 and 220,000 SEK, respectively. The property had been seized in July 1979 in order to secure the payment of the previous owners’ debts to three banks. According to a valuation made public before the auction, the market value (saluvärde) of the property was estimated at 140,000 SEK. 9. At the auction the public was, according to the minutes drafted by the representative of the County Administrative Board (länsstyrelsen) of the County of Kronoberg, informed of the regulations contained in section 2, sub-section 10, and section 16 of the Land Acquisition Act 1979 (jordförvärvslagen 1979:230; "the 1979 Act"), whereby a purchaser would have to resell the property within two years unless he had obtained in the meantime from the County Agricultural Board (lantbruksnämnden) of the same County a permit to retain it or fell under one of the listed exceptions from the permit requirement (see paragraphs 28 and 32 below). The applicants maintained that a representative of the County Administrative Board had stated, at the public viewing of the property on 27 November 1979, that, in this case, the requisite permit would certainly be granted speedily; they further claimed that this had been confirmed by the County Administrative Board at the auction. In support of these allegations, the applicants submitted three affidavits, each of which was signed in 1989 by a person who had been present either at the auction or at the public viewing. 10. On 7 January 1980 the County Administrative Board drew up a sale contract (köpebrev) in which the applicants were reminded of the wording of section 16 para. 1 of the 1979 Act. On the same day the applicants submitted a request to the County Agricultural Board for a permit to retain the estate Risböke 1:3. 11. By letter of 5 February 1980, the County Agricultural Board informed the applicants that the estate had, in view of its size, situation and nature, to be considered as a "rationalisation unit" (rationaliseringsfastighet) which ought to be used for the purpose of consolidating other properties in the area that were capable of further development. It added that, as neighbours were interested in acquiring the property, the request might be refused under section 4 para. 1, sub-section 3, of the 1979 Act (see paragraph 30 below). The County Agricultural Board also indicated that there were reasons to believe that the price paid was too high for redemption (inlösen - see paragraph 34 below). On 15 February 1980 the County Agricultural Board rejected the applicants’ request on the ground that the estate was a "rationalisation unit". 12. The applicants appealed to the National Board of Agriculture (lantbruksstyrelsen), which rejected the appeal on 5 September 1980. In its decision the National Board of Agriculture noted the following. Risböke 1:3 had an area of 41 hectares of which 18 hectares were forest and 8 hectares pasture. There were no buildings on the property. Mr Sturesson’s estate, which comprised 63 hectares of forest and 10 of pasture, was 25 kilometres away. Through their purchase the applicants had intended to build up units which would, in the short run, create opportunities for employment and, in the long run, become financially sound properties to be exploited by their children. The Board noted however that in the opinion of the County Agricultural Board, there was only room for one active farmer in the region. Finally, Mr Michael Borg, who leased two neighbouring properties, one of which was owned by his father, had shown a great interest in acquiring the applicants’ property. The Board concluded: "The National Board of Agriculture finds, as did the County Agricultural Board, that the real estate at issue lacks the prerequisites for remaining as a separate cultivation unit. Moreover, the National Board considers that a new establishment on the property would be likely to make it more difficult for the active farmer in the area to develop his business." 13. The applicants appealed to the Government (Ministry of Agriculture), which rejected the appeal on 26 February 1981. 14. A new request, dated 4 January 1982, for a permit to retain Risböke 1:3 was rejected by the County Agricultural Board on 25 January 1982. The Board stated that the estate was considered to be a unit suitable for rationalisation purposes, which ought to be used to consolidate properties within the area that were capable of further development. It furthermore stated that it was not prepared to redeem the estate at the price of 240,000 SEK. 15. The applicants appealed to the National Board of Agriculture. After inspecting the property, it rejected the appeal on 15 November 1982, on the ground that there were no new circumstances justifying a departure from its previous decision. 16. The applicants’ further appeal to the Government was dismissed on 27 October 1983. 17. In a letter of 11 January 1985 the applicants requested the Government to reconsider their decision of 27 October 1983. The Government, recalling that the case had been finally settled by them on the latter date, decided on 14 March 1985 not to take any further action in respect of the request. 18. The applicants brought proceedings before the Real Estate Court (fastighetsdomstolen) of Växjö requesting that the State redeem the Risböke 1:3 in accordance with section 14 of the 1979 Act (see paragraph 34 below). In a judgment of 11 December 1981 the court rejected the claim, stating that in view of the clear wording of section 14 this provision could not be applied by analogy to the applicants’ situation. The applicants appealed to the Göta Court of Appeal (Göta hovrätt), which on 1 July 1982 confirmed the judgment of the Real Estate Court. On 14 July 1983 the Supreme Court (högsta domstolen) refused leave to appeal. 19. At the request of the County Agricultural Board, the County Administrative Board ordered, on 10 November 1983, the compulsory resale by auction of Risböke 1:3 in accordance with the provisions of sections 16 and 17 of the 1979 Act (see paragraphs 36-38 below). The Enforcement Office (kronofogdemyndigheten) in Växjö was responsible for arranging the auction. 20. In February and March 1984 the National Board of Forestry (skogsvårdsstyrelsen) assessed the value of the property in accordance with the price-control regulations (that is, in principle, by reference to its yield) at 100,000 SEK and its market value as not exceeding 200,000 SEK. In April 1984 the Senior Land Surveyor (överlantmätaren) of the County of Kronoberg made a new valuation of the property, resulting in an estimated market value of 125,000 SEK. 21. On 19 April 1984 the Enforcement Office determined that the estate had a value of 125,000 SEK. The applicants challenged this before the Göta Court of Appeal but the court dismissed the action on 4 June 1984, stating that it was not possible to appeal against such a determination as it was only a preparatory step for a subsequent decision on the sale of the estate (see paragraph 39 below). The applicants appealed against this decision to the Supreme Court, which on 23 August 1984 refused leave to appeal. On 26 June 1984, at the applicants’ request, the County Administrative Board appointed two special valuers (see paragraph 37 below). In their report of October 1984, the valuers concluded that the property had an estimated market value of 172,000 SEK, taking into account certain expenditure deemed necessary for thinning out trees (mainly Christmas trees) that had been newly planted by the applicants. 22. The auction took place on 18 June 1985 ("the 1985 auction"). The Enforcement Office noted that the estate had an estimated market value of 172,000 SEK and a taxable value of 107,000 SEK. It decided that the lowest bid which could be accepted would be 172,000 SEK. At the auction, there was, in fact, only one bid. It was an offer of 172,000 SEK made by the County Agricultural Board and it was accepted by the Enforcement Office. After the costs of the valuation and the auction had been deducted the applicants received 155,486.50 SEK. 23. Prior to the auction in June 1985, five requests for advance permits (förhandstillstånd) to acquire the property had been filed with the County Agricultural Board (see paragraph 36 below). On 10 April 1984 the Board granted the request filed by Mr Michael Borg and Mr Thorwald Borg on condition that they applied, within two months from the public auction, for a merger of Risböke 1:3 and the two neighbouring properties which they now owned (cf. paragraph 12 above). The other requests were rejected by the Board on 10 and 14 June 1985. 24. On 19 June 1985 the applicants appealed to the Göta Court of Appeal requesting that the compulsory sale be annulled. They argued that the property had not been sold at the market price, as required by law, since the valuation which had arrived at the figure of 172,000 SEK had been based only on an assessment of the yield from the property. The applicants stated that they intended to submit to the court a new valuation report. However, on 3 July 1985 the Court of Appeal dismissed the appeal. 25. The applicants filed a further appeal with the Supreme Court, in which they also challenged the impartiality of the two special valuers on the ground that they had had a duty, under section 6 of the Land Acquisition Ordinance 1979 (see paragraph 37 below), to consult with the County Agricultural Board - which had in the event been the buyer of the estate - when making their valuation. They did not raise any complaint in respect of the absence of any public hearing before the Court of Appeal. On 20 August 1985 the Supreme Court refused to grant leave to appeal. 26. On 17 December 1985 the County Agricultural Board sold the property to Mr Michael Borg and Mr Thorwald Borg for 125,000 SEK. On 17 January 1986 they applied for its merger with their two properties as required in their acquisition permit (see paragraph 23 above) and on 11 April 1986 the merger was accepted by the local property formation agency (fastighetsbildningsmyndigheten). 27. The Land Acquisition Act 1979 was enacted in order to implement the agricultural guidelines adopted by the Riksdag in 1977 and also to meet the policy goals of forestry and regional planning. Among the aims to be specially furthered by the Act are the creation and preservation of viable family holdings so as to strengthen the connection between cultivation and ownership, and also the promotion of a continuous structural rationalisation of agriculture and forestry. 28. Under section 1 of the Act, a permit is required for the acquisition of real estate assessed for tax purposes as an agricultural holding. Section 2 lists a number of exceptions: for example, no permit is required when the property is acquired by a State authority other than a commercial undertaking (sub-section 2) or at a compulsory sale by auction (sub-section 10) other than such as take place in accordance with section 17 of the Act (see paragraph 36 below). 29. When deciding on an application for a permit, the authorities shall take into account that the setting up and development of rational enterprises in agriculture, forestry and horticulture should be promoted (section 3). 30. Section 4 para. 1 provides that a permit to acquire a property shall be refused, inter alia: "1. If the price or other consideration exceeds, to an extent which is not insignificant, the value of the property in view of its yield and other circumstances, 2. if it can be assumed that the acquisition is effected mainly as an investment, 3. if the property is required for the rationalisation of agriculture or forestry, ..." Paragraph 2 of this section provides inter alia that sub-section 1 of the first paragraph does not apply to the acquisition of real estate at a compulsory sale by auction under section 17 of the Act (see paragraph 36 below). 31. Section 12 specifies that the acquisition permit shall, in principle, be applied for within three months of the purchase. Under this section the question whether or not to grant the permit may not be examined before the acquisition, except in certain circumstances, none of which obtained at the 1979 auction. However, in the case of a public auction under section 17 (see paragraph 36 below), such as the one held in 1985, the acquisition permit shall be issued before the auction. 32. Under section 16 para. 1, a property acquired at a compulsory auction in circumstances which, in case of an ordinary purchase (see paragraph 28 above), would have required a permit shall be re-sold within two years, unless the said circumstances have by then ceased to exist or unless the purchaser has obtained a permit from the County Agricultural Board to retain the property. The granting of such a permit is subject inter alia to the provisions of sections 3 and 4, with the exception of section 4, sub-section 1. The sale contract issued after the compulsory auction shall contain a note recalling the regulations laid down in section 16. 33. A decision by the County Agricultural Board not to grant permission to retain property acquired at a compulsory auction may be appealed to the National Board of Agriculture and ultimately to the Government. 34. "If a purchase becomes invalid because the necessary permit is refused as a result of the application of section 4 para. 1, sub-section 3", i.e. on the ground that the property is required for the rationalisation of agriculture or forestry, the State is, according to section 14, "obliged to redeem the property at the agreed purchase price if the seller so requests". However, under the same section, no such obligation exists if the purchase price exceeds, to an extent which is not insignificant, the value of the property in view of its yield and other circumstances, or if the terms are unreasonable in other respects. There is no obligation on the State to redeem property acquired at a compulsory auction as in such a case a permit is not required for a valid acquisition of the property (see paragraphs 18 and 28 above). 35. Under section 14 para. 2, applications for redemption shall be filed with the Real Estate Court, whose decisions may be appealed to a Court of Appeal and ultimately, if leave to appeal is granted, to the Supreme Court. 36. If, in a case where this is required under section 16 (see paragraph 32 above), the property has not been re-sold within the prescribed time-limit, the County Administrative Board shall, according to the same section and on application by the County Agricultural Board, order that the property be sold at a compulsory auction by the Enforcement Office in accordance with the provisions of section 17. At such an auction the property may only be sold to someone who has received an acquisition permit (see paragraph 31 above) or who is, like the County Agricultural Board, exempted from the permit requirement by virtue of section 2 of the 1979 Act (see paragraph 28 above). 37. Section 17 specifies that no sale at a compulsory auction may take place unless the purchase price offered amounts at least to the value to be attributed to the property in accordance with the provisions of Chapter 12 of the Code of Enforcement (utsökningsbalken, see in particular section 3). Under section 17 of the 1979 Act this estimated value is to be fixed by the Enforcement Office or, if the owner of the property makes a timely request for a special valuation, by valuers appointed by the County Administrative Board. In both cases the valuation shall be made in consultation with the County Agricultural Board (section 6 of the Land Acquisition Ordinance 1979, jordförvärvsförordningen 1979:231, enacted by the Government). 38. Section 17 also provides that, if the property is not sold at the auction, the County Agricultural Board may, within a period of two years, request the County Administrative Board to hold a new auction. If no such request is made, or if no acceptable bid is made at the second auction, the owners are no longer required to sell the property. 39. The Enforcement Office’s decisions in respect of a compulsory auction may, according to Chapter 18, section 1, of the Code of Enforcement, be brought before a Court of Appeal and ultimately, with leave to appeal, before the Supreme Court. However, according to section 6 (2) of the same Chapter, an appeal against a decision that is merely a preparatory step for a final decision may, in general, be lodged only in connection with an appeal against the latter. Appeals follow the rules of the 1942 Code of Judicial Procedure (rättegångsbalken), as far as these are relevant (Chapter 18, section 1, of the Code of Enforcement). Chapter 52, section 10, of the Code of Judicial Procedure specifies that: "Where it is necessary for the purposes of the investigation of a case that a party or other person be heard orally by the Court of Appeal, the Court of Appeal shall decide on such a hearing as it finds appropriate." If the Court of Appeal decides to hold such a hearing, the hearing is open to the public under Chapter 5, section 1, of the Code of Judicial Procedure.

train

001-82568

ENG

RUS

CHAMBER

CASE OF GALKIN v. RUSSIA

Violation of Art. 6;Violation of P1-1

Christos Rozakis

4. The applicant was born in 1939 and lives in Barnaul, the Altay Region. 5. On 20 December 1998 police searched the applicant's house. 6. On 20 June 2000 the Industrialnyy District Court of Barnaul found, upon the applicant's complaint, that the search had been unlawful. The judgment was not appealed against and acquired legal force ten days later. On 8 May 2001 the Presidium of the Altay Regional Court rejected the Prosecutor's application for supervisory review and upheld the judgment of 20 June 2000. 7. On 18 December 2003 the Oktyabrskiy District Court of Barnaul granted the applicant's action against the Ministry of Finance of the Russian Federation for compensation of non-pecuniary damage sustained as a result of the unlawful search and awarded the applicant 5,000 Russian roubles. By a decision of 24 March 2004 the Altay Regional Court upheld the judgment on appeal. On 29 July 2004 the Oktyabrskiy District Court issued a writ of execution. 8. On 15 October 2004 the applicant forwarded the writ of execution to the Ministry of Finance, but on 10 November 2004 the Ministry of Finance returned it to the applicant on the ground that he had failed to submit a duly certified copy of the judgment of 18 December 2003 and a payment request with indication of his bank account. 9. On 6 December 2004 the applicant re-submitted the enforcement materials to the Ministry of Finance. However, on 12 January 2005 the Ministry of Finance returned them to the applicant for the reason that the date of delivery of the judgment had been indicated incorrectly. 10. On 8 February 2005 the enforcement documents were once again forwarded to the Ministry of Finance. 11. The date on which the judgment was enforced is disputed by the parties. According to the Government, the judgment was fully enforced on 2 May 2005. From the applicant's submissions it follows that he had received the amount awarded by the judgment of 18 December 2003 on 2 May 2006.

train

001-119272

ENG

POL

ADMISSIBILITY

KUSINA v. POLAND

Inadmissible

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

1. The applicant, Mr Wiesław Kusina, is a Polish national, who was born in 1955 and lives in Gawłuszowice. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is married and has three children. Prior to his application for an EWK pension he had been employed until 31 October 2001. 5. On 1 October 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 6. Along with his application for a pension, the applicant submitted, among other documents concerning his son’s health, a medical certificate issued by Dr Z.L, a urologist, which had been issued on 21 September 2001. The certificate also bore a stamp of the urology centre in Przemyśl (Poradnia urologiczna Przychodni Specjalistycznej 114 Szpitala Wojskowego w Przemyślu) (“the Centre”) and stated that the child (born in 1994) suffered from neurogenic bladder disorder (dysfunkcja neurogenna pęcherza moczowego) and was in need of the parent’s constant care. 7. On 12 October 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 856 Polish zlotys (PLN) per month. 8. The Social Security Board initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. The applicant resigned from his job where he had been working since 1974. On 1 November 2001, the payment of the pension was resumed. 9. On 22 August 2002 the Social Security Board asked the Centre to provide medical documentation concerning the applicant’s son. In reply, the Centre informed it that the child had never been registered there as a patient. However, the relevant medical documentation was provided by two private medical establishments. On an unknown date the Rzeszów Social Security Board requested the Social Security Board’s doctor (Główny Lekarz Orzecznik) to specify whether the applicant’s son required the permanent care of a parent. On 20 September 2002 the doctor stated, on the basis of the medical records provided to the SSB, that the child could not be considered as ever having required such care. 10. On 24 September 2002 the Rzeszów Social Security Board simultaneously issued two decisions in respect of the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the second decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki) (“the 1989 Ordinance”). 11. The applicant appealed against these decisions. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights. 12. On 14 September 2004 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the appeal. During the proceedings, the applicant’s son was examined by specialist urologists on three occasions. The experts found that he suffered from a minor phimosis and nocturnal enuresis. In their view, the medical documentation did not contain any evidence that the child had ever suffered from, or had been treated for, the diseases as diagnosed by Z.L. They stated that those particular disorders could not be diagnosed as such without carrying out a series of prior comprehensive examinations. The child’s medical records did not mention any of such examinations. The Regional Court held that the applicant’s child did not require his father’s permanent care since his state of health did not significantly impair his body functions. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he did not satisfy the requirement of necessary permanent care. 13. The applicant appealed against the first-instance judgment. 14. On 15 December 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. 15. On 18 March 2005 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant. 16. In 2003 the Rzeszów District Prosecutor filed a bill of indictment against Z.L., a doctor from the specialist urology centre in Przemyśl (Poradnia urologiczna Przychodni Specjalistycznej 114 Szpitala Wojskowego w Przemyslu) (“the Centre”). He was charged with issuing five fraudulent certificates confirming that five persons (including the applicant’s son) had been treated in the Centre. 17. The applicant was questioned as a witness in the proceedings. 18. On 12 January 2004, the doctor pleaded guilty to the charges. 19. On 4 February 2004 the Rzeszów District Court discontinued the proceedings against Z.L. on the ground that the act committed was of minor significance (“wypadek mniejszej wagi”). It further ordered him to pay a fine of PLN 1,000. 20. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to the early-retirement pension. 21. The applicant submitted, in general, that after the revocation of the EWK pension his financial situation had been difficult. 22. The Government submitted that the applicant owned a farm (4.14 hectares) which was a source of income for him and his family. In addition, the applicant’s wife had been employed since 2007. 23. The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v. Poland, no. 10373/05, §§ 3134, 15 September 2009, and Antoni Lewandowski v. Poland, no. 38459/03, §§ 3643, 2 October 2012).

train

001-100281

ENG

UKR

CHAMBER

CASE OF MURUKIN v. UKRAINE

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

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

5. The applicant was born in 1961 and lives in Dnipropetrovsk. 6. On 3 July 2002 the applicant manoeuvred his car negligently in the street and crashed into another car which was being driven by a Ms Kh. As a result of the incident, Ms Kh. sustained concussion and injuries of medium severity. 7. Following the incident, the applicant was charged with the crime, set out in Article 286 § 1 of the Criminal Code, of breaching traffic rules resulting in injuries of medium severity to the victim. As a preventive measure, the applicant signed a written undertaking not to abscond. 8. On 5 June 2003 the Dnipropetrovskyy District Court (“the District Court”), taking note of the fact that the applicant had failed to appear at the hearing of his case, scheduled for that day, replaced the written undertaking by the applicant for his detention in custody. 9. Between 19 and 23 June 2003, the applicant was undergoing medical treatment in Dnipropetrovsk no. 7 City Hospital. According to the applicant, he was visited there by police officers who handcuffed him and guarded him until the end of the medical treatment. The officers allegedly did not allow him to use the toilet and prevented him from seeing his relatives and friends. The applicant did not complain to the investigating authorities on account of the conduct of the police officers. 10. On 23 June 2003 the applicant was arrested and placed in a cell at the Dnipropetrovsk District Police Department. 11. On 25 June 2003 the Dnipropetrovsk Regional Court of Appeal (the “Court of Appeal”) rejected the applicant's appeal against the decision of 5 June 2003 of the District Court, stating that, under domestic law, the decision was not subject to appeal. 12. On 27 June 2003 the applicant was transferred to the Dnipropetrovsk no. 3 Pre-Trial Detention Centre (“the Dnipropetrovsk SIZO”). 13. On 3 July 2003 the District Court found the applicant guilty of a crime under Article 286 § 1 of the Criminal Code and sentenced him to two years' “restriction of liberty” and a one-year driving ban. It further stated that the sentence should be calculated from 23 June 2003 and maintained the preventive measure (detention in custody) in respect of the applicant. 14. On 14 and 15 July 2003 the applicant complained to the President of the Court of Appeal and the President of the Supreme Court, alleging that his detention in custody had been unlawful. The complaints were unsuccessful. 15. On 21 July 2003 the applicant appealed against the judgment of 3 July 2003, alleging specifically that his detention had been unlawful since, first, under the provisions of Article 155 of the Code of Criminal Procedure the crime he was charged with did not entail the possibility of pre-trial detention, and, secondly, Article 342 of the same Code provided that he should have been released immediately after the court hearing of 3 July 2003. 16. On 6 October 2003 the Court of Appeal dismissed the applicant's appeal as unfounded and upheld the judgment of 3 July 2003, which then came into effect. The Court of Appeal ordered that the period of the applicant's detention in custody should be reckoned as a part of the applicant's sentence. 17. On 19 December 2003 the applicant was released from the Dnipropetrovsk SIZO, and moved to no. 133 Correctional Centre to serve his sentence. 18. On an unspecified date the applicant lodged a cassation appeal against the judgment of 3 July 2003, contending, in particular, that his detention in custody had been contrary to Articles 155 and 342 of the Code of Criminal Procedure and Article 107 of the Correctional Labour Code. 19. On 23 December 2004 the Supreme Court dismissed the applicant's cassation appeal as unfounded. It noted, inter alia, that the period of the applicant's detention in custody had been reckoned as a part of his sentence and therefore the procedural shortcomings complained of, namely, the application of the preventive measure of detention did not necessitate the quashing of the judgments of the lower courts. 20. The relevant provisions of the Code read as follows: “The following types of punishment may be imposed on persons who are found guilty of crimes: ... 8) arrest; 9) restriction of liberty; ... 11) imprisonment for a defined term; 12) life imprisonment.” “Restriction of liberty is a type of punishment which consists in holding a person under supervision in an open-prison-type establishment without isolating such a person from society and including an obligation on him or her to work. ...” “1. Violation of traffic safety rules or misuse of a vehicle by a driver, if this results in injuries of medium severity to the victim, – shall be punished either by a fine in an amount of up to one hundred times the tax -free monthly income, or by correctional work for up to two years, or by arrest for up to six months, or by restriction of liberty for up to three years, combined, if required, with a driving ban for up to three years. ...” 21. Chapter 13 of the Code deals with preventive measures that can be applied in the course of criminal proceedings. The relevant provisions of that Chapter of the Code read as follows: “The preventive measures are as follows: (1) a written undertaking not to abscond; (2) a personal guarantee; (3) the guarantee of a public organisation or labour collective; (3-1) bail; (4) detention in custody; (5) supervision by the command of a military unit. As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.” “Detention in custody as a preventive measure shall be applied in cases concerning crimes for which the law envisages a punishment of more than three years' imprisonment. In exceptional circumstances this preventive measure can be applied in cases concerning crimes for which the law envisages a punishment of up to three years' imprisonment. ...” “If a defendant fails to appear at a court hearing in a case in which his appearance is obligatory, without a valid reason, ... the court shall adjourn consideration of the case ... In addition, the court ... may order the defendant's compulsory appearance and apply a more severe preventive measure ...” “Upon the acquittal of the defendant, or his release from sentence, or the imposition on him of a punishment other than imprisonment, the court shall immediately release the defendant from custody in the courtroom if he or she is in detention.” “When adopting a judgment by which the defendant is sentenced to a certain type of punishment, the court should consider the question of applying the preventive measure for the period before the judgment comes into effect, and has the right to apply new preventive measures, or quash, change, or maintain the preventive measures that have been applied earlier. Application of such a preventive measure as detention in custody shall be permissible only on the grounds set out in relevant Articles of Chapter 13 of this Code.” 22. The relevant provisions of the Code read as follows: “Persons sentenced to restriction of liberty shall undergo their punishment in open-prison-type establishments (“correctional centres”) ...” “Persons sentenced to restriction of liberty shall personally relocate to the places in which they are to serve their sentences. ... If a person sentenced to restriction of liberty is detained, he or she shall be released from the detention centre when the sentence comes into effect. ... the sentenced person, who is detained in custody until the judgment comes into effect, be moved to the place where they must serve their sentence in accordance with the procedure for persons sentenced to imprisonment. In the latter case the sentenced person shall be released from custody upon his or her arrival at the place of serving the sentence. ...” “Persons sentenced to restriction of liberty shall be entitled: ...to have unlimited short-term visits and long-term visits (of up to three days) once a month; to leave the correctional centre for short periods of time, with appropriate permission ... Persons sentenced to restriction of liberty shall be obliged: ...to work diligently at the designated place; to remain under supervision in the correctional centre and to leave it only by special permission issued by the administration of the correctional centre... to live, as a rule, in special dormitories ... After six months of the sentence has been served, those persons who have not violated disciplinary rules may be allowed to live outside the dormitories with their families ... Those persons shall appear at the correctional centre for registration not more than four times a week. ...” 23. Section 7 of the Act reads as follows: “... The basic requirements of the pre-trial detention regime are the isolation of detainees, the full supervision of them and separation from each other, as provided by Section 8 of this Act ...” 24. The other relevant provisions of this Act describing the pre-trial detention regime can be found in the judgment in the case of Dvoynykh v. Ukraine (no. 72277/01, §§ 33-36, 12 October 2006).

train

001-99963

ENG

MKD

ADMISSIBILITY

VRANISKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" (No. 1)

Inadmissible

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

The applicant, Mr Jovan Vraniškoski, is a Macedonian national who was born in 1966 and lives in Bitola. He was represented before the Court by Mr V. Gorgiev, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 November 2000 the applicant was appointed as a bishop (Епархиски Архиереј на Повардарската Епархија) in the Macedonian Orthodox Church (“the Church”). By a decision of 11 April 2001, he designated the monastery Свети Великомаченик Dimitrij in Veles as his residence. However, he has resided and worked in the Veles and Povardarska Eparchy building (Велешка и Повардарска Епархија - “the Eparchy building”). At a press conference on 21 June 2002 the applicant stated that he would join the Serbian Orthodox Church. On 26 June 2002 considerable number of people (according to the Government 1,500 and according to the applicant, less than 100 people) gathered at the main square in Veles protesting against his decision and requesting his dismissal from the Church. By a decision of 28 June 2002, which was made public through the media, the Holy Synod of the Church (Светиот Архиерејски Синод) invited the applicant to reunite with the Church within seven days. When he refused, on 3 July 2002 another public protest was organised at the main square in the city of Kavadarci. At an extraordinary meeting of 5 July 2002, the Holy Synod of the Church, by unanimous decision, dismissed the applicant from his office on the ground that, by his unilateral accession to the Serbian Orthodox Church, he had violated the oath (Епископско исповедание/ заклетва) by which he had bound himself to safeguard the Church’s unity and Constitution. It designated the monastery Свети Великомаченик Ѓорѓи in Negotino (“the monastery”) as his new place of residence and work. It further invited the applicant to reunite with the Church within thirty days, failing which other measures would be taken in accordance with its rules. It was also decided that the Holy Synod would run the Eparchy building with effect from 6 July 2002 (“the dismissal decision”). By a decision of 6 July 2002, a Commission (“the Commission”) was set up to take the Eparchy building, furniture and funds from the applicant. The media were also informed about the above decisions. On the same day the Church requested the Ministry of the Interior (“the Ministry”) to assist with the implementation of its decisions. The request stated, inter alia: “...Due to the possible obstruction of the enforcement of this decision by the Archbishop Jovan [the applicant] or someone else, we request the Veles office of the Ministry of the Interior to take any necessary measures for its implementation...” On 6 July 2002 police officers were deployed around the Eparchy building. At around noon, representatives of the Commission (“the archbishops”, владици) arrived in order to hand over the dismissal decision to the applicant and to take the Eparchy building. They were greeted by a group of people that have gathered in front of the entrance. The door of the Eparchy building was locked. The archbishops waited for the applicant and the other staff, who were at that moment inside the Eparchy building, to open the door. In the meantime, the number of people gathered in front of the Eparchy building increased considerably. Due to the increased tension and indications of security risks for the public order, the life and health of the applicant and other personnel in the Eparchy building, the Ministry sent a group of fifteen police officers. After an hour, the archbishops took measures to break in the Eparchy building. In this connection they instructed a locksmith to break the lock. In view of the security risks, several police officers, with the consent of the archbishops, entered the Eparchy building. After having entered, the archbishops discussed with the applicant. The police secured the Eparchy building in order to prevent the crowd from breaking in. The police assessed the situation as critical and advised the applicant that his further stay in the Eparchy building, without protection, would not be safe. In such circumstances, the applicant agreed to leave by the back door. Then, the applicant and the personnel got into a car of the Church and escorted by the police went to the monastery. The Government submitted a DVD containing video and audio material (3, 38 min.) regarding the applicant’s eviction. According to it, when the archbishops arrived on the scene, there were people gathered in front of the Eparchy building and media representatives. At that moment, no policeman could be seen. Then a locksmith opened the door. According to an explanation given by a journalist, the lock was broken on the request of one of the archbishops. After forty-five minutes waiting, the archbishops entered the Eparchy building first. After four hours, the applicant left the Eparchy building with a car of the Church. At that moment, several policemen can be seen making a passage for the applicant’s car to leave the scene. At that moment, many more people were gathered in front of the Eparchy building. The applicant contested the Government’s version of events. He referred to the facts as established by the first-instance court in the civil proceedings described below, which the Ministry had not contested at that time. He argued in particular that the police had accompanied the archbishops on their arrival in the Eparchy building and that the locksmith had arrived with a car secured by the police. In July 2002 the applicant, who was represented by counsel, brought a civil action against the State and the Ministry for interference with and deprivation of possession (смеќавање на владение) of the Eparchy building. He also sought restoration in the previous state (воспоставување на владетелска состојба каква што била во моментот на смеќевањето и одземањето на владението). He claimed that at around 1 p.m. on 6 July 2002 the Ministry had interfered with his right of peaceful enjoyment of the Eparchy building which had also served as his home. He alleged that fifteen fully-equipped police officers had broken the lock, with the assistance of a locksmith, and entered the building, despite the fact that there had been no decision of a State body authorising the police forcibly to enforce the dismissal decision. After the break-in, Mr T. and Mr A., the archbishops, had served the dismissal decision on him, with which he had refused to comply. He further alleged that he had been searched and insulted by police officers. He requested that the court take oral evidence from him, Mr P.T., Mr K.G., Mr S.I., Ms C.B., personnel in the Eparchy building who had eye-witnessed the event, Mr T. and Mr A. The applicant based his claim, inter alia, on Articles 19 § 3, 26 and 50 of the Constitution (see “Relevant domestic law and practice” below). The Ministry replied, inter alia, that it had acted on the Church’s request to enforce the dismissal decision with the aim of securing the place and preventing the disorder which had reasonably been expected to occur. Its purpose had been to protect not only the personal safety and property of the persons who had gathered, but those of the applicant as well. On 17 February 2003 the Veles Court of First Instance, relying on section 181(3) of the Ownership and other Property Rights Act (“the Act”), dismissed the applicant’s claim. Relying inter alia on the statements given by the applicant, Mr P.T., Mr K.G., Mr S.I. and Ms C.B. it established the following: that the Eparchy building had been the applicant’s permanent residence, namely, that the upper floor had served as a place of residence for him and the other personnel and that the working premises of the Eparchy had been on the lower floor; that at around noon on 6 July 2002, media representatives and a group of people had gathered in front of the Eparchy building. As the applicant and other members of the staff had refused to open the door, the police, assisted by a locksmith, had broken in and searched the applicant, staff and premises. The applicant had had a discussion with the archbishops and after he had refused to cooperate, the police coordinator had ordered the applicant and the personnel to leave the Eparchy building by the back door. The applicant and the personnel had then got into a car and, escorted by the police, gone to the monastery. The court held that: “...it is undisputed that the plaintiff [the applicant] had possession of the Povardarska Eparchy, which had served not only as the plaintiff’s [the applicant’s] place of work for his duties as a bishop, but also as his home... having regard to the anticipated obstruction by the plaintiff [applicant] or others and on the basis of the decision of 6 July 2002, the President of the Holy Synod of the Church requested [the Ministry] to enforce its decision ... As the plaintiff [the applicant] had refused to [repudiate his previous conduct], it appears that the Holy Synod’s anticipated doubts concerning enforcement of the decision and the request for police intervention were reasonable... The plaintiff [the applicant] and the personnel were taken out by the back door of the Eparchy building in order to avoid any contact with the people and any possible assault ...” The applicant appealed on the grounds, inter alia, that the lower court had dismissed his claim despite having established that he had had possession of the Eparchy building, which had also served as his place of residence, and that that possession had been forcibly appropriated by the police. He complained that the court had wrongly applied section 181(3) of the Act, as the Church’s decision could not be considered “a decision of another body given in accordance with law”. He also complained that the Ministry had acted as an executive body of the Church by enforcing the dismissal decision with the use of force. He again invoked Articles 19 § 3 and 26 of the Constitution. On 29 May 2003 the Skopje Court of Appeal dismissed the applicant’s appeal, finding it undisputed that the Ministry had acted at the Church’s request. On the facts established by the first-instance court, it held that the latter’s decision should have been based on section 168 and not section 181(3) of the Act. The Court of Appeal found that: “...the plaintiff [the applicant] had only occupied (детенција) the apartment situated in the Eparchy building on the basis of his position as a bishop. His dismissal from this position and the assignment by the Holy Synod of the Church of the monastery as his permanent place of residence and work entailed the loss of that occupancy. As the plaintiff [the applicant] did not have possession within the meaning of section 167 of the Act, he could not claim protection of the possession under section 184 of the Act.” “Article 19 § 3 ...The Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelic Methodist Church, Jewish Community and other religious communities and groups are separate from the State and equal before the law. Article 26 The inviolability of the home is guaranteed. The right to the inviolability of the home may be restricted only by a court decision for the investigation or prevention of criminal offences or protection of people’s health. Article 50 Every citizen may invoke protection of the freedoms and rights set forth in the Constitution before the courts, including before the Constitutional Court of the Republic of Macedonia, in proceedings based on the principles of priority and urgency ...” Section 156(1) and (2) of the Act provide that a property owner can bring a civil claim for restitution against the occupier (држателот) of an individually specified property. The owner has to prove that he or she has title to the property of which restitution is claimed and that the defendant has actual control of that property. Section 167(1) of the Act provides, inter alia, that anyone who has control of property, either directly or through a representative, can claim to have possession (владение) of it. Under section 168 of the Act, a person who, on the basis of a post of employment or a similar relationship, or as a member of a household, makes use of a property on the basis of another’s order or executes another’s decision without acquiring any personal advantage cannot be regarded as having possession (владение), as he or she is a mere occupier (прост држател или детентор). Under section 181(1) of the Act, no one has a right unlawfully (неовластено) to disturb (смеќава) and deprive (одзема) the possession even if he or she considers having stronger right of possession. Under sub-section 3 of the Act, it is not considered an unlawful disturbance of possession if the disturbance or deprivation is authorised by law or by a decision of a court or other body taken in accordance with a law which provides for such disturbance or deprivation. Section 182(1) of the Act provides that a person in possession (владетелот) of a property or a holder of a proprietary right is entitled to protect his or her possession from disturbance or seizure. Section 184 of the Act provides that a person whose possession has been unlawfully disturbed or seized is entitled to request the court to establish that the disturbance or seizure has taken place, to order reinstatement and proscribe any further or similar actions. Court protection is available in special proceedings in accordance with the most recent peaceful possession, regardless of the conduct of the person in possession and whether the disturbance was lawful and in the public interest. Section 141 of the Obligations Act defines different grounds for claiming civil compensation. Under section 189, in the event that a human right or freedom is violated, the court may award just satisfaction regardless of whether or not compensation for pecuniary damage has been awarded. Section 16 of the Criminal Procedure Act provides that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to ex officio prosecution by the State or on an application by the injured party, the authorised prosecutor is the public prosecutor, whereas in cases involving offences for which only private charges may be brought, the authorised prosecutor is the private prosecutor. If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings, his role may be assumed by the injured party acting as a subsidiary prosecutor under the conditions specified in the Criminal Procedure Act. Section 56 provides, inter alia, that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution, he shall notify the injured party of his decision within eight days. He shall also inform the injured party that he is entitled to conduct the prosecution himself. The latter may take over or continue the prosecution within eight days. Under section 141, everyone can report a criminal offence subject to ex officio prosecution. The complaint is submitted to the public prosecutor, orally or in written. Article 145 §§ 1 and 2 of the Criminal Code provide, inter alia, that anyone who enters another’s home without authorisation is liable to a fine or to a one-year prison sentence. If the offence is committed by an official in the performance of his or her duties, he or she is liable to a term of imprisonment of between six months and five years. An attempt to commit the offence is also punishable. Rule 3 of the Rules of the Ministry sets out measures which the Ministry’s officials can take in discharging their duties. Under sub-heading 4, Ministry officials can enter a person’s home or other premises after having shown an identity card and a court decision or order. The Government submitted final decisions in which the national courts had convicted the defendants under Article 145 § 1 of the Criminal Code of breaching the inviolability of the victim’s home. In those cases the courts had decided on the basis of private criminal complaints brought by the victims (K.br.150/97; K.br.38/99; K.br.203/01; K.br.1201/01; K.br.1961/01; K.br.235/02; K.br.1260/02; K.br.452/05; K.br.397/06; K.br.646/06; K.br.183/07; K.br.399/07; K.br.88/08; K.br.143/08; and K.br.1321/09). In the case XXI K.br.3876/07-I of 23 April 2009 a trial court convicted a bailiff under Article 145 § 2 of the Criminal Code of unauthorised entry of the victim’s home in order to deliver a court summons. The bailiff was subject to ex officio prosecution by the public prosecutor.

train

001-72932

ENG

ITA

GRANDCHAMBER

CASE OF GIUSEPPE MOSTACCIUOLO v. ITALY (No. 1)

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Luzius Wildhaber;Nicolas Bratza

12. The applicant was born in 1938 and lives in Benevento. 13. On an unspecified date E.A.S., a company, applied to the Benevento District Court for an order against the applicant for payment of 7,500,000 Italian lire (3,873.43 euros (EUR)) in performance of a contract for professional services. In a decision of 13 October 1988 the president of the court granted the application. The order was served on the applicant by E.A.S. on 28 November 1988. On 3 December 1988 the applicant challenged it in the same court. 14. Preparation of the case for trial began on 13 January 1989. On 18 January 1989 the case was joined to another case that was pending between the same parties. The immediate enforcement of the order was suspended. Of the seventeen hearings listed between 14 June 1989 and 26 November 1998 two were devoted to hearing evidence from the applicant, three to hearing other evidence, six were adjourned by the court of its own motion, one was adjourned to allow the parties to reach a friendly settlement, four were adjourned at the request of the applicant or both parties and one was adjourned because E.A.S. had failed to appear. 15. However, on an unspecified date the case was referred to the bench of judges dealing with the oldest cases (sezione stralcio). Of the six hearings listed between 16 March 1999 and 28 November 2001 one was adjourned because E.A.S. had not appeared (owing to the registry’s failure to notify it of the date to which the hearing had been adjourned by the court of its own motion), one because of a lawyers’ strike, one to allow the parties to make their submissions, and two by the court of its own motion. 16. Six hearings later, on 13 April 2005 the court set the case down for hearing of oral submissions on 8 June 2005. On that date judgment was reserved. According to information provided by the applicant on 12 October 2005, the proceedings were still pending. 17. On 10 January 2002 the applicant lodged an application with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining of the length of the above-described proceedings. He asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian State to pay compensation for the pecuniary and non-pecuniary damage sustained. The applicant claimed EUR 14,460.94 in pecuniary and non-pecuniary damages. He sought the reimbursement of his legal costs, including those incurred before the Court, but did not quantify or give particulars of them. 18. In a decision of 21 June 2002, the text of which was deposited with the registry on 3 September 2002, the Court of Appeal found that the length of the proceedings had been excessive. It held as follows: “... Despite a number of adjournments for which the judicial authorities are not responsible because they were ordered at the request of the parties or because of a lawyers’ strike, the length of the proceedings was unreasonable. Whilst the allegation of pecuniary damage and personal injury is not supported by any proof, the applicant very likely suffered mental distress on account of the unjustified length of the proceedings. The resultant damage, given the foregoing considerations, can be assessed at 1,000 euros, and the legal costs, including those for the proceedings before the European Court of Human Rights, at 800 euros.” The Court of Appeal awarded the applicant EUR 1,000 on an equitable basis in compensation for non-pecuniary damage, and EUR 800 for costs and expenses, including those incurred before the Court, but without giving a breakdown. 19. In a letter of 21 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked the Court to continue its examination of his application. 20. The applicant did not indicate that he had appealed to the Court of Cassation. 21. The Court of Appeal’s decision was served on 23 January 2003 and became final on 24 March 2003. The applicant served the authorities with notice to comply on 11 October 2003. The applicant lodged an application for a garnishee order with the Rome judge responsible for enforcement proceedings and a hearing was held on 28 March 2004. After obtaining a garnishee order on 27 May 2004, the amounts were paid on an unspecified date after service of the order. 22. Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to Article 375 of the Code of Civil Procedure. CHAPTER II Just satisfaction Section 2 Entitlement to just satisfaction “1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable-time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction. 2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case. 3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules: (a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account; (b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.” Section 3 Procedure “1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending. 2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure. 3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister. 4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel (Avvocatura dello Stato) at least fifteen days prior to the date of the hearing before the Chamber. 5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties. 6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately. 7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.” Section 4 Time-limits and procedures for lodging applications “A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.” Section 5 Communications “If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.” Section 6 Transitional provisions “1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made. 2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.” Section 7 Financial provisions “1. The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose. 2. The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.” 23. On appeal from decisions delivered by the courts of appeal in “Pinto” proceedings, the Court of Cassation, sitting as a full court (Sezioni Unite), gave four judgments (nos. 1338, 1339, 1340 and 1341) on 27 November 2003, the texts of which were deposited with the registry on 26 January 2004, quashing the appeal court’s decision and remitting the case for a rehearing. It held that “the case-law of the Strasbourg Court is binding on the Italian courts regarding the application of Law no. 89/2001”. In its judgment no. 1340 it affirmed, inter alia, the principle that “the court of appeal’s determination of non-pecuniary damage in accordance with section 2 of Law no. 89/2001, although inherently based on equitable principles, must be done in a legally defined framework since reference has to be made to the amounts awarded, in similar cases, by the Strasbourg Court. Some divergence is permissible, within reason.” 24. Extracts from the plenary Court of Cassation’s judgment no. 1339 deposited with the registry on 26 January 2004 “... 2.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of 24 March 2001 no. 89, and in particular in determining the non-pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of the European Court of Human Rights, whether considered generally as interpretative guidelines which the said Court has laid down with regard to the consequences of the said violation, or with reference to a specific case in which the European Court has already had occasion to give a judgment on the delay in reaching a decision. ... As stipulated in section 2.1 of the said Law, the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified in accordance with the Law of 4 August 1955 no. 848, for failure to comply with the reasonable time referred to in Article 6, paragraph 1 of the Convention.” In other words, Law no. 89/2001 identifies the fact constituting the right to compensation by reference to a specific provision of the European Convention on Human Rights. This Convention instituted a Court (the European Court of Human Rights, with its seat in Strasbourg) to ensure compliance with the provisions contained therein (Article 19). Accordingly, the competence of the said court to determine, and therefore to interpret, the significance of the said provisions must be recognised. As the fact constituting the right conferred by Law no. 89/2001 consists of a violation of the European Convention on Human Rights, it is for the Court of the European Convention on Human Rights to determine all the elements of such a legal fact, which thus ends by being “brought into conformity” by the Strasbourg Court, whose case-law is binding on the Italian courts in so far as the application of Law no. 89/2001 is concerned. It is not necessary therefore to pose the general problem of the relationships between the European Convention on Human Rights and the internal judicial system, which the Advocate-General (Procuratore Generale) has amply discussed in court. Whatever opinion one may have about that controversial issue and therefore about the place of the European Convention on Human Rights in the context of the sources of domestic law, it is certain that the direct implementation in the Italian judicial system of a provision of the European Convention on Human Rights, established by Law no. 89/2001 (that is, by Article 6 § 1 in the part relating to “reasonable time”), cannot diverge from the interpretation which the European Court gives of the same provision. The opposite argument, which would permit a substantial divergence between the application accorded to Law no. 89/2001 in the national system and the interpretation given by the Strasbourg Court to the right to reasonable length of proceedings, would deprive the said Law no. 89/2001 of any justification and cause the Italian State to violate Article 1 of the European Convention on Human Rights, according to which ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’ (including the said Article 6, which provides for the right to have a case decided within a reasonable length of time). The reason behind the enactment of Law no. 89/2001 was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings, so as to give effect to the subsidiary character of intervention on the part of the Court of Strasbourg, expressly provided for by the European Convention on Human Rights (Article 35: “the Court may only deal with the matter after all domestic remedies have been exhausted”). The European system for the protection of human rights is founded on the said principle of subsidiarity. From it derives the duty of the States which have ratified the European Convention on Human Rights to guarantee to individuals the protection of the rights recognised by the European Convention on Human Rights, above all in their own internal order and vis-à-vis the organs of the national judicial system. And this protection must be “effective” (Article 13 of the European Convention on Human Rights), that is, of a kind to remedy the claim without the need for recourse to the Strasbourg Court. The domestic remedy introduced by Law no. 89/2001 did not previously exist in the Italian system, with the consequence that appeals against Italy in respect of a violation of Article 6 of the European Convention on Human Rights had “clogged” (the term used by rapporteur Follieri in the sitting of the Senate of 28 September 2000) the European Court. The Strasbourg Court observed, prior to Law no. 89/2001, that the said failures to comply on the part of Italy “reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy. This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention” (see the four judgments of the Court delivered on 28 July 1999 in the cases of Bottazzi, Di Mauro, Ferrari and A. P.). Law no. 89/2001 constitutes the domestic remedy to which a “victim of a violation” (as defined by Article 34 of the European Convention on Human Rights) of Article 6 (failure to comply with the reasonable-time requirement) must have recourse before applying to the European Court to claim the “just satisfaction” provided for in Article 41 of the European Convention on Human Rights, which, when the violation exists, is only awarded by the Court “if the internal law of the High Contracting Party concerned allows only partial reparation to be made”. Law no. 89/2001 has therefore allowed the European Court to declare inadmissible applications lodged with it (including before the Act was passed) and aimed at obtaining just satisfaction provided for in Article 41 of the European Convention on Human Rights for the excessive length of proceedings (Brusco v. Italy, decision of 6 September 2001). This mechanism for implementation of the European Convention on Human Rights and observance of the principle of subsidiarity in respect of interventions of the European Court of Strasbourg does not operate, however, in cases in which the Court holds that the consequences of the established violation of the European Convention on Human Rights have not been redressed by domestic law or that this has been done only “partially”, because in such an event the said Article 41 provides for the intervention of the European Court to protect the “victim of the violation”. In such cases an individual application to the Strasbourg Court on the basis of Article 34 of the European Convention on Human Rights is admissible (Scordino and Others v. Italy, decision of 27 March 2003) and the Court acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law. The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is, obviously, the European Court, whose duty it is to apply Article 41 of the European Convention on Human Rights to ascertain whether, in the presence of a violation of a provision of the European Convention on Human Rights, the internal law has been able to fully redress the consequences of this violation. The argument whereby, in applying Law no. 89/2001, the Italian court may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the European Convention on Human Rights (violation of which is the fact giving entitlement to the right to compensation attributed by the said national law) implies that the victim of the violation, if he or she receives reparation at national level considered inadequate by the European Court, must obtain the just satisfaction provided for in Article 41 of the European Convention on Human Rights from the latter Court. This would defeat the purpose of the remedy provided for in Italian law by Law no. 89/2001 and entail a violation of the principle of the subsidiarity of the intervention of the Strasbourg Court. It is therefore necessary to concur with the European Court of Human Rights, which, in the above-mentioned decision on the Scordino application (concerning the inadequacy of the protection afforded by the Italian courts in implementing Law no. 89/2001), affirmed that “it follows from the principle of subsidiarity ... that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention”. ... The preparatory documents of Law no. 89/2001 are even more explicit. In the report concerning the bill of Senator Pinto (proceedings of the Senate no. 3813 of 16 February 1999) it is affirmed that the compensatory mechanism proposed in the legislative initiative (and then adopted by the Act) secures for the applicant “a protection analogous to that which he or she would receive in the international court”, as the direct reference to Article 6 of the European Convention on Human Rights makes it possible to transfer to domestic level “the limits of applicability of the same provision existing at international level, limits which depend essentially on the State and on the development of the case-law of the Strasbourg authorities, especially that of the European Court of Human Rights, whose decisions must therefore guide ... the domestic court in the definition of these limits”. ... 6. – The considerations expounded in sections 3-5 of the document refer in general to the importance of the interpretative guidance of the European Court on the implementation of Law no. 89/2001 with regard to reparation for non-pecuniary damage. In this particular instance, however, any possibility for the national court to exclude non-pecuniary damage (despite having found a violation of Article 6 of the European Convention on Human Rights) must be considered as non-existent because such is precluded by the previous decision of the European Court which, with reference to the same proceedings, had already ascertained that the unjustified delay in reaching a decision had had consequences involving non-pecuniary damage for the applicant, which the Court itself redressed for a limited period. From such a decision of the European Court it follows that, once the national court has ascertained that the violation has continued in the period following that considered in the said decision, the applicant has continued to suffer non-pecuniary damage, which must be compensated for in application of Law no. 89/2001. It cannot therefore be maintained – as the Rome Court of Appeal has done – that compensation is not due because of the small amounts at stake in the proceedings in question. Such a reason, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of delay in the same action, is in any case incorrect, because the amount of what is at stake in an action in which non-compliance with reasonable time-limits has been ascertained can never have the effect of excluding non-pecuniary damage, given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it. 7 – In conclusion the decision appealed against must be quashed and the case remitted to the Rome Court of Appeal, which, in a different composition, will order payment to the applicant of the non-pecuniary damages payable as a result of the violation of the reasonable-time requirement for the period following 16 April 1996 alone, taking as a reference point payments of the same kind of damages by the European Court of Human Rights, from which it may diverge, but only to a reasonable extent (HR Court, 27 March 2003, Scordino v. Italy)”. 25. The Court of Cassation held as follows: “...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89 of 2001 [known as the “Pinto Act”] this shall preclude a right [to just satisfaction] from arising and passing to the heirs, in accordance with the general rule that a person who has died cannot become entitled to a right conferred by an Act that is passed after their death...” 26. The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from the Pinto Act. The mechanism set in place by the European standard did not give applicants a cause of action before the domestic courts. Accordingly, the right to “just satisfaction” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force. The fact that the deceased had, while alive, lodged an application with the Strasbourg Court was not decisive. Section 6 of the Pinto Act did not constitute, as the applicants had maintained, a procedural standard bringing about a transfer of powers from the European Court to the domestic courts. 27. In this case, which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of Article 6 § 1 on account of the length of the proceedings, the First Division of the Court of Cassation referred the case to the full court indicating that there was a conflict between the case-law authorities, that is, between the restrictive approach taken by the Court of Cassation in the earlier judgments regarding heirs and the Pinto Act and the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004 to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since Italy ratified the European Convention on 4 August 1955. 28. In the case giving rise to the order mentioned above referring the case to the full court (see preceding paragraph), the Court of Cassation, sitting as a full court, established the following principles, thus preventing any further conflicting decisions being given by the courts: (i) Law no. 848 of 4 August 1955, which ratified the Convention and made it enforceable, introduced into domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in the first section of the Convention and which correspond to a large extent with those set forth in Article 2 of the Constitution. In that respect the Convention provisions are confirmatory and illustrative. ... (ii) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in Article 6 of the Convention, which is immediately applicable in domestic law. The distinction between the right to a hearing within a reasonable time, introduced by the European Convention on Human Rights (or even pre-existing as a constitutionally protected value), and the right to equitable reparation, which was allegedly introduced only by the Pinto Act, cannot be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by the Strasbourg Court, the domestic courts being bound to comply with the case-law of the European Court. ... (iii) Accordingly, the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no. 89/2001 must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date, subject only to the condition that the claim has not already been lodged with the Strasbourg Court and the Court has not ruled on admissibility. ... 29. This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging the Court of Appeal’s award of non-pecuniary damages to a juristic person. The Court of Cassation referred to the decision reached in the case of Comingersoll v. Portugal [GC], no. 35382/97, ECHR 2000IV and, after referring to the four judgments of the full court delivered on 26 January 2004, found that its own case-law was not in line with the European Court. It held that there was no legal barrier to awarding just satisfaction to “juristic” persons according to the criteria of the Strasbourg Court. Accordingly, since the Court of Appeal had correctly decided the case the appeal was dismissed. 30. The Court of Cassation made the following observations: “ ... [Whereas] non-pecuniary damage is the normal, albeit not automatic, consequence of a breach of the right to a hearing within a reasonable time, it will be deemed to exist, without it being necessary to specifically prove it (directly or by presumption), on the basis of the objective fact of the breach, on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned (Cass. A.P. 26 January 2004 nos. 1338 and 1339). - the assessment on an equitable basis of compensation for non-pecuniary damage is subject – on account of the specific reference in section 2 of Law no. 89 of 24 March 2001 to Article 6 of the European Convention on Human Rights (ratified by Law no. 848 of 4 August 1955) – to compliance with the Convention, in accordance with the judicial interpretation given by the Strasbourg Court (non-compliance with which results in a violation of the law), and must therefore, as far as possible, be commensurate, in substantive and not merely formal terms, with the amounts paid in similar cases by the European Court, it being possible to adduce exceptional circumstances that suggest themselves in the particular case, on condition that they are reasoned, not excessive and not unreasonable (Cass. A.P. 26 January 2004 no. 1340). ... - a discrepancy in the method of calculation [between the Court’s case-law and section 2 of the Pinto Act] shall not affect the general vocation of Law no. 89 of 2001 to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time (vocation acknowledged by the European Court in, inter alia, a decision of 27 March 2003 in Scordino v. Italy (application no. 36813/97)), and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by the Italian Republic when ratifying the European Convention and the formal recognition, also at constitutional level, of the principle stated in Article 6 § 1 of that Convention...” 31. In the report CM/Inf/DH(2004)23, revised on 24 September 2004, the Ministers’ deputies made the following indications regarding an assessment of the Pinto remedy: “...11. As regards the domestic remedy introduced in 2001 by the “Pinto Act”, a number of shortcomings remain, particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention: in particular, the law does not provide yet for the acceleration of pending proceedings. ... 109. In the framework of its examination of the 1st annual report, the Committee of Ministers expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts. ... 112. It should be pointed out that in the framework of its examination of the 2nd annual report, the Committee of Ministers had noted with concern that the Convention had no direct effect and had consequently invited the Italian authorities to intensify their efforts at national level as well as their contacts with the different bodies of the Council of Europe competent in this field. ...” 32. In this interim resolution the Ministers’ deputies indicated as follows: “The Committee of Ministers Noting ... “...the setting-up of a domestic remedy providing compensation in cases of excessive length of proceedings, adopted in 2001 (the "Pinto” law), as well as the recent development of the case-law of the Court of cassation, increasing the direct effect of the case-law of the European Court in the Italian legal system, while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims; Stressing that the setting-up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations; Finding that despite the efforts undertaken, numerous elements still indicate that the solution to the problem will not be found in the near future (as evidenced in particular by the statistical data, the new cases before both domestic courts and the European Court, the information contained in the annual reports submitted by the government to the Committee and in the reports of the Prosecutor General at the Court of cassation); ... Stressing the importance the Convention attaches to the right to fair administration of justice in a democratic society and recalling that the problem of the excessive length of judicial proceedings, by reason of its persistence and extent, constitutes a real danger for the respect of the rule of law in Italy; ... URGES the Italian authorities to enhance their political commitment and make it their effective priority to meet Italy’s obligation under the Convention and the Court’s judgments, to secure the right to a fair trial within a reasonable time to all persons under Italy’s jurisdiction. ...” 33. The European Commission for the efficiency of justice was set up at the Council of Europe by Resolution Res(2002)12 with the aim of (a) improving the efficiency and the functioning of the justice of member States with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system and (b) enabling a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice. 34. In its framework programme (CEPEJ (2004) 19 Rev 2 § (7) the CEPEJ noted that “the mechanisms which are limited to compensation are too weak and do not adequately incite the States to modify their operational process, and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays.”

train

001-105279

ENG

UKR

CHAMBER

CASE OF MATUSHEVSKYY AND MATUSHEVSKA v. UKRAINE

Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3

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

5. The applicants were born in 1952 and 1956 respectively and live in Lviv. 6. On 4 February 2008 the applicants’ thirty-year-old son, Mr Igor Matushevskyy (“I.M.”), was placed in Lviv Pre-Trial Detention Centre no. 19 (“the SIZO”) following his arrest on suspicion of a drug-related offence. 7. On the same date I.M. was examined by a medical commission which found him to be in good health. 8. On 7 February 2008 a drug specialist found him to be in unstable remission from drug addiction. 9. On 24 April 2008 I.M. was placed in cell no. 153, which was shared by nine inmates. It was his sixth transfer to a different cell in the SIZO. 10. On 22 May 2008 at 6.10 p.m., the inmates of cell no. 153 knocked on the door and informed the prison guard that I.M. had fallen from the upper bed and had fainted. A few minutes later, a medical attendant and the on-duty doctor arrived. According to an entry made by them in I.M.’s medical record, they administered the following injections to him: cordiamin, cortisol, mezaton, caffeine and atropine. He was then transported to the medical unit, still alive. At 6.50 p.m. an ambulance, for which the prison administration had called, arrived; and at 7.02 p.m. I.M. was pronounced dead. According to the medical certificate written by the SIZO administration and the doctors recording I.M.’s death, a closed craniocerebral injury was indicated as the preliminary cause of death. 11. On the same date three of the inmates, as well as the personnel involved, gave written statements concerning the matter to the SIZO’s governor. The detainees explained that there had been no incidents in the cell, that I.M. had accidentally fallen from his bed and that they had unsuccessfully tried to bring him back to consciousness by putting a wet towel on his forehead. According to them, they had promptly called for a doctor, who, in turn, had arrived without delay. The inmates also submitted that a few hours before his death I.M had complained of headache. One of the detainees noted that I.M. had occasionally mentioned that he suffered chest pains. 12. In the evening on the same date, 22 May 2008, the SIZO administration examined the scene and informed the Lviv police and the Lviv Regional Prosecutor’s Office (“the LRPO”) of I.M.’s death. 13. On 23 May 2008 at about 4.30 p.m., the SIZO administration sent a telegram to the applicants informing them that their son had died and that they could collect his body from the Lviv morgue. 14. According to the applicants, at about 10 a.m. on 23 May 2008, before the telegram had reached them (on 24 May 2008), they received an anonymous phone call from a person who had introduced himself as a detainee at the SIZO. He had allegedly stated that I.M. had been killed by SIZO officers. 15. The applicants immediately got in contact with the local morgue, which confirmed that I.M.’s body was there. However, according to the applicants, its staff refused to show them his body. 16. The first applicant also informed the LRPO of the allegations received in the anonymous phone call and sought the opening of a criminal investigation into the matter. 17. On the same date, 23 May 2008, the Lviv Regional Police found that there was no indication of a homicide and terminated the investigation. 18. On 24 May 2008, from 9 a.m. to noon, the first applicant waited outside the morgue while an autopsy of I.M.’s body was going on. He saw some people there (whom he later found out were from the SIZO) and allegedly heard one of them saying on the phone: “Everything is fine, the haematomas have been removed and the bruises behind the ears have been retouched. There is something there with his heart and lungs.” The applicant had the impression that the conversation had been about his son. 19. After the autopsy was completed, the first applicant was allowed to collect I.M.’s body. According to him, he discovered the following injuries on it: I.M.’s chest, shoulders, arms and legs, as well as his groin area, were covered with bruises, his fingertips were bluish in colour, the phalanx bone of the little finger on his left hand was broken, his face was swollen and his nasal bridge was deformed, the hair on his temples was missing as if it had been torn out, and there were bloodstains on his earlobes. The applicant asked the doctor about the injuries and was told that they were the signs of post-mortem lividity. 20. The morgue issued a death certificate to the first applicant indicating that the cause of death had “not been preliminarily clarified”. 21. Later on 24 May 2008, the applicants discovered in their mailbox a letter from an anonymous “detainee”, according to which I.M. had been beaten up by one of the inmates, T., on police instructions with a view to extracting a confession from him, and had died of the injuries he had sustained. It was noted in the letter that the SIZO administration was intimidating the witnesses in order to conceal the real cause of death. However, the witnesses would give truthful testimonies if questioned by the prosecutor in absence of SIZO staff. 22. On 26 May 2008 the first applicant again complained to the LRPO that his son had been killed in the SIZO. On an unspecified date shortly thereafter the prosecutor questioned him as to what made him think that I.M.’s death had been a violent one. The first applicant referred to the information received from the anonymous phone call and letter. He also noted that his son had not made any complaints about his health. Furthermore, on 19 May 2008, the last time that the second applicant had passed over a food parcel for I.M., she had enquired with the SIZO medical staff whether he needed any medicine but had been told that he did not require any. 23. On the same date, 26 May 2008, the assistant to the SIZO governor, who had been on duty when I.M. had died, gave a written statement to the LRPO, according to which: there had been no incidents in cell no. 153 on 22 May; no coercive measures had been applied to any detainees; and he had not seen any injuries on I.M.’s body. The senior security officer on duty made a similar statement. 24. On 28 May 2008 T. and seven other inmates repeated their previous account of the events (see paragraph 11 above) to the LRPO, without specifying what aid they had provided to I.M. before the medical attendant’s arrival, which had been two to three minutes after I.M.’s fall. The inmates from the neighbouring cells, nos. 152 and 154, stated that they had not heard any noise from cell no. 153 on 22 May 2008. The prosecutor also questioned detainee V., with whom I.M. had been sharing cell no. 140 before his transfer to no. 153., and who, according to the applicants, might have had additional information about the circumstances of his death. V. submitted that I.M. had not wanted to encounter T. and had therefore been unwilling to be transferred to cell no. 153. V. had allegedly warned the administration about a possible conflict between T. and I.M., as, according to him, they had been “opposites in the criminal world”. 25. On 29 May 2008 the prosecutor questioned the SIZO governor as regards, in particular, the reasons for I.M.’s frequent transfers from one cell to another. The governor stated that I.M. had had a negative influence on other detainees, without giving further details. He submitted that I.M. had neither opposed his transfer to cell no. 153 nor had he later asked to be transferred to another cell. T. and I.M. had not shared cells before. The governor also contended that he had not received any information about conflicts between them or about any wrongdoing on the part of T. According to him, the atmosphere in cell no. 153 had been calm. 26. On 29 May 2008 T. stated that he had known I.M. since 1998 because they had lived in the same town. According to him, they had been neither friends nor enemies, rather just acquaintances. He also supplemented his earlier statements to the effect that the inmates had tried to bring I.M. back to consciousness by pouring water on him and by rubbing his hands, feet and ears. 27. On 29 May 2008 a toxicologist of the Regional Bureau of Forensic Medical Examinations issued a report, according to which no alcohol had been discovered in I.M.’s blood. 28. On 30 May 2008 another forensic medical report was issued by a histologist following an examination of I.M.’s body tissues. It concluded that the deceased had been suffering from: swelling of the lungs and haemorrhaging, focal serous bronchopneumonia, chronic leptomeningitis, fatty liver disease, chronic persistent hepatitis, signs of chronic nephritis, and atheromatosis of the aorta. 29. On the same date the Galytskyy Police Department refused to open a criminal case regarding the death of I.M. for want of indication of a crime. 30. On 2 June 2008 the Galytskyy District Deputy Prosecutor quashed the aforementioned decision as having been delivered prematurely. 31. On 3 June 2008 the forensic medical expert who had performed the autopsy gave a written statement to the LRPO. He stated that there had been bruises and sores on I.M.’s face, both earlobes, and on the inner parts of both thighs, while no bone fractures or craniocerebral injuries had been discovered. The expert expressed the view that a possible cause of I.M.’s death could have been a heart or lung condition. 32. On the same date detainee V. additionally explained that he had wanted to stay in the same cell as I.M. because the latter had often received food parcels and had shared them with his cellmates. 33. On 3 June 2008 the LRPO refused to institute criminal proceedings against the SIZO staff in respect of I.M.’s death for a lack of corpus delicti in their actions. 34. On 6 June 2008 the Frankivskyy District Court in Lviv terminated the pending criminal proceedings against I.M. given that he had died. It also issued a separate ruling in which it noted that the circumstances of I.M.’s death warranted a criminal investigation (it had been informed by the SIZO administration that I.M. had died because of a closed head injury). 35. On 11 June 2008 the LRPO quashed the decision of 3 June 2008 and resumed the investigation. In particular, it noted that it was still necessary to question the ambulance doctors, to analyse the anonymous letter received by the applicants with a view to establishing its author, to question T. as to whether he had suffered any injuries, and to take steps to find out who had telephoned the applicants on 23 May 2008. 36. On 12 June 2008 the applicants complained to the LRPO that the cause of their son’s death had never been officially established. They pointed out that the accounts of the SIZO governor in that regard lacked consistency. Thus, according to them, he had explained that I.M. had died because he “had fallen from his bed”, subsequently because he “had fallen ill”, and, lastly, because he “had fallen down in the shower”. 37. On 17 June 2008 a forensic medical report was issued, according to which a chemical examination had discovered the presence of an organic substance possibly belonging to a group of amphetamines (psychostimulant drugs) in I.M.’s body. A precise identification of the substance was impossible. At the same time, it was noted in the report that the examination had not revealed any traces of caffeine or atropine, amongst other substances. 38. On 18 June 2008 another forensic medical examination (started on 24 May) was completed. It found the following injuries on I.M.’s body: two sores, one on each side of the nose; three sores under the left eyebrow; a brownish-red sore on the lower part of the right earlobe and a bluish-violet bruise on its upper part; a bluish-violet bruise of 2 x 1 cm behind the left earlobe and a similar bruise measuring 2.5 x 3 cm behind the right earlobe; a triangle-shaped sore on the neck behind the right ear; a bluish-violet bruise of 24 x 24 cm on the inner side of the right thigh and a similar bruise of 15 x 14 cm on the inner part of the left thigh; as well an area of 10 x 20 cm on the front part of the left thigh which was bruised all over. The examination of I.M.’s internal organs revealed a 7 x 9 cm long and 0.4 cm deep area of haemorrhaging in the right temple and a 6 x 7 cm long and 0.3 cm deep area of haemorrhaging in the left temple. The expert concluded that I.M. had sustained the aforementioned injuries while still alive. He classified them as insignificant and having no relation to his death. No bone fractures were discovered. The examination report indicated cardiomyopathy, presumably caused by drug addiction, as the cause of I.M.’s death. It noted that I.M. had been intoxicated by a psychostimulant substance belonging to the amphetamine group which had triggered a heart attack and death. Furthermore, it discovered features of the following conditions: focal serous bronchopneumonia and chronic leptomeningitis, fatty degeneration of the liver, chronic hepatitis and nephritis, atherosclerotic heart disease, thyroid hyperplasia and cardiomegaly. They were also found to have contributed to I.M.’s death. 39. On 26 June 2008 T. was examined by a forensic medical expert, who did not discover that he had suffered any injuries. 40. By a letter of 27 June 2008, the SIZO governor informed the LRPO that an internal investigation had not revealed any drug trafficking in the SIZO. He noted that the psychostimulant substance discovered in I.M.’s body might have been passed to him from the outside with his food parcel, given that he had not shared his food parcels with anybody. 41. On 3 July 2008 the LRPO questioned the ambulance doctor who had pronounced I.M. dead. He submitted that he had not seen any injuries on I.M., but only traces of bleeding from the nose and the left ear. He explained that he had given the “closed craniocerebral injury” diagnosis on the basis of the initial visual inspection, without giving further details. 42. On the same date the LRPO decided that the investigation had not revealed anything criminal in the actions of the SIZO staff or I.M.’s cellmates. It therefore refused to institute criminal proceedings against them. 43. On 8 July 2008 the prosecutor of the LRPO Supervision Department quashed the aforementioned decision as premature and ordered further investigation, the aim of which was to clarify, in particular, how the injuries had been inflicted on I.M. and how the drugs could have appeared inside the SIZO. 44. On the same date the LRPO informed the applicants of the developments in the investigation and invited them to study the case file if they wished to do so. 45. On 14 July 2008 four inmates of cell no. 153 gave further statements regarding the events of 22 May 2008. They noted that on that day I.M. had been exercising, after which the inmates had been taken to the shower area. Upon their return to the cell, I.M. had complained about having a headache. They also stated that they had massaged and rubbed I.M. and had slapped him in the face after his fall to bring him to his senses. 46. On 28 July 2008 the LRPO delivered another decision refusing to open a criminal case against the SIZO administration or I.M.’s cellmates for a lack of corpus delicti in their actions. At the same time, the investigation into the death of I.M. continued, without being targeted against any particular person. 47. On 8 August 2008 the LRPO ordered another forensic medical examination, this time by a commission of experts, with a view to finding answers to the following questions: - when I.M. had died and what the cause had been; - whether he had sustained any injuries and, if so, what their nature and origin were; - whether those injuries could have originated from being hit with blunt objects (such as fists, feet, a stick, etc.), and, if so, what those objects had been; - whether his injuries could have originated from first aid provided to him (rubbing of his ears, eyes, eyebrows and hands) and, if so, which of the injuries were caused in such a manner; - whether there was a causal link between I.M.’s injuries and his death; - whether I.M. had been suffering from any diseases or handicaps and, if so, whether those had had a causal link with his death; and - whether I.M. had consumed any alcohol or drugs shortly before his death, and, if so, what their impact had been. 48. On 18 September 2008 a microscopic examination of I.M.’s internal organs revealed: subarachnoid haemorrhage in the pia mater surrounding the brain (it was impossible to localise the bleeding with additional precision); punctuate cerebral haemorrhage; and renal haemorrhage. 49. On 27 October 2008 the forensic medical commission of three experts delivered its report. It confirmed that I.M. had died of a heart attack at about 7 p.m. on 22 May 2008. His injuries were estimated as light, with the exception of the subarachnoid haemorrhaging, which was of medium gravity. The haemorrhaging had commenced shortly before death and had originated from the repeated “hitting and shaking” action of blunt objects against the body. It could not be excluded that those objects had been fists, feet or other objects impossible to define. Given that the injuries were to different parts of the body, they could not all have been inflicted at the same time. Some of them – such as the sores on the nose and under the right eyebrow – could have originated from falling against a blunt object. The injuries could not be characterised as having resulted from first-aid efforts. No direct connection was established between I.M.’s injuries and his death. The experts also concluded that, prior to his death, I.M. had suffered from a number of diseases – of the lungs, heart, kidneys and liver – which had been aggravated by a heart attack and had caused his death. They also confirmed that a psychostimulant substance had been found in his body, without commenting on how it was related to his death. 50. On 3 November 2008 the prosecutor of the LRPO Supervision Department quashed the decision of 28 July 2008 as lacking a proper basis and ordered further investigation. 51. On 5 November 2008 the LRPO additionally questioned the toxicologist who had issued the report of 17 June (see paragraph 37 above). The expert specified that the drug discovered in I.M.’s body was not contained in any of the medications given to him by the doctors before his death. It could have stayed in the body for up to five days. 52. On 7 November 2008 the prosecutor repeatedly inspected cell no. 153, together with a forensic medical expert (a member of the commission authoring the report of 27 October 2008 (see paragraph 49 above)) and in the presence of one of the detainees and two attested witnesses. A detailed inventory was produced containing details of all the beds and furniture items and measurements of the distances between them. 53. On 10 November 2008 the LRPO questioned the expert who had participated in the inspection of the cell on 7 November 2008 (see paragraphs 49 and 52 above). Referring to the inspection of the scene, the expert stated that I.M. could have hit himself against the table while falling from the upper bed, then against the bench next to the table, and, finally, against the floor. Most of his bruises and sores, as well as the cerebral haemorrhaging, could have resulted from such a fall. As to the bruises behind both ears, they could have resulted from the intensive rubbing which the inmates had resorted to, having no knowledge as to how first aid should be provided. Lastly, the expert noted that the subarachnoid haemorrhaging could be assessed as being of both light and medium gravity, as the major criterion for the categorisation of such an injury was the effect of time, which was not applicable to the circumstances under examination. 54. On 11 November 2008 another forensic medical expert participating in the commission which had issued the report of 27 October 2008 was questioned by the prosecutor. She noted that the internal bleeding could have resulted from a generalised trauma to the dead body. It could have occurred owing either to blows or to falling against a hard surface. 55. On 12 November 2008 the LRPO again refused to institute criminal proceedings against the SIZO administration or the detainees for a lack of corpus delicti in their actions. On the same date it informed the applicants of that decision and explained to them that they had the right to study the case file at the LRPO’s premises. 56. On 17 November 2009 the lawyer representing the applicants asked the LRPO for a copy of the decision of 12 November 2008. On 17 December 2009 the LRPO granted that request. 57. On 8 February 2010 the prosecutor of the LRPO Supervision Department quashed the decision of 12 November 2008 as based on an incomplete investigation. 58. On 9 April 2010 the LRPO ordered a complex forensic medical examination with a view to finding answers to the same questions as posed on 8 August 2008 (see paragraph 47 above). The investigator noted, in particular, that there had been injuries on I.M.’s body and that initially a closed craniocerebral trauma had been given as a possible cause of his death. It remained, however, to be established whether I.M. had in fact sustained the aforementioned injury and what the cause of his death had been. 59. There is no information on the progress or outcome of the investigation. 60. The applicants submitted to the Court ten colour photos of the dead body of their son, dressed and placed in a coffin. The only visible parts of his body are his face and hands. The bridge of his nose appears to be swollen. There are sores on the upper part of the bridge of his nose and below both eyebrows, and a bruise below his left brow. Both earlobes are covered with what appears to be bloodstains and bruises. There are also bruises and patches of missing hair on both temples. His fingertips and nails are bluish in colour. 61. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment of Sergey Shevchenko v. Ukraine, no. 32478/02, §§ 36 and 38, 4 April 2006.

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001-57506

ENG

GBR

CHAMBER

CASE OF IRELAND v. THE UNITED KINGDOM

Violation of Art. 3;No violation of Art. 14+5;Just satisfaction not applied

11. The tragic and lasting crisis in Northern Ireland lies at the root of the present case. In order to combat what the respondent Government describe as "the longest and most violent terrorist campaign witnessed in either part of the island of Ireland", the authorities in Northern Ireland exercised from August 1971 until December 1975 a series of extrajudicial powers of arrest, detention and internment. The proceedings in this case concern the scope and the operation in practice of those measures as well as the alleged ill-treatment of persons thereby deprived of their liberty. 12. Up to March 1975, on the figures cited before the Commission by the respondent Government, over 1,100 people had been killed, over 11,500 injured and more than £140,000,000 worth of property destroyed during the recent troubles in Northern Ireland. This violence found its expression in part in civil disorders, in part in terrorism, that is organised violence for political ends. 13. Prior to 1922 the whole of the island of Ireland formed part of the United Kingdom. In that year, following a treaty of 1921, legislation was passed which endorsed the setting-up, with self-governing status within the British Commonwealth, of the Irish Free State comprising initially all of the island’s thirty-two counties. Provision was made for six of the nine counties of the province of Ulster in the north to opt out and remain within the United Kingdom and they did this in 1922. Thereafter, the Irish Free State became responsible for the government of the remaining twenty-six counties and, in 1937, a new Constitution was introduced proclaiming the independence and sovereignty of the State of what is now known as the Irish Republic. After the Second World War it left the Commonwealth and declared itself a republic. 14. From the 1920’s onwards, Northern Ireland, that is the above-mentioned six counties, had a separate Government and Parliament of its own. In addition, the electorate of the province (meaning in this judgment the six counties) returned twelve members to the United Kingdom Parliament. With certain defined matters excepted, the Northern Ireland Parliament and Government were the legislative and executive authorities for the six counties until 30 March 1972 when the United Kingdom authorities resumed "direct rule" of the province (see paragraph 49 below). 15. Northern Ireland is not a homogeneous society. It consists of two communities divided by deep and long-standing antagonisms. One community is variously termed Protestant, Unionist or Loyalist, the other is generally labelled as Catholic, Republican or Nationalist. About two-thirds of the population of one and a half million belong to the Protestant community, the remaining third to the Catholic community. The majority group is descended from Protestant settlers who emigrated in large numbers from Britain to Northern Ireland during the seventeenth century. The now traditional antagonism between the two groups is based both on religion and on social, economic and political differences. In particular, the Protestant community has consistently opposed the idea of a united Ireland independent of the United Kingdom, whereas the Catholic community has traditionally supported it. 16. The Irish Republican Army (IRA) is a clandestine organisation with quasi-military dispositions. Formed during the troubles prior to the partition of the island and illegal in the United Kingdom as well as in the Republic of Ireland, the IRA neither accepts the existence of Northern Ireland as part of the United Kingdom nor recognises the democratic order of the Republic. It has periodically mounted campaigns of terrorism in both parts of the island of Ireland and in Great Britain. After 1962, the IRA was not overtly active for some years. During the time covered by the complaints of the applicant Government that is from 1971 to 1975 virtually all those members of the IRA living and operating in Northern Ireland were recruited from among the Catholic community. 17. Legislation designed to deal with matters affecting law and order and the security of the State was first enacted by the Northern Ireland Parliament in 1922 in the form of the Civil Authorities (Special Powers) Act (Northern Ireland). This legislation (hereinafter referred to as "the Special Powers Act") was an enabling Act under which Regulations were from time to time made and brought into operation. Thus, for instance, a Regulation dating from before 1949 declared illegal certain organisations, including the IRA. In 1950 and 1954, following raids carried out by the IRA in Great Britain and Northern Ireland, Regulations were introduced granting powers of entry and search. In 1956 and 1957, in order to combat an IRA campaign then being launched, further Regulations were made dealing with internment, curfew, special trial procedures, firearms and explosives control, and restriction on movement. An account of the particular Regulations at issue in the present case, namely Regulations 10, 11 (1), 11 (2) and 12 (1), appears below at paragraphs 81 to 84. 18. The differing aspirations of the two communities resulted in the division between the main political parties in Northern Ireland being based primarily on their attitude to the status of the province as part of the United Kingdom rather than on political differences of the type commonly found in the rest of the United Kingdom and elsewhere. The Protestant community in general voted for the Unionist Party, which wished Northern Ireland to remain within the United Kingdom, whilst the Catholic community in general supported candidates favouring a united, independent Ireland. Given the relative sizes of the two communities, the inevitable result of this polarisation was that the Unionist Party, supported almost exclusively by Protestants, had a permanent majority in the Northern Ireland Parliament and formed the Government of the province throughout the fifty years leading up to direct rule in 1972. The abolition of proportional representation in the early 1920’s and the geographical arrangement of constituencies affected a great increase in the size of the Parliamentary majority. This situation understandably disenchanted the Catholic community. 19. Thus, whilst only a small minority of the latter community has ever actively supported the IRA, a very much greater proportion had always been discontented with Unionist government and the effects of its in-built majority. The Catholics in the population regarded themselves as discriminated against on various counts. The Cameron Commission, a body appointed by the Northern Ireland Government in March 1969 to report, inter alia, on the causes of disturbances in the six counties in 1968-1969 (see paragraph 23 below), considered justified many of the grievances then felt by the Catholics, in particular those concerned with the allocation of houses, local authority appointments, limitations on local electoral franchise and deliberate manipulation of ward boundaries and electoral areas. The European Commission of Human Rights itself came to the conclusion that there certainly was an element of inherent bias in the whole political system in Northern Ireland in favour of one community. From the time of partition onwards there has always been a greater or lesser degree of tension between the two communities, although since the early 1920’s there have been no disturbances comparable in scale to those of recent years. 20. In 1963 the first moves towards a campaign for "civil rights" for the Catholic community began to be made. The objectives of this campaign were, broadly speaking, the removal of the discrimination referred to above. At the same time, though, manifestations of Protestant violence began to emerge. In 1964 there was serious rioting in Belfast following a Protestant march. In March 1966, several petrol bombs were thrown at Catholic schools and property. In May 1966, a body calling itself the Ulster Volunteer Force (UVF), previously unknown to the police, issued a statement declaring war on the IRA and warning of its intention to execute all IRA men. Shortly thereafter, two Catholics were murdered and two others seriously wounded in Belfast. Three Protestants, members of the UVF, were subsequently charged and convicted for these attacks. The UVF, believed by the police to have consisted of only 5 to 6 persons, was declared illegal in June 1966 and seems to have remained inactive from then until 1969. During this period, there was no violent activity of significance by the IRA, who, after 1962, appear to have concentrated on political activity. 21. Throughout 1967, the movement for "civil rights" for the Catholic community gathered momentum. The first civil rights march took place in August 1968 without incident, but in October a clash with the police and two days’ rioting ensued after a march in Londonderry. 22. On 22 November 1968, the Northern Ireland Government announced a reform programme to deal with the Catholic grievances. Nevertheless, the civil rights movement continued its campaign and marches. The marches again led to clashes with the police and to violent confrontation with Protestant counter-demonstrators, often armed with cudgels, stones and the like. 23. The demonstrations, disturbances and rioting continued in various places into 1969. In paragraph 226 of its report, presented to the Northern Ireland Parliament in September 1969, the Cameron Commission expressed the view that certain Protestant extremist organisations "must ... bear a heavy share of direct responsibility for [certain of] the disorders ... and also for inflaming passions and engineering opposition to lawful, and what would in all probability otherwise have been peaceful, demonstrations or at least have attracted only modified and easily controlled opposition". Police conduct in handling certain disturbances was also criticised by the Cameron Commission. 24. In March and April 1969, five major explosions thought to have been caused by the UVF occurred at water and electricity installations in three counties. Units of British troops were flown into the province. The Northern Ireland Prime Minister, whose reform policies were unpopular with many Protestants, resigned at the end of April. A few days later, his successor declared a general amnesty for persons charged with or convicted of offences connected with the recent political protests and demonstrations. 25. Tension remained high; sectarian disturbances continued periodically up to mid-August. On 12 August 1969, a traditional Protestant anniversary parade sparked off several days of large-scale rioting, first of all in Londonderry and thereafter spreading to Belfast and other places. After 10 civilians had been killed and 145 civilians and 4 policemen wounded, it was found necessary to call in aid units of the British army. The riots in August 1969 greatly exceeded in severity any that had occurred in the previous years. Casualties and damage to property were extensive. In Belfast, for instance, a large number of houses and licensed premises, mostly Catholic owned or occupied, were burnt down, destroyed or damaged. 26. The Northern Ireland Prime Minister called a peace conference on 18 August which was attended by representatives of the two communities. On the next day, the United Kingdom and Northern Ireland Governments issued a joint declaration re-affirming, inter alia, their commitment to reforms in the six counties. In October, a programme of reform was announced; it included the reorganisation of the police force and local government, measures to prohibit discrimination in public employment, and the establishment of a Community Relations Commission and a central housing authority. 27. However, the publication of a government report into the functions and organisation of the province’s police force had produced a violent reaction in Protestant circles. On 11 October, a policeman was shot dead by a bullet fired from a crowd of Protestant rioters in Belfast. He became the first member of the security forces to be killed during the disorders of the past few years. 28. The IRA carried out no major acts of violence in 1969. However, at Easter 1969 they had reactivated their forces, placing all volunteers on full alert. At the same time, the IRA are thought to have gained much more support as a result of the riots and of an accompanying loss of confidence by Catholics in the police. Towards the end of the year, the IRA split into two wings. For some time there had been dissension in the movement between those who hoped to bring about a form of socialist people’s republic for all Ireland and those who considered that such involvement deflected the IRA from its traditional aims. The traditionalists formed themselves into the Provisional IRA whilst the followers of the new political doctrines became the Official IRA. Both factions remained organised along military lines. 29. The situation worsened in 1970. The number of explosions recorded by the police jumped dramatically from a total of 8 in 1969 to 155 in 1970. Some explosions were caused by Loyalists - about 25 according to statistics cited by the Commission - but there is no dispute that the majority were the work of the IRA. In total, 23 civilians and 2 policemen were killed during the course of the year. None of these deaths was attributed by the police to Protestant activity. 30. The terrorist campaign by the IRA appears to have begun in earnest in 1970 and to have been one primarily of bombing buildings and attacking the security forces. There was also undoubtedly some terrorist activity on the part of Loyalists, directed largely against politicians seen as hostile to Unionism and against Catholic owned or occupied property, particularly licensed premises. Responsibility for certain explosions was in fact claimed by the UVF. 31. The sharp increase in what may be termed terrorist-type activity was not accompanied by the cessation of inter-communal street disturbances which continued sporadically during the year of 1970 and accounted for the deaths of a number of people. 32. Between January and July 1971, the violence intensified, being marked by a dramatic upsurge in terrorist activity by the IRA. Police statistics record a total of 304 explosions, including 94 for the one month of July. Shooting at the security forces’ patrols built up and for the first time soldiers numbered amongst those killed. By 9 August, 13 soldiers, 2 policemen and 16 civilians had died since the beginning of the year. In addition, serious and prolonged rioting occurred in both Catholic and Protestant areas. Apart from one explosion in which a civilian was killed, there is no evidence of any deaths or even injuries having been caused by Loyalist terrorists. On the applicant Government’s own approximate estimate, Loyalist explosions accounted for only 14 out of the overall total of 304. Furthermore, as in 1970, Loyalist terrorists used mainly pipe bombs which were not very powerful in comparison with the devices employed by the IRA. The Commission stated in its report that the IRA were indisputably responsible for the very great majority of the acts of violence during this period. Loyalist terrorist activity had declined; there is no evidence that such Loyalist terrorism as did exist formed part of a highly organised campaign in the sense that IRA activity did. The Commission’s conclusion was that the threat and reality of serious terrorism came almost exclusively from the IRA. 33. On the political front during 1970 and 1971, progress was made in implementing the reforms announced in October 1969 (see paragraph 26 above). The Prime Minister of Northern Ireland, however, resigned in March 1971. In June 1971, his successor proposed a number of further steps designed to provide a positive role for representatives of the minority community in the actual process of government. 34. It was against the background outlined above that on 9 August 1971 the Northern Ireland Government brought into operation extrajudicial measures of detention and internment of suspected terrorists. From 9 August 1971 until 7 November 1972, when certain of the Special Powers Regulations were replaced, the authorities in Northern Ireland in fact exercised four such extrajudicial powers: (i) arrest for interrogation purposes during 48 hours (under Regulation 10); (ii) arrest and remand in custody (under Regulation 11 (1)); (iii) detention of an arrested person (under Regulation 11 (2)); and (iv) internment (under Regulation 12 (1)). An account of the operation of these powers and the procedures there under is given below at paragraphs 81 to 84. 35. For some time, the possibility of internment had been extensively canvassed in the press and amongst politicians. Pressure had also been mounting within the Protestant community for its introduction; in the early months of 1971 there had been demonstrations against the then Prime Minister because of his Government’s alleged failure to deal with the IRA threat. The decision to introduce a policy of detention and internment was taken on 5 August 1971 by the Northern Ireland Government, following a meeting in London between the Northern Ireland and United Kingdom Governments. Prior to this, the question had been considered at the highest level in Northern Ireland and frequent consultations had taken place between the two Governments. In the latter half of July 1971, as an apparent last resort to avoid introducing internment, the security forces had intensified operations against suspected terrorists, mounting searches and detaining for questioning what were believed to be key figures in the IRA. Some 90 persons were arrested but no significant results were yielded. Prior to August 1971, the intelligence obtained by the police had failed to provide anything but a very general picture of the IRA organisation. 36. The campaign of violence carried out by the IRA had attained unprecedented proportions by the middle of 1971. This was clearly the dominant factor behind the decision to exercise the extrajudicial powers. Three principal reasons for the decision have been cited by the respondent Government. Firstly, the authorities took the view that the normal procedures of investigation and criminal prosecution had become inadequate to deal with IRA terrorists; it was considered that the ordinary criminal courts could no longer be relied on as the sole process of law for restoring peace and order. The second reason given, which was closely related to the first, was the widespread intimidation of the population. Such intimidation often made it impossible to obtain sufficient evidence to secure a criminal conviction against a known IRA terrorist in the absence of an admissible confession or of police or army testimony. Furthermore, the conduct of police enquiries was seriously hampered by the grip the IRA had on certain so-called "no-go" areas, that is Catholic strongholds where terrorists, unlike the police, could operate in comparative safety. Thirdly, the ease of escape across the territorial border between Northern Ireland and the Republic of Ireland presented difficulties of control. In addition to the three "security" reasons, there was, in the judgment of both the Northern Ireland Government and the United Kingdom Government, no hope of winning over the terrorists by political means, the reform programme initiated in 1969 having failed to prevent continuing violence. The authorities therefore came to the conclusion that it was necessary to introduce a policy of detention and internment of persons suspected of serious terrorist activities but against whom sufficient evidence could not be laid in court. This policy was regarded as a temporary measure primarily aimed at breaking the influence of the IRA. It was intended that a respite would be provided so as to enable the political and social reforms already undertaken to achieve their full effects. 37. The possibility of interning Loyalists was discussed in the preparatory stages. The security forces were aware of some Loyalist terrorist activity in 1971 and also of certain Protestant extremists, described by those forces as "rabble rousers" and suspected by them of acts of violence or intimidation, if not of terrorism strictly speaking. However, the security forces did not judge at this stage that there was any serious threat coming from the Loyalist quarter. There was said to be no army or police intelligence then available which indicated that any organisation other than the IRA had been actively engaged in bombing and killing in the very recent months. On account of the unprecedented level it had reached, and because of its nature as a highly organised, politically motivated campaign designed to overthrow the State, IRA terrorism was regarded as the real menace to law and order. Protestant terrorist activity, which was in the main directed against the Catholic community and not the State or the security forces, was seen by the authorities more as sporadic and as being on a minute scale in comparison and on a much less organised basis. 38. In the weeks preceding the introduction of internment, the police, in consultation with the army, were preparing lists of persons to be arrested. The lists included not only suspected IRA terrorists but also persons suspected of being involved or associated with the IRA or even, in a few cases, of possessing information about others so involved or associated. It was generally understood that the target of the planned exercise was the IRA. 39. Starting at 4.00 a.m. on Monday, 9 August 1971, the army, with police officers occasionally acting as guides, mounted an operation to arrest the 452 persons whose names appeared on the final list. In the event, some 350 persons were arrested in accordance with the Special Powers Regulations. The arrested persons were taken to one of the three regional holding centres (Magilligan Weekend Training Centre in County Londonderry, Ballykinler Weekend Training Centre in County Down and Girdwood Park Territorial Army Centre in Belfast) that had been set up to receive the prisoners during 48 hours. All those arrested were subjected to interrogation by police officers of the Royal Ulster Constabulary (RUC). 104 persons were released within 48 hours. Those who were to be detained were sent on to the prison ship "Maidstone" or to Crumlin Road Prison, both in Belfast. Prior to being lodged in detention, 12 individuals were moved to one or more unidentified centres for "interrogation in depth" extending over several days. Operation Demetrius, as the Commission points out, was not a selective manoeuvre aimed at individuals but a "sweeping-up" exercise directed against the IRA organisation as a whole. It is generally accepted that because of the scale and speed of the operation, some persons were arrested or even detained on the basis of inadequate or inaccurate information. 40. At 11.15 a.m. on 9 August 1971, the Prime Minister of Northern Ireland announced to the public the introduction of internment. He stated, inter alia: "The main target of the present operation is the Irish Republican Army ... They are the present threat; but we will not hesitate to take strong action against any other individuals or organisations who may present such a threat in the future." 41. Arrests continued to be made during the rest of the year, partly of persons on the above-mentioned list and partly of persons who came under suspicion thereafter. The three regional holding centres were closed down in August 1971 shortly after Operation Demetrius was completed, and in September/October 1971 police centres were established at Palace Barracks (Holywood, County Down), Girdwood Park (Belfast), Gough (County Armagh) and Ballykelly (County Londonderry) for the purpose of holding and interrogating persons arrested under the Special Powers Regulations. 42. The introduction of internment provoked a violent reaction from the Catholic community and the IRA. Serious rioting broke out in Belfast and elsewhere, there was a considerable increase in shootings and bombings, and the security situation in general deteriorated rapidly. Within the minority community there occurred a further alienation from the authorities and the security forces, together with a rise in support for the IRA. 43. Although surprised by the extent of this reaction, both the Northern Ireland and the United Kingdom Governments continued their efforts to secure political progress. In London, the Home Secretary announced in September 1971 his Government’s determination to ensure that the Catholic population in the province should have an active, permanent and guaranteed role in the conduct of public business. In the same month, a meeting took place in England between the Prime Ministers of the United Kingdom, Northern Ireland and the Irish Republic. In October, the Belfast Government published proposals for involving the opposition in government. However, these proposals were considered unacceptable by the political representatives of the Catholic community and nothing came of them. 44. Neither internment nor the political initiatives ended the violence. On the contrary, the numbers of deaths, explosions and shootings recorded by the police for each month throughout the period from August to December 1971 were higher than those recorded in any of the previous seven months of the year. There was a total of 146 persons killed, including 47 members of the security forces and 99 civilians, 729 explosions and 1,437 shooting incidents. 45. Apart from rioting and a small-scale bombing campaign of licensed premises, there was apparently little serious violence by Protestants in 1971. Only one death occurring between August and the end of the year, an assassination of a Protestant in September, was attributed by the police to Loyalists. On the other hand, intimidation of members of the opposite community to move from their homes seems to have become more prevalent on both sides, although the official figures indicate that Catholics were principally affected. 46. On the Protestant side, the increased violence at this time led to the formation of defence associations or vigilante groups which ultimately amalgamated in or about September 1971 to become the Ulster Defence Association (UDA). The UDA did not appear openly on the streets until the spring of 1972. There was also seen the start of a development later to become significant, that is the holding of large, carefully prepared parades by Loyalist organisations (see paragraph 51 below). The latter and in particular the UDA were looked on by the police as primarily political organisations not engaged in violence as such. 47. At the beginning of 1972, despite a small drop, the level of violence remained higher than at any time before 9 August 1971. On 30 January 1972, 13 people were killed by army gunfire in the course of disorders taking place in the predominantly Catholic town of Londonderry. This incident led to a new upsurge in support for the IRA amongst the Catholic community. In the first three months of 1972, 87 people were killed, including 27 members of the security forces. Two assassinations carried out in March, one of a Protestant and the other of a Catholic, were the only deaths attributed to Loyalist activity. 421 explosions, the vast majority attributed to the IRA, were caused during the same period. 48. From August 1971 until 30 March 1972 there had been in Northern Ireland 1,130 bomb explosions and well over 2,000 shooting incidents. 158 civilians, 58 soldiers and 17 policemen had been killed, and 2,505 civilians, 306 soldiers and 107 RUC members injured. Throughout these months the numbers held under detention or internment orders proceeded to rise until a total of over 900 persons, all suspected of involvement with the IRA, were held at the end of March 1972. At the same time, the ordinary processes of the criminal law continued to be used, against Protestants as well as Catholics, whenever there was thought to be sufficient evidence to ground a criminal conviction. Thus, between 9 August 1971 and 31 March 1972, over 1,600 people were charged with "terrorist-type" offences. 49. In March 1972, in view of the deteriorating circumstances, the Government in London decided that they should assume direct responsibility for the administration of law and order in Northern Ireland if there was to be any hope of political progress. This decision was unacceptable to the Government of the province and accordingly it was announced on 24 March 1972 that direct rule from Westminster not only on law and order but on all matters was to be introduced. Under the Northern Ireland (Temporary Provisions) Act 1972 (hereinafter referred to as the "Temporary Provisions Act"), which was passed by the United Kingdom Parliament and came into force on 30 March 1972, temporary provision was made for the exercise of the executive and legislative powers of the Northern Ireland Parliament and Government by the United Kingdom authorities. The Belfast Parliament was prorogued and the Queen empowered to legislate in its stead by Order in Council. The executive powers of the Belfast Government were transferred to the Secretary of State for Northern Ireland. This was a new office created for the purpose; its holder was a member of the United Kingdom Government and answerable to the United Kingdom Parliament. The legislation was enacted for a period of one year but was subsequently extended. 50. On assuming direct rule, the United Kingdom Government stated that one of their most important objectives was to bring internment under the Special Powers Act to an end and to consider how far the powers under that Act could be dispensed with. On 7 April 1972, the Secretary of State for Northern Ireland announced the immediate release of 47 internees and 26 detainees. By mid-May 259 persons had been released. The decision to phase out internment was not dictated by any fall in the level of violence. Rather it was intended to open the way for political progress by reducing tension as the first step in the process of reconciliation. On the political level, the United Kingdom was seeking the establishment of an equitable form of government for Northern Ireland, acceptable to both communities. 51. The introduction of direct rule, together with the release of detainees, caused resentment and dismay amongst the Protestant community. A two-day strike, which proved largely effective, was immediately called by the leader of one of the extremist movements on the Loyalist side. Street demonstrations and marches called by the UDA appear to have begun shortly after 30 March 1972. The UDA was organised on pseudo-military lines, its members, estimated at between 20,000 and 30,000 persons, giving themselves military ranks. The UDA used its forces to erect barricades, set up road blocks and disrupt civil life generally. They paraded in large numbers through the centre of Belfast and elsewhere, many of them masked and dressed in para-military uniforms and on occasions openly carrying weapons such as sticks or cudgels. Such demonstrations, however, seem rarely to have led to physical violence. Whilst it was illegal to block roads, wear uniforms or carry offensive weapons, the security forces did not attempt to arrest those taking part in UDA demonstrations since they feared that major riots would result. Neither were the extrajudicial powers of detention and internment ever used, against either Catholics or Protestants, to combat this kind of illegal activity. According to the respondent Government, consideration was given to the possibility of proscribing the UDA, but it was decided that on balance no good purpose would be served by doing so, not least because most of its members were not engaged in violence. It is generally accepted, however, that UDA membership overlapped, to some extent at least, with the smaller and more militant extremist bodies which were illegal, such as the UVF (see paragraph 20 above). 52. Other aspects of Loyalist activity during this stage of the crisis included the erection of barricades and the continuing intimidation of Catholics, a problem that became particularly grave in the summer of 1972. There were serious disturbances in Protestant areas in September and October 1972, with Loyalist terrorists exchanging fire with the security forces. The rioting in October ceased after the UDA had ordered the confrontation with the security forces to stop. 53. After the introduction of direct rule, there occurred a marked upward turn in Loyalist terrorism, evidenced by a few bombing attacks, a large-scale build-up of arms and ammunitions, and above all sectarian assassinations. Sectarian assassinations, which the respondent Government term the outstanding feature of Loyalist violence since 1972, first reached serious proportions in the spring of 1972. Victims seem largely to have been chosen at random on no other ground than their membership of, or links with, the other community. Kidnapping and torturing sometimes accompanied this kind of indiscriminate killing. While both sides committed sectarian murders, it is generally accepted that Protestants were responsible for more than Catholics. The police had difficulty in detecting those responsible for sectarian assassinations. In particular, witnesses were reluctant to come forward and were subjected to intimidation. Accordingly, a confidential telephone system was installed in August 1972, whereby information could be given anonymously to the security forces. 54. Although Loyalist terrorist activity had grown significantly, it nonetheless remained that the great bulk of serious violence in this period was attributed to the IRA (see paragraph 61 below). The high level of IRA terrorism did not at all abate despite the phasing-out of internment. In fact, there was a steady rise in explosions, shooting incidents and casualties amongst the security forces over the period from March until the end of May. However, on 29 May 1972 the Official IRA, who had been responsible for a lesser amount of violence than the Provisionals, declared a truce which they have on the whole respected ever since. On 22 June 1972 the Provisional IRA in their turn announced a truce, becoming effective on 26 June. The Provisionals’ truce was, however, called off on 9 July following an incident arising out of a communal argument between the UDA and Catholics about the allocation of accommodation on a Belfast housing estate. 55. After the breakdown of the ceasefire, Provisional IRA violence was resumed at an increased level. In July 1972 alone, 21 members of the security forces and 74 civilians were killed; in addition, there were nearly 200 explosions and 2,800 shooting incidents. These figures were the highest for any month in the entire emergency up to the end of 1974. Responsibility was attributed to Loyalists for 18 deaths and only 2 explosions. 56. Faced with the mounting tide of violence, the United Kingdom Government decided to restore the presence of the security forces in the "no-go" areas. After due warning had been given to the civilian population, a large-scale manoeuvre, known as Operation Motorman, was mounted on 31 July beginning at 4.00 a.m. Even after Operation Motorman the police were still not able to function properly in Catholic areas. Access to Protestant areas remained easier for the police and they were not subject there to the same risk of attack. The army operated principally, and was employed to carry out police duties, in those areas where the minority community predominated. 57. Nevertheless, the level of violence, although still high, immediately fell. In August, September and October, there was an overall total of approximately 2,200 shooting incidents as opposed to 2,800 for July alone. The monthly average of deaths was less than half the July total, and the number of explosions became progressively less. According to the respondent Government, a development contributing to the maintenance of this gradual reduction was the institution in November 1972 of a revised system for the detention of terrorists. In the months following the introduction of direct rule – including July, the worst of these months for violence - no new internment orders were made and fresh detentions virtually ceased. From September onwards, after the breakdown of the attempted ceasefire, the number of detention orders - as before, against IRA suspects only - increased, while the rate of releases fell. There was, however, no large-scale operation to re-detain and re-intern people. 58. The political gesture of phasing out internment had not, as hoped, elicited a positive response from the IRA; on the contrary, violence had mounted to fresh heights. Furthermore, the authorities judged that the capability of the ordinary processes of law to counter IRA terrorism continued to be impeded by a number of circumstances such as the intimidation of potential witnesses and the difficulty of bringing to trial those responsible for directing terrorist operations. The United Kingdom Government therefore became convinced that it was necessary to find fresh means of separating known terrorists from the population at large. On 21 September 1972, the Government announced that it was to set up a Commission, subsequently appointed in October under the chairmanship of Lord Diplock, - to consider "what arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations by bringing to book, otherwise than by internment by the Executive, individuals involved in terrorist activities, particularly those who plan and direct, but do not necessarily take part in, terrorist acts"; and - "to make recommendations". Without waiting for the report of the Diplock Commission, the Government brought into effect on 7 November 1972 the Detention of Terrorists (Northern Ireland) Order 1972 (abbreviated hereafter to the "Terrorists Order"), an Order made in exercise of the powers conferred by the Temporary Provisions Act (see paragraph 49 above). This Order, which was of a temporary nature, revoked Regulations 11 (2) (detention) and 12 (1) (internment); in replacement it instituted, with further procedural guarantees for the protection of the individual concerned, a new system of "interim custody" and "detention" for persons suspected of participation in terrorist activities. Regulations 10 and 11 (1) (arrest) remained. Further details on the Order are given below at paragraphs 85 to 87. 59. The report of the Diplock Commission was presented to the United Kingdom Parliament in December 1972. This report analysed the minimum requirements of a judicial process, the effects of intimidation, possible changes in the rules of evidence and the need for detention without trial. It stated, inter alia: "The fear of intimidation is widespread and well-founded. Until it can be removed and the personal safety of witnesses and their families guaranteed, the use by the Executive of some extrajudicial process for the detention of terrorists cannot be dispensed with." The European Commission of Human Rights, on the basis of the evidence it had itself obtained, accepted that the findings of the Diplock report as to the level of intimidation were generally warranted. 60. Another contributory factor invoked by the respondent Government in connection with the fall in violence (see paragraph 57 above) was the intensive programme of consultations which they undertook with the political parties in Northern Ireland on the question of the future government of the province. These consultations, first commenced in July and August 1972, continued throughout the last weeks of 1972 and the early months of 1973. Apart from the steps taken on the security front, the United Kingdom Government thus maintained the new emphasis placed, since the introduction of direct rule, on attempting to find a solution to the crisis through political means (see paragraph 50 above). 61. The gradual reduction in the level of violence was maintained until the end of this period. The figures for deaths and explosions for January 1973 were, with one slight exception, lower than for any month since the introduction of internment. Despite this general reduction, though, the development of Loyalist militancy and terrorist activity continued. From 1 April 1972 until 31 January 1973, 398 persons were killed, 72 of these deaths being attributed to Loyalists. The overall total included 123 members of the security forces, the vast majority of whom were considered to have been killed by the IRA, and an equal number of victims of "factional or sectarian" assassinations. Of these assassinations, 69 were ascribed to Loyalists, 34 to the IRA, with no attribution being possible in the remaining 20 cases. For their part, explosions totalled 1,141; no more than a small percentage - for example, 29 out of 691 explosions recorded between 1 July 1972 and 31 January 1973 - were regarded as being the work of Loyalists. The increasing Protestant militancy was further evidenced by the statistics on intimidation, arms and ammunitions recovered, and charges brought for "terrorist-type offences". Thus, between 31 July 1972 and 31 January 1973, charges of the kind just referred to were laid against 640 persons, namely 402 Catholics and 238 Protestants; within this total, 45 individuals - 24 Protestants, including 16 in the one month of January 1973, and 21 Catholics – were charged with murder or attempted murder. 62. Loyalist terrorism was linked by the police with Protestant extremist organisations, notably the UVF. The police considered that the UVF’s membership and acts of terrorism had increased from 1972 onwards following a period of relative inactivity after its 1969 bombing campaign (see paragraphs 24 and 30 above). It was looked on as a well-armed and organised body. In general, by about the middle of 1972 the police had reasonably good intelligence as to the identity of the violent elements on the Protestant side, but there were cases in 1972 in which it was impossible to procure sufficient evidence to bring such persons before the ordinary criminal courts. Nevertheless, none of the extrajudicial orders made between the introduction of direct rule and 5 February 1973 (see paragraph 64 below) applied to Loyalists. 63. Loyalist violence, however, remained on a far smaller scale than that of the Provisional IRA who, as the above-cited figures show, were still responsible for the great bulk of the terrorist deeds recorded. In the view of the respondent Government and of the Commission, Loyalist and IRA violence were to be distinguished in further respects in addition to volume. Loyalist terrorism consisted largely of intimidation and sectarian assassinations, whereas the IRA campaign also included attacks on members of the security forces and the bombing of public places. As indicated earlier (paragraph 37 above), the character, aims and background of the various organisations engaged in terrorism on the two sides differed. The evidence suggests that the Loyalist terrorist groups were at the time more amorphous than the IRA. Within the security forces there was a tendency, which the Commission regarded as justified in many ways, to look on Loyalist terrorists as "criminals" or "hooligans" and on the IRA as the organised "terrorist" enemy. The prospects of obtaining sufficient admissible evidence for a criminal prosecution were, it seems, judged by the security forces as being better in relation to Loyalists than to IRA suspects. Given the continued inability of the police to operate normally in Catholic areas and the greater extent and organisation of the IRA campaign, the Commission found such an attitude "not surprising". Finally, the statistics referred to above at paragraph 61 indicate that action, in the form of searches, recovery of arms and the bringing of criminal charges, was being taken by the authorities against both sides. 64. From 30 March until 7 November 1972 no new internment orders were made, although it was considered necessary to make 107 detention orders under Regulation 11 (2). By the latter date 628 men had been released from internment and 334 from detention, leaving 167 still interned and 119 still detained. Between the entry into force of the Terrorists Order and 31 January 1973, 166 interim custody orders and 128 detention orders were made while 94 persons were released. 65. In the context of the period from 30 March 1972 to 5 February 1973, the Commission noted in its report that subsequent to the introduction of direct rule the extrajudicial powers appear to have been exercised on a more selective basis and, broadly speaking, in accordance with the following criteria: (i) extrajudicial orders were served only on persons suspected of involvement in serious and organised terrorism; (ii) they were used solely as a "last resort", that is only in cases where sufficient evidence was not available to justify prosecution before the ordinary courts; (iii) as a general practice, they were not made against a person in respect of matters for which he had been tried and acquitted by an ordinary court, provided that it had been possible to put before the court all the relevant evidence. 66. At the beginning of February 1973, a British soldier was shot dead in a Protestant part of Belfast. Shortly afterwards, on 5 February 1973, two interim custody orders were made in respect of Loyalists. These two men were the first Loyalists against whom the extrajudicial powers were exercised. According to the applicant Government, the specific act of which one of these men was suspected - the bombing of a bus, responsibility for which had been claimed immediately after the event by the UVF - had caused a public outcry and had actually forced a decision to "intern" the first suspected Protestant terrorist. The decision itself had been the subject of discussions between the Secretary of State for Northern Ireland, the General Officer Commanding the British forces in the province and high ranking civil servants. The relevant higher authorities are noted in the Commission’s report as recognising that the detention of Loyalists would lead to repercussions in the security situation. The Commission accepts that the risk of a severe outbreak of Protestant violence in response was clearly a very real one. Prior to February 1973, it seems, no recommendations had been made to the Secretary of State for the detention or internment of Loyalists. 67. According to the applicant Government, the exercise of the extrajudicial powers against Loyalists brought in its wake widespread threats from the UDA. In general, however, the pattern of violence from February 1973 onwards can be said to have followed the previous pattern, although at a somewhat lower level than in 1972. The bulk of the terrorist acts that is most of the bombing and shooting attacks on members of the security forces were still perpetrated by the Provisional IRA, with the Loyalists committing the majority of the sectarian assassinations. From 1 February 1973 until 31 October 1974, the police registered 403 deaths, of which 116 were considered to be the responsibility of Loyalists. Of the 145 "factional or sectarian" murders recorded, 95 were ascribed to Loyalists and 40 to the IRA and in 10 cases no attribution was possible. In these twenty-two months, the number of explosions dropped to less than 1,600 - about 330 being attributed to Loyalists - as compared with approximately 1,400 in the one year of 1972. For their part, shootings fell from 10,628 to 7,112, although an increase occurred in punishment shootings such as "executions" and "knee-capping". 68. On 8 August 1973, the Northern Ireland (Emergency Provisions) Act 1973 (hereafter abbreviated to the "Emergency Provisions Act") came into force. This Act, which was based mainly on the recommendations of the Diplock Commission (see paragraphs 58 and 59 above), repealed the 1922 Special Powers Act, Regulations 10 and 11 (1) and the 1972 Terrorists Order, while retaining in substance the procedure laid down in the latter Order. Briefly, the extrajudicial powers introduced under the Emergency Provisions Act were: (i) arrest and detention for 72 hours; (ii) interim custody for 28 days; and (iii) detention (see paragraphs 88 and 89 below for a fuller explanation). These emergency powers remained in force for a period of one year unless renewed. The Act also dealt with the trial and punishment by the ordinary courts of certain scheduled offences, for the most part offences concerned with violence. One provision, section 6, is referred to below at paragraph 136. 69. Between 1 February 1973 and 31 October 1974, interim custody orders were served on 99 Protestants and 626 Catholics; at all times many more Catholics than Protestants were actually held. Shortly before Christmas 1973, 65 detainees, 63 of whom were Catholics, were released. 70. During the same period, 2,478 persons were charged with "terrorist-type offences", the total being made up as follows: 1,042 Protestants, 1,420 Catholics and 16 soldiers. These figures included 60 Protestants and 66 Catholics charged with murder. In addition, searches were being conducted and arms recovered in relation to both sides. 71. While the level of violence was reduced in the years 1973 and 1974, progress on the political front was somewhat erratic. In March 1973, the United Kingdom Government published a White Paper setting out proposals for the constitutional future of the six counties. These proposals envisaged a new regional government with participation at "cabinet" level by representatives of both communities. A 1973 Act provided for the election of a Northern Ireland Assembly before the main constitutional legislation was enacted. Elections, based on the principle of proportional representation in order to ensure a fair representation for the Catholic minority, were held on 30 June 1973. Of the 78 members elected to the Assembly, 51 were in favour of the proposed constitutional changes, even though the extreme Loyalist parties had conducted a campaign of opposition. 72. The White Paper proposals were enacted in July 1973 in the form of the Northern Ireland Constitution Act 1973. This Act empowered the Assembly to legislate within certain limits and established an Executive. A Standing Advisory Commission on Human Rights was instituted to advise the Secretary of State. The Act also specifically provided that legislation passed by the Assembly would be void if it discriminated on the ground of religious belief or political opinion; in addition, discrimination by public authorities on such grounds was expressly rendered unlawful. The provisions of the Act relating to legislative and executive powers required the passing by the United Kingdom Parliament of a Devolution Order. The Order was made on 19 December 1973 and the devolution became effective on 1 January 1974. This devolution, which was based on the principle of "power-sharing" between the two communities, marked for a certain time the end of direct rule. 73. The Northern Ireland Executive came into office on 1 January 1974. For the first time, a Northern Ireland Government contained representatives of both the majority and minority communities, but its life proved to be very brief. In May 1974, Protestant extremist groups combined to organise a politically motivated strike which brought about the downfall of the Executive and a return to direct rule from Westminster. On 29 May, Her Majesty, acting under the Constitution Act referred to in the preceding paragraph, by Order in Council directed that the Northern Ireland Assembly should stand prorogued for four months. On 17 July 1974, the Northern Ireland Act 1974 was passed by the United Kingdom Parliament in order to make temporary provision for the government of the six counties. This Act suspended the functions of the above-mentioned Assembly and enabled laws to be made by Order in Council, enacted that no appointments to the Executive were to be made, and made the province’s departments subject to the direction and control of the Secretary of State for Northern Ireland. 74. In 1974, the United Kingdom Government appointed the Gardiner Committee whose terms of reference were to consider what provisions and powers, consistent to the maximum extent practicable in the circumstances with the preservation of civil liberties and human rights, were required to deal with terrorism and subversion in Northern Ireland, including provisions for the administration of justice; to examine the working of the 1973 Emergency Provisions Act; and to make recommendations. The report of the Gardiner Committee was presented to the United Kingdom Parliament in January 1975. This report critically examined trial procedures before the ordinary courts, existing and proposed offences connected with terrorism, the powers of the security forces, prison accommodation, special category prisoners and detention. When dealing with the question of detention, the Gardiner Committee noted at paragraph 143: "... We have detailed evidence of 482 cases of intimidation of witnesses between 1st January 1972 and 31st August 1974: and there must be many more. Civilian witnesses to murder and other terrorist offences are either too afraid to make any statement at all, or, having made a statement identifying the criminal, refuse in any circumstances to give evidence in court. The prevalence of murder and knee-capping make this only too easy to understand." The Gardiner Committee, while making certain recommendations about detention and existing detention procedures, concluded at paragraphs 148 and 149: "After long and anxious consideration, we are of the opinion that detention cannot remain as a long-term policy. In the short term, it may be an effective means of containing violence, but the prolonged effects of the use of detention are ultimately inimical to community life, fan a widespread sense of grievance and injustice, and obstruct those elements in Northern Ireland society which could lead to reconciliation. Detention can only be tolerated in a democratic society in the most extreme circumstances; it must be used with the utmost restraint and retained only as long as it is strictly necessary. We would like to be able to recommend that the time has come to abolish detention; but the present level of violence, the risks of increased violence, and the difficulty of predicting events even a few months ahead make it impossible for us to put forward a precise recommendation on the timing. We think that this grave decision can only be made by the Government ..." 75. The Emergency Provisions Act of 1973, the main subject of the examination by the Gardiner Committee, was extended by Orders of 17 July 1974, 17 December 1974 and 27 June 1975. On 7 August 1975, the United Kingdom Parliament, acting on the recommendations of the Gardiner report, passed the Northern Ireland (Emergency Provisions) (Amendment) Act 1975 (hereafter abbreviated to the "Emergency Provisions Amendment Act"). This Act, which came into effect on 21 August 1975, amended the law relating to detention without trial (see paragraph 90 below), as well as containing further provisions concerned with criminal proceedings, the maintenance of order and the detection of crime in Northern Ireland. The Emergency Provisions Amendment Act is still in force, having twice been continued by Parliamentary Resolution. 76. No detailed statistics for the year 1975 are before the Court, although a few figures as to murder charges appear in the Commission’s report. By 19 June, the police had been able to bring criminal charges against a total of 73 Protestants and 20 Catholics in respect of 49 sectarian murders. On 5 December 1975, the Secretary of State for Northern Ireland signed orders for the release from detention of the last 75 individuals held under the emergency legislation. Since December 1975, according to the data before the Court, no person has been held in detention under the extrajudicial measures in Northern Ireland. The terrorism and violence in the province have persisted through 1976 until the present day, accounting, for instance, for the murders of 173 persons and injuries to 770 others between 1 January and 28 June 1976. 77. The respondent Government have drawn attention, before both the Commission and the Court, to the continuous programme of reform implemented in Northern Ireland since 1969 in order to tackle the problems of unfair discrimination which had prompted the civil rights movement. Radical changes have been made in the structure of local government in the province: universal suffrage was introduced in 1969, proportional representation in 1972, local government boundaries were revised in 1973, and many important functions such as education and housing were transferred to special area boards or to central government bodies in the hope of ending or reducing the fear of discrimination in the social field. In 1969, the Northern Ireland Government established a Parliamentary Commissioner (i.e. Ombudsman) for Administration and a Commissioner for Complaints. The provisions of the Northern Ireland Constitution Act of 1973 directed against discrimination have already been referred to (paragraph 72 above). The Standing Advisory Commission on Human Rights, set up under the last-mentioned Act, began in 1975 a detailed study of the extent to which the existing legislation provides a sufficient protection for human rights in the six counties. Legislation making discrimination unlawful in the private sector was introduced in 1976. 78. During the period under consideration, in addition to the ordinary criminal law which remained in force and in use, the authorities had various special powers to combat terrorism in Northern Ireland. These were all discretionary and underwent modification from time to time, as is described below; they enabled the authorities to effect extrajudicial deprivation of liberty falling into the following three basic categories: - initial arrest for interrogation; - detention for further interrogation (originally called "detention" and subsequently "interim custody"); - preventive detention (originally called "internment" and subsequently "detention"). 79. In accordance with Article 15 para. 3 (art. 15-3) of the Convention, the United Kingdom Government sent to the Secretary-General of the Council of Europe, both before and after the original application to the Commission, six notices of derogation in respect of these powers. Such notices, of which the first two are not pertinent in the present case, were dated 27 June 1957, 25 September 1969, 20 August 1971, 23 January 1973, 16 August 1973 and 19 September 1975 and drew attention to the relevant legislation and modifications thereof. 80. The Special Powers Act empowered the Minister of Home Affairs for Northern Ireland, until 30 March 1972, or, thereafter and until 8 August 1973, the Secretary of State for Northern Ireland to take all such steps and issue all such orders as might be necessary for preserving peace and maintaining order. It was an enabling Act whose substantive provisions were contained in Regulations made there under. Before direct rule, either House of Parliament of Northern Ireland could, at the time Regulations were made, request the Governor to annul them; subsequently, new Regulations were subject to approval by the United Kingdom Parliament. The number and scope of the Regulations in force varied over the years; they could be brought into use without any legislative act or proclamation. Those relevant to the present case were made in 1956 (Regulations 11 and 12) and 1957 (Regulation 10). They were utilised to implement the policy of internment introduced on 9 August 1971 and advice of their use was given to the Secretary-General by the United Kingdom Government’s notice of derogation of 20 August 1971 (Yearbook of the Convention, volume 14, page 32). They conferred the four powers described below. 81. Under this Regulation - any individual could be arrested without warrant and detained for the purpose of interrogation; - the arrest could be authorised by any officer of the RUC; - the officer had to be of the opinion that the arrest should be realised "for the preservation of the peace and maintenance of order"; - the detention could not exceed forty-eight hours. Exercise of the power was not conditional on suspicion of an offence and, following a practice originating in instructions issued to the military police in May 1970, the individual was not normally informed of the reason for his arrest. Although looked upon in principle as a preliminary to detention and internment (see paragraphs 83 and 84 below), arrest sometimes had the object of interrogating a person about the activities of others. Some arrests, and some subsequent detention orders, seem to have been made on the basis of inadequate or inaccurate information. The individual could not apply for bail (see the judgment of 12 October 1971 delivered by the High Court of Justice in Northern Ireland in the case of In Re McElduff). Moreover, arrests under this Regulation could not as a general rule be questioned in the courts but it was held in the judgment of 18 February 1972 delivered by the Armagh County Court in the case of Moore v. Shillington and Ministry of Defence that failure to comply with the proper procedure, including certain fundamental principles of the common law, invalidated exercise of the power. On 8 August 1973 the Emergency Provisions Act (see paragraph 88 below) repealed Regulation 10. 2,937 persons had been arrested there under prior to 30 March 1972, of whom 1,711 had been released within forty-eight hours and 1,226 had had their detention prolonged under other Regulations. 82. Under this Regulation - any individual could be arrested without warrant; - the arrest could be effected by any police constable, member of the forces or person authorised by the "Civil Authority" (i.e. the Minister of Home Affairs or his delegates); - the person making the arrest had to suspect the individual of acting, having acted or being about to act in a manner prejudicial to the preservation of the peace or maintenance of order or of having committed an offence against the Regulations; - the duration of the arrest was unlimited in law but limited in practice to seventy-two hours. Arrest under this Regulation could follow arrest under Regulation 10, giving a total of at most one hundred and twenty hours. The individual was not normally informed of the reason for his arrest. Judicial decisions show that review by the courts of the exercise of this power was limited. They could intervene if there had been bad faith, absence of a genuine suspicion, improper motive or failure to comply either with the statutory procedures or with such principles of the common law as were held not to be excluded by the language of the Regulation; however, they could not in general enquire into the reasonableness or fairness of the suspicion or of the decision to exercise the power (see the McElduff case and the judgment of 11 January 1973 delivered by the High Court of Justice in Northern Ireland in the case of Kelly v. Faulkner and others). Under Regulation 11 (4), the individual could apply to the Civil Authority for release on bail and, if that Authority so directed, might be conditionally discharged from custody by a magistrate; however, this right was abolished on 7 November 1972 with the revocation of Regulation 11 (4) by the Terrorists Order (see paragraph 85 below). Regulation 11 (1) was repealed on 8 August 1973 by the Emergency Provisions Act (see paragraph 88 below). 83. Under this Regulation - any individual arrested under Regulation 11 (1) could be detained in prison or elsewhere on the conditions directed by the Civil Authority; - the power to make detention orders was vested in the Civil Authority and the initiative for them came from the police. The respondent Government said that they were always made on the personal decision, before direct rule, of the Prime Minister of Northern Ireland or, thereafter, of the Secretary of State for Northern Ireland or two other Ministers; - detention continued until the individual was discharged by the Attorney-General or brought before a court. Its duration was unlimited in law but limited in practice, generally, to twenty-eight days. The respondent Government said that detention orders were made to enable the police to complete enquiries. If they had sufficient evidence to secure a conviction, the individual would be brought before an ordinary court in which event he was entitled to at least twenty-four hours’ notice of the charge. Alternatively, he might be released after a limited period or be the subject of an internment order (see paragraph 84 below). The detainee had the limited right to apply for bail afforded by Regulation 11 (4) (see paragraph 82 above). The position concerning supervision by the courts was the same as under Regulations 10 and 11 (1) (see the McElduff and the Kelly cases) and there was no other procedure for review of the detention. More than 1,250 detention orders were made under Regulation 11 (2), the vast majority before 30 March 1972. Nearly 120 orders were still in force on 7 November 1972 when the Regulation was revoked by the Terrorists Order (see paragraph 85 below). 84. Under this Regulation - any individual could by order be subjected to restrictions on movement or interned; - the power to make such orders was vested before direct rule in the Minister of Home Affairs for Northern Ireland on the recommendation of a senior police officer or of an advisory committee. The respondent Government said that they were always made on the personal decision of the Prime Minister of Northern Ireland; - the Minister had to be satisfied that for securing the preservation of the peace and the maintenance of order it was expedient that a person suspected of acting, having acted or being about to act in a manner prejudicial te peace and order be subjected to such restrictions or interned; - the duration of internment was unlimited. In many cases, after prolongation under later legislation (see paragraphs 85 and 88 below), it lasted for some years. Every order had to provide for the consideration by and advisory committee of representations made by the individual. In fact it reviewed the position of all internees whether they made representations or not. The committee composed of a judge and two laymen, could recommend, but not order, release. The individual had no right in law to appear or be legally represented before the committee, to test the grounds for internment, to examine witnesses against him or to call his own witnesses. In fact, he was allowed to appear and be interviewed and every effort was made to trace witnesses he proposed. The committee required the security forces to produce the information in their possession but statements of evidence against the internee so obtained remained anonymous, apparently to avoid retaliation. According to the Commission, the committee probably relied on evidence not admissible in a court of law. The position concerning the review of internment orders by the courts was the same as under Regulations 10, 11 (1) and 11 (2) (see the Kelly case). 796 orders were made under Regulation 12 (1), all before the introduction of direct rule. Nearly 170 orders were still in force on 7 November 1972 when the Regulation was revoked by the Terrorists Order (see paragraph 85 below). By 30 March 1972, 588 of the 796 cases had been reviewed by the advisory committee (although 451 internees refused to appear) and 69 releases recommended. Of the 69 individuals all were released except 6 who refused to give an undertaking as to future good behaviour. 85. The Terrorists Order, a temporary measure made under the Temporary Provisions Act (see paragraph 49 above), introduced an independent review of decisions on detention for further interrogation and on preventive detention whereas, previously, such decisions had been taken by the administrative authority alone. The Order revoked with effect from 7 November 1972 Special Powers Regulations 11 (2) and (4) and 12 (1) - but not 10 and 11 (1) - and converted existing detention or internment orders into interim custody orders (see paragraph 86 below). The Order defined "terrorism" as "the use of violence for political ends [including] any use of violence for the purpose of putting the public or any section of the public in fear". The Secretary-General of the Council of Europe was advised of the making of this Order by the United Kingdom Government’s notice of derogation of 23 January 1973 (Yearbook of the Convention, volume 16, pages 24 and 26). The Order conferred the powers described below and was repealed by the Emergency Provisions Act on 8 August 1973 (see paragraph 88 below). 86. Under this Article - any individual could by an interim custody order be temporarily detained; - the power to make such orders was vested in the Secretary of State for Northern Ireland; - the power was exercisable where it appeared to the Secretary of State that the individual was suspected of having been concerned in the commission or attempted commission of any act of terrorism or the organisation of persons for the purpose of terrorism; - detention was limited to twenty-eight days unless the case was referred by the Chief Constable - or, as regards persons originally held under the Special Powers Regulations, by the Secretary of State - to a commissioner for determination, in which event it could continue only until such determination. The individual had to be released after twenty-eight days if his case had not by then been referred to a commissioner but, in fact, all cases, including those of persons originally detained or interned under the Special Powers Regulations, were so referred. During the order’s initial twenty-eight days and during its extension pending the commissioner’s adjudication, which could take up to six months, the individual had no means under the Terrorists Order of challenging the lawfulness of his detention. Figures for interim custody orders appear in paragraph 89 below. 87. Under this Article - where the case of an individual subject to an interim custody order under Article 4 was referred to a commissioner, he could make a detention order for that individual’s detention; - the commissioner had first to satisfy himself by enquiry that the individual had been concerned in the commission or attempted commission of any act of terrorism or the organisation of persons for the purpose of terrorism and that his detention was necessary for the protection of the public. If so satisfied, he had to make an order; if not, he had to direct the individual’s discharge; - the duration of detention was unlimited. In many cases, after prolongation under later legislation (see paragraph 88 below), it lasted for some years. Unlike the recommendation of the advisory committee under Regulation 12 (1), a commissioner’s decision to release was binding. The Secretary of State retained independent powers to release detainees with or without conditions and to recall to detention an individual conditionally released by him. He could also at any time refer a detention order case to a commissioner for review; in that event discharge was obligatory unless the commissioner considered continued detention necessary for public protection. Proceedings before a commissioner took place in private. At least three days before the hearing the individual had to be notified in writing of the nature of the terrorist activities to be enquired into. He had the right to legal aid and to be legally represented and had to be present unless removed on grounds of disorderly conduct or of security. He could be required to answer questions; he had no right to examine or have examined witnesses against him but the respondent Government said that, in practice, cross-examination took place. The individual had to be informed, as far as possible, of matters dealt with in his absence for security reasons but had no right to test evidence given at that time. The commissioner might receive evidence however obtained and irrespective of whether it would be admissible in a court of law. This procedure applied, mutatis mutandis, both to initial references to a commissioner and to later references for review. Article 6 of the Terrorists Order introduced a right for the individual to appeal within twenty-one days against a detention order to a detention appeal tribunal of at least three members. Procedurally the individual’s position before the tribunal was similar to his position before a commissioner; however, he was entitled to be present only when fresh evidence was produced, which was rare as the tribunal generally relied on the evidence furnished to the commissioner. Both commissioners and members of the tribunal had to have experience of judicial office or at least ten years’ experience as a barrister, advocate or solicitor. Figures for detention orders appear in paragraph 89 below. 88. The Emergency Provisions Act, based on the recommendations of the Diplock Commission (see paragraph 59 above), repealed with effect from 8 August 1973 the Special Powers Act, Regulations 10 and 11 (1) and the Terrorists Order but maintained in effect - under its own provisions - the existing interim custody and detention orders. The emergency powers contained in the new Act were to remain in force for one year unless renewed for a period not exceeding one year by an Order of the Secretary of State approved by both United Kingdom Houses of Parliament; they were in fact renewed for six-monthly periods commencing on 25 July 1974, 25 January 1975 and 25 July 1975 and then amended on 21 August 1975 by the Emergency Provisions Amendment Act (see paragraph 90 below). The Secretary-General of the Council of Europe was advised of the new legislation, and of the subsequent renewal and amendment of the emergency powers, by the United Kingdom Government’s notices of derogation of 16 August 1973 (Yearbook of the Convention, volume 16, pages 26 and 28) and 19 September 1975 (document DH (75) 5, page 5). The new Act (section 10 (5) and Schedule 1) re-enacted, in substance, the powers contained in the Terrorists Order, retaining its definition of terrorism. Accordingly, the powers to make interim custody and detention orders, and the review thereof by a commissioner and the appeal tribunal, continued in the manner, on the conditions and subject to the procedure described in paragraph 86 and 87 above, with the significant differences that: - the individual had to receive a written statement concerning the terrorist activities to be investigated by the commissioner at least seven (rather than three) days before the hearing; - in addition to his optional power to refer, the Secretary of State had to refer to a commissioner the case of anyone held under a detention order for one year since the making of the order or for six months since the last review. Section 10 of the Act also provided that any constable might arrest without warrant a person whom he suspected of being a terrorist; detention after arrest was limited to seventy-two hours. The Act conferred certain other powers of arrest (sections 11 and 12) which are not in issue in the present case. 89. Figures for interim custody and detention orders (under the Terrorists Order and the Emergency Provisions Act) are: - November 1972 to 1 February 1973: 166 interim custody orders (under the Terrorists Order); - November 1972 to January 1973: 128 individuals detained under the Terrorists Order and 94 released; - November 1972 to 5 September 1973: the commissioners reviewed 579 cases (296 interim custody orders made under the Terrorists Order or the Emergency Provisions Act; 165 former internments and 118 former detentions under the Special Powers Regulations); they made 453 detention orders and directed release in the remaining 126 cases; - November 1972 to 3 October 1973: 44 appeals were lodged with the detention appeal tribunal; 34 had been heard and 25 releases directed. 90. With effect from 21 August 1975, the Emergency Provisions Amendment Act, based on the recommendations of the Gardiner Committee (see paragraph 74 above), made, inter alia, new provisions for the detention of terrorists which have not been the subject of the present case. The Act reverted to the principle of detention by order of the Secretary of State, rather than of a commissioner, such order to be preceded by a report from a legally qualified Adviser. 91. As indicated in the United Kingdom Government’s communication of 12 December 1975 to the Secretary-General of the Council of Europe (Yearbook of the Convention, volume 18, page 18), on 5 December 1975 the Secretary of State signed orders for the release of the last 75 persons detained under the emergency legislation; all were released forthwith except those remanded in custody on criminal charges or serving sentences of imprisonment. Since then, according to the data before the Court, the power to make detention orders under the Emergency Provisions Amendment Act has not been exercised. 92. As recounted above at paragraphs 39 and 41, on 9 August 1971 and thereafter numerous persons in Northern Ireland were arrested and taken into custody by the security forces acting in pursuance of the emergency powers. The persons arrested were interrogated, usually by members of the RUC, in order to determine whether they should be interned and/or to compile information about the IRA. In all, about 3,276 persons were processed by the police at various holding centres from August 1971 until June 1972. The holding centres were replaced in July 1972 by police offices in Belfast and at Ballykelly Military Barracks. 93. Allegations of ill-treatment have been made by the applicant Government in relation both to the initial arrests and to the subsequent interrogations. The applicant Government submitted written evidence to the Commission in respect of 228 cases concerning incidents between 9 August 1971 and 1974. The procedure followed for the purposes of ascertaining the facts (Article 28, sub-paragraph (a), of the Convention) (art. 28-a) was one decided upon by the Commission and accepted by the Parties. The Commission examined in detail with medical reports and oral evidence 16 "illustrative" cases selected at its request by the applicant Government. The Commission considered a further 41 cases (the so-called "41 cases") on which it had received medical reports and invited written comments; it referred to the remaining cases. The nature of the evidence submitted by the two Governments and the procedure followed by the Commission in its investigation of such evidence are set out in some detail in the Commission’s report. The Commission came to view that neither the witnesses from the security forces nor the case-witnesses put forward by the applicant Government had given accurate and complete accounts of what had happened. Consequently, where the allegations of ill-treatment were in dispute, the Commission treated as "the most important objective evidence" the medical findings which were not contested as such. The following account of events is based on the information set out in the Commission’s report and in the other documents before the Court. 94. In order to protect the identity of certain persons, notably witnesses, the published version of the Commission’s report (see paragraph 7 above) incorporated changes to the original text; these changes mainly took the form of designating such persons by letters and/or figures. 95. The Commission grouped the cases into five categories, according to the place where the ill-treatment was said to have been inflicted, namely: (1) the unidentified interrogation centre or centres; (2) Palace Barracks, Holywood; (3) Girdwood Park Barracks; (4) Ballykinler Regional Holding Centre; and (5) various other miscellaneous places. 96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of "interrogation in depth" which involved the combined application of five particular techniques. These methods, sometimes termed "disorientation" or "sensory deprivation" techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of: (a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers"; (b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation; (c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise; (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations. The Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104. 97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at "high level". Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971. 98. The two operations of interrogation in depth by means of the five techniques led to the obtaining of a considerable quantity of intelligence information, including the identification of 700 members of both IRA factions and the discovery of individual responsibility for about 85 previously unexplained criminal incidents. 99. Reports alleging physical brutality and ill-treatment by the security forces were made public within a few days of Operation Demetrius (described above at paragraph 39). A committee of enquiry under the chairmanship of Sir Edmund Compton was appointed by the United Kingdom Government on 31 August 1971 to investigate such allegations. Among the 40 cases this Committee examined were 11 cases of persons subjected to the five techniques in August 1971; its findings were that interrogation in depth by means of the techniques constituted physical ill-treatment but not physical brutality as it understood that term. The Committee’s report, adopted on 3 November 1971, was made public, as was a supplemental report of 14 November by Sir Edmund Compton in relation to 3 further cases occurring in September and October, one of which involved the techniques. 100. The Compton reports came under considerable criticism in the United Kingdom. On 16 November 1971, the British Home Secretary announced that a further Committee had been set up under the chairmanship of Lord Parker of Waddington to consider "whether, and if so in what respects, the procedures currently authorised for interrogation of persons suspected of terrorism and for their custody while subject to interrogation require amendment". The Parker report, which was adopted on 31 January 1972, contained a majority and a minority opinion. The majority report concluded that the application of the techniques, subject to recommended safeguards against excessive use, need not be ruled out on moral grounds. On the other hand, the minority report by Lord Gardiner disagreed that such interrogation procedures were morally justifiable, even in emergency terrorist conditions. Both the majority and the minority considered the methods to be illegal under domestic law, although the majority confined their view to English law and to "some if not all the techniques". 101. The Parker report was published on 2 March 1972. On the same day, the United Kingdom Prime Minister stated in Parliament: "[The] Government, having reviewed the whole matter with great care and with reference to any future operations, have decided that the techniques ... will not be used in future as an aid to interrogation." He further declared: "The statement that I have made covers all future circumstances. If a Government did decide ... that additional techniques were required for interrogation, then I think that ... they would probably have to come to the House and ask for the powers to do it." As foreshadowed in the Prime Minister’s statement, directives expressly prohibiting the use of the techniques, whether singly or in combination were then issued to the security forces by the Government (see paragraph 135 below). 102. At the hearing before the Court on 8 February 1977, the United Kingdom Attorney-General made the following declaration: "The Government of the United Kingdom have considered the question of the use of the ‘five techniques’ with very great care and with particular regard to Article 3 (art. 3) of the Convention. They now give this unqualified undertaking, that the ‘five techniques’ will not in any circumstances be reintroduced as an aid to interrogation." 103. The Irish Government referred to the Commission 8 cases of persons submitted to the five techniques during interrogation at the unidentified centre or centres between 11 and 17 August 1971. A further case, that of T 22, considered in the Commission’s report in the context of Palace Barracks, concerned the use of the five techniques in October 1971. The Commission examined as illustrative the cases of T 6 and T 13, which were among the 11 cases investigated by the Compton Committee. 104. T 6 and T 13 were arrested on 9 August 1971 during Operation Demetrius. Two days later they were transferred from Magilligan Regional Holding Centre to an unidentified interrogation centre where they were medically examined on arrival. Thereafter, with intermittent periods of respite, they were subjected to the five techniques during four or possibly five days; neither the Compton or Parker Committees nor the Commission were able to establish the exact length of the periods of respite. The Commission was satisfied that T 6 and T 13 were kept at the wall for different periods totalling between twenty to thirty hours, but it did not consider it proved that the enforced stress position had lasted all the time they were at the wall. It stated in addition that the required posture caused physical pain and exhaustion. The Commission noted that, later on during his stay at the interrogation centre, T 13 was allowed to take his hood off when he was alone in the room, provided that he turned his face to the wall. It was not found possible by the Commission to establish for what periods T 6 and T 13 had been without sleep, or to what extent they were deprived of nourishment and whether or not they were offered food but refused to take it. The Commission found no physical injury to have resulted from the application of the five techniques as such, but loss of weight by the two case-witnesses and acute psychiatric symptoms developed by them during interrogation were recorded in the medical and other evidence. The Commission, on the material before it, was unable to establish the exact degree of any psychiatric after-effects produced on T 6 and T 13, but on the general level it was satisfied that some psychiatric after-effects in certain of the fourteen persons subjected to the techniques could not be excluded. 105. T 13 claimed in addition to have been beaten and otherwise physically ill-treated, but the medical evidence before the Commission, as the delegates explained at the hearing before the Court on 21 April 1977, gave reason to doubt that he had been assaulted to any severe degree, if at all. Accordingly, the Commission treated the allegations in regard to T 13 as concerning the five techniques only. T 6 similarly alleged that he was also assaulted in various ways at, or during transport to and from, the centre. On 17 August 1971 he was medically examined on leaving the centre and also on his subsequent arrival at Crumlin Road Prison where he was then detained until 3 May 1972. The medical reports of these examinations and photographs taken on the same day revealed on T 6’s body bruising and contusions that had not been present on 11 August. While not accepting all T 6’s allegations, the Commission was "satisfied beyond a reasonable doubt that certain of these injuries ... [were] the result of assaults committed on him by the security forces at the centre". As a general inference from the facts established in T 6’s case, the Commission also found it "probable that physical violence was sometimes used in the forcible application of the five techniques". 106. Although several other cases were referred to before the Commission by the applicant Government in connection with the unidentified interrogation centre or centres, no detailed allegations or findings are set out in the Commission’s report except in the case of T 22 which was one of the "41 cases". The medical evidence established that when leaving the centre and on entering Crumlin Road Prison, T 22 had suffered superficial bruising. The Commission’s short assessment of this case, which it described as comparable to the case of T 6, was that "there exists a strong indication that the course of events was similar to that found in the illustrative [case]". 107. T 13 and T 6 instituted civil proceedings in 1971 to recover damages for wrongful imprisonment and assault; their claims were settled in 1973 and 1975 respectively for £15,000 and £14,000. The twelve other individuals against whom the five techniques were used have all received in settlement of their civil claims compensation ranging from £10,000 to £25,000. 108. Palace Barracks, a military camp in Holywood, County Down, on the outskirts of Belfast, was used as a holding centre for some days in August 1971 and then from September 1971 until June 1972. During this period, when it was the main interrogation centre in Northern Ireland, some 2,000 persons from all over the province passed through Palace Barracks. The centre was operated jointly by the army and the RUC. Persons held there were photographed immediately after arriving and, from November 1971 onwards (see paragraph 133 below), examined by a doctor on entry as well as departure. The interrogations - records of which were kept for filing – were conducted solely by police, usually at least two in number, from the Special Branch of the RUC. These men, who were independent of the uniformed RUC, came under the responsibility of an officer in charge with the rank of inspector. Many of them interrogated prisoners both at Palace Barracks and at Girdwood Park on a rotating system. 109. A total of 45 cases concerned with Palace Barracks were submitted to the Commission by the applicant Government. The Commission examined in detail 9 illustrative cases, all relating to the period between September and November 1971. It also considered a further 8 cases, included in the "41 cases"; of these 8 cases, 6 covered the months October to December 1971 while 2 concerned events occurring in January and May 1972. 110. These four men were all arrested early on 20 September 1971 at their homes in County Tyrone and taken to Palace Barracks for interrogation. They were photographed and examined by an army doctor immediately after their arrest; apart from one small scar, no injuries were apparently found. The next day they were transferred together from Palace Barracks to Crumlin Road Prison. They all alleged that at various times they had been made to stand spread eagled against a wall and had been severely beaten or otherwise physically ill-treated, particularly during interrogations. On their arrival at Crumlin Road, a prison doctor found contusions and bruising on three of the men; on 23 September, another doctor found similar injuries on the fourth man. In the Commission’s view, this medical evidence made "it highly probable that all the four received their injuries while at Palace Barracks". Despite the absolute denials given in evidence by witnesses from the security forces at Palace Barracks, the Commission held the following facts, amongst others, to be established beyond reasonable doubt: "The four men ... were severely beaten by members of the security forces ... The beating was not occasional but it was applied in a sort of scheme in order to make them speak ..." Each man instituted civil proceedings for damages and rejected the offer of £750 made in settlement of his claim. 111. T 9 and T 14 were arrested together by an army patrol in a Belfast street on the night of 16 October 1971. They were brought to Palace Barracks for interrogation and held there until the evening of 18 October when they were transferred to Crumlin Road Prison. On arrival at the latter institution, they were examined by a prison doctor. T 14 was immediately transported to the prison hospital wing where he spent the next three weeks. Both men soon made statements alleging ill-treatment at Palace Barracks. T 14, for instance, claimed that he had been made to stand spread eagled against a wall while being questioned by a Special Branch man who was kicking him continuously on the insides of the legs. They obtained legal assistance and were further medically examined. The medical evidence disclosed injuries described as "substantial" in T 9’s case and "massive" in T 14’s case. The Commission concluded that "the proved injuries must have been caused while the two men were at Palace Barracks". Fourteen members of the security forces at the centre gave evidence completely denying any knowledge of the injuries or their causes, but these denials were not believed by the Commission. While viewing certain of the two men’s assertions as exaggerated, invented or improbable, the Commission made the following finding: "T 9 and T 14 ... were subjected to physical violence, especially kicking and beating, during or between a series of ‘interviews’ conducted by the Special Branch." Civil proceedings seeking damages were instituted by T 14 and T 9; their claims were settled for £2,250 and £1,975 respectively. They also, it seems, complained to the police, but no evidence was produced to the Commission of a police enquiry into their complaints. 112. These two cases, although not directly connected, have certain similarities and were grouped together by the Commission. 113. T 1 was arrested at his home in the early hours of 20 October 1971 and taken by soldiers to Palace Barracks. He was questioned several times that day. At about 6.30 p.m. he was released without being charged. The following morning, he was examined by a general practitioner who found what he considered to be rather superficial injuries. T 1 alleged that he had been kicked and punched while being made to stand against the wall with his weight on his fingertips. These allegations were completely denied by witnesses from the police. No corroborated evidence was produced by either side to confirm or rebut the suggestion made by police witnesses that T 1 might have received his injuries after his release while being "questioned" by the IRA. T 1 did concede having had some previous contacts, albeit superficial and undesired, with IRA members. The Commission found inter alia: "It cannot ... be concluded beyond a reasonable doubt that [T 1] ... received these injuries in the way alleged by him." Although T 1 said that he had brought a civil action for damages, there is no information as to the outcome of those proceedings. He further stated that after complaint to the RUC, he was told that his allegations had been investigated but found to be unsubstantiated. 114. T 4 was arrested by an army patrol in the street near his home in the afternoon of 2 November 1971. He was taken by army vehicle first to a police station, where he stayed for less than an hour, and then on to Palace Barracks for questioning. He was released the same day. He alleged that he had been kicked and beaten by soldiers when lying on the floor of the army vehicle and thereafter beaten during interrogation by the police at Palace Barracks. Both the army and the police witnesses denied these allegations. The day after his release, T 4 saw his family doctor who found extensive bruising to his body. On 4 November, he was admitted to hospital where he remained under observation for about two weeks. The Commission considered that the medical evidence was difficult to reconcile with the account given by T 4 of his alleged ill-treatment. The findings of the Commission included the following: "Bearing in mind that twelve hours elapsed from his release until his medical examination, the statements of the soldiers and some doubt about T 4’s reliability, it cannot be concluded, solely on T 4’s own statements, that he received these injuries at the hands of the army or the police." There is no evidence of any civil action brought by T 4 or of any army investigation into complaints he apparently made; the results of a police enquiry are not known. 115. T 10 was arrested at his house early in the morning of 18 November 1971 and subsequently taken to Palace Barracks for interrogation. The next day a detention order was served on him and he was transferred to Crumlin Road Prison. T 10 alleged that while at the interrogation centre he was subjected to what the Commission terms "comparatively trivial beatings". He was medically examined on arrival at Palace Barracks, when entering Crumlin Road Prison and on 20 November by his family doctor who saw him in prison. The latter two examinations revealed that T 10 had suffered a perforation to the right eardrum and some minor bruising. Despite absolute denials on the part of the five witnesses from the security forces, the Commission found it proved beyond reasonable doubt that T 10’s injuries could not have been caused in any way materially different from that described in his evidence. In the Commission’s view, it was to be taken as established that the acts complained of occurred at Palace Barracks. T 10 did not, it seems, institute civil proceedings for damages. On the other hand, he complained through his lawyer against a number of police officers, but no evidence was produced by the respondent Government of any real police investigation. 116. Within this group, there are 8 cases (T 22, T 27, T 28, T 29, T 30, T 31, T 48 and one other) raising allegations of ill-treatment by the army during transport to Palace Barracks and by the police during interrogation there. The case of T 22 had already been mentioned in connection with the unidentified centre or centres (see paragraph 106 above). The medical reports show that the persons concerned had sustained injuries in varying degrees. No evidence, though, was obtained from the respondent Government. The Commission, while therefore feeling it unsafe to make any findings on the basis of the medical reports alone, stated in its short assessment: "Nevertheless, in those cases in which the victims were detained following their interrogation and were medically examined shortly after their committal to detention (the cases of T 22, T 27, T 48, T 29, T 30 and T 31), there exists a strong indication that the course of events was similar to that found in the illustrative cases." T 27, T 30 and T 31 accepted sums of £900, £200 and £750 respectively in settlement of civil claims brought. At the time of the Commission’s report, actions for damages were still pending in the cases of T 22 and T 29; a substantial sum was ultimately received by the former person as a victim of the five techniques (see paragraph 107 above). 117. In the absence of corroborative, including medical, evidence, the Commission did not find it possible to examine further another 28 cases concerning Palace Barracks. It merely confirmed that allegations of ill-treatment had been made and that, in some cases, compensation had been paid. 118. The Commission considered on a number of grounds that the police officers in command at Palace Barracks at the relevant time could not have been ignorant of the acts of ill-treatment found to have been committed. Yet, on their own evidence, these officers took no action to prevent the occurrence or repetition of such ill-treatment. Knowledge on the part of the higher authorities of allegations regarding this centre was inferred by the Commission from various facts. Nevertheless, no evidence of police investigations into these allegations was produced to the Commission and, apart from Sir Edmund Compton’s "supplemental" report into three Palace Barracks cases (see paragraph 99 above), no general enquiry took place. Furthermore, no disciplinary or criminal proceedings seem to have been instituted against any of the police officers who either committed or failed to react against the acts established. No special instructions relating to the proper treatment of persons in custody were issued to the RUC until April 1972 (see paragraph 135 below). Through their inaction, the authorities in Northern Ireland were held by the Commission to have shown indifference towards the treatment of prisoners at Palace Barracks in the autumn of 1971. 119. This army camp on the outskirts of Belfast, adjacent to Crumlin Road Prison, was used as a regional centre for holding and interrogating suspects, 186 of whom passed through it in August 1971. It was temporarily closed in that month and re-opened in October 1971 as a police holding centre. The arrangements at Girdwood for receiving, detaining, interrogating and releasing suspects were essentially the same as at Palace Barracks (see paragraph 108 above). 120. Of 36 cases involving allegations of ill-treatment at Girdwood, the Commission examined in detail as illustrative that of T 16. It found that this Protestant, aged over sixty and arrested in connection with the possession of arms and a radio aerial, had been severely injured on 13 August 1971 by army personnel during transport to Girdwood and following his arrival there. He had been insulted, kicked, beaten and dragged by the hair and his evidence had been corroborated by that of T 23 who had been arrested at the same time. T 16’s ill-treatment was not connected with his formal interrogation which was correctly conducted by the Special Branch. Although the army doctor at Girdwood treated T 16 for a diabetic condition, the Commission considered the medical examination inadequate since no notice was taken of the injuries which were observed later by other doctors. T 16 instituted civil proceedings for damages and the respondent Government indicated to the Commission that his action would certainly be settled. He had also complained immediately to the RUC but, according to the applicant Government, some three years elapsed before he was told that no action was going to be taken against the army; the British Government attributed the impossibility of initiating a prosecution to T 16’s inability to identify his assailants. 121. The Commission also considered, from the "41 cases", the cases of T 23, T 32, T 33, T 49 and T 50, three of which dated from August 1971, one from November 1971 and one from January 1972. All these persons had been released after questioning, except T 49 who had been charged and presumably detained thereafter. They alleged that they had been assaulted by army personnel on arrest and during transport to Girdwood; T 49 also complained of ill-treatment by the Special Branch during interrogation. Each case was submitted by the Irish Government by means of a medical report and also, except for T 33, the complainant’s own statement; no evidence was obtained from the respondent Government. A medical examination, made within twenty-four hours of release or detention, revealed injuries to each individual. In the Commission’s view: (a) it was fairly safe to conclude that certain of T 23’s and T 50’s injuries had been caused as alleged, particularly in the case of T 23, where the circumstances had been examined in connection with T 16’s case (see paragraph 120 above). A strong probability also existed for T 32 whose claim for damages was later settled for £750; (b) although injuries had been found on T 33, it would be difficult to consider the facts established; (c) the allegations and injuries in the case of T 49 were comparable to those in the Palace Barracks cases; reference was made to the Commission’s assessment of some of the "41 cases" relating to that place (see paragraph 116 above). 122. In the absence of corroborative, including medical, evidence, the Commission did not find it possible to examine further another 30 cases concerning Girdwood. It merely confirmed that allegations of ill-treatment had been made and that, in some cases, compensation had been paid. 123. Ballykinler was an army camp in County Down used in August 1971 for holding and interrogating some of those arrested during Operation Demetrius (see paragraph 39 above). It was under the overall authority of the RUC, the army being responsible for security and the Special Branch conducting the interrogations. On 9 and 10 August, 89 persons were brought to Ballykinler of whom, by 11 August, 80 had been removed to a place of detention and the remainder released. The applicant Government requested the Commission to make findings on all the 18 cases in respect of which they had filed statements alleging ill-treatment at the camp. 124. Prior to the Commission’s enquiry, conditions at Ballykinler in August 1971 had been examined by the Compton Committee (see paragraph 99 above) and by the Armagh County Court in the Moore case. The Compton Committee considered that certain exercises which detainees had been made to do "under some degree of compulsion" must have caused hardship but were the result of lack of judgment rather than an intention to hurt or degrade; it accordingly made no findings of deliberate ill-treatment. In the Moore case, on the other hand, the judge rejected defence evidence, in particular as to the origin of the exercises, and concluded that the treatment of persons held at Ballykinler was "deliberate, unlawful and harsh"; he awarded the plaintiff £300, the maximum amount within his jurisdiction. 125. The Commission examined, as illustrative, the case of T 3 and found that: (a) he and other persons arrested were made (in some cases before medical examination) to do exercises which caused considerable strain and hardship, especially to the elderly and those in poor physical condition; (b) the exercises consisted partly of sitting on the floor with the legs outstretched and the hands raised high above, or clasped behind, the head, and partly of kneeling on the floor with the forehead touching the ground and the hands clasped behind the back; (c) it was not possible to ascertain the exact length of time during which, or the degree of compulsion with which, the exercises were enforced; (d) allegations, concerning both T 3 and others, of specific incidents of violence and of the use of considerable force had not been established; (e) the camp had been swept out, and beds removed for security reasons, before persons arrested arrived; for a purpose not sufficiently explained, bedding was provided only for those who had been interrogated. 126. None of the "41 cases" concerned Ballykinler. There is no separate section in the Commission’s report on the remaining 17 cases relating to that centre but findings on the general conditions there were made within the context of T 3’s case. 127. 121 cases involving allegations of ill-treatment at miscellaneous places were referred to the Commission by the applicant Government. The allegations included beating and assaults by the army or the police at army posts, police stations, a prison, in the street, at home or during transport at dates falling between August 1971 and 1974. 65 of these cases were in connection with interrogation. The Commission examined in detail as illustrative the cases of T 7, T 11 and T 5. 128. The Commission found that on 28 October 1971, without provocation or resistance, this civilian had been severely assaulted and injured in a street in Belfast by a corporal effecting his arrest. When it was realised that his arrest had been a mistake, he was discharged with apologies, having been given medical treatment. Neither his evidence nor the medical evidence was disputed and the respondent Government called no witnesses. The soldier in question was detained for four or five days and then admonished. T 7’s claim for damages was settled for £600. 129. The Commission found that, after his arrest on 20 December 1971, this civilian had been severely assaulted and injured by a number of soldiers during interrogation at Albert Street Barracks, Belfast. Neither the main facts nor medical evidence of physical injuries were disputed, although medical opinion differed concerning mental after-effects. The respondent Government called no witnesses to rebut the charges of physical ill-treatment. Additional allegations of harassment by soldiers after the event were found by the Commission to be neither proved nor disproved. T 11’s claim for damages was settled for £300. He also lodged a complaint with the RUC which was still under investigation when the Commission heard evidence on his case; the respondent Government stated that they did not know the reason for the delay. 130. T 5 alleged that he was kicked, punched and hooded by the army at St. Genevieve’s School, Belfast, on 13 August 1972. He was too young to be detained but, after arrest and questioning, he was taken, allegedly for identification purposes, to various army posts. A claim by T 5 for damages was settled in the sum of £236.79. His complaint to the RUC was unsuccessful. In the light of its review of the medical evidence and the evidence of the security force witnesses and of T 5, the Commission concluded that T 5’s allegations were not sufficiently established. 131. From these cases, the Commission considered 28 on which the Parties had commented. It took the view that the evidence, in the shape of medical reports accompanied in some cases by a statement from the complainant, did not make it possible to establish beyond reasonable doubt the cause of the injuries. 132. In the absence of corroborative, including medical, evidence, the Commission did not find it possible to examine further the remaining 90 cases. It merely confirmed that allegations of ill-treatment had been made and that, in some cases, compensation had been paid. 133. From May 1970 onwards, the army rule was that the person arrested and the arresting soldier were to be photographed together. With regard to the practice followed during Operation Demetrius, the Compton Committee noted that a photograph was taken of each person admitted to a regional holding centre and that on entry to Ballykinler and Magilligan, though not to Girdwood Park, a medical examination was carried out and its result recorded. As from 15 November 1971, every individual brought to a holding centre was medically examined on arrival and departure. Medical staff was instructed to submit reports whenever there was evidence of a complaint of ill-treatment. Furthermore, after a certain time, records were kept of the prisoner’s condition during his progress through interrogation. 134. It would appear that at the beginning of the internment operation reliance was simply placed on the normal regulations requiring humane treatment and forbidding the use of violence. 135. Following the Parker report and the Prime Minister’s statement to Parliament (see paragraph 101 above), a directive on interrogation was issued prohibiting the use of coercion and, in particular, of the five techniques. In addition, it made mandatory medical examinations, the keeping of comprehensive records and the immediate reporting of any complaints of ill-treatment. In April 1972, army instructions and the RUC Force Order 64/72, concerning respectively arrests under the Special Powers Regulations and the treatment of prisoners, directed that excessive force should never be used. Shortly after the introduction of direct rule, the United Kingdom Attorney-General gave a ministerial directive on the proper treatment of persons in custody, making it clear that where any form of ill-treatment was reported the Director of Public Prosecutions would prosecute. Further army and RUC instructions of August 1972 in respect of arrest and interrogation enjoined the proper and humane treatment of prisoners; they strictly forbade resort to violence, the five techniques, threats or insults and concluded with a prohibition similar to Article 3 (art. 3) of the Convention. In August 1973 new instructions with regard to arrests by the army re-emphasised the need for correct behaviour. The respondent Government submitted that steps had been taken for the diffusion and enforcement at all levels of these orders and directives. However, both the Commission and the applicant Government considered that there was a lack of satisfactory evidence as to how the regulations were implemented and obeyed in practice. 136. Section 6 of the Emergency Provisions Act (see paragraph 68 above) contained provisions designed to exclude as evidence before an ordinary criminal court statements by an accused obtained by torture or inhuman or degrading treatment; the section did not apply to the extrajudicial procedures or to statements by third parties. 137. Under the Police Act (Northern Ireland) 1970, an investigation department within the RUC had been set up to report to the Chief Constable on all complaints against the police whatever their source. An official committee of five members of the Police Authority of Northern Ireland, including two Catholics and two Protestants, examined each month the records of complaints kept by the Chief Constable. Where a serious criminal offence was disclosed, reports were submitted to the Attorney-General for Northern Ireland or, after the introduction of direct rule, to the Director of Public Prosecutions in Northern Ireland, a newly-created office, for decision whether to prosecute. On 15 June 1972, the United Kingdom Attorney-General instructed the Director of Public Prosecutions to direct the RUC to investigate and report on any circumstances which might involve the commission of a criminal offence by a member of the security forces. From November 1972 onwards, all completed investigations of both police officers and army personnel had to be sent to the Director of Public Prosecutions. In September 1973, new disciplinary regulations brought the arrangements for the investigation of complaints against the RUC into line with the arrangements existing elsewhere in the United Kingdom. In 1975, a fresh unit was established within the RUC under the direct control of the Deputy Chief Constable to be responsible for the investigation of complaints. 138. The Gardiner Committee in its report of January 1975 (see paragraph 74 above), while expressing itself satisfied that full investigations were made, nevertheless found a widespread belief in Northern Ireland that complaints against members of the security forces were not taken seriously. It therefore recommended the setting up of an independent means of investigating complaints. The Police (Northern Ireland) Order 1977 established a completely independent Police Complaints Board for Northern Ireland with supervisory functions in the matter. 139. The policy of the General Officer Commanding, as stated in the evidence before the Commission, was that every complaint should be investigated. An investigator was automatically appointed as soon as an incident was reported, even before a formal complaint had been made. As with the RUC, notice was also taken of allegations in the press or from third parties. It would seem that in the early stages of the emergency complaints against soldiers were handled by the army authorities themselves; later on, two RUC officers were appointed to oversee army enquiries and subsequently investigations were actually carried out by the RUC, at least where there appeared to be a serious criminal offence. In addition, complainants were encouraged to channel their complaints through the police. On 20 January 1972 a joint army/RUC investigation team was created. Complaints against the army were referred to an outside authority - the Director of Public Prosecutions as from April 1972 – for directions whether to prosecute. 140. Between 9 August 1971 and 30 November 1974, 2,615 complaints against the police were made, 1,105 alleging ill-treatment or assault; the 23 prosecutions for assault resulted in 6 convictions leading to fines and, in one case, a conditional discharge. As regards the army, from 31 March 1972 to 30 November 1974, 1,268 complaints in respect of assaults or shootings had been received and 1,078 cases of alleged assault were submitted to the Director of Public Prosecutions. By January 1975, directions to prosecute had been given in 86 out of the 1,038 cases then dealt with. Overall, between April 1972 and the end of January 1977, 218 members of the security forces were prosecuted for assault at the direction of the Director of Public Prosecutions and 155 were convicted. 141. Soon after complaints relating to the arrests carried out on 9 August 1971 became known, nearly 1,800 soldiers, including 300 or so who had left Northern Ireland, were interviewed in order to determine their role in the arrest operation. The Commission’s report also mentions a few other specific examples of members of the security forces being investigated or disciplined, but these examples are not connected with the cases submitted by the applicant Government. No information of any investigation into the submitted cases was vouchsafed to the Commission by the respondent Government except in relation to the illustrative cases. Even as regards the illustrative cases, the Commission had before it just one item of direct evidence - the Compton reports, filed by the applicant Government - and it noted that in none of them had the authorities carried out a thorough investigation of the allegations of ill-treatment; evidence as to disciplinary action or prosecution was furnished to the Commission in one case alone, that of T 7 (see paragraph 128 above). 142. Procedures to obtain compensation were available before the domestic courts to all persons who considered themselves to have been ill-treated by the security forces. There is no suggestion that the domestic courts were or are anything other than independent, fair and impartial. The respondent Government have emphasised the difference between domestic civil and criminal law. Under the former the authorities are liable for any wrongful act, established on the balance of probabilities, committed in the course of their duty by soldiers or policemen, whether individually identified or not. The criminal law, in contrast, requires proof beyond reasonable doubt of the guilt of an identified individual. Like any plaintiff in a civil action, a plaintiff alleging ill-treatment by the security forces was entitled to obtain disclosure of relevant documents, for example medical reports, in the possession of the defendant authorities. 143. Between 9 August 1971 and 31 January 1975, compensation totalling £302,043 had been paid in settlement of 473 civil claims for wrongful arrest, false imprisonment, assault and battery, leaving 1,193 actions still outstanding. At the time of the Commission’s report, compensation, ranging from about £200 to £25,000, had been paid in settlement of 45 of the 228 cases submitted by the applicant Government. In the only case of alleged physical ill-treatment which seems to have been fought, namely the case of Moore v. Shillington (see paragraph 124 above), the judge disbelieved the evidence of the security forces.

train

001-73083

ENG

POL

CHAMBER

CASE OF STANKIEWICZ v. POLAND

Violation of Art. 6-1;Not necessary to examine under P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Christos Rozakis;Françoise Tulkens;Lech Garlicki;Loukis Loucaides;Peer Lorenzen;Snejana Botoucharova

8. On 9 November 1992, at an auction organised by the Bolesławiec District Office, the applicants, who were the only participants in the bid, purchased real property owned by the District Office for 202,000 zlotys (PLN). 9. On 2 August 1996 the Bolesławiec District Prosecutor, acting on behalf of the State Treasury and relying on the 1991 Law on unjustified enrichment at the expense of the State Treasury, sued the applicants in a civil court, seeking payment in the amount of PLN 111,046. The prosecuting authorities referred to Article 7 of the Code of Civil Procedure (see paragraph 31 below) and invoked their powers as the guardians of the legal order. They submitted that the applicants had purchased the property concerned under a compensatory scheme for persons who had abandoned their property on territories beyond the Bug River that had belonged to Poland before the Second World War. Under this scheme, governed chiefly by the provisions of the Land Administration and Expropriation Act of 29 April 1985 (“the Land Administration Act” – see paragraphs 38-44 below), the applicants had a “right to credit”, that is, the right to count the price of the abandoned property towards the price of the property to be purchased from the State Treasury. 10. The prosecuting authorities further argued that the purchase price, which partly comprised compensation for the property left by the applicants’ legal predecessors in Trembowla, in the former Polish territories beyond the Bug River, had been calculated wrongly. They averred in that respect that the value of the property, as assessed by expert A.Ż., amounted to PLN 125,130. Later, a month before the contract was concluded, the same expert had assessed the value of the same property at PLN 218,985. The prosecuting authorities, harbouring certain doubts as to the soundness of the estimates, had instituted investigations and appointed a new expert, who had estimated the value of the abandoned property at only PLN 90,953. Consequently, as the value of the house that the applicants’ legal predecessors had abandoned in Trembowla was much lower than the price the applicants had paid for the property in Bolesławiec, the State had sold them the latter property at a considerable loss. The plaintiff prosecuting authority further argued that the first expert, A.Ż., had had regard to the market value of the Trembowla property, whereas under the relevant legislation he should have taken the technical value of the property into account. As the applicants had refused to comply with the Bolesławiec District Office’s demand to pay PLN 111,046, the prosecuting authorities claimed that the applicants should repay that amount to them. 11. The applicants argued in their pleadings that the State Treasury, which had sold them the property in Bolesławiec under the provisions of the Land Administration Act, had had the expert estimates at its disposal and had not put forward any objections at that time. They submitted that the estimate relied on by the prosecuting authorities in their statement of claim was based on the assumption that the property in Trembowla was in a rural location, which was incorrect as it was situated in a town. 12. On 18 December 1997 the Nowy Sącz Regional Court dismissed the prosecutor’s claim against the applicants, considering it to be unfounded. 13. The court first observed that the applicants had bought the property at a public auction organised by the Bolesławiec District Office under the compensation scheme for former owners of properties in the former Polish territories. For the purposes of the auction they had submitted to the authorities two successive expert opinions concerning the value of the property owned by their legal predecessors in Trembowla, prepared by expert A.Ż. He had estimated the value of the property abandoned in Trembowla at PLN 218,985. As the value of the property they had purchased from the Bolesławiec Municipality amounted to PLN 202,000, the applicants had not been obliged to pay anything to the municipality. 14. The court considered that the crux of the legal issue it had to resolve lay in the determination of the methods and criteria to be used when assessing the value of properties abandoned in the pre-war Polish territory. It referred to the Land Administration Act, applicable to the compensatory scheme at that time, and to the Cabinet’s ordinance issued on the basis of section 81 of said Act. Under section 6 of the ordinance, the value of the abandoned land was to be assessed with reference to the current market price of land, and the value of houses with reference to their so-called reconstruction value. 15. The court further observed that the relevant legislation did not lay down any other criteria for the valuation of the properties concerned. The properties therefore had to be valued on a case-by-case basis, with reference to all the factors relevant to a particular case. In such circumstances, the court had to make a choice relying on the conclusions of the experts commissioned to submit their reports to the court. 16. Accordingly, the court took account of expert opinions prepared by experts W.A. and A.M. for the purposes of the investigations conducted by the prosecuting authorities in connection with the purchase of the property. It also had regard to the findings and estimates made for the purpose of the civil proceedings by experts A.D., J.K. and T.L., who had been assigned to the case by the court. The court further noted the conclusions of an opinion prepared at the applicants’ request by expert S.S. 17. The court concluded that, in the light of the various arguments advanced by the experts, the price paid by the applicants in 1992 corresponded to the value of the property abandoned in Trembowla. 18. Lastly, the court had regard to the fact that the applicants had, in the meantime, sold the property in question and obtained PLN 180,992 for it. This, in the court’s view, confirmed its finding that the price for the property, fixed by the District Office in 1992 at PLN 202,000, had been excessive. 19. The court further ordered the Bolesławiec District Office of the State Treasury to repay to the applicants the litigation costs they had borne in the proceedings, in the amount of PLN 14,177.26. The court referred to Article 98 of the Code of Civil Procedure, taken in conjunction with Article 106. 20. The prosecuting authorities appealed, claiming that the Regional Court, in estimating the value of the properties concerned, had failed to take into account all the relevant expert opinions. In addition, the Regional Court’s decision to award the legal costs borne by the defendants had been ill-founded. They argued that, since the plaintiff in the case had been the prosecutor, the general principle whereby the unsuccessful party in a civil case bore the litigation costs, enshrined in Article 98 of the Code of Civil Procedure, was not applicable. 21. The applicants, in reply to the appeal, submitted that the assessment of the value of the abandoned property had been thorough and had been based on five expert opinions prepared by seven experts. 22. As to the litigation costs, they argued that the prosecuting authorities, while acting on behalf of the District Office, had in fact been seeking to protect the financial interests of the State Treasury rather than to act as the guardian of the legal order. Hence, the prosecution had not been acting under Article 7 of the Code of Civil Procedure, that is, to protect the rule of law or citizens’ rights, or in the public interest. 23. In such a situation, had the prosecution been exempted from operation of the general principle of responsibility of the unsuccessful party for the litigation costs, they would have been placed at an unfair advantage vis-à-vis the other party. 24. Hence, Article 106 of the Code of Civil Procedure should be applied to their case in the manner advanced by the Supreme Court, which had stated that the term “State Treasury” used in Article 106 of the Code of Civil Procedure should by no means imply that an award of costs for or against the State Treasury was ruled out in situations in which the prosecuting authorities acted in a civil case representing the financial interests of the State Treasury (decision of 6 July 1966, I Cz 62/66 OSP 1967/6/140). 25. On 7 April 1998 the Cracow Court of Appeal dismissed the prosecutor’s appeal in so far as it related to the price of the property concerned. The court noted that the first-instance court had had regard to expert opinions prepared by seven experts. It had carefully examined their conclusions and explained convincingly, with reference to the detailed findings of their reports, why it had found the price paid by the applicants for the property to be correct. 26. The court also partly amended the first-instance judgment by refusing to award the applicants their legal costs. The court considered that the situation of a prosecutor bringing a civil action on behalf of a third party represented a special case. He or she could not be regarded as a mere party to civil proceedings. This singular nature of the prosecutor’s role in a civil case was reflected in the rule on costs contained in Article 106 of the Code of Civil Procedure. Under that provision, the participation of the prosecutor in a civil case did not entail for the other party a right to reimbursement of the litigation costs. Article 106Therefore, and in view of the fact that the Bolesławiec District Office had not joined the proceedings as a plaintiff, all litigation costs, including the costs borne in connection with the appellate proceedings, had to be borne by the defendants. 27. Under Polish law all persons, with the exception of public authorities and institutions, are obliged to pay a court fee when lodging a statement of claim with the competent civil court. As the case proceeds, a party is obliged to pay additional court fees when lodging any further appeals. 28. Under Article 98 of the Code of Civil Procedure, the costs of litigation necessary for the effective conduct of a case are borne by the unsuccessful party to the proceedings. The costs of litigation comprise the court fees referred to above, legal fees paid to professional legal representatives and various other items of expenditure incurred in connection with the proceedings, such as transport costs and loss of salary as a result of participation in the hearings. 29. An exception to this general principle is provided for in Article 101 of the Code. Pursuant to this provision, the court may not order the losing defendant to pay the costs of litigation if he or she did not cause the proceedings to be instituted and acknowledged the claim at a first hearing. 30. The scope of operation of the general principle whereby the unsuccessful party bears the litigation costs, referred to above, is also mitigated by Article 102 of the Code. This provision enshrines the principle of equity in respect of litigation costs and stipulates that the court may order the losing party to pay only a part of the litigation costs, or may exempt it altogether from the obligation to pay these costs, where the 31. Under Article 7 of the Code of Civil Procedure, the public prosecutor may participate in civil proceedings whenever it is necessary to protect the rule of law or citizens’ rights, or in the public interest. Pursuant to Article 55 of the Code, the prosecuting authorities are obliged to indicate the person or institution on behalf of which they have instituted the proceedings. Under Article 111 of the Code, the prosecuting authorities are exempt from the general obligation to pay court fees. 32. The court serves of its own motion the statement of claim on this person or institution, which is authorised to join the proceedings as a plaintiff. 33. Article 106 of the Code reads: “The participation of the prosecutor in a civil case shall not give rise to reimbursement of litigation costs either to or from the State Treasury.” 34. According to the case-law of the Supreme Court, Article 106 of the Code of Civil Procedure is applicable only if the prosecutor joined a party in the course of the proceedings and not if he instituted them himself (decision of 17 June 1966, I Cz 54/66). 35. The Supreme Court further held: “Article 106 of the Code is applicable only to cases in which the prosecutor participates in civil proceedings for the purposes indicated in Article 7 of the Code, that is, to protect the rule of law or citizens’ rights, or in the public interest. The term ‘State Treasury’ used in Article 106 of the Code of Civil Procedure in no sense implies that an award of costs for or against the State Treasury is ruled out in situations in which the prosecuting authorities act in a civil case representing the financial interests of the State Treasury in connection with its acts.” (decision of 6 July 1966, I Cz 62/66 OSP 1967/6/140) 36. In its judgment of 12 June 2002, the Constitutional Court of Poland, examining the compatibility with the Constitution of certain provisions of civil procedure applicable in competition proceedings, observed: “... exemption from the obligation to pay court costs, in particular costs other than the court fees, cannot be automatic in nature, that is to say, it cannot create a situation in which the successful party would not have any claim to have his or her costs reimbursed. In the Court’s view, the particular circumstances of one of the parties or the particular character of the case may be such that the creation by law of a mechanism allowing for such a situation cannot be ruled out from the outset ... nevertheless, it may not result in a state of affairs in which a successful private party is obliged to bear the full financial cost of his or her participation in the proceedings. In some situations such an outcome might even lead to the economic benefit deriving from the ruling in the party’s favour being cancelled out. If the legislature, having regard to circumstances militating in favour of such a solution, adopts an approach which allows the losing party to be completely exempted from the obligation to pay costs, it should at the same time create a separate legal mechanism enabling the successful party to obtain reimbursement of the costs it incurred from another source. ... Exemption of the losing party from any obligation to pay costs, without the successful party having any possibility of having his or her costs compensated, amounts to a restriction of the right of access to a court.” 37. In its judgment of 6 September 2001 (P/3/01), the Constitutional Court observed that the principle of equality before the law which manifested itself in, among other things, the right of equal access to the courts and the right to a fair hearing, was also applicable to issues concerning litigation costs. Hence, the principle that the successful party should have its costs reimbursed, and the unsuccessful party bear the financial cost of the proceedings, must be regarded as consistent with the principles of equality and equity. 38. Since 1946 Polish law has provided that persons repatriated from the territories beyond the Bug River which belonged to Poland before the Second World War are entitled to have the value of the property abandoned as a result of the Second World War deducted either from the fee for the right of “perpetual use” or from the price of immovable property purchased from the State Treasury. 39. These provisions were repeated in several successive statutes. At the material time, the Land Administration Act governed the legal situation of persons entitled to such compensation. 40. The obligation to compensate repatriated persons was laid down in section 81 of the Act, the relevant parts of which provided that persons who, in connection with the war that began in 1939, abandoned real property in territories not at present belonging to the Polish State and who, by virtue of international treaties concluded by Poland, were to obtain equivalent compensation for the property abandoned abroad, would have the value of the abandoned real property offset against the fee for the right of perpetual use of land or against the price of a building plot and the State-owned buildings or premises situated thereon. 41. At the material time in the present case, the procedure for implementation of section 81 of the Land Administration Act was laid down in the Cabinet’s Ordinance of 16 September 1985 on the principles applicable in connection with offsetting the value of real property abandoned abroad against the price of a title to real property or against the fee for perpetual use. 42. Rules concerning the determination of the value of the abandoned property were set out in the Cabinet’s Ordinance of 16 September 1985 (as amended) on the offsetting of the value of real property abandoned abroad against the fee for perpetual use or against the price of a building plot and buildings situated thereon (Rozporządzenie Rady Ministrów w sprawie zaliczania wartości mienia nieruchomego pozostawionego za granicą na poczet opłat za użytkowanie wieczyste lub na pokrycie ceny sprzedaży działki budowlanej i położonych na niej budynków – “the 1985 Ordinance”). 43. Paragraph 3 of the 1985 Ordinance provided, in its relevant parts, as follows: “If the value of the property [abandoned abroad] exceeds the price of the real property that has been sold ..., the outstanding amount can be offset against the fee for the right of perpetual use, or against the price of an industrial or commercial plot of land and any commercial or small-business establishments, buildings designated for use as workshops or ateliers, holiday homes or garages situated thereon.” 44. Paragraph 5 provided that a first-instance body of the local State administration competent to deal with town and country planning should issue the decisions on offsetting the value of property abandoned abroad. Paragraph 6 laid down certain general rules relating to the valuation of such property.

train

001-76453

ENG

GBR

CHAMBER

CASE OF KEEGAN v. THE UNITED KINGDOM

Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza

7. The applicants are Gerard Keegan, an Irish citizen born in 1955, and Moira Keegan, a United Kingdom national born in 1963, husband and wife, and their children, Carl, Michael, Katie and Sophie, United Kingdom citizens born in 1985, 1996, 1997 and 1997 respectively. They were all resident in Liverpool. 8. In April 1999 the applicants became tenants of a house owned by Liverpool City Council at 19 New Henderson Street. The property had been vacant for six months and the previous tenant had been Anita or Joseph De La Cruz. 9. Meanwhile a series of armed robberies was carried out by a number of armed males: on 29 January 1997, 30 April, and 13 August 1999. On 14 August 1999, the police arrested a certain Heffy, later convicted for the robbery. They also arrested a man who arrived during the arrest. He gave his name as Dean Metcalfe but subsequent investigation revealed that he was Dean De La Cruz, son of Anita De La Cruz. He was not charged and was released. The police were tasked with investigating, and arresting, any further members of the gang and recovering the money from the robberies. The information which came into their possession indicated that Dean De La Cruz had often given 19 New Henderson Street as his address, that saliva taken from a scarf in a car abandoned after a robbery matched that of Dean De La Cruz and that Anita De La Cruz was still on the voters’ register as residing at that address. 10. On 18 October 1999 Detective Constable Wilson went before a Justice of the Peace and applied on oath for a warrant to search 19 New Henderson Street for cash stolen during the robberies. He swore on oath that he had reasonable cause to believe that such stolen cash was in the possession of the occupier of the property. A search warrant was issued permitting a search of the premises for the cash. 11. On 21 October 1999, at 6 a.m., the police officers gathered at police headquarters. It was intended to search eight properties. Sergeant Gamble and four other officers were detailed to go to 19 New Henderson Street. They were briefed that Dean De La Cruz was linked to the robberies and given a photograph of him. They knew that the robberies had involved the use of firearms. They were instructed to obtain forcible entry at 7 a.m. to coincide with the other searches. 12. The police team used a metal ram to make a hole in the door. They experienced some difficulty as a previous tenant had reinforced the door. 13. The noise of the battering ram awoke and frightened the applicants. The first applicant came down the stairs and was told by the police who they were and to open the door. The first applicant complied and the sergeant entered and showed his warrant card and explained that he was looking for Dean Metcalfe. A cursory examination of the house took place to verify that no one save the applicants was present. The sergeant apologised to the first and second applicants and arranged for repairs to be made to the front door. The police left at about 7.15 a.m. 14. The applicants brought proceedings against the Chief Constable of Merseyside Police for the tort of maliciously procuring a search warrant, unlawful entry and false imprisonment. They alleged that they had been caused terror, distress and psychiatric harm. Medical reports indicated that the applicants were suffering from varying degrees of post traumatic stress disorder. 15. On 31 October 2002 the County Court Judge rejected the applicants’ claims. He made a number of findings of fact or inferences: – that the police made enquiries prior to the search with utility companies and Liverpool County Council Housing Department about 19 New Henderson Street and that the rough police notes of these enquiries had been destroyed or mislaid from which he drew the adverse inference that such checks revealed that Anita De La Cruz was no longer living there but that the applicants were; – that the police considered covert surveillance of the property but decided that this was not advisable as there were sophisticated criminals living in the area who were skilled at spotting covert police operations; – that Sergeant Gamble had reasonable grounds, following his briefing, for believing that a person wanted for robbery was to be found on the premises and that he had not been informed that the applicants were now living there. 16. The judge found on the facts that the police, who were investigating serious and violent offences, had not acted with reckless indifference to the lawfulness of their acts, which element was necessary for the tort of maliciously procuring a search warrant. He held that the entry was made subject to a lawful search warrant and also under the powers of section 17 of the Police and Criminal Evidence Act 1984, which allowed entry without warrant where intending to arrest a person for an arrestable offence. He found that the method of forcible entry was justified as the police had foremost in their minds the potential danger from the use of firearms by the suspect robber and in particular that the sergeant had no cause to suspect that innocent people were the only ones on the premises. He found that once on the premises there was no indication that the police had physically detained the applicants or ordered them to remain in one place. He noted that the sergeant had speedily realised the mistake, apologised and shown compassion for the applicants’ plight, in particular by not lengthening the ordeal. 17. He concluded: “... It will be difficult for the claimants to accept that their innocent occupation of their property was devastated by the events, albeit of only fifteen minutes, which occurred on 21 October 1999. Any system of justice must balance competing interests and this is a classic case of competing interests being balanced. On the one hand, the need to bring to justice violent criminals, on the other the need to try and preserve the sanctity and integrity of a law-abiding family’s home... but in every case of competing interests, the scales will have to come down on one side or the other. In my judgment the scales come down in favour of the defendants and all claims are dismissed.” 18. The applicants appealed, alleging, inter alia, that the judge had failed to consider properly whether the police had reasonable and probable cause to apply for a warrant to search for stolen cash at 19 New Henderson Street. 19. On 3 July 2003 the Court of Appeal dismissed the applicants’ appeal. While Lord Justice Kennedy found that if proper enquiries had been made and the results properly reported there would have been no reasonable or probable cause to apply for a search warrant, he held that the requirement of malice was not made out as there was no evidence of any improper motive (incompetence or negligence did not suffice). He further held that the entry, being made under a warrant which was on the face of it lawful, was itself lawful and that while those responsible for sending Sergeant Gamble and his team to the address had been mistaken that did not deprive them of legal protection. Lord Justice Ward commented that the shoddy detective work did not justify a finding in the police’s favour and that the case caused him concern. However, notwithstanding his anxious consideration and sympathy for the family, he stated: “That an Englishman’s home is said to be his castle reveals an important public interest, but there is another public interest in the detection of crime and the bringing to justice of those who commit it. These interests are in conflict in a case like this and on the law as it stood when these events occurred, which is before the coming into force of the Human Rights Act 1998, which may be said to have elevated the right to respect for one’s home, a finding of malice on the part of the police is the proper balancing safeguard. Upon careful reflection, I agree with my Lords that it is inevitable that malice will not be proved in this case.” 20. Counsel advised as follows on the prospects of obtaining leave to appeal to the House of Lords: “4. Essentially, on the issue of malicious procurement of a search warrant and in trespass, the court has thought that prior to the introduction of the Human Rights Act 1998, proof of malice is a necessary component of such a challenge and that the evidence was not there to prove it. It seems to me that this conclusion will not be displaced by the House of Lords. I also think, on the authorities relating to the Human Rights Act 1998, that there is no question of the House of Lords suggesting that the courts below should have done anything differently in their approach to the case. 5. In my view, therefore, the prospects of seeking leave to appeal from the House of Lords are poor and I do not advise that such leave be sought.” 21. Section 17 of the Police and Criminal Evidence Act 1984 provides for entry and search without a search warrant: “(1) Subject to the following provisions of this section ..., a constable may enter and search any premises for the purpose– ... (b) of arresting a person for an arrestable offence; ...” 22. Police can also apply to the magistrates’ court for a warrant. The grant of a warrant is subject to the safeguards in the Police and Criminal Evidence Act 1984. Section 15 provides, inter alia, that the constable must state the ground on which he makes the application and the enactment under which the warrant would be issued; specify the premises to be entered and searched; and identify in so far as practicable the articles or persons sought. Applications are made ex parte and supported by an information in writing. The constable must answer on oath any question put to him by the Justice of the Peace or judge. There is no statutory requirement for the court issuing the warrant to make findings or give reasons for issuing the warrant.

train

001-85806

ENG

GBR

ADMISSIBILITY

DONNELLY v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Peter Donnelly, is a British national who was born in 1948 and lives in East Ayrshire. 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 24 August 2000. On 16 February 2001 the applicant applied for widows’ benefits. On 17 March 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

train

001-76183

ENG

TUR

CHAMBER

CASE OF KAMILE UYANIK v. TURKEY

Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

4. The applicant was born in 1939 and lives in Ankara. 5. On an unspecified date in 1990 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Ankara in order to build the Ankara Central Motorway. The authorities paid him the value of the land, assessed by a committee of experts, when the expropriation took place. 6. Following the applicant’s request, on 27 September 1994 the Ankara Civil Court awarded her additional compensation plus interest at the statutory rate applicable. 7. On 29 January 1996 the Court of Cassation upheld that judgment. 8. On 9 February 1998 the amount of 2,800,000,000 Turkish liras (TRL) was paid to the applicant. 9. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16).

train

001-58173

ENG

FRA

CHAMBER

CASE OF MAILLARD v. FRANCE

Art. 6-1 inapplicable

John Freeland

6. The applicant was born in 1946 and lives at Saint-Germain-en-Laye (département of Yvelines). He is an officer in the French navy. 7. On 2 December 1983 Mr Maillard caused to be entered in the complaints register of the fleet escort ship D’Estrées the following application for reconsideration of his assessment for 1983: “… I … learnt that at senior level and at supreme level my marks had been significantly reduced: for the criterion ‘standard of service’ the mark had been lowered from 3 to 4 and for the criterion ‘promotion’ from B to C+, the whole being accompanied by the following written appraisal: ‘Is not up to the level that should be achieved by a second in command’ (or, within a word or two, a very similar expression). To this day I have been given no explanation of this reduction in marks or of what prompted such a statement. I consider that this appraisal is excessively severe, unjust and personally offensive. I would refer in this connection to the appraisal made by Commander Gazzano, the assessor at immediate-superior level, to the smooth running of the ship during the period on which my assessment was based and to the responsibility I bear under the rules for that smooth running, and, lastly, to the good performance of the D’Estrées during the general inspections of 1982 and 1983, attested by the messages of congratulations sent by the admiral commanding the Mediterranean fleet on those occasions. Furthermore, the appraisal calls in question the wisdom of the decisions of those of my superiors who on two occasions saw fit to appoint me to a second-in-command post and the appraisals made by the various commanding officers who assessed me as their second in command. I accordingly have the honour to request that (1) the sentence ‘Is not up to the level that should be achieved by a second in command’ should be deleted. It is an appraisal made not of the standard of my performance which is meant to be the subject of the assessment, but of my person, in a manner which casts a slur on my honour as it is offensive; (2) the criteria 39, 40 (standard of service and promotion) and consequently 44 and 46 (promotion and ‘class’ at supreme level) should be raised in consequence, given the implied meaning of the sentence complained of in regard to the level of my service and my promotion potential; and (3) once my marks at senior and supreme level have been reassessed, given the effect that my 1983 assessment may have under the current rules, on the introductory memorandum submitted by the Naval Service Personnel Department for the competitive examination for entry to the National Naval Warfare College, it should be considered whether that reassessment is not such as to justify reconsideration of my failing that examination.” 8. On 16 February 1984 the Navy Chief of Staff dismissed the complaint. In a letter of the same date he informed the Commander-in-Chief for the Mediterranean of the fact and requested that the applicant should be notified of it. 9. On 3 February 1984, having still not received any reply, the applicant had sent his complaint to the Minister of Defence; it was dismissed in a decision taken by the Minister on 9 April 1984. 10. On 18 April and 6 July 1984 Mr Maillard applied to the Conseil d’Etat for judicial review of those two decisions. He filed supplementary pleadings on 17 and 29 August 1984. 11. In a judgment of 20 July 1988 the Conseil d’Etat quashed the decision containing the applicant’s assessment for 1983 and the decisions of 16 February and 9 April 1984. It gave the following reason: “It is unnecessary to consider the grounds of the applications. According to the provisions of section 25 of the Law of 13 July 1972 making general regulations for service personnel, as amended by the Law of 30 October 1975, ‘service staff shall be assessed at least once a year. The marks and appraisals shall be compulsorily communicated to the service personnel each year. When the assessment is made, the chief shall make known to each of his subordinates his appraisal of each individual’s performance’. The same Law provides in section 107 that implementing provisions shall be laid down in decrees adopted after consultation of the Conseil d’Etat. Similarly, under section 3 of the Law, the special rules governing professional service personnel must be laid down in a decree adopted after consultation of the Conseil d’Etat. … Mr Maillard’s assessment for 1983 was drawn up according to the procedure of assessment at several successive levels of authority and to an assessment scale laid down in the ministerial directive of 1 February 1980 concerning the assessment of naval officers. That directive laid down new general rules which govern the implementation of the Law and which could therefore only have been lawfully laid down by a decree adopted after consultation of the Conseil d’Etat. It follows that the impugned decision containing Mr Maillard’s assessment for 1983, together with the decisions whereby the Navy Chief of Staff and thereafter the Minister of Defence refused to revise the assessment, decisions made under rules issued by an authority lacking the necessary competence, are unlawful…” 12. On 12 September 1988 Mr Maillard sent the following letter to the admiral superintendent of Cherbourg naval dockyard: “I have the honour to ask you to kindly forward to the higher authorities the present letter in which I am seeking (1) pursuant to the Conseil d’Etat’s decision [of 20 July 1988], to have my assessment for 1983 removed from my personal file; (2) to be assessed for that same year 1983 in accordance with the legal requirements; … (3) given the substantial damage I have suffered by reason of the impugned assessment, which is evident to me, inter alia, from the fact that since the year in question I have not been given any post of responsibility at sea (command or second in command), to have my career retrospectively adjusted as laid down in the Conseil d’Etat’s case-law.” 13. On 15 December 1988 the Navy Chief of Staff decided to remove the impugned assessment from the applicant’s personal file, to draw up and add to that file a new assessment for 1983 identical with the first one and to refuse the application for retrospective adjustment of career. On the latter point the Chief of Staff considered that “the development of [the applicant’s] career [had] not been affected by the formal irregularity impugned by the Conseil d’Etat, an irregularity which [had] not, in particular, had the consequence of placing this senior officer in circumstances different from those in which the other officers competing with him [found] or [might] have found themselves”. 14. Mr Maillard complained to the Report and Research Division of the Conseil d’Etat about the difficulties he considered he was encountering in having the judgment of 20 July 1988 executed. On 17 February 1989 the Deputy General Rapporteur replied that the administrative authorities had in fact drawn the appropriate conclusions from the judgment setting aside the first assessment for 1983 and that if he wished to challenge the lawfulness of the decision of 15 December 1988 on its merits, he would have to apply to the Judicial Division of the Conseil d’Etat. 15. On 20 February 1989 the applicant applied to the Conseil d’Etat for judicial review of the decision of 15 December 1988 and, consequently, of the one of 13 December 1988 establishing the table of command posts for 1989. He produced supplementary pleadings on 19 June 1989. On 19 February 1990 Mr Maillard lodged another application seeking judicial review of a decision of 14 December 1989 establishing the table of command posts for 1990 and an order that the State should pay him the sum of 10,000 French francs (section 75-1 of Law no. 91-647 of 10 July 1991). 16. The Minister of Defence filed his defence on 27 September 1990. The applicant replied on 18 November 1990 and produced fresh documents on 22 December 1990. 17. The reporting judge was appointed on 9 July 1993 and submitted his report on 18 October 1993. 18. A preparatory sitting was held on 18 February 1994 and the hearing took place on 9 March 1994. 19. In a judgment of 8 April 1994 the Conseil d’Etat quashed the decision of 15 December 1988 on the following ground: “It is unnecessary to consider the other grounds… … under Article 3 of the decree of 31 December 1983 on the assessment of service personnel, adopted pursuant to the Law [of 13 July 1972, as amended, making general regulations for service personnel], ‘service personnel shall be assessed at one or more levels by the authorities to which they are subordinate’. That decree did not come into force until 1 January 1984. It appears from the evidence that while Mr Maillard’s new assessment for 1983 was drawn up according to the procedure of assessment at several successive levels provided for in Article 3 of the decree of 31 December 1983 on the assessment of service personnel, that decree was not applicable to assessments drawn up for 1983. Moreover, no other provision of service regulations provided for the implementation of such a procedure for 1983. The applicant is accordingly justified in seeking to have his assessment for 1983 quashed. Furthermore, the administrative authorities could not lawfully refuse him retrospective adjustment of his career without undertaking a fresh review of his position and his merit.” The applicant’s other claims were dismissed. 20. On 16 August 1994 the Director of Naval Service Personnel reinstated the assessment drawn up in 1983. 21. In a letter of 21 September 1994 the applicant informed the Report and Research Division of the Conseil d’Etat of the difficulties he considered he was encountering in levying execution of the judgments of 20 July 1988 and 8 April 1994. On 14 December 1994 the Deputy General Rapporteur replied as follows: “… After interventions by the Report and Research Division of the Conseil d’Etat the Department of Naval Service Personnel informed me in a letter of 25 October 1994 that your position would be re-examined by the advisory board provided for in section 41 of Law no. 72-662 of 13 July 1972. That board met at the beginning of November and did not agree to a revision of your assessment that would have enabled your superiors to adjust your career retrospectively if appropriate. That being so, seeing that your assessment for 1983 and your career position have been reviewed and a fresh individual assessment decision has been taken by the Naval Personnel Department, the Report and Research Division considers that the authorities have taken the necessary measures to execute the Conseil d’Etat’s judgment [of 8 April 1994]. That being so, I can only close your file, without prejudice to the rights you might again have occasion to assert before the Judicial Division of the Conseil d’Etat. …” 22. On 21 November 1994 Mr Maillard applied to the Conseil d’Etat seeking, firstly, judicial review of the assessment drawn up on 16 August 1994 and, secondly, an order for full discovery of a 1983 report on his assessment. On 27 February 1995 he lodged another application, in which he sought judicial review of two decisions taken by the Minister of Defence on 20 December 1994 establishing, firstly, the promotion table for 1995 and, secondly, the table of command posts for 1995. 23. The hearing took place on 21 February 1996, and in a judgment of 25 March 1996 the Conseil d’Etat quashed the assessment of 16 August 1994 on the following grounds: “… In a decision of 20 July 1988 the Conseil d’Etat, acting in its judicial capacity, quashed the decision of 25 June 1983 whereby Mr Maillard’s assessment for 1983 was determined, on the ground that the assessment had been drawn up according to the procedure of assessment at several successive levels and to an assessment scheme, both of which (the procedure and the scheme) had been laid down in a ministerial directive of 1 February 1980, setting out general rules, which by sections 3 and 107 of the Law of 13 July 1972, as amended, must be enacted in a decree adopted after consultation of the Conseil d’Etat. In a decision of 8 April 1994 the Conseil d’Etat, acting in its judicial capacity, quashed the decision of 15 December 1988 whereby Mr Maillard’s assessment for 1983 was redetermined, on the ground that the assessment had been drawn up according to the procedure for assessment at several successive levels which was provided for in Article 3 of the decree of 31 December 1983 on the assessment of service personnel, although that decree was not applicable to assessments drawn up for 1983 and there was no provision in general regulations for the implementation of such a procedure for 1983. Following the quashing of those decisions, it was for the Minister of Defence to take the necessary measures to ensure that Mr Maillard was retrospectively assessed for 1983 under the rules then applicable. In the absence of a decree adopted after consultation of the Conseil d’Etat as provided in the Law of 13 July 1972, as amended, it was for the commanding officer of the D’Estrées in 1983, the ship on which Mr Maillard performed the duties of second-in-command, to make that assessment and, if appropriate, for the assessed officer to appeal to a higher authority. Only if it had been impossible to carry out that exercise for factual or legal reasons could the administrative authority have lawfully reviewed Mr Maillard’s performance for 1983 in the sole light of all the information in his file which concerned the assessment period. …[W]ithout ascertaining whether it was possible to have Mr Maillard’s assessment carried out afresh by the commanding officer of the D’Estrées in 1983, the Director of Naval Personnel, instead of making a fresh assessment of the qualities of the assessed officer for the period in question, did no more than reproduce in full the quashed assessments which had been drawn up by means of a procedure entailing several successive levels of authority, a procedure that had been censured in the aforementioned decisions of the Conseil d’Etat. The impugned decision of 16 August 1994 was accordingly unlawful and must be quashed, without its being necessary to order discovery of the [report of the] inquiry by commanding officers as sought by Mr Maillard.” The applicant’s other claims were dismissed. 24. In the meantime the assessment complained of had been revised on the basis of reports made in 1983 by the commanding officer of the D’Estrées and signed by him. 25. On 15 November 1995 the Director of Naval Service Personnel had informed the applicant that the Promotions Advisory Board had reconsidered his file and delivered the following opinion: “After making a fresh annual assessment of Commander Maillard for 1983 and looking at the effect of that new assessment on his total marks, the Advisory Board finds that the assessment did not have any bearing on his subsequent career and that a retrospective adjustment of his career is not justified.” 26. On 2 February 1996 the applicant had applied to the Conseil d’Etat for judicial review of the decision of 15 November 1995 whereby his application for retrospective adjustment of his career had been refused and of decisions of 20 and 21 December 1995 establishing the promotions table for 1996 and the table of command posts for the same year respectively. On 15 November 1996 the President of the Seventh Section of the Judicial Division of the Conseil d’Etat made an order striking out the proceedings, on the ground that Mr Maillard had failed to produce within the statutory time the supplementary pleading he had announced in his application. 27. Service personnel are not subject to the “Central and Local Government Service Code” but to the “General Regulations on Service Personnel” (Law no. 72-662 of 13 July 1972, as amended). 28. Section 25 of the Law of 13 July 1972, as amended, provides: “Service personnel shall be assessed at least once a year. The marks and appraisals shall be compulsorily communicated to the service personnel each year. When making the assessment the chief shall make known to each of his direct subordinates his appraisal of each individual’s performance.” The Law provides in section 107 that the regulations for its implementation are to be laid down in a decree made after consultation of the Conseil d’Etat. The decree relating to assessment was made on 31 December 1983 (Decree no. 83-1252, which came into force on 1 January 1984); Article 2 provides: “Assessment is an evaluation by the immediate superior of the serviceman’s moral, intellectual and professional qualities, his physical fitness, his performance during a given period and his ability to occupy higher posts in the immediate future and thereafter. It takes the form of General reports; Merit levels or marks determined according to a scale or marking scheme respectively, laid down for each service or attached formation in the light of the corps which compose it. Assessment is distinct from proposals for promotion.” Article 3 of the decree provides: “The serviceman shall be assessed at one or several levels by the authorities to which he is subordinate. The number of levels of assessment and the designation of the corresponding authorities shall be laid down by the minister responsible for the armed forces in the light of the serviceman’s corps, grade and function and of the specific organisation of each service or attached formation.” 29. Service personnel have the possibility of challenging their assessments in the administrative courts (Conseil d’Etat, 22 April 1977, Pierron).

train

001-23248

ENG

GBR

ADMISSIBILITY

R. v. THE UNITED KINGDOM

Inadmissible

Matti Pellonpää;Nicolas Bratza

The applicant, Mr R, is a United Kingdom national, who was born in 1931 and lives in Hampton. He is represented before the Court by Adams Delmar Solicitors, Hampton, Middlesex. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 December 1997, the applicant’s daughter S. reported to the police that the applicant had interfered with her children X. and Y. At the same time, the applicant’s stepson J. reported that the applicant had abused him during his childhood. On 8 January 1998, the applicant was arrested. He was charged the same day with two offences of indecent assault against his grandson X. and his stepson J. On or about 20 March 1998, the prosecution submitted a revised indictment containing 19 counts (1-13 concerning J., 14-17 concerning X. and 18-19 concerning Y.). On 16 October 1998, the judge ordered that the indictment be severed in relation to counts 1-13 (“the second trial”) and counts 14-19 (“the first trial”). On 4 November 1998, the first trial commenced. On 13 November 1998, the jury returned a unanimous not guilty verdict in relation to counts 18 and 19 but were unable even to reach a majority verdict on counts 14-17 concerning the applicant’s grandson X. On 15 January 1999, the prosecution formally offered no evidence on counts 14-17 and the judge directed the jury to acquit the applicant. The applicant made an application for reimbursement of his costs pursuant to section 16(2) of the Prosecution of Offences Act 1985. The judge ruled that the matter of costs should be dealt with at the conclusion of the second trial. On 14 June 1999, the second trial began before the same judge. The jury returned unanimous not guilty verdicts on all 13 counts. On 30 June 1999, the defence made an application for reimbursement of costs for both trials (altogether some GBP 64,400). In his decision the same day, the judge rejected the application for costs, stating as follows: “I have a discretion, and one of the matters that I have to bear in mind is this: has this defendant contributed to the prosecution that was instigated against him? I say this: so far as the grandson is concerned, the defendant took it upon himself to instruct the grandson in certain sexual matters, which in my view were no concern of his at all but were entirely a matter for the mother. So far as the son is concerned we have heard in the course of the trial certain sexual matters that the defendant himself said took place between he and his son – using language as neutrally as possible, episodes that the defendant described I consider to be bizarre – and I have in mind the sexual contact that the defendant took place between himself and his son. Looking at this matter, therefore in the round, I am in no doubt that the defendant himself has contributed by his own behaviour and his own conduct to the prosecution that was instigated against him. Accordingly the applications for costs are refused.” Counsel for the applicant sought to correct the judge concerning the “sexual training” that the applicant had allegedly provided to his grandson (six years old at the time), asserting that the evidence was that the applicant had sought to discourage his grandson from playing with his genitals. The judge responded: “But nevertheless, it is my view that the defendant’s behaviour was entirely inappropriate, if there was an, shall we say correction or help needed, it was no matter for him – it was a matter for the child’s mother.” On 11 September 2000, an application was made to the Crown Court for reconsideration of the award of costs. A different judge held that he had no power to interfere with the decision and there was no power for the Court of Appeal to review the matter either. Section 16 (2) of the Prosecution of Offences Act 1985 provides insofar as relevant: “Where- ... (b) any person is tried on indictment and acquitted on any count in the indictment; the Crown Court may make a defendant’s costs order in favour of the accused.” On 3 May 1991, Lord Lane CJ gave a Practice Direction of the Court of Appeal (Criminal Division) concerning costs in criminal proceedings: “In the Crown Court. 2.2. Where a person ... has been acquitted on any count in the indictment, the court may make a defendant’s costs order in his favour. Such an order should usually be made ... unless there are positive reasons for not doing so. Examples of such reasons are: (a) the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case is stronger than it is ....” (Practice Direction (Crime: Costs) [1991] 1 WLR 498). The right of appeal to the Court of Appeal (Criminal Division) is against conviction or sentence pursuant to section 9 (1) of the Criminal Appeal Act 1968. As the applicant was acquitted, he had no such right of appeal. Section 29(3) of the Supreme Court Act 1981 provides that the High Court has the same powers of judicial review over the Crown Court as over an inferior court save in respect of the Crown Court’s “jurisdiction in matters relating to trial on indictment”. In the case of Re Sampson [1987] 1 WLR 194, a case concerning a legal aid contribution order at the end of a trial on indictment, Lord Bridge of Harwich said: “... certain orders made at the conclusion of a trial on indictment are excluded from judicial review as ‘relating to trial on indictment’ not because they affect the conduct of the trial, but rather because they are themselves an integral part of the trial process.” In that case, the judge’s order could not, therefore, be judicially reviewed. In the case of Re Ashton and Others ([1993] 2 WLR 846), the House of Lords rejected a suggestion that the above proposition in Re Sampson was wrong.

train

001-6028

ENG

FIN

ADMISSIBILITY

KALLIOLA AND OTHERS v. FINLAND

Inadmissible

Georg Ress

The applicants, Messrs Jouko Kalliola , Harri Nääppä, Vesa Repo, Riku Roimu and Timo Mäkinen are Finnish nationals, born in 1967, 1963, 1963, 1964 and 1959 respectively. They are represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 March 1993 early in the morning, the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), reinforced by a special Karhu group of the Helsinki Police and in co-operation with armed forces and the Border Guards, made a search in a clubhouse of the motorcycle club Overkill MC. The search was intended to apprehend certain persons suspected of aggravated assault. Five members were caught during the search. The president of the club was apprehended later. The police also seized several weapons at the clubhouse. It proved later that they all were permissible and legal, except one which was useless and not a gun at all. Officer P. from the National Bureau of Investigation was in charge of the investigation. After the search P. gave interviews. His statements were widely spread in the media by the press and a TV channel. P. had also been assigned to be responsible for making any announcements to the media. In the evening of 3 March 1993 a Finnish TV channel had a report about the search, in which P. was interviewed. To a reporter’s question as to what type of offences members of the club had been found guilty of, P. stated that the police had earlier registered to their records the members in question and that they had been convicted of aggravated drug offences and assaults. Between 4 and 9 March 1993 several newspaper articles were published, where a similar statement was quoted. The applicants have made several complaints to various authorities. On 10 March 1993 they complained to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman). In its statement of 31 May 1993 to the Deputy Parliamentary Ombudsman the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) observed, inter alia, the following: “The search carried out by the police on the premises of the motorcycle club received a lot of public attention. Soon after the search the National Bureau of Investigation informed the mass media of the criminal background of the members, and of the activities of the club. An article published in Helsingin Sanomat on 5 March 1993 (under the heading ‘Two motorcycle club members arrested’) directly quoted an interview with P. According to the newspaper, P. had said that ‘the members of the club had been convicted of narcotics offences and assaults, including robberies’. According to [the applicants], the information given by the police was incorrect. [The applicants] attached extracts from their criminal records, of which only one contained an indication of an offence, to their complaint to the Deputy Parliamentary Ombudsman. According to P., the police did not tell the mass media that the applicants had been convicted of narcotics offences, but it was mentioned that another motorcycle club, Hell’s Angels, had been involved in selling narcotics. The information was given from an international point of view, with reference to public information given by the Interpol. The police shall be prudent in giving information to the public on the background of persons suspected of an offence. Any labelling of suspects shall be avoided. In the Ministry’s opinion, the information given by the National Bureau of Investigation indeed gave the public an image that the said members of the motorcycle club had committed various offences. In this respect the public information was not appropriate, as far as the criminal background was concerned.” On 2 July 1993 the applicants made a request of pre-trial investigation to the Deputy Parliamentary Ombudsman and on 31 August 1993 to the Police Department of the Ministry of the Interior. On 18 November 1993 the applicants complained to the Parliamentary Ombudsman, arguing that the police neglected their duty as they did not respond as required in Sections 2 and 6 of the Criminal Investigations Act (esitutkintalaki, förundersökningslag) The applicants made a complaint also to the Council for Mass Media (julkisen sanan neuvosto, opinionsnämnden för massmedier) which, on 10 November 1993, found that the TV channel and one of the newspapers had failed to comply with good journalistic practice when reporting on the events concerning the motorcycle club. On 14 January 1994 the Deputy Parliamentary Ombudsman stated that, on the basis of the documents, she did not find anything that would require her measures. She noted, however, the following in respect of the treatment of the suspects during the pre-trial investigation: “It was mentioned by the mass media that the relevant members of Overkill MC had been convicted of narcotics offences and assaults. According to [the applicants], the police had given incorrect information on those members of the motorcycle club. There is no evidence that the police had deliberately given incorrect information on the members of the motorcycle club. However, it is worth observing that the telephone interview with P. on 4 March 1993 easily gave the impression that members of Overkill MC had been convicted of narcotics offences and assaults.” The Deputy Parliamentary Ombudsman concluded in this respect that authorities and public officials must be especially careful when informing the public for example of matters relating to criminal investigations and suspects. P. had been careless when giving information on the search of the premises of Overkill MC and on related matters.” P. was informed of her opinion. On 23 March 1994 the applicants instituted criminal proceedings against P. who was charged with libel and violation of his official duty on account of his statements. The applicants requested that P. and the Finnish Government be ordered to pay compensation in the amount of FIM 100,000 with interest to each applicant. They argued that they had been subjected to public interest since the search. The applicants had been labelled as having committed offences they had never committed. According to the applicants, P. had been the most active one to give statements to the media and had specially named Mr Mäkinen to the journalists. P. denied all the charges as well as the applicants’ claim for compensation. He stated that he had not been active but only answered questions presented by reporters. Before the search he had prepared a press release in which the name of the club or names of its members were not mentioned. According to P., he or the police had not had any advance information about the members of the club. The police had monitored the clubhouse and assumed, on the basis of the number of people visiting the house, that the number of the members was greater than that established later. On 5 October 1994 after four hearings at which several witnesses were heard, the District Court (käräjäoikeus, tingsrätten) of Helsinki rejected all the applicants’ claims and acquitted P., basing itself on P.’s statements and on statements given by several witnesses heard during the hearings. The District Court found as follows: “The District Court finds that P., by acting in the way described above, has not deliberately or of carelessness or lack of caution made himself guilty of a violation of official duties, when informing the public of the pre-trial investigation, so that his statements would have subjected [the applicants] to suspicion or that he would have unnecessarily caused them damage and harm.” It appears from the judgment that P. had mentioned the name of applicant Mäkinen when asked by a journalist about persons whose detention on remand would be requested. The applicants appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki and requested an oral hearing. On 27 June 1996 the Court of Appeal refused the applicants’ appeal, without a hearing, and upheld the District Court’s judgement, finding as follows: “[The applicants] have considered that P. clearly identified Overkill MC in his statements concerning the present case, and thus his allegations included in the statements directly referred to this club. According to [the applicants], Overkill MC, which was a non-registered association, had 13 members at the relevant time. However, the police had reason to believe that the club consisted of a considerably larger number of persons, inter alia, because there had been large numbers of people on the club premises and in events organised by the club. The statements given by P. reveal that he meant a considerably wider circle of people than [the applicants] or other members of Overkill MC named as such by the club. Nor did P. name any persons in his statements. The identification of club members has only been possible on the basis of distinctive marks. Those distinctive marks were not widely known among the public at the relevant time. The Court of Appeal considers that P. did not deliberately allege that [the applicants], in particular, had committed the offence in question or other despicable acts. Nor did the articles clearly indicate which parts of the text were directly based on the statements of P. and which parts were based on the reporter’s own interpretations of those statements or on information received from other sources. On these grounds and for the reasons given by the District Court, the Court of Appeal finds that there is no reason to alter the judgment of the District Court as to the merits.” The Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal on 9 December 1996. According to Section 7 (2) of the Criminal Investigations Act (449/1987), the suspect must be presumed not guilty in a criminal investigation. According to Section 8 (1) of the Criminal Investigations Act, in a criminal investigation, the rights of no one must be infringed more than what is necessary for the achievement of the purpose of the criminal investigation. Furthermore, according to Section 8 (2), a criminal investigation must be carried out so that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience. According to Section 49 of the Criminal Investigations Act, any public information on a criminal investigation must be given in a manner which does not subject anyone to undue suspicion or cause unnecessary harm or inconvenience to anyone. Under Section 9 of the Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; 575/1998), the person in charge of the investigations and his superior, or another official ordered by the superior, must have the right to make information concerning the investigation public. Section 21 of the Constitution of Finland (731/1999), under the heading Protection under the law, provides the following: “Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.” According to Chapter 17 (571/1948), Section 1 (2) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), the plaintiff in a criminal law case must prove the facts that support his/her claim. The defendant must be presumed innocent until proved guilty. Although it may be in the interests of the defendant to submit counter-evidence in support of his or her innocence, he/ she has no obligation to do so. The prosecutor bears the burden of proof. In case there is reasonable doubt as to the guilt, the case must be decided in favour of the defendant. An important way of obtaining evidence in a criminal law case, apart from hearing outsiders as witnesses, is to freely examine the defendant and the plaintiff for the purpose of establishing the facts of the case. According to Chapter 17, Section 2 of the Code of Judicial Procedure, after having carefully evaluated all the facts that have been presented, the court must decide what is to be regarded as the truth in the case. According to Chapter 11, Section 4 of the Criminal Proceedings Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål; 689/1997) a judgment must be reasoned. The statement of reasons must indicate on what facts and legal arguments the judgment is based. It must further be indicated on what grounds a fact has been proved or has failed to be proved.

train

001-23428

ENG

ITA

ADMISSIBILITY

ZIGARELLA v. ITALY

Inadmissible

The applicant, Mr Generoso Zigarella, is an Italian national who was born in 1945 and lives in Mercogliano (Avellino). The facts of the case, as submitted by the parties, may be summarised as follows. First set of proceedings (no. 10221/93) By a summons of 14 March 1994, served on 27 October 1994, the applicant was requested to appear before the Avellino magistrate’s court (pretura) on 2 January 1995 on charges of breaching three different town planning laws. As it appears that the hearing was not held, the applicant was summoned again on 24 March 1995 to appear for trial on 15 May 1995. Owing to a lawyers’ strike, the trial was adjourned to 10 April 1996. On that day evidence was heard from one of the prosecution witnesses, but the prosecution decided not to examine their second witness. Both parties asked the court to adjourn the trial to 20 November 1996. On that date the magistrate’s court noted that the applicant had applied to the District Council for his position to be regularised and had obtained planning permission for the relevant building works. The court accordingly concluded that there was no cause to continue with the criminal proceedings because there was no longer any offence. The judgment became final on 11 January 1997. Second set of proceedings (no. 590/94) In the meantime, on 17 June 1996, the Avellino public prosecutor’s office had summoned the applicant to appear before the Avellino magistrate’s court on 26 June 1997 on charges of breaching four different town planning laws. The applicant received the summons on 29 April 1997. It informed him that he was being prosecuted in his capacity as site manager. The works in question involved two building sites that had been the subject of the first set of proceedings and two others. The investigation had been partly conducted by the deputy public prosecutor who had been in charge of the first proceedings. The hearing listed for 26 June 1997 did not apparently take place. The Avellino magistrate’s court adjourned it to 19 February 1998 as one of the defendants was ill. On 19 February 1998 the same court adjourned the trial to 30 April 1998 because the witnesses had not appeared. On that date the applicant informed the court that he had already been tried for the same offence. On the same day the Avellino magistrate’s court concluded from the pleadings filed by the prosecution and the defence that the proceedings against the applicant could not be continued because a court decision (which had become final on 11 January 1997) had already been delivered in the case. The judgment of 30 April 1998 became final on 4 June 1998. Article 649 of the Code of Criminal Procedure provides: “Anyone who has been acquitted or convicted by a final judgment or order of a criminal court cannot be tried again for the same offence, even if it is tried on a different basis in terms of classification, degree of seriousness or circumstances ... . If fresh proceedings are nevertheless instituted, the court shall, at any stage of the proceedings, acquit or discharge the defendant and state the reasons for doing so in the operative part of the judgment.” Article 121 of the Code of Criminal Procedure provides: “The parties and counsel may at any stage of the proceedings submit written pleadings or requests to the court, which they shall file with the court registry. The court shall rule on these duly submitted requests without delay and in any event, subject to any specific statutory provision to the contrary, within fifteen days.”

train

001-59338

ENG

GRC

CHAMBER

CASE OF DOUGOZ v. GREECE

Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

Nicolas Bratza

8. The applicant claims that, while in Syria, he was accused of national security offences, namely having leaked information during his military service. The applicant left that country. He claims that he was subsequently found guilty of these offences and sentenced to death. 9. The Government claim that the applicant entered Greece surreptitiously, probably in July 1983. The applicant claims that he entered Greece lawfully. 10. In 1987 the applicant was arrested by the Greek authorities for drug-related offences. In 1988 he was found guilty by the threemember Court of Appeal of Athens, sitting as a first-instance court. The court, considering that the applicant was himself a drug user, sentenced him to two years’ imprisonment. The applicant’s conviction was upheld by the fivemember Court of Appeal of Athens in 1989. 11. In 1989 the applicant applied for refugee status to the Athens Office of the United Nations High Commissioner for Refugees (UNHCR) and was recognised as a refugee under the UNHCR mandate. On that occasion he was issued by the Greek authorities with an alien’s residence card. 12. According to the Government, his leave to remain in Greece expired on 8 January 1991. However, he remained illegally. 13. In the course of 1991, the applicant was arrested for theft and bearing arms without authorisation. He was placed in detention on remand. In 1993 he was found guilty of these offences by the Nafplio Court of Appeal, composed of judges and jurors, and was sentenced to five and a half years’ imprisonment. 14. On 6 June 1994 the applicant was released on licence. On the same day, the Chief of Police ordered his expulsion from Greece in the public interest. 15. On 23 June 1994 the applicant applied to the Greek authorities for refugee status. On 4 August 1994 the Minister of Public Order rejected his application, which was found to be abusive because “it had been submitted ten years after the arrival of the applicant in Greece, obviously with the aim of avoiding his lawful expulsion after his release from prison where he had served long sentences for very serious crimes”. 16. The Government claim that, following this decision, the applicant requested to be expelled to “the Former Yugoslav Republic of Macedonia”, and on 19 September 1994 he was sent to that country, but thereafter he returned to Greece illegally. However, the applicant claims that he was never “lawfully expelled” to “the Former Yugoslav Republic of Macedonia”. He neither asked to go there, nor was he accepted by that country. 17. On 9 July 1995 the applicant was arrested in Greece for drug-related offences. On 26 November 1996 he was found guilty and sentenced to three years’ imprisonment and a fine by the threemember Athens Court of Appeal. In 1998 the five-member Athens Court of Appeal upheld his conviction and sentence. 18. On 25 June 1997 the applicant asked for his release on licence claiming, inter alia, that he could return to Syria because he had been granted a reprieve. The Indictments Division of the Piraeus Criminal Court of First Instance examined the applicant’s request in camera on 16 July 1997. Although the applicant was not allowed to attend the hearing, the prosecutor was present and was heard. The court decided that the applicant should be released on licence and expelled from Greece. It considered that the applicant’s conduct during his detention indicated that he was not going to commit any further offences once released and that it was not necessary to prolong the detention. 19. Following this decision the applicant was released from prison on 10 July 1997 and was placed in police detention pending his expulsion, on the basis of an opinion given by the deputy public prosecutor at the Court of Cassation that decision no. 4803/13/7A of 18-26 June 1992 applied by analogy in cases of expulsion ordered by courts (see paragraph 39 below). Initially the applicant was detained at a detention centre in Drapetsona. He was issued with a temporary passport by the Greek authorities and on 12 September 1997 was given leave to enter Syria by the Syrian embassy in Athens. 20. The applicant claims that the Drapetsona detention centre consisted of twenty cells. At times there were up to one hundred people detained there. The applicant’s cell was overcrowded. The number of persons in his cell would increase tenfold depending on the detainee population each night. There were no beds and the detainees were not given any mattresses, sheets or blankets. Some detainees had to sleep in the corridor. The cells were dirty and the sanitary facilities insufficient, since they were supposed to cater for a much smaller number of persons. Hot water was scarce. For long periods of time there would not be any. There was no fresh air or natural daylight and no yard in which to exercise. The only area where the detainees could take a walk was the corridor leading to the toilets. 21. According to the applicant, there was no recreational or other activities at the Drapetsona detention centre. The applicant could not even read a book because his cell was so overcrowded. Detainees were served with a “passable plate of food” twice a day. No milk was ever provided while fruit, vegetables and cheese rarely appeared on the menu. Moreover, the detainees could not obtain any food from outside. The applicant had no access to a doctor or a chemist. Only family visits were allowed and, as a result, foreign detainees did not receive any visits at all. The applicant could not address himself to the social services or the public prosecutor. Although payphones existed, their number was clearly insufficient. Cases of ill-treatment by the guards were not uncommon. 22. The Government claim that hot water was available on a 24hour basis at the Drapetsona detention centre. The food served to detainees was sufficient and of a very high quality. The police officers had the same menu. There was adequate natural light where the applicant was detained. The applicant was able to circulate freely in a wide corridor at regular intervals during the day. The detention area was cleaned every day by the staff of the centre and was regularly disinfected. There was medical care. 23. In the autumn of 1997 there was a hunger strike at the Drapetsona detention centre. 24. On 28 November 1997 the applicant asked the Minister of Public Order to allow him to travel to a country other than Syria where he allegedly faced the death penalty. 25. On 2 February 1998 the applicant applied for the order for his expulsion to be lifted, relying on, inter alia, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the fact that he had been recognised as a refugee by the UNHCR. He also claimed that his continued detention contravened Article 5 of the Convention and that the expulsion order had been made in breach of national law. 26. In March 1998 there were forty to fifty people detained at the Drapetsona centre. 27. In April 1998 the applicant was transferred to the police headquarters in Alexandras Avenue in Athens. According to the applicant, the conditions were similar to those at Drapetsona, although there was natural light, air in the cells and adequate hot water. The Government described the conditions in Alexandras Avenue as being the same as those at Drapetsona. 28. On 28 April 1998 the UNHCR representative in Athens requested the Ministry of Public Order not to expel the applicant to Syria as long as his case was under review. 29. On 11 May 1998 the Indictments Division of the Piraeus Criminal Court of First Instance, sitting in camera, refused to lift the expulsion order recalling, inter alia, that in his application of 25 June 1997 the applicant had claimed that he was no longer subject to persecution in Syria. The decision of the court did not contain any express ruling on the applicant’s claim concerning his detention. 30. On 26 and 28 July 1998 the applicant requested the Ministers of Justice and of Public Order to lift the expulsion order and, in any event, to release him. 31. On 3 December 1998 the applicant was expelled to Syria. The Government claim that they had been informed by Interpol that Syria had not asked for his extradition. 32. The applicant claims that upon his arrival in Syria he was placed in detention. 33. Article 74 § 1 of the Criminal Code provides as follows: “The court may order the expulsion of an alien who has been given a prison sentence under Articles 52 and 53 of the Criminal Code, provided that the country’s international obligations are respected. An alien lawfully present in Greece may only be expelled if given a sentence of at least three months’ imprisonment. The expulsion takes place immediately after the alien has served his or her sentence or is released from prison. The same applies when the expulsion has been ordered by way of a secondary penalty.” 34. Article 105 of the Criminal Code provides for the release of prisoners on licence. 35. Article 106 of the same Code provides that the court may impose on the person released on licence certain obligations concerning, inter alia, his place of residence. 36. On 15 January 1981 the public prosecutor at the Court of Cassation opined that, although persons released on licence could not leave the country, a court could order their expulsion under Article 74 of the Criminal Code. 37. Section 27(6) of Law no. 1975/1991 provides that the Minister of Public Order may, in the public interest and if the person to be expelled is dangerous or might abscond, order his detention until his deportation from Greece becomes feasible. 38. Section 27(7) of Law no. 1975/1991 provides that the details concerning the execution of deportation orders issued in accordance with the provisions of that Law, as well as those ordered by the criminal courts in accordance with Article 74 of the Criminal Code, will be fixed by a common decision of the Ministers for Foreign Affairs, of Justice and of Public Order. 39. Decision no. 4803/13/7A of 18-26 June 1992 of the Ministers for Foreign Affairs, of Justice and of Public Order makes a number of provisions concerning the expulsion of aliens by administrative order. According to section 6 of the decision, “aliens subject to expulsion are detained in police detention centres or other appropriate places determined by the Minister of Public Order”. On 1 April 1993 the deputy public prosecutor at the Court of Cassation opined that decision no. 4803/13/7A of 18-26 June 1992 applied by analogy in cases of expulsion ordered by the courts. 40. On 29 November 1994 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report following its visit to Greece in March 1993, which contains the following findings and recommendations concerning the Athens police headquarters in Alexandras Avenue: “54. The principal detention facilities at the Athens Police Headquarters were situated on the 7th floor of the Headquarters building. They consisted of 20 cells divided into two sections. The cells measured just over 12 m2, and were equipped with fixed benches for rest/sleeping purposes; the lighting was adequate, as would be the ventilation in the absence of overcrowding. In principle, the cellular accommodation could be considered as acceptable for persons obliged to remain in police custody for a relatively short period, on condition that the premises are kept clean and those obliged to spend the night in custody are provided with mattresses and blankets. 55. However, the delegation found that in addition to criminal suspects (who might stay for a maximum of some four to six days ... ), the Headquarters were being used to accommodate for lengthy periods persons held under the Aliens legislation. Many of these persons met by the delegation had been held in the Headquarters’ detention facilities for periods in excess of a month, and a few had been there for over three months. Such a situation is not acceptable. The physical surroundings and the regime are quite unsuitable for such lengthy stays. There is not even the possibility of access to the open air: out of the cell “exercise” is taken in a corridor adjacent to the cells. 56. There were between 50 to 60 detained persons in the Headquarters at the time of the delegation’s visit, some 60% of whom were being held under the Aliens legislation. However, it was clear that shortly before the delegation’s visit, the number of persons accommodated had been much higher. At least 50 persons had been transferred a few days earlier from the Headquarters to a new holding centre for aliens situated close to the airport ... For the most part, the detainees were being held two or three to a cell, though a cell reserved for women was accommodating five detainees. The delegation was told by persons detained that in the very recent past, ten or more persons had been held per cell. Given the cells’ dimensions, such occupancy levels would be grossly excessive. 57. Police officers told the delegation that one set of cells was reserved for criminal suspects, and the other for persons held under the Aliens legislation; however, it was observed that, in practice, the separation between these two very different types of detained persons was not assured. Further, some persons detained under the Aliens legislation stated that they had received no information about the procedure applicable to them (at least not in a language they understood). On the other hand, such detainees did have access to a telephone. 58. Persons detained had blankets at their disposal (though the delegation heard allegations that they had only been made available the day before the delegation’s first visit), but not mattresses. Toilet and shower facilities were situated alongside the cells, and no complaints were heard about access to those facilities; however, detainees did complain that they had not been provided with towels or soap. The state of cleanliness and overall state of repair of the toilets/shower facilities was appalling, although an attempt to improve the situation was made between the delegation’s different visits. 59. As regards the detention facilities on the 7th floor of Athens Police Headquarters, the CPT wishes to make the following recommendations: – that no-one be held in these facilities for longer than is absolutely necessary; – that there be a maximum occupancy level of four persons per cell (with a possible exception as regards persons only staying a few hours in custody); – that persons detained overnight be provided with both blankets and mattresses; – that the toilet/shower facilities be renovated in a hygienic condition, and detained persons provided with the wherewithal to keep themselves clean; – that means be sought of enabling persons detained for more than 24 hours to be offered outdoor exercise on a daily basis; – that persons detained under the Aliens legislation be strictly separated from criminal suspects; – than an information leaflet be given to persons detained under the Aliens legislation explaining the procedure applicable to them and their related rights; this leaflet to be available in the languages most commonly spoken by such persons and, if necessary, the services of an interpreter provided.” 41. In May 1997 and in October 1999 the CPT carried out two more visits to the Alexandras police headquarters and the Drapetsona detention centre. The reports following these visits have not yet been made public.

train

001-109363

ENG

RUS

COMMITTEE

CASE OF SERGEYEV AND OTHERS v. RUSSIA

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Anatoly Kovler;Erik Møse;Mirjana Lazarova Trajkovska

6. All the applicants except Ms N. Krivtsova and Ms M. Barzakova were at the material time members of the Russian military forces and took part in peace-keeping operations in former Yugoslavia. Ms N. Krivtsova’s and Ms M. Barzakova’s late husbands were also members of the Russian military forces and took part in the same operations. 7. All those servicemen sued their respective military units in courts for payment of outstanding daily allowance allegedly due to them on account of their military missions abroad. 8. On various dates the courts allowed the applicants’ claims and awarded them monetary compensation. The judgements became binding and enforceable but were not enforced by the authorities. The details of the judgments appear in the Appendix below. 9. On the dates specified in the Appendix, the Presidium of the Moscow Circuit Military Court quashed the judgments by way of supervisory review, considering that the lower courts had erroneously applied the domestic material law. As a result, the applicants’ claims were dismissed. 10. The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court’s judgments in the cases of Ryabykh (see Ryabykh v. Russia, no. 52854/99, §§ 31-42, ECHR 2003IX) and Sobelin and Others (see Sobelin and Others v. Russia, nos. 30672/03 et al., §§ 33-42, 3 May 2007). 11. In 2001-2005 judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by the Government’s Decree No. 143 of 22 February 2001 and, subsequently, by Decree No. 666 of 9 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, nos. 2191/03 et al., §§ 33-39, 21 June 2007).

train

001-73261

ENG

SVN

CHAMBER

CASE OF ZAKONJSEK v. SLOVENIA

Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

David Thór Björgvinsson;John Hedigan

5. The applicant was born in 1975 and lives in Trbovlje. 6. On 22 August 1997 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. 7. On 5 January 1999 the applicant instituted proceedings against ZT in the Ljubljana District Court (Okrožno sodišče v Ljubljani) seeking damages in the amount of 3,938,470 Slovenian tolars (approximately 16,410 euros) for the injuries sustained. Between 11 November 1999 and 19 February 2002 the applicant lodged three preliminary written submissions and/or adduced evidence. On 18 February 2000 and 2 April 2001 he made requests that a date be set for a hearing. Of the two hearings held on 18 June 2001 and 6 May 2002, none was adjourned at the request of the applicant. During the proceedings, the court appointed a medical expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 1 July 2002. 8. On 12 July 2002 the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani). On 16 April 2003, the court upheld his appeal as far as the statutory default interests were concerned and rejected the remainder. The judgment was served on the applicant on 6 May 2003. 9. On 20 May 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). He also requested a withdrawal of a Supreme Court’s judge. On 14 July 2004 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 30 August 2004.

train

001-81878

ENG

NLD

ADMISSIBILITY

HENDRIKS v. THE NETHERLANDS

Inadmissible

Corneliu Bîrsan;David Thór Björgvinsson

The applicant, Mr Johannes Joseph Marie Elise Hendriks, is a Dutch national who was born in 1949 and lives in Vaals. He is represented before the Court by Mr J.W. Heemskerk, a lawyer practising in Maastricht. On 16 March 2004, the applicant was arrested and taken into police custody (inverzekeringstelling) on suspicion of having committed rape, attempted manslaughter and/or intentional infliction of grievous bodily harm in that he – having twisted the victim’s arm behind the latter’s back and constrained the victim – had forcibly inserted a wooden ladle in the victim’s anus, resulting in a perforation of the colon. At the material time and for about twelve years, the victim, the applicant and the latter’s wife had been engaged in a longstanding tripartite relationship. On 19 March 2004, after having heard the applicant, the investigating judge (rechter-commissaris) ordered the applicant’s detention on remand (inbewaringstelling) for a period of ten days. The reasons stated by the investigating judge were: “It appears from the case-file that there are serious indications against the suspect (there is more than a mere suspicion). There are weighty reasons of public safety that warrant detention on remand, namely: detention on remand is necessary because it concerns an act which, according to the legal definition, attracts a prison sentence of twelve years or more whereas in addition this act has seriously rocked the legal order (the act is of an extraordinarily grave nature);” On 25 March 2004, after having heard the applicant, the Maastricht Regional Court (arrondissementsrechtbank) ordered the applicant’s further detention on remand (gevangenhouding) for a period of thirty days, holding: “The Regional Court considers that, after examination, it has appeared that the suspicion, indications and ground, which have led to the order for detention on remand (bevel tot bewaring), currently still exist.” The applicant filed an appeal against the decision of 25 March 2004 with the ‘s-Hertogenbosch Court of Appeal (gerechtshof). The applicant did not challenge the existence of serious indications against him but argued that, given the context in which the facts had occurred, his release would not give rise to any social unrest which would justify keeping him in pre-trial detention. In his opinion, nobody would be shocked if he was released from pre-trial detention, as little publicity had been given to the criminal investigation and his arrest. The public prosecutor argued that the release of a suspect of rape always caused upheaval in society and certainly in this case where the victim had suffered considerable harm. The applicant’s appeal was dismissed on 10 June 2004 by the ‘s-Hertogenbosch Court of Appeal (gerechtshof). It held that the argument raised by the applicant failed to appreciate that his release could get wider publicity in the suspect’s surroundings, thus rocking the legal order. In the meantime two further prolongations – of thirty days each – of the applicant’s detention on remand were ordered by the Regional Court on 22 April and 19 May 2004, respectively. Both times the Regional Court based its decision on the grounds given in its decision of 25 March 2004. By judgment of 14 September 2004, following hearings held on 22 June 2004 and 31 August 2004, the Maastricht Regional Court convicted the applicant of rape. On the basis of reports drawn up by a psychiatrist and a psychologist who had examined the applicant, the Regional Court found that the applicant was suffering from an Attention Deficit Hyperactivity Disorder (ADHD), an alcohol addiction and an anti-social personality disorder and concluded that, at the time of the commission of the offence, the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree. In this light, the Regional Court decided to sentence the applicant to twelve months’ imprisonment, of which three months were suspended pending a two years’ probation period, less the time spent in pre-trial detention. In addition, it imposed a special condition (bijzondere voorwaarde) within the meaning of Article 14c of the Criminal Code (Wetboek van Strafrecht) to the effect that the applicant was to comply – during the probationary period – with directives given to him by the local section of the Netherlands probation and social rehabilitation service (reclassering), also if this would entail treatment for substance abuse. It lastly ordered the applicant to pay the victim, who had joined the proceedings as an injured civil party, 3,500 euros in compensation. Although the applicant could have filed an appeal against this judgment, he did not do so. Article 133 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”) defines pre-trial detention (voorlopige hechtenis) as deprivation of liberty pursuant to an order for detention on remand (inbewaringstelling), a warrant for the taking into pre-trial detention (gevangenneming) or an order for further detention on remand (gevangenhouding). The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the CCP. Article 67 of the CCP reads as follows: “1. An order for pre-trial detention can be issued in case of suspicion of: (a) an offence which, according to the law, carries a punishment of imprisonment of four years or more; (b) one of the offences defined in Articles 132, 137c § 2, 137d § 2, 137e § 2, 137g § 2, 285 § 1, 285b, 318, 321, 323a, 326, 326a, 326c, 395 and 417bis and 420quater of the Criminal Code; (c) one of the offences defined in: - Article 175 § 2, part b, of the 1994 Road Traffic Act (Wegenverkeerswet); - Article 30 § 2 of the Civil Authority Special Powers Act (Wet buitengewone bevoegdheden burgerlijk gezag); - Articles 52, 53 § 1 and 54 of the Military Service (Conscientious Objectors) Act (Wet gewetensbezwaren militaire dienst); - Article 31 of the Betting and Gaming Act (Wet op de kansspelen); - Article 11 § 2 of the Opium Act (Opiumwet); - Article 55 § 2 of the Weapons and Ammunition Act (Wet wapens en munitie); - Article 46 of the 1995 Securities Transactions (Supervision) Act (Wet toezicht effectenverkeer). 2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence within the jurisdiction of the regional courts and which, according to the law, is punishable by imprisonment. 3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect.” Article 67a of the CCP reads: “1. An order based on Article 67 can only be issued: a. if it is apparent from particular behaviour displayed by the suspect, or from particular circumstances concerning him personally, that there is a serious danger of absconding; b. if it is apparent from particular circumstances that there is a serious reason of public safety requiring the immediate deprivation of liberty. 2. For the application of the preceding paragraph, only the following can be considered as a serious reason of public safety: - 1o. if it concerns suspicion of commission of an act which, according to the law, carries a punishment of imprisonment of twelve years or more and the legal order has been seriously rocked by that act; - 2o. if there is a serious risk the suspect will commit an offence which, according to the law, carries a prison sentence of six years or more or whereby the security of the State or the health or safety of persons may be endangered, or give rise to a general danger to goods; - 3o. if it concerns suspicion of one of the offences defined in Articles 310, 311, 321, 322, 323a, 326, 326a, 416, 417bis, 420bis or 420quater of the Criminal Code, whereas less than five years have passed since the day on which, on account of one of these offences, the suspect has been irrevocably sentenced to a punishment or measure entailing deprivation of liberty, a measure entailing restriction of liberty or community service, and there is further a serious risk that the suspect will again commit one of those offences; - 4o. if pre-trial detention is reasonably necessary for discovering the truth otherwise than through statements of the suspect. 3. An order for pre-trial detention shall not be issued if there are serious prospects that, in case of a conviction, no irrevocable custodial sentence or a measure entailing deprivation of liberty will be imposed on the suspect, or that he, by the enforcement of the order, would be deprived of his liberty for a longer period than the duration of the custodial sentence or measure.” Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP). Pre-trial detention in the form of an order for detention on remand of a suspect may be issued by the investigating judge for a maximum duration of ten days (Articles 63 and 64 of the CCP). Under Article 65 of the CCP, a subsequent prolongation of pre-trial detention may be ordered by the Regional Court in the form of an order for further detention on remand for a maximum duration of thirty days. In case the trial proceedings have not started within the thirty days’ validity of an order for further detention on remand, the Regional Court can prolong it twice, each time for a maximum of thirty days (Article 66 § of the CCP). Article 69 § 1 of the CCP reads: “An order for pre-trial detention may be lifted by the Regional Court. It may do so of its own motion or upon the request of the suspect, or – in so far as it concerns an order for ... further detention on remand – upon a proposal from the investigating judge or a request by the public prosecutor.” Article 71 of the Code of Criminal Procedure, in so far as relevant, states: “1. Within a maximum of three days after its execution, the suspect may file an appeal with the Court of Appeal against a decision of the Regional Court ordering further detention on remand ... 2. Within the same time-limit, the suspect may file an appeal against an extension of an order for further detention on remand, but only if no appeal has been filed by him against the order for further detention on remand or against a previous prolongation order ...” Article 87 §§ 2 and 3 of the CCP, in so far as relevant, provides: “2. The suspect, who has requested for the first time to suspend (schorsing) or to lift (opheffing) an order for pre-trial detention, may file an appeal with the Court of Appeal against a negative decision on that request. The suspect, who has filed an appeal against a negative decision on a request for suspension, cannot subsequently file an appeal against a negative decision on a request to lift a pre-trial detention order. The suspect, who has filed an appeal against a negative decision on a request to lift a pre-trial detention order, cannot subsequently file an appeal against a negative decision on a request for suspension of pre-trial detention.” The offence of rape, as defined in Article 242 of the Criminal Code (Wetboek van Strafrecht), attracts a prison sentence not exceeding twelve years or a heavy fine.

train

001-97259

ENG

DEU

ADMISSIBILITY

MARCHITAN v. GERMANY

Inadmissible

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

The applicants, Mr Georghe Marchitan and Mrs Anastasia Marchitan, are Moldovan nationals who were born in 1948 and 1950 respectively and live in Coscalia. They are represented before the Court by Mr V. Iordachi, a lawyer practising in Chisinau. The applicants’ son Eugen Marchitan was born in 1983. On 23 March 2004 he was remanded in custody by the Aschaffenburg Police on the suspicion of burglary. He was transferred to the Aschaffenburg prison where he was placed in a single cell. The next morning, at 6.18 a.m., he was found dead in his cell, strangled with his shoelaces. Following a police investigation, in which neither the applicants nor apparently the Moldovan consular authorities were involved, the German authorities concluded on the basis of a post-mortem that the applicants’ son had committed suicide and discontinued the criminal investigation into his death. On 26 May 2004 the German authorities informed the Moldovan consular authorities in a note verbale about the outcome of the proceedings. On 11 July 2005 counsel for the applicants requested that the criminal investigation into their son’s death be reopened. On 22 September 2005 the Aschaffenburg Public Prosecutor refused on the grounds that the applicants had not identified a specific suspect responsible for their son’s death. Upon counsel’s motion for reconsideration the criminal proceedings against an unidentified suspect were reopened and, on 12 January 2006, again discontinued. On 28 April 2006 the Bamberg Prosecutor General refused the applicants’ request to order that the investigation be reopened. On 14 August 2006 the Bamberg Court of Appeal dismissed as inadmissible the applicants’ request for a decision concerning the discontinuance of the criminal investigation into their son’s death. The Court of Appeal held that the applicants had failed to name an individual suspect in respect of the alleged manslaughter as required by the relevant provisions of the Code of Criminal Procedure and noted as “merely supplementary” that the applicants had failed to provide all the facts and pieces of evidence as required by law (compare “Relevant domestic law and practice” below). The decision was served on the applicants’ German counsel on 21 November 2006. If a criminal investigation offers sufficient reasons for preferring public charges, the Public Prosecutor shall prefer them by submitting a bill of indictment to the competent court (Article 170(1) of the Code of Criminal Procedure). In all other cases the Public Prosecutor shall terminate the proceedings (Article 170(2) of the Code of Criminal Procedure). An aggrieved party may not prefer public charges concerning felonies and serious misdemeanours. If the Public Prosecutor orders a criminal investigation to be discontinued the aggrieved party may, however, complain to the Prosecutor General within two weeks (Article 172(1) of the Code of Criminal Procedure). If the Prosecutor General dismisses the complaint, the aggrieved party may apply for a decision of the Court of Appeal ordering the Public Prosecutor to prefer charges (Article 175 of the Code of Criminal Procedure) by a bill of indictment that must include the indicted person, the criminal offence with which the person is charged, the time and place of its commission, its elements of crime and the statutory elements which are to applied (Article 200(1) of the Code of Criminal Procedure). The application for such a decision by the Court of Appeal must contain all the information in a comprehensive manner needed by the Court of Appeal to assess whether criminal charges ought to be preferred. The Court of Appeal decides on the basis of the application without consulting the investigation file. According to the case-law of the Courts of Appeal an application that the Public Prosecutor be ordered to prefer public charges must contain the name of a specific suspect. Only exceptionally may the Public Prosecutor be ordered to open criminal proceedings against unknown persons (see Zweibrücken Court of Appeal, no. 1 Ws 424/79, 5 February 1980). Article 1 § 1 of the Basic Law reads as follows: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” Article 2(2), in so far as relevant, provides that every person shall have the right to life and physical integrity. The Federal Constitutional Court has, inter alia, jurisdiction to hear constitutional complaints, which may be filed by any person alleging that one of his basic rights has been infringed by a public authority (Article 93(1) (4a) of the Basic Law, and Article 90(1) of the Act on the Federal Constitutional Court). A constitutional complaint is, as far as relevant here, only admissible after the exhaustion of all other legal remedies (Article 90(2) of the Federal Constitutional Court Act). The complaints before the Federal Constitutional Court must therefore have been presented – at least in substance – to the relevant courts in conformity with the applicable formal requirements. The Federal Constitutional Court has on several occasions quashed decisions of Courts of Appeal dismissing applications that criminal proceedings be continued on the grounds that a too formalistic handling of the admissibility criteria had resulted in a violation of the applicants’ right of access to a court (see Federal Constitutional Court, no. 2 BvR 877/89, decision of 16 April 1992; no. 2 BvR 1201/98, decision of 18 February 1999; no. 2 BvR 1339/98, decision of 29 November 1999; no. 2 BvR 1659/01, decision of 6 June 2003; no. 2 BvR 967/07, decision of 4 September 2008).

train

001-80089

ENG

HRV

CHAMBER

CASE OF SOSTARIC v. CROATIA

Violation of Art. 6-1

Loukis Loucaides

4. The applicant was born in 1973 and lives in Križ. 5. On 8 March 2000 the Ivanić Grad Municipal Court (Općinski sud u Ivanić Gradu) gave judgment ordering a certain S.R. to pay the applicant 9,600 German marks (DEM). The judgment became final and enforceable on 17 June 2000. 6. On 28 November 2001 the applicant sought enforcement of the above judgment. On 7 December 2001 the Sisak Municipal Court (Općinski sud u Sisku) issued an enforcement order. It decided to seize S.R.'s movable property and sell it at a public auction. On 5 March 2002 the applicant informed the court that he advanced the costs of the proceedings. 7. The court bailiff attempted to conduct the first on-site inspection on 22 April 2002, but S.R. was not found on the address provided by the applicant. His parents, I. and J.R., informed the bailiff that S.R. had not lived at that address for the past three years. 8. The court scheduled another on-site inspection for 3 September 2002. However, the court bailiff could not enter S.R.'s house, because it was locked. On 4 September 2002 the applicant asked the court to set another date for the bailiff's intervention with the assistance of the police and the locksmith. He also requested temporary seizure of S.R.'s passport. 9. On 2 October 2002 the court held a hearing. It invited the applicant to again advance the costs and scheduled another on-site inspection for 30 October 2002. The inspection again failed since S.R.'s house was locked. On 4 November 2002 the applicant requested the temporary seizure of S.R's passport. 10. The court scheduled yet another on-site inspection for 3 February 2003, with the assistance of the police and a locksmith. On that date, the court bailiff entered S.R.'s house and seized the following movables: two motorbikes, a lawnmower, a welding machine, a TV and a stereo. One day later, the applicant repeated his request for seizure of the passport. 11. On 13 February 2003 the debtor's parents as third parties filed an objection against the enforcement on the seized movables, claiming they were the owners of the seized property which could therefore not be the object of enforcement. On 22 May 2003 the court invited the applicant to respond to the objection raised. Eight days later the applicant did so by contesting the third parties' allegations. 12. On 9 January 2004 the applicant repeated his request for temporary seizure of S.R.'s passport. Finally, on 2 March 2004 the court dismissed the applicant's motion in this respect. On appeal, on 4 October 2004 the second-instance court upheld the first-instance decision finding that the seizure of the passport was not allowed under the legislation in force. 13. On 25 February 2005 the court inquired with the police about S.R.'s place of residence. The police replied that S.R. left for Germany. 14. Subsequently, on 25 March 2005 the applicant invited the court to continue with the enforcement on the seized movables. 15. On 2 November 2005 the court instructed S.R.'s parents, to institute separate civil proceedings to declare the enforcement on the seized movables inadmissible. The third parties did so and it would appear that those proceedings are still pending. 16. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” 17. Under the case-law of the Constitutional Court, constitutional complaints lodged under section 63 in the context of enforcement proceedings were to be declared inadmissible. In its decision no. U-IIIA/1165/2003 of 12 September 2003 the Constitutional Court interpreted section 63 as follows: “The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section 63 of the Constitutional Act [on the Constitutional Court] for the length of proceedings only in cases where the court has not decided within a reasonable time on the merits of the rights and obligations of the complainant, that is, where it has failed to deliver a decision on the merits within a reasonable time. In the present case the constitutional complaint has been lodged for non-enforcement of a final decision by which the party's rights and obligations had already been decided. Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] ..., the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.” In its decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional Court provided further interpretation of section 63: “Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] and the fact that the constitutional complaint was not lodged for a failure to deliver a decision within a reasonable time but rather because the enforcement was not carried out, the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.” 18. In decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional Court changed its practice, accepting a constitutional complaint and awarding compensation as well as ordering the competent court to conclude the enforcement proceedings within six months from its decision. In doing so, the Constitutional Court expressly relied on the Court's case-law on the matter.

train

001-93816

ENG

POL

ADMISSIBILITY

SOKOLOWSKI v. POLAND

Inadmissible

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

The applicant, Mr Zygmunt Sokołowski, is a Polish national who was born in 1929 and lives in Poznan. The applicant’s parents owned a large metallurgical factory in Nowy Tomyśl. Following the outbreak of the Second World War, in the autumn of 1939 the property was taken over by the German occupying administration. The applicant’s entire family were evicted from their home, which was in the same town, put in a transit camp for a period and in December 1939 resettled to the Generalgouvernement, the eastern part of Poland under a special regime of German occupying administration. During the war the factory operated under a trustee appointed by the German administration (“Treuhaender”). When the applicant’s family returned in 1945, they found only the bare walls. All equipment had been stolen. After the war, in 1945, the Polish authorities instructed the applicant’s father to make a list of the damage that had been done to his property by the German occupying forces. He submitted the list to the local authorities in 1946. He estimated the amount of damage at 298,290 zlotys (PLZ). Until 1953 Germany paid war reparations to Poland on the basis of international agreements. The applicant’s parents did not, however, receive any compensation. In 1953 Poland had renounced its right to obtain further reparations from the then German Democratic Republic (see below, Relevant domestic and international law). In May 1999 the applicant requested the State Treasury, represented by the Wielkopolski Governor, to pay him compensation for damage caused in the part of the property owned by his mother as a result of the acts of the occupying German administration. On 11 February 2001 the Minister of Internal Affairs refused. The applicant appealed to the Supreme Administrative Court. By a judgment of 29 March 2001 that court dismissed the applicant’s appeal. It noted that it was not in dispute that the applicant’s mother’s property had been damaged by the German occupying administration, but considered that it had to examine whether the applicant’s claim was of such a character as to be determined by way of an administrative decision. It observed that it was true that Poland had obtained war reparations from Germany on the basis of international agreements and that these were intended to cover both damage sustained by the State and various forms of damage suffered by individuals. However, it held that neither the domestic nor international law provided for a substantive individual compensation claim on the part of former owners or their successors in title which could be determined by way of an administrative decision. In September 2001 the applicant submitted a compensation claim against the Ministry of State Treasury to the Warsaw–Śródmieście District Court concerning the part of the property owned by his father. By a judgment of 27 January 2003 the District Court dismissed that claim. In so far as the applicant had argued that his claim was based on liability in tort under Article 415 of the Civil Code, the court considered that the damage which his predecessor in title had sustained had originated from the acts of the German occupying administration. Hence, no civil obligations based on the law of tort could have arisen between the applicant and the State Treasury. Moreover, while it was true that the State had participated after the Second World War in international agreements concerning the war reparations to be paid to Poland, and that Germany had paid them in part, no international legal agreements had ever been concluded which would have imposed on the State an obligation to transfer to individuals the funds which it had received in war reparations from Germany. Likewise, no such obligation had been imposed on the State by the domestic law. It was true that in 1944 the Polish authorities had created a Ministry of War Reparations (Resort Odszkodowań Wojennych), but its competence had been limited to establishing the war damage caused in Poland by the German occupying administration and making relevant estimates with a view to obtaining reparations. Similarly, the Reconstruction Plan Act 1947 (Ustawa o Planie Odbudowy Gospodarczej) did not impose on relevant institutions an obligation to issue ordinances regulating compensation due to individuals. Consequently, the domestic law did not contain any regulation under which the applicant could claim compensation from the Polish State in respect of damage caused to individuals by the German occupying authorities during the war. The applicant appealed. He disagreed with the assertion that his claim had been based on legal provisions governing civil liability for tortious acts. He submitted that the first-instance court had breached the provisions of the Civil Code in so far as Article 417 thereof specifically established that the State had a civil liability for the acts of its agents. He further referred to Article 77 of the Constitution, which stated that everyone had the right to compensation for damage caused by the unlawful acts or omissions of public authorities. He submitted that, in his case, the State had failed in its obligation to issue legal regulations, in the form of an ordinance, entitling individuals to make substantive compensation claims in respect of war damage they had suffered. The obligation, in his view, originated from the Reconstruction Plan Act. He also referred to Article 1 of Protocol No. 1 to the Convention. The applicant further argued that the State had obtained reparations from Germany which, contrary to the opinion expressed in the proceedings by the State-Treasury representatives, were intended to cover both the State and individual damage. He referred to the judgment of the Supreme Administrative Court of 29 March 2001. In his submission, therefore, the State should have been obliged to pay him compensation from the funds it had received for that purpose. Under the rule of law a citizen could not legitimately be required to bear the adverse effects of the State’s failure to legislate. The Reconstruction Plan Act had entrusted responsibility for its execution to the Minister. The ordinary meaning of the phrase “entrusts the execution” had to be seen as imposing on the Minister an obligation to issue relevant ordinances which would make it possible for individuals to obtain compensation funded by war reparations. By a judgment of 13 May 2003 the Warsaw Regional Court dismissed the applicant’s appeal. It observed, firstly, that the first-instance court had failed to examine whether the Reconstruction Plan Act 1947 was still in force. It held that that Law had been enacted with the specific purpose of reorganising the economy through planning techniques. It had therefore lapsed at the end of 1948 following the implementation of the plan it had created and could not, therefore, serve as a source of any individual rights and obligations. Moreover, section 100 of the Act on which the applicant had relied, could not be regarded as authorisation for issuing the ordinance, as such statutory authorisation had to comply with precise conditions that were set out in Article 92 of the Constitution. Hence, the fact that no ordinance had been issued on the basis of that section could not be construed as a failure to act giving rise to the State’s liability in tort under Article 417 of the Civil Code. In any event, the transitional provisions of that Code, which had entered into force on 1 January 1965, had clearly provided that the legal consequences of civil obligations arising out of events that had occurred prior to that date had to be assessed in the light of the statutory provisions in force at the time the events took place. Hence, the civil liability of the State could not be examined in the light of Article 417 of the Civil Code, but only in the light of the Code of Obligations, which had been enacted in 1933. However, the Code of Obligations did not specifically regulate the State’s liability in tort. Civil liability in tort was governed only by general provisions and could arise only when it could be shown that the tortfeasor had acted unlawfully or had failed to act when required to do so. In the absence of any obligation on the State to legislate on individual compensation claims, it could not be said that the State had acted unlawfully and should have been held liable. The reparations which Poland had obtained from Germany constituted a debt of the latter towards the Polish State. No individual right vis-à-vis the State Treasury had been generated by the payment of reparations to the Polish Government. The Regional Court further accepted the reasoning of the lower court concerning the legal character of the provisions of the Reconstruction Plan Act. It reiterated that no individual right to compensation could be derived from it. The applicant lodged a cassation appeal with the Supreme Court, essentially reiterating his earlier arguments. By a judgment of 15 October 2003 the Supreme Court dismissed his cassation appeal. It observed that the applicant had asserted that his claim was based essentially on the State’s failure to enact ordinances providing for a detailed compensation mechanism for damage caused by the German occupying administration. However, no liability in tort could have arisen on the part of the State, as it had been under no obligation to introduce such legislation. Neither Article 417 of the Civil Code nor the provisions of the Code of Obligations of 1933 provided that mere inaction - provided it was not unlawful – could give rise to the State’s liability in tort. Section 100 of the Reconstruction Plan Act, contrary to the applicant’s assertion, did not impose any such obligation on the State. Nor could the court accept that the applicant’s claim could be based directly on the Constitution. For the State’s liability to arise towards an individual a statutory legal basis was necessary. Moreover, under the case-law of the Constitutional Court, Article 417 governing State liability could be applied only to events that occurred after the Constitution entered into force in 1997. In conclusion, the findings of the lower courts that the State’s conduct could not be qualified as unlawful were correct and had to be upheld. The Potsdam Agreement – an agreement on policy for the occupying and reconstruction of Germany after the Second World War and the German surrender of 8 May 1945 – was adopted by the three Heads of Government of the United States of America, the United Kingdom and the Union of Soviet Socialist Republics (“the Three Powers”) and set out, inter alia, the principles governing the payment of war reparations by Germany (Chapter III, “Reparations from Germany”). The issue of war reparations for Poland, which in accordance with the Potsdam Agreement were to be settled by the USSR from its share, was resolved by a bilateral treaty between the USSR and Poland: the Agreement of 16 August 1945 between the Polish Provisional Government of National Unity and the Government of the USSR on compensation for financial losses sustained during the German occupying administration (umowa między Tymczasowym Rządem Jedności Narodowej RP a Rządem ZSRR o wynagrodzeniu szkód finansowych wyrządzonych przez okupację niemiecką). In 1953 Poland expressly renounced further reparations in an agreement with the Democratic Republic of Germany (East Germany) and again in the Warsaw Treaty of 1970 with the Federal Republic of Germany (West Germany). The Reconstruction Plan Act was adopted on 2 July 1947. Its Section 1 read: “A National Economy Plan 1947 – 1949 (Reconstruction Plan) is hereby established.” Section 3 provided as follows: “The raising of living standards of the working class above their pre-war levels shall be the essential task of the national economy from 1947 until 1949.” Section 4 read, inter alia: “The task referred to above shall be carried out through ... b) war reparations.” Section 6 read: “Damage caused by the war shall be repaired in a manner corresponding to plans regarding reconstruction of the national economy; with due regard being had to the creation of basis for its necessary restructuring and growth during the next national planning periods and to preventing further deterioration of national property.” Section 100 provided: “The Council of Ministers and the ministers shall be responsible for implementing the provisions of this Act.” Articles 415 et seq. of the Polish Civil Code, which entered into force in 1964, provide for liability in tort. Under this provision, anyone who through his or her fault causes damage to another is required to repair it. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for any damage caused by a State official in the performance of his or her duties.” On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne). Article 4171, in so far as relevant, reads as follows: “4. If damage has been caused by failure to enact a law [akt normatywny] where there is a statutory duty to do so, the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages.” Under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date. Article 77 § 1 of the 1997 Polish Constitution which entered into force on 17 October 1997, states, in so far as relevant, as follows: “Everyone shall have the right to compensation for any harm done to him or her by any act of a public authority in breach of the law.”

train

001-111140

ENG

SVK

COMMITTEE

CASE OF TNS S.R.O. v. SLOVAKIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Ineta Ziemele;Ján Šikuta;Nona Tsotsoria

4. On 10 April 2006 the applicant company sued a different company for a sum of money before the Bardejov District Court. In May 2006 the applicant company paid the court fee. In July 2006 it modified its claim. 5. The District Court held the first hearing on 31 October 2006. On 6 December 2006 the defendant company submitted its observations. On 19 November 2007, 17 January 2008 and 15 April 2008 the case was adjourned at the request of the defendant’s representative. 6. The second hearing was held on 7 May 2008. In June and September 2008 the applicant company asked for the proceedings to be accelerated. 7. On 2 October 2008 the case was assigned to a different judge. A hearing which was scheduled for 22 January 2009 was adjourned at the request of the defendant’s representative. Another hearing was scheduled for 12 March 2009. 8. On 9 April 2009 the Constitutional Court dismissed the applicant company’s request about the duration of the proceedings. It held that, despite a shorter period of inactivity, there had been no significant delays in the proceedings in breach of Article 6 § 1 of the Convention and its constitutional equivalent. The decision stated that the applicant company had modified its action, that it had submitted documentary evidence in the course of the proceedings, and that it had also limited the court in scheduling of hearings. 9. Further hearings before the District Court were held on 8 June 2009 and 9 September 2009. On the latter date it delivered a judgment against which the defendant appealed on 29 October 2009. 10. The file was submitted to the Prešov Regional Court on 27 November 2009. On 9 February 2010 the court of appeal quashed the first-instance judgment. The decision was served on parties on 24 March 2010. 11. On 15 July 2010 the applicant asked for the case to be proceeded with. Hearings before the District Court were scheduled for 21 September 2010 and 13 December 2010. They were adjourned at the request of the defendant’s representative. 12. The District Court heard the parties on 5 April 2011. Subsequently the parties submitted documentary evidence. Another hearing was held on 23 June 2011. In July 2011 and September 2011 the parties submitted further observations and evidence. The District Court scheduled a hearing for 13 December 2011. 13. On 13 January 2012 the Government informed the Court that the proceedings were pending.

train

001-85606

ENG

CZE

ADMISSIBILITY

KORANDOVA AND OTHERS v. THE CZECH REPUBLIC

Inadmissible

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicants, Ms Marta Korandová, Mr Stanislav Sedlatý, Ms Marie Prášilová, Ms Blažena Hrušovská, Ms Jarmila Junová and Ms Manuela Krausová, were six Czech nationals born in 1935, 1924, 1926, 1933, 1944 and 1994 respectively. They reside in Hejnice, Lázně Libverda, Jablonec nad Nisou, Frýdlant and Liberec, respectively. 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. The applicants’ mother owned a share in an agricultural cooperative in Lučany. On 12 August 1993 she died. On 11 May 1995 bankruptcy proceedings concerning assets of the cooperative were instituted before the Ústí nad Labem Regional Court (krajský soud). On 30 October 1995 the Liberec District Court (okresní soud) approved an agreement on the distribution of the assets of the applicants’ mother, including her share in the cooperative, among her heirs. The decision became final on 21 February 1996. It appears that the bankruptcy proceedings are still pending The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).

train

001-92526

ENG

RUS

CHAMBER

CASE OF GASANOVA v. RUSSIA

Violation of Article 6 - Right to a fair trial

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

4. The applicant was born in 1935 and lives in Mendeleyevo, a town in the Moscow Region. 5. In 1995 the applicant brought a court action against a housing maintenance service. Throughout the proceedings she represented herself. She claimed compensation for damages sustained as a result of poor quality repairs carried out by the respondent in her flat and requested that the works be done again. She also claimed penalties for the delays in the reparation of her flat. In course of the proceedings the applicant amended her claims. 6. On 27 November 1995 the Solnechnogorskiy Town Court of the Moscow Region (“the Town Court”) dismissed her claim. On 6 February 1996 the Moscow Regional Court (“the Regional Court”) upheld that judgment. 7. On 28 May 1996 the Presidium of the Regional Court quashed the judgment of 27 November 1995 and remitted the case for a fresh examination to the first-instance court. 8. In the meantime the administration of the Solnechnogorskiy District transferred the municipal housing into the authority of a municipal enterprise, Mendeleyevo Service. 9. On 10 October 1997 the Town Court granted the applicant’s claim in part. On 18 February 1998 the Regional Court upheld that judgment. 10. On 13 January 1999 the Presidium of the Regional Court quashed the judgment of 10 October 1997 and remitted the case for a new examination to the Town Court. It held in particular that the lower courts had failed to establish the proper defendant in the case. It also indicated that in order to decide on the penalties the first-instance court had to establish whether the parties had previously set any deadlines for the repairs. 11. On 5 March 1999 the Town Court set the examination of the case for 9 April 1999. Between April and October 1999 six hearings were scheduled, however they were adjourned mainly because the respondent and the third party failed to appear. 12. On 26 October 1999 the Town Court established that the municipal enterprise Mendeleyevo Service was the proper respondent in the case and ordered it to repair the applicant’s flat. It awarded the applicant penalties for the delays in the repair of her flat and compensation for non-pecuniary damage. Furthermore, it held that the respondent had been in bad faith in opposing a correct and quick examination of the case and ordered it to pay the applicant compensation for the lost time. 13. On 2 February 2000 the Regional Court quashed the judgment of 26 October 1999 and remitted the case to the first-instance court for a fresh examination. It found that the Town Court had not indicated in its decision which repairs had to be done in the applicant’s flat, it had not followed the Presidium’s decision of 13 January 1999 and it had not given reasons for its conclusions as regards the respondent’s bad faith in delaying the proceedings. 14. On 3 May 2000 the Town Court set the examination of the case for 29 June 2000. Between June and December 2000 nine hearings were scheduled. Three of them did not take place because the respondent failed to appear, one hearing was postponed because the applicant did not appear and three hearings were adjourned either because the applicant asked for additional time to amend her claims or because the respondent asked for additional time to submit evidence. One hearing was postponed in order to call an expert to trial. 15. On 19 December 2000 the Town Court held that since the maintenance service no longer existed it was impossible for it to repair the applicant’s flat. Therefore, it awarded the applicant the money necessary for such repairs and compensation for non-pecuniary damage. It also ordered the respondent to replace some equipment in the applicant’s flat. It further established that the parties had not concluded any written contract in respect of the repairs in the flat and had not set any time-limits; therefore there was no call to award the applicant any penalties in that respect. On the same date the Town Court decided to examine the applicant’s claim for payment of penalties for the delayed replacement of sanitary equipment and for compensation for loss of time in separate proceedings. 16. On 18 April 2001 the Regional Court quashed the judgment of 19 December 2000 and referred the case to the first-instance court for a new examination on the ground that the first-instance court had failed to follow its decision of 2 February 2000. 17. On 6 August 2001 the case was adjourned until 26 September 2001 because the parties failed to appear. 18. According to the Government, on 26 September 2001 the proceedings were discontinued at the applicant’s request, however on 16 January 2002 the Presidium of the Regional Court quashed that decision in supervisory review on the prosecutor’s application. The Government did not provide the Court with copies of those decisions. 19. On 15 February 2002 the Town Court set the examination of the case for 13 March 2002. On that date the case was adjourned until 11 April 2002 because the parties failed to appear. 20. On 11 April 2002 the Town Court left the applicant’s claim unexamined on the ground that she had failed to appear at two hearings. 21. On 16 January 2003 the applicant requested the Town Court to reinstate the time-limit for lodging an appeal against the decision of 11 April 2002. In her appeal she claimed that she had failed to appear at two hearings because she had not been duly notified of them and that she had not received a copy of the decision of 11 April 2002. On 21 January 2003 the Town Court granted her appeal, quashed the decision of 11 April 2002 and scheduled the examination of the case for 12 March 2003. On that date the case was again adjourned because the parties failed to appear. 22. On 29 May 2003 the case was adjourned until 23 July 2003 because the judge was on sick leave. On that date the applicant amended her claims. She submitted that since the examination of the case was very lengthy, she had repaired her flat at her own expense and she requested the court to reimburse her those expenses. On the same date the case was adjourned until 25 August 2003. The next three hearings were adjourned either because the respondent company did not appear or because it asked for additional time to submit evidence and comments on the applicant’s claims. 23. On 24 November 2003 the Town Court ordered the municipal enterprise Mendeleyevo Service to reimburse the applicant for the repair expenses and pay her non-pecuniary damage sustained as a result of poor-quality repair works. Furthermore, it ordered the defendant to replace the sanitary installations in the applicant’s flat. It dismissed the remainder of the applicant’s claims. 24. On 16 March 2004 the Regional Court upheld the judgment of 24 November 2003.

train

001-68377

ENG

GBR

ADMISSIBILITY

DEVINE v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

The applicant, Josephine Devine, is an Irish national, who was born in 1976 and lives in Belfast. She is represented before the Court by Ms A. Ritchie, a lawyer practising in Belfast. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 October 1996 the applicant was arrested by the police in connection with allegations that she was involved in financially assisting a terrorist organisation. The allegation was that the applicant's bank account had been used as a means of retaining the proceeds of a robbery carried out by other people in order to finance terrorism. On 6 December 1996 the police made an ex parte application under the Proceeds of Crime (Northern Ireland) Order 1996 (“the 1996 Order”) for a financial investigator to assist their investigation. The Recorder of Belfast authorised the appointment of an investigator known under a pseudonym to exercise the powers under the 1996 Order. On 9 December 1996, the financial investigator issued a requirement that the applicant attend an interview on 17 December 1996. The applicant attended the interview with her solicitor but failed to answer all the questions put to her. The applicant was released without charge. As a result of the applicant's failure to answer all questions a summons was issued in accordance with paragraph 5(1) of Schedule 2 of the 1996 order. On 22 September 1997, the applicant was convicted at Belfast Magistrates Court of an offence contrary to paragraph 5(1). The applicant was fined 750 pounds sterling (GBP). The applicant unsuccessfully appealed against her conviction and the appeal judge substituted a term of one month's imprisonment suspended for 12 months. On 12 March 1998, the investigator issued a second requirement under the 1996 Order obliging the applicant to attend another interview at a different police station. The applicant attended the police station on 17 April 1998 but refused to be interviewed or answer any questions because of her then pending judicial review application. On 14 May 1998 the applicant's application to set aside the permission obtained by police on 6 December 1996 was dismissed. The applicant then lodged two sets of judicial review proceedings challenging the initial order obtained by the police, her conviction, the judge's decision dismissing the applicant's appeal against the granting of the order, and the investigator's request that she attend a second interview. The applicant's application for judicial review was dismissed in a written judgment on 26 March 1999 by the High Court, which held inter alia that there was no prima facie evidence that the investigator had abused his statutory powers and that the decision to appoint an investigator acting under a pseudonym had been taken after a conscientious balancing exercise of the conflicting interests. The applicant's appeal to the Court of Appeal was heard on 23 June 1999 and was dismissed in an ex tempore judgment. Leave to appeal to the House of Lords was refused by the Court of Appeal on 1 July 1999. On 17 August 2001, the applicant lodged a petition out of time with the House of Lords which refused permission to appeal on 12 March 2002. The Proceeds of Crime (Northern Ireland) Order 1996 inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct. Pursuant to paragraph 5(1) of Schedule 2, it was an offence for a person to fail, without reasonable excuse, to attend to answer questions by a Financial Investigator appointed under the Order. Paragraph 6 restricted the use that could be made of the statements made to three situations: two related to the questioning itself, namely prosecution for perjury or an offence under the order, and the third exception was prosecution for an offence where evidence inconsistent with any such answers or information was relied on by the defence (paragraph 6(b)). On 14 April 2000, paragraph 6(b) was amended by the Youth Justice and Criminal Evidence Act 1999 to cover use of the statements as evidence adduced by the defence only.

train

001-120967

ENG

AZE

CHAMBER

CASE OF ABDULGADIROV v. AZERBAIJAN

Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence in person);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

5. The applicant was born in 1958 and lives in Baku. 6. The applicant is a practising Muslim and attended a mosque, where he met A. Subsequently, A. was arrested by officers of the Ministry of National Security (“the MNS”) on suspicion of having had contact with Al-Qaeda in the past and being the leader of a group planning to carry out terrorist acts in Azerbaijan. The authorities considered the group to be religious fundamentalists (referred to as “adherents of Wahhabism”). 7. On 7 September 2004 the applicant was also arrested by the MNS officers, on suspicion of being associated with that group. 8. A search of his place of residence, carried out on the same day, did not reveal any incriminating evidence. However, a hand grenade was found in the flat of the applicant’s wife, which the MNS officers had also searched. 9. The applicant was charged with illegal possession of a weapon under Article 228.1 of the Criminal Code. In addition to the applicant, the criminal proceedings involved five other accused (including A.), all of whom were charged with more serious offences than the applicant. Four of them were charged with complicity in the preparation of terrorist acts. 10. On 10 September 2004 the applicant was brought before a judge, who ordered his detention pending trial. 11. The applicant was tried by the Assize Court, together with the other five accused. The trial was closed to the public. According to the applicant, before the Assize Court he argued that the hand grenade did not belong to him and that it had been “planted” in his wife’s flat by the MNS officers who, having tricked his wife, had gained access to the flat about 30 minutes before she, the applicant himself, and two passers-by who had been asked to witness the search, entered the flat. 12. On 7 February 2005 the Assize Court convicted the applicant of illegal possession of a weapon and sentenced him to three years’ imprisonment. The other accused were convicted of more serious criminal offences (terrorist activities) and received longer prison sentences, ranging from five to fourteen years’ imprisonment. 13. On 18 February 2005 the applicant lodged an appeal against the judgment, requesting the Court of Appeal to quash the judgment in the part concerning him and to terminate the criminal case against him. He reiterated his allegations that the hand grenade had not belonged to him, that the case file did not contain any other evidence against him, and that he had not committed the criminal offence for which he had been convicted. He argued that, in circumstances where the discovery of the hand grenade in his wife’s flat was essentially the only incriminating evidence against him, the trial court had failed to take into account the unlawful manner in which the search had been conducted and to properly assess the admissibility and reliability of the evidence obtained as a result of the search. He also noted that the first-instance court had applied the most severe sentence provided for in Article 228.1 of the Criminal Code and had not taken into account his personal circumstances when imposing the sentence, such as, inter alia, the fact that he had to provide and care for his aged and ailing mother. 14. Some of the other defendants also lodged appeals. 15. At a preliminary hearing on 22 March 2005, held in the presence of the public prosecutor but in the absence of the defendants and their lawyers, the Court of Appeal fixed the date of the hearing on the merits for 29 March 2005 and decided that only the public prosecutor and the defendants’ lawyers should be invited to that hearing. The Court of Appeal’s decision was silent as to whether the defendants or their lawyers had been informed of the time and place of the preliminary hearing (see paragraph 23 below). It was also silent as to whether the hearing on the merits would be held with or without a “court investigation” (see paragraph 24 below). 16. On 29 March 2005 the Court of Appeal examined the appeals lodged by all six defendants, including the applicant. The court examined the appeals “without a court investigation”, that is, without a full rehearing of the case (see paragraph 25 below for an explanation of the differences in appellate proceedings conducted with and without a “court investigation”). According to the applicant, the Court of Appeal hearing lasted between ten and twenty minutes. According to the minutes of the hearing, the applicant was absent but the applicant’s lawyer and the public prosecutor were present. On the same day the Court of Appeal upheld the Assize Court’s judgment of 7 February 2005. The Court of Appeal’s judgment was largely a word-for-word copy of the judgment of 7 February 2005. 17. On 5 August 2005 the applicant lodged a cassation appeal with the Supreme Court. He claimed, inter alia, that his absence from the Court of Appeal’s hearing had breached his rights under the domestic law. The Supreme Court examined the applicant’s cassation appeal separately and, on 29 November 2005, upheld the lower courts’ judgments. The Supreme Court’s decision was silent on the applicant’s complaint about his absence from the hearing before the Court of Appeal. At the Supreme Court hearing the applicant was represented by his lawyer but was not present personally. 18. In accordance with Article 397 of the Code of Criminal Procedure (“the CCrP”), an appellate court (second instance) verifies whether the court of first instance correctly established the facts of the case and correctly applied the provisions of the criminal law and the CCrP. 19. In accordance with Article 398 of the CCrP, following the examination of an appeal, the appellate court may dismiss the appeal and uphold the judgment of the first-instance court, quash the first-instance judgment and deliver a new judgment, quash the first-instance judgment and terminate the criminal proceedings, or amend the first-instance judgment. 20. In accordance with Article 91.5.25 of the CCrP, the accused has the right to be present at hearings before the first-instance and appellate courts, and to examine the case materials. 21. In accordance with Article 392.2 of the CCrP, if the issues raised before the appellate court may lead to the worsening of the situation of the convicted or acquitted person as a result of the appeal proceedings, or if the appellate court decides that a full judicial review of the case (“a court investigation”) is necessary, it is imperative that the convicted or acquitted person, as well as his or her counsel, be summoned to the appeal hearings. In such cases the participation of the public prosecutor is also compulsory. According to the same provision, the participation of the appellant and the consequences of his or her absence are determined with reference to the criteria set out in Article 311 of the CCrP. 22. According to Article 311 of the CCrP, the accused has a right to participate in all trial hearings and enjoys all the defence rights provided for in the CCrP. Article 311.2 specifies two exceptional circumstances where the court can examine the case in absence of the accused: (a) the accused is abroad and intentionally avoiding attending the hearing; or (b) the person is charged with a minor criminal offence and has waived his or her right to be present at the court hearings. According to Article 311.4 of the CCrP, except for the circumstances specified in Article 311.2 of the CCrP, if the accused is absent from the hearing, the court’s examination of the case must be postponed. 23. Under Article 391.1 of the CCrP, the appellate court must hold a preliminary hearing within fifteen days (in some circumstances, within thirty days) of receiving an appeal. Persons who have the right to lodge an appeal, and the public prosecutor, have the right to be present at the preliminary hearing. These parties must be informed in advance of the time and place of the preliminary hearing; however, their failure to attend does not prevent the preliminary hearing from taking place. If a convicted person who is detained lodges a request to participate in the preliminary hearing, it is for the court to order that he or she be brought to the hearing. 24. During the preliminary hearing the appellate court examines various admissibility issues and decides on a number of procedural matters, following which, in accordance with Article 391.3.4 of the CCrP, it can decide to fix a date for a hearing on the merits. According to Article 392.1 of the CCrP, if the court decides to proceed with the examination of the merits of the appeal and fixes a date for a hearing on the merits, it must also decide on the following issues, inter alia: whether a “court investigation” is necessary and, if so, its scope; whether it is necessary to procure additional evidence; and which persons should be invited to attend the hearing on the merits. 25. According to Article 394.3 of the CCrP (which contains further references to Articles 339-341 of the CCrP), if the appellate court examines the appeal “without a court investigation”, the appeal hearing on the merits proceeds approximately as follows: the court (a) opens the hearing by, inter alia, explaining the substance of the first-instance judgment, summarising the points of appeal and asking if the parties have any objections; (b) notifies the participants of any additional requests lodged at the appeal hearing; (c) hears the arguments of the parties concerning the points of appeal; (d) invites the parties to make closing statements and exercise their right of reply to the other party’s closing statement (in the manner stipulated in Articles 339-341 of the CCrP); and (e) closes the hearing and retires to the deliberations room. In accordance with Articles 394.4 and 394.6 of the CCrP (which contain further references to Articles 324-341 of the CCrP), if the appellate court examines the appeal by means of a “court investigation”, the appellate hearing essentially takes the form of a full rehearing of the case resembling the first-instance trial (but limited to the issues raised on appeal). Specifically, the appellate hearing proceeds approximately as follows: the court (a) opens the hearing by, inter alia, explaining the substance of the first-instance judgment, summarising the points of appeal and verifying if the parties have any objections; (b) begins the “court investigation” by reading out the operative provisions of the public prosecutor’s indictment, explaining to the accused the substance of the charges against him and his rights as an accused, and asking the accused whether he wishes to plead guilty or not guilty; (c) questions the accused concerning all relevant aspects of the case and gives the other party the opportunity to cross-examine him, and, where necessary, examines any other statements made by the accused prior to the trial stage; (d) determines the order in which evidence will be presented, invites the parties to present their evidence and examines the evidence in an open hearing, allowing the parties to cross-examine the witnesses: this includes hearing witnesses, reading out witness statements, hearing victims, examining expert opinions, questioning experts, examining material and documentary evidence, and so on; (e) closes the “court investigation” by notifying the parties that the court is ready to proceed to closing statements and enquiring if the parties have any additional requests; (f) invites the parties to make their closing statement and exercise their right of reply to the other party’s closing statement; (g) provides an opportunity for the defendant to make a final plea; and (h) closes the hearing and retires to the deliberations room. 26. Under Article 419 of the CCrP, when examining the merits of an appeal the Supreme Court deals only with points of law, verifying whether the rules of criminal law and criminal procedure have been applied correctly. Persons having the right to lodge a cassation appeal, and the public prosecutor, have the right to be present at the Supreme Court hearing (Article 419.2 of the CCrP). The absence of the person who has lodged the appeal, if he or she has been duly informed of the hearing, does not prevent the Supreme Court from deciding to proceed with the hearing in his or her absence (Article 419.4 of the CCrP). 27. Article 228.1 of the Criminal Code (illegal acquisition, transfer, sale, storage, transportation or carrying of firearms or their accessories or explosives) provides for a maximum sentence of three years’ imprisonment.

train

001-75567

ENG

SVN

CHAMBER

CASE OF ANTOLIC v. SLOVENIA

No violation of Art. 6-1

David Thór Björgvinsson;John Hedigan

5. The applicant was born in 1942 and lives in Naklo. 6. On 12 August 1993 the applicant was dismissed by his employer MC due to economic reasons. On 17 September 1993 the MC’s Complaints Commission rejected his complaint concerning the dismissal. 7. On 15 October 1993 the applicant instituted proceedings against MC in the Ljubljana Court of Associated Labour (Sodišče združenega dela v Ljubljani) seeking the annulment of the MC’s first and second instance decisions concerning his dismissal. On 28 June 1994 the Convention entered into force with respect to Slovenia. According to the information supplied by the Government, five hearings were held between 23 September 1994 and 29 November 1995. The hearing held on 15 March 1995 was adjourned due to the absence of parties and the court subsequently decided to suspend the proceedings. At the request of the applicant, the proceedings continued after 17 July 1995. At the last hearing, the (renamed) Ljubljana Labour and Social Court (Delovno in socialno sodišče v Ljubljani) decided to deliver a written judgment. The judgment, rejecting the applicant’s claim, was served on the applicant on 22 December 1995. 8. On 28 December 1995 the applicant appealed to the Higher Labour and Social Court (Višje delovno in socialno sodišče). On 26 June 1996 and 11 March 1997 the applicant urged the court to decide on his appeal. On 25 September1997 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 14 October 1997. 9. On 14 November 1997 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 24 February 1998 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 16 March 1998. 10. On 13 May 1998 the applicant lodged a constitutional appeal. On 3 June 1998 the Constitutional Court (Ustavno sodišče) requested the applicant to supplement his appeal, which he did on 16 June and 23 December 1998. On 11 September 2000 the Constitutional Court dismissed the applicant’s appeal. The decision was served on the applicant on 29 September 2000.

train

001-82080

ENG

DEU

ADMISSIBILITY

ALFES v. GERMANY

Inadmissible

Peer Lorenzen

The applicant, Mr Jörg-Peter Alfes, is a German national who was born in 1947 and lives in Dresden. The applicant is a practising lawyer. Together with several other persons who were shareholders and managing director of a private limited company, the applicant learned in 1992 about the existence of several plots of land on the territory of the former German Democratic Republic (GDR) for which no restitution claim had yet been made. Pursuant to the Resolution of Outstanding Property Issues Act of 23 September 1990, whose aim was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable, the deadline for the registration of such restitution claims was 31 December 1992. The applicant applied for restitution of the above plots of land without revealing that he did not have the authority of the persons who were entitled to restitution and whose names he did not know at the time. He later obtained such authority, predated the forms to a date prior to 31 December 1992 and intended to arrange the assignment of the restitution claim to the private limited company for a price that was considerably below the market value of the plots of land. The Public Prosecutor’s Office commenced investigations for fraud against the applicant in 1995 and filed the indictment on 3 December 1997. On 14 May 2001, the Dresden Regional Court convicted the applicant of abetting attempted fraud in four instances and sentenced him to a fine of 106.000 DEM. The main proceedings had been conducted during the period between 8 February 2001 and 14 May 2001 and concerned the applicant and five other accused persons; the judgment contained 192 pages. On the applicant’s appeal on points of law, the Federal Court of Justice on 9 July 2003 quashed the judgment of the Dresden Regional Court of 14 May 2001 and referred the case back to another division of the Dresden Regional Court. The Federal Court of Justice found that the Dresden Regional Court had not provided sufficient reasoning as to the accuseds’ intent with regard to the unlawfulness of the pecuniary benefit, an element of fraud under German law. Since the German administrative courts at the time had been divided over the issue whether or not the registration for restitution by a representative without authority could be retroactively authorised, the Dresden Regional Court had erroneously inferred from the predated authority forms that the applicant and his co-accused had had the requisite intent. The Federal Court of Justice referred the case back to the Dresden Regional Court in order to establish whether the applicant had acted with contingent intent. Lastly, it found that in case of a subsequent conviction, the Dresden Regional Court when sentencing would have to take into account fact that the proceedings against the applicant had lasted for a considerable time. The length of time would also have to be considered by the Dresden Regional Court in the context of Article 6 § 1 of the Convention. On 12 May 2004, the Dresden Regional Court, after having obtained the consent of the Public Prosecutor’s Office and the applicant, provisionally stayed the proceedings in accordance with section 153a § 2 read in conjunction with section 153a § 1 of the Code of Criminal Procedure (see Relevant domestic law, below) on condition that the applicant paid the amount of 10.000 € to the State treasury. The applicant paid the sum, and on 25 May 2004, the Dresden Regional Court formally discontinued the proceedings. Section 153a of the Code of Criminal Procedure governs the discontinuance of criminal proceedings after the fulfilment of certain conditions by the applicant. According to section 153a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may discontinue criminal proceedings if they concern an offence for which it is not mandatory to impose a sentence of at least one year’s imprisonment (Vergehen), if the defendant’s guilt would be of a minor nature and if the fulfilment of certain conditions or orders by the defendant is suitable to remove the public interest in criminal prosecution. Such conditions notably entail the payment of a sum of money to a non-profit-making organisation or to a treasury. The defendant must consent to discontinuation. Moreover, the court which has jurisdiction to open the main proceedings must also consent unless the case concerns offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor. After the filing of the indictment, the court which has jurisdiction may, according to section 153a § 2 of the Code of Criminal Procedure, decide to discontinue the proceedings under the conditions set out in section 153a § 1 with the consent of both the Public Prosecutor’s Office and the defendant. Once the proceedings have been discontinued, it is not longer open to the parties to take any further steps in the procedure unless the proceedings are resumed, which is only possible if the accused is charged with an offence for which it is mandatory to impose a sentence of at least one year’s imprisonment (Verbrechen).

train

001-67340

ENG

UKR

CHAMBER

CASE OF BAKAY AND OTHERS v. UKRAINE

Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Zoryana Bortnovska

5. The first and fifth applicants were born in 1960. The second applicant was born in 1959. The third applicant was born in 1969. The fourth applicant was born in 1945. The sixth applicant was born in 1965. The applicants are nationals of Ukraine and reside in Beryslav, the Kherson Region. 6. In April 1998 the applicants initiated proceedings in the Beryslav City Court (the “Beryslav Court”) against the Department of Education of the Beryslav Municipal Council (the “Department”), seeking to recover an additional salary payment allegedly due to them for their time-in-service. 7. On 13 May 1998 the Beryslav Court allowed the applicants' claims and ordered the Department to pay the applicants the additional salary (time-in-service bonuses). In particular, it ordered that the first applicant be paid UAH 570.85 in compensation, the second – UAH 367.52, the third – UAH 204.3, the fourth – UAH 863.4, the fifth – UAH 561.4, and the sixth applicant – UAH 292.3. 8. On 18 May 1998 the Beryslav City Bailiffs' service (the “Bailiffs”) initiated enforcement proceedings for the judgment of 13 May 1998. 9. On 2 August 1999 the Beryslav Court suspended the execution of the judgment for three months due to the lack of funds in the budget of the Department. 10. On 7 March 2001 the Bailiffs informed the applicants that the Beryslav Court had suspended the execution of the judgment of 13 May 1998. On 13 August 2002 the Bailiffs informed the applicants that the judgment of 13 May 1998 would be executed when the State had provided the necessary budgetary funding. The judgment remained unenforced due to the Department's lack of funds. 11. On 31 July 2003 the amounts due to them pursuant to the judgment of 13 May 1998 were transferred to the applicants. They received the following amounts (the initial sums awarded by that judgment having been subjected to taxation): the first applicant – UAH 401.2, the second applicant – UAH 276.35, the third applicant – UAH 173.18, the fourth applicant – UAH 640.46, the fifth applicant – UAH 419.94, and the sixth applicant – UAH 242.98. 12. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01).

train

001-69424

ENG

GBR

CHAMBER

CASE OF KOLANIS v. THE UNITED KINGDOM

No violation of Art. 5-1-e;Violation of Art. 5-4;Violation of Art. 5-5;No separate issue under Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Josep Casadevall;Nicolas Bratza

7. The applicant was born in 1972 and lives in London. 8. On 2 February 1998 the applicant was convicted of causing grievous bodily harm with intent. She was found to be suffering from a mental illness. She was detained in hospital pursuant to sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). She applied to a Mental Health Review Tribunal (“MHRT”) for her discharge from detention in hospital. 9. On 24 May 1999 the MHRT first considered her application. It adjourned in order, inter alia, to obtain a psychiatric report from a Dr Hamilton which was to address the eligibility of the applicant for a conditional discharge from hospital. 10. On 16 August 1999 the MHRT resumed its hearing of the applicant's application. It had before it the report of Dr Hamilton, which expressed the view that the applicant was not ready for discharge. Furthermore, the psychiatrist in charge of the applicant's care, Dr O'Grady, and a social worker gave evidence to the MHRT stating that they were opposed to the applicant's discharge. They proposed that the applicant should instead be transferred to hostel-type accommodation, under the care of a supervising consultant psychiatrist. 11. The MHRT nevertheless concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside at the home of her parents, that she should cooperate with supervision by a social worker and a forensic consultant psychiatrist, and that she should comply with such treatment as might be prescribed for her. 12. In coming to its decision, the MHRT answered the three questions below as follows: The MHRT expressed the following as a part of its reasoning: “The Tribunal is satisfied ... that the patient is now suffering from mental illness, namely schizophrenia, the symptoms of which are being fully controlled by medication and that she needs ongoing treatment and medication in order to control her illness. The patient ... has been symptom-free for at least the last 8 to 12 months. ... ... in view of the possibility of a relapse, she should remain liable to be recalled to hospital for further treatment.” 13. The MHRT deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed. 14. On 30 September 1999 the psychiatrist responsible for supervising the applicant in the community, Dr Kennedy, saw her with two members of his team. He concluded that he was not prepared to supervise her if she were at home but only if she were in supported accommodation. He described his consultation with the applicant in a letter to Dr O'Grady, dated 6 October 1999, in which he wrote, inter alia: “I made it clear that I would not consider it safe to supervise [the applicant] if she were to go straight home to the care of her parents, as there are important areas of her treatment in which she has not yet made sufficient progress for anyone to be confident that she would not relapse and reoffend while there.” 15. Dr Kennedy made clear that he was in no doubt that the next stage in the applicant's treatment, rehabilitation and risk management should take place near her family, but in a medium-security unit or at a registered mental nursing home. Alternatively, he suggested asking one of his colleagues, or one of the general psychiatrists at St Anne's Hospital, whether they would be willing to supervise the applicant on conditional discharge to her parents' home. 16. On 11 October 1999 Dr O'Grady wrote to the MHRT. He stated that the purpose of his letter was to give the MHRT advance notice that his team was unable to meet the conditions set by the tribunal for the conditional discharge of the applicant. He explained that both Dr Hamilton and Dr Kennedy were agreed that it would be difficult to manage her should she be discharged directly to her parents' home. He continued: “In the circumstances, I believe it is highly unlikely that there will be another forensic psychiatrist willing to provide the supervision that is necessary to meet the conditions of the tribunal ... We continue to hold the view that it is not in her best interests to be discharged directly to her family but [that she] should go through a further period of rehabilitation in the community to prepare her fully for community living.” 17. On 19 October 1999 Dr O'Grady again wrote to the MHRT informing it that he would write to the other consultant forensic psychiatrists in the North London Forensic Service (“the NLFS”) to enquire whether they would be prepared to supervise the applicant under the conditions laid down by the tribunal. As it transpired, none of those psychiatrists was prepared to do so. 18. On 15 November 1999 the health authority responsible for the area in which the applicant lived (“the health authority”) requested the director of the NLFS to approach forensic colleagues working in the private sector to establish whether they might be willing to offer supervision. 19. On 2 December 1999 the NLFS informed the health authority that the applicant's new responsible medical officer, Dr Duffield, was not satisfied that the applicant should return home. However, he had agreed to approach all local catchment area forensic consultant psychiatrists to determine whether they would be willing to provide after-care supervision for the applicant were she to be discharged to her parents' home. 20. On 15 December 1999 the NLFS wrote to the health authority to confirm that no consultant forensic psychiatrist from the NLFS was willing to supervise the applicant in the community. Furthermore, it stated that it was not aware of any individual or organisation that would be suitably equipped to undertake such a task in the community. The letter noted that most private independent sector providers concentrated on acute and in-patient care only. 21. On 17 December 1999 Dr Duffield wrote to the MHRT to advise it that its conditions had not been complied with so far, and the reasons therefor. 22. In December 1999 and January 2000 the health authority wrote to the clinical directors of the forensic psychiatry services in London, Hertfordshire and Essex, identifying nine units in addition to the NLFS. They were asked to discuss the case urgently with their consultant colleagues to establish whether any of them was prepared to assess the applicant with a view to becoming her supervising consultant forensic psychiatrist under the terms laid down by the MHRT. None was willing or able to assist. 23. The health authority subsequently wrote to both national and private institutions in Cambridgeshire and Northamptonshire with the same request. Once again, no one was prepared to comply with the conditions set by the MHRT. 24. The health authority concluded that there were no further steps that it could take. 25. On 3 March 2000 Dr Kennedy wrote to the Home Office, advising it of his opinion that the conditions imposed by the MHRT were impossible to meet. He therefore requested the Home Secretary to consider exercising his powers under section 71(1) of the 1983 Act to refer the applicant to an MHRT. The Home Secretary complied with that request on 17 March 2000. 26. On 3 December 1999 the applicant issued proceedings for judicial review of the decision of the health authority not to provide her with psychiatric supervision in the community in implementation of the conditions imposed by the MHRT, which was preventing her discharge from hospital. She sought, inter alia, the quashing of that decision and/or an order to compel the health authority to provide her with the psychiatric treatment necessary to implement the conditions imposed by the MHRT. 27. On 18 January 2000 the High Court granted the applicant permission to apply for judicial review. The Secretary of State for Health declined to intervene in the proceedings, but made the following observations: “The Mental Health Act provides an established legislative framework in this and similar cases designed to safeguard the interests of patients. As part of this scheme Responsible Medical Officers are accountable in a way which clearly does not permit them to effectively deny the determinations of properly constituted Mental Health Review Tribunals ... It is a matter for the Tribunal whether they decide to order a conditional discharge against the advice of the [Responsible Medical Officer].” 28. On 9 June 2000 the High Court judge (Mr Justice Burton) heard the applicant's substantive application for judicial review. The applicant argued that she was entitled to be discharged from hospital; that the health authority was in breach of its duty under section 117 of the 1983 Act for failing to provide her with the necessary services to comply with the conditions of the MHRT; and that the failure to comply with those conditions within a reasonable period of time was in breach of Article 5 of the Convention. 29. The judge rejected the applicant's application. He held that, under section 117 of the 1983 Act, the health authority was not under an absolute duty to implement the conditions of the MHRT, but only a duty to take all reasonable steps to attempt to satisfy those conditions. The judge further held that, on the facts, the health authority had complied with that duty. He further rejected the applicant's suggestion that any of the psychiatric consultants had “thwarted” the conclusions of the MHRT, holding that doctors were both entitled and obliged to exercise their own professional judgment. 30. On 24 August 2000, following the reference by the Home Secretary on 17 March 2000 (see paragraph 25 above), a differently constituted MHRT considered the applicant's case afresh. It concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside in accommodation approved by her responsible medical officer, that she accept to be supervised and take the medication prescribed by the latter, and that she accept to be supervised by her social supervisor. 31. The MHRT gave the same answers as the first MHRT to the questions set out in paragraph 12 above. It also deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed. It further expressed the following as part of its reasoning: “... we consider that it is appropriate that [the applicant] should remain liable to recall to hospital. The critical issue, we feel, is that Miss Kolanis's current good mental health is dependent, in our view, upon her continuing to receive her medication. Our hope and expectation is that the condition as to residence which we have imposed will be capable of being complied with within a relatively short period. We consider that, bearing in mind that Miss Kolanis had a legitimate expectation a year ago of being released into the community almost at once, her [Responsible Medical Officer] and the other responsible authorities should treat the finding of suitable accommodation for her as urgent. Having seen Miss Kolanis, it is clear to us that she is a very personable woman and we find it difficult to conceive of any responsible body having any legitimate objection to accommodating her.” 32. On 23 December 2000 the applicant was conditionally discharged from hospital to a resettlement project hostel in London. 33. Subsequently, the Court of Appeal granted the applicant permission to appeal against the judgment of the High Court of 9 June 2000 in her judicial review proceedings. It recognised that, in the light of the applicant's conditional discharge, which had occurred subsequent to the judgment of the High Court, the issues raised on appeal were, in one sense, academic. However, permission to appeal was granted as a result of the importance of the issues raised. 34. On 21 February 2001 the Court of Appeal dismissed the applicant's appeal. It agreed with the interpretation of section 117 of the 1983 Act that had been the basis of the decision of the High Court judge (see paragraph 29 above). 35. In paragraph 16 of his judgment, Lord Phillips set out the effect of an earlier judgment of the House of Lords in R. v. Oxford Regional Mental Health Review Tribunal, ex parte Secretary of State for the Home Department [1987] 3 All England Law Reports 8 (“Oxford”) as follows: “Should, for any reason, it prove impossible to implement the conditions specified by a Tribunal, that Tribunal could not consider whether to impose alternative conditions or even to direct discharge of the patient without conditions. In such circumstances the patient would remain detained unless and until a fresh reference was made to a Tribunal. The patient was not entitled himself to initiate a reference for twelve months. The Secretary of State was under no similar restriction, but in practice a considerable length of time would be likely to elapse before the matter came back before the Tribunal pursuant to a reference by the Secretary of State. The implications of this state of affairs were considered by the European Court of Human Rights in Johnson v. the United Kingdom ...” At the time at which the facts in the present case arose, no separate relief was available to the applicant under the Human Rights Act 1998 (which incorporated the Convention directly into domestic law). Nevertheless, Lord Phillips proceeded on the basis that, where there was no conflict with precedent, the correct approach had always been to interpret legislation in a manner that was consistent with the Convention. He therefore addressed the human rights issues in the case as follows: “32. Does the legislative scheme, as interpreted in [Oxford], violate the right to liberty conferred by Article 5 of the [Convention]? In considering this question it is necessary to distinguish between two different situations. The first is a case, such as the present, where the Tribunal concludes that the patient is mentally ill and requires treatment, but that under appropriate conditions such treatment can be provided in the community. The second is where, as in the case of Johnson, the Tribunal finds that the patient is no longer suffering from mental illness, is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved, to make sure that the patient is indeed free of the illness and to reduce the risk that the illness may recur. 33. Where (i) a patient is suffering from mental illness and (ii) treatment of that illness is necessary in the interests of the patient's own health or for the protection of others and (iii) it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community, it seems to me that the three criteria identified by the European Court in Winterwerp are made out. Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community. Neither Article 5 nor Strasbourg jurisprudence lays down any criteria as to the extent to which member States must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital. 34. If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a Tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by Article 5. 35. Very different considerations apply to a factual situation such as that considered by the Strasbourg Court in Johnson. Where a patient has been cured of mental illness, he is no longer of unsound mind and the exception to the right to liberty provided for by Article 5 § 1 (e) does not apply. In Johnson the Court has recognised that, in such circumstances, it may nonetheless be legitimate to make discharge of the patient conditional rather than absolute and to defer, to some extent, the discharge to which the patient is entitled. The deferral must, however, be proportionate to its object and cannot become indefinite. The decision in Johnson suggests that the statutory regime as interpreted in [Oxford], may not be consistent with Article 5. If the Tribunal imposes a condition which proves impossible of performance, too lengthy a period may elapse before the position is reconsidered as a result of a subsequent referral. 36. The solution to the problem is not to interpret section 117 in such a way as to impose on health authorities an absolute obligation to satisfy conditions imposed by Tribunals. I do not consider it appropriate in this case to attempt to provide a definitive answer to the problem. I would simply observe that the solution may well involve reconsidering the decision of the House of Lords in [Oxford]. ...” 36. During the course of his judgment, Lord Justice Buxton opined as follows: “39. The effect of Article 5 § 4 of the [Convention] is to entitle a person in the situation of [the applicant] to have the lawfulness of her detention decided by a body, within the system of the State that is detaining her, that has appropriate court-like characteristics. In the case of the United Kingdom, that court-like function is performed by the Mental Health Review Tribunal (MHRT). One necessary characteristic of such a body, if it is to meet the requirements of Article 5 § 4, is that its orders should be effective in securing the release of persons whose detention it rules to be unlawful: see ... X v. the United Kingdom[judgment of 5 November 1981, Series A no. 46] ... 40. In the present case, the MHRT concluded that the detention of [the applicant] would be unlawful once the conditions upon which her release was contingent were put in place. Those conditions, in particular, included cooperation by [the applicant] with supervision by a forensic consultant psychiatrist; and therefore, by necessary implication, provision of such supervision by the appropriate organ of the State. If that order were to be effective, as Article 5 § 4 requires, such supervision had to be provided. 41. Johnson ..., paragraphs 66 and 67, seems to me to make clear, in accordance with that requirement of effectiveness, that a breach of Article 5 § 1 is committed by the State if, once the MHRT has determined that a patient should be released, it imposes conditions to facilitate that release that in the event are not fulfilled, at least if the non-fulfilment can be attributed to another organ of the State. 42. In applying that part of the Court's jurisprudence, I would not make the distinction drawn by [Lord Phillips], in paragraph 32 of his judgment, and based on the approach of the Strasbourg Court in Winterwerp, between cases where the MHRT concludes that the patient is mentally ill, but can be treated in the community, and cases (such as Johnson itself) where the MHRT finds that the patient is no longer suffering from mental illness but nonetheless needs to be released into a controlled environment. In the latter case, the justification for the placing of continued restrictions on the subject relates, and can only relate, to the history of mental illness and, as in Johnson, to the prospect of recurrence. In both cases, there is continued detention; the role of the MHRT in both cases is to exercise the court-like functions required by Article 5 § 4, and under the jurisprudence of Article 5 § 4 the national authorities are equally bound to respect and act on the determination of the MHRT in either case. 43. There is also a practical difficulty in applying the Winterwerp criterion of whether the mental disorder is 'of a kind or degree warranting compulsory confinement' to decisions that were not taken with that formulation expressly in mind. In [the applicant's] case, the MHRT answered 'Yes' to the question: 'Is the Tribunal satisfied that the patient is not now suffering from mental illness ... of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?', but in their extended reasoning made it clear that any discharge must be subject to the provision of continuing treatment. That is not a clear-cut decision of the type that Winterwerp seems to assume. 44. However that may be, under the [Convention] jurisprudence ... once the MHRT made a decision as to [the applicant's] release that was contingent on the provision of forensic psychiatric supervision, it became the responsibility of the State to provide that supervision. Otherwise, if nothing was done, the situation would arise that was identified in paragraph 67 of the judgment in Johnson, of indefinite deferral of the release that had been ordered by the MHRT. That deferral would arguably entail a breach of the [Convention]. The issue would depend on whether, once the MHRT had determined that her condition could and should be treated in the community, she was, in terms of the analysis in Winterwerp, suffering from a mental disorder of a kind or degree warranting compulsory confinement. I have already indicated the difficulty of this question. We received no submissions upon it, the argument being concentrated in another direction, and I certainly do not decide the issue here. 45. In raising the possibility that [the applicant's] detention became unlawful I have not overlooked [Lord Phillips's] view, set out in paragraph 33 of his judgment, that such a conclusion may be controlled or affected by the availability of treatment facilities in the particular community involved; but what matters in [Convention] terms is the ruling of the MHRT, the determining body created by Article 5 § 4. If the ruling of the MHRT is frustrated, in a case where under the [Convention] jurisprudence the subject should no longer be detained, then the subject is deprived of her Article 5 § 4 protection, as (I think it to be clear) the [Court] would have held in Johnson had the issue not been determined already under Article 5 § 1: see paragraphs 69-72 of the judgment. 46. I well accept that this conclusion entails a number of practical difficulties, not least that it might appear to lead to the release of a person who is or has been mentally ill without the support that the MHRT thought necessary for that release. That may appear surprising, not only in common-sense terms, but also in view of the emphasis placed in the jurisprudence of the [Convention] upon the judgment of the national authorities: see for instance the observations of the [Court] in Luberti v. Italy [judgment of 23 February 1984, Series A no. 75] at paragraph 27 as to the relevance in this context of the doctrine of the margin of appreciation; and the observations in paragraph 63 of the judgment in Johnson as to the respect to be paid to the discretionary judgment of those responsible for dealing with the mentally ill. The problem in this case arises, however, from the rigidity of the required procedure of the MHRT that is identified in paragraphs 16 and 36 of [Lord Phillips's] judgment. If the MHRT indeed had the power to review its decisions in the light of practical circumstances, as was envisaged by Woolf J in [Oxford], then difficulties of the present order would not arise; and provided that the national authorities made all reasonable efforts to comply with provisional decisions of the MHRT I very much doubt that any objection to such a procedure would arise under the [Convention]. That, however, is not the present state of domestic law: the decision of the MHRT being once and for all, that is the decision that Article 5 § 4 requires to be respected. ... 48. ... [the applicant] may have a complaint under Article 5 in relation to the whole circumstances that led to her continued detention: including, in particular, that the MHRT having ruled that her continued detention was not justified, the implementation by the State of that order in the event caused her to continue to be detained. The State is responsible for the whole of these circumstances. That, presumably, is why the State was found to be in breach in Johnson from the original date of the MHRT's decision: see the last sentence of paragraph 67 of the judgment. The circumstances of [the applicant's] case might, therefore, by the same token found a successful complaint in Strasbourg.” 37. Lord Justice Sedley, during the course of his judgment, expressed the following view (in paragraphs 55 and 56): “... more than one legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposes of Article 5 § 4, at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist. ... I am rather less positive than Buxton LJ in looking to Strasbourg to afford [the applicant] a remedy that cannot be afforded here. It seems to me ... that the legislative scheme, while not always satisfactory in practice, is Convention-compliant in principle.” 38. On 3 July 2001 the House of Lords refused the applicant's petition of appeal against the judgment of the Court of Appeal. 39. Section 1(2) of the Mental Health Act 1983 (“the 1983 Act”) defines “mental disorder” as “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind”. 40. Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”). 41. The court can only make a hospital order if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder (see paragraph 39 above) and that “the mental disorder ... is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37(2)(a)(i)) and “the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37(2)(b). 42. Under section 37(7), a hospital order must specify the form or forms of mental disorder from which the offender is suffering, as confirmed by the evidence of two practitioners. 43. Under section 41(1) of the 1983 Act, where a hospital order is made by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm to do so, the court may further order that the offender shall be subject to certain specified restrictions, detailed in section 41 of the Act. Such an order is called a “restriction order” and may be made either without limit of time or for the period specified in the order. 44. The purpose of an MHRT is to deal with applications and references by and in respect of patients under the provisions of the 1983 Act (section 65(1)). 45. Under section 70 of the 1983 Act, a person who is subject to a hospital order and a restriction order (“a restricted patient”) may apply to an MHRT for a review of his or her detention in hospital: (i) initially after a period of between six and twelve months' detention; (ii) thereafter, annually. 46. Under section 71(1) of the 1983 Act, the Secretary of State may at any time refer the case of a restricted patient to an MHRT. This power is discretionary. The Secretary of State therefore cannot be compelled by a patient to exercise it. 47. Under section 73(1) and (2), read in conjunction with section 72(1), of the 1983 Act (as they were at the time when the facts giving rise to the applicant's case occurred, the sections having subsequently been amended), where an application was made to an MHRT by a restricted patient or where his case was referred to it by the Secretary of State, the MHRT was required to direct the absolute discharge of the patient if it was satisfied: (a) (i) that the patient was not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or (ii) that it was not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment (section 73(1) of the 1983 Act); and (b) that it was not appropriate for the patient to remain liable to be recalled to hospital for further treatment (section 73(2) of the 1983 Act). 48. Pursuant to section 73(3), upon an absolute discharge, the patient ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect. 49. Under section 73(2) of the 1983 Act, where an MHRT is satisfied as to either of the matters referred to in (a), but not as to the matter referred to in (b) in paragraph 47 above, it is required to direct the conditional discharge of the patient. 50. Lady Justice Butler-Sloss, giving judgment in R. v. Merseyside Mental Health Review Tribunal, ex parte K. [1990] 1 All England Law Reports 699-700, explained the nature of this power as follows: “Section 73 gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital. This would appear to be a provision designed both for the support of the patient in the community and the protection of the public, and it is an important discretionary power vested in an independent tribunal, one not lightly to be set aside in the absence of clear words.” 51. By virtue of section 73(4) of the 1983 Act, a patient who has been conditionally discharged may be recalled by the Secretary of State. In addition, that patient must comply with the conditions attached to the discharge. In contrast to a patient who has been absolutely discharged, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order. 52. Under section 73(7) of the 1983 Act, an MHRT can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to its satisfaction. 53. As set out above, in the applicant's domestic case in the Court of Appeal (R. (K.) v. Camden and Islington Health Authority [2001] England and Wales Court of Appeal (Civil Division) 240), Lord Phillips considered the effect of the House of Lords' decision in Oxford. He concluded that if it proved impossible to implement the conditions specified by an MHRT, the patient would remain detained unless and until a fresh reference were made to an MHRT. The original MHRT that imposed the conditions did not have any power to reconsider its decision. 54. A patient's case can therefore only be reconsidered by a differently constituted MHRT. In those circumstances the case must be considered afresh. 55. The Secretary of State may also order a patient's conditional or absolute discharge under section 42 of the 1983 Act. 56. Section 117(2) of the 1983 Act reads as follows: “It shall be the duty of the health authority and of the local social services authority to provide, in cooperation with relevant voluntary agencies, after-care services for any person to whom this section applies ...” 57. As set out above, the Court of Appeal in the applicant's domestic case (cited above) held that the duty imposed by section 117(2) was not absolute. It was a duty to take all reasonable steps to attempt to satisfy the conditions imposed by the MHRT. 58. In R. (I.H.) v. Secretary of State for the Home Department and Another [2002] England and Wales Court of Appeal (Civil Division) 646, decided on 15 May 2002, the Court of Appeal considered the question of whether sections 73(2) and/or 73(7) of the 1983 Act were incompatible with Article 5 §§ 1 (e) and/or 4 of the Convention in that MHRTs lacked the power to guarantee that conditions they might attach to a deferred order for conditional discharge would be implemented within a reasonable period of time. The case, similarly to that of the applicant, involved a patient who was suffering from a mental illness, but one which was in remission. It was decided subsequently to the applicant's domestic case and was brought under the Human Rights Act 1998. It therefore took into account the judgments in the applicant's domestic proceedings, the Convention and Strasbourg jurisprudence. 59. In paragraph 53 of his judgment, Lord Phillips confirmed that the decision of the House of Lords in Oxford made clear that an MHRT was neither obliged nor entitled to reconsider its earlier decision in respect of a conditional discharge in order to accommodate any new facts that might cause it to alter that decision. Lord Phillips continued, in paragraph 54: “... the decision in [Oxford] is in potential conflict with the requirements of Article5 § 4. If, having made a decision that a patient is entitled to a conditional discharge, subject to specific conditions which necessitate deferral of the discharge, the Tribunal cannot revisit its decision, the patient is liable to find himself 'in limbo' should it prove impossible to put in place the arrangements necessary to enable him to comply with the proposed conditions. That period 'in limbo' may last too long to be compatible with Article 5 § 4 and may result in the patient being detained in violation of Article 5 § 1.” Lord Phillips therefore determined that the decision in Oxford needed to be reviewed in the light of the requirements of Article 5 of the Convention. He concluded, in paragraph 71: “Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. ... The original decision should be treated as a provisional decision, and the Tribunal should monitor progress towards implementing it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time.” Lord Phillips then gave guidelines to MHRTs considering the discharge of a patient. The guidelines comprised specific steps that could be taken by an MHRT should problems arise with making arrangements to meet the conditions of a conditional discharge. Those steps included the possibility of deferring for a further period, varying the proposed conditions to seek to overcome the difficulties, ordering a conditional discharge without specific conditions or deciding that the patient had to remain detained in hospital for treatment. The Court of Appeal concluded (in paragraphs 96-98) that such a scheme, proposed in the light of its review of the decision of the House of Lords in Oxford, would be compatible with Article 5 § 1 of the Convention. 60. Following an appeal to the House of Lords, on 13 November 2003, Lord Bingham, in his judgment with which the other members of the House of Lords agreed, held: “18. The key to a correct understanding of Johnson is to appreciate the nature of the case with which the Court was dealing. It was that of a patient who, from June 1989 onwards, was found not to be suffering from mental illness and whose condition did not warrant detention in hospital. The Court's reasoning is not applicable to any other case. ... 26. I do not accept that, because the tribunal lacked the power to secure compliance with its conditions, it lacked the coercive power which is one of the essential attributes of a court. What Article 5 §§ 1 (e) and 4 require is that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention is lawful and, if not, to order his release. This power the tribunal had. Nothing in Article 5 suggests that discharge subject to conditions is impermissible in principle, and nothing in the Convention jurisprudence suggests that the power to discharge conditionally (whether there are specific conditions or a mere liability to recall), properly used, should be viewed with disfavour. Indeed, the conditional discharge regime, properly used, is of great benefit to patients and the public, and conducive to the Convention object of restricting the curtailment of personal liberty to the maximum, because it enables tribunals to ensure that restricted patients compulsorily detained in hospital represent the hard core of those who suffer from mental illness, are a risk to themselves or others and cannot be effectively treated and supervised other than in hospital. If there is any possibility of treating and supervising a patient in the community, the imposition of conditions permit that possibility to be explored and, it may be, tried. 27. When, following the tribunal's order of 3 February 2000, it proved impossible to secure compliance with the conditions within a matter of a few months, a violation of the appellant's Article 5 § 4 right did occur. It occurred because the tribunal, having made its order, was precluded by the authority of the Oxford case from reconsidering it. The result was to leave the appellant in limbo for a much longer period than was acceptable or compatible with the Convention. I would accordingly endorse the Court of Appeal's decision to set aside the Oxford ruling and I would adopt the ruling it gave in paragraph 71 of its judgment quoted above. Evidence before the House shows that that ruling is already yielding significant practical benefits. ... 28. There was no time between 3 February 2000 and 25 March 2002 when the appellant was, in my opinion, unlawfully detained, and there was thus no breach of Article 5 § 1 (e). There is a categorical difference, not a difference of degree, between this case and that of Johnson. Mr Johnson was a patient in whose case the Winterwerp criteria were found not to be satisfied from June 1989 onwards. While, therefore, it was reasonable to try and ease the patient's reintegration into the community by the imposition of conditions, the alternative, if those conditions proved impossible to meet, was not continued detention but discharge, either absolutely or subject only to a condition of liability to recall. His detention became unlawful shortly after June 1989 because there were, as all the doctors agreed, no grounds for continuing to detain him. The present case is quite different. There was never a medical consensus, nor did the tribunal find, that the Winterwerp criteria were not satisfied. The tribunal considered that the appellant could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention. ... 29. The duty of the health authority, whether under section 117 of the 1983 Act or in response to the tribunal's order of 3 February 2000, was to use its best endeavours to procure compliance with the conditions laid down by the tribunal. This it did. It was not subject to an absolute obligation to procure compliance and was not at fault in failing to do so. It had no power to require any psychiatrist to act in a way which conflicted with the conscientious professional judgment of that psychiatrist. Thus the appellant can base no claim on the fact that the tribunal's conditions were not met. ... 30. I do not consider that the violation of Article 5 § 4 which I have found calls for an award of compensation since (a) the violation has been publicly acknowledged and the appellant's right thereby vindicated, (b) the law has been amended in a way which should prevent similar violations in future, and (c) the appellant has not been the victim of unlawful detention, which Article 5 is intended to avoid. For these reasons ... I would dismiss this appeal.”

train

001-118337

ENG

TUR

CHAMBER

CASE OF BÖBER v. TURKEY

Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

4. The applicant was born in 1977 and lives in Istanbul. 5. On 28 June 2003 two police officers went to the Beşiktaş district of Istanbul following a complaint by a woman, and imposed an administrative fine on a taxi driver. Subsequently, the policemen and the taxi driver commenced a verbal dispute in the presence of the applicant, who is also a taxi driver. The applicant told the police officers that he would pay the fine on his friend’s behalf. The police officers then pushed the applicant to the ground, handcuffed him and began kicking and punching him. He was subsequently put in the police car. One of the police officers closed the car door on the applicant’s leg. 6. The applicant was arrested and taken to the Beşiktaş police station by the officers, as he was accused of having insulted them. 7. The applicant was then taken to the Taksim Hospital. According to a medical report issued following X-rays and an orthopaedic examination of the applicant, his right leg was broken as a result of the incident. 8. On 29 June 2003 the applicant was examined by a forensic expert at the Istanbul branch of the Forensic Medicine Institute. The doctor observed a bruise of 4 cm on the left scapula, two bruises of 3 cm and 1 cm on the front of the right shoulder, two grazes of 1.5 x 1 cm on both elbows, several grazes on the upper part of the right arm within an area measuring 5 x 4 cm, and five bruises of 1 to 1.5 cm in diameter on the right arm. The doctor also observed that the applicant’s right leg was in plaster up to his knee. 9. The final report of the Forensic Medicine Institute dated 1 July 2003 confirmed that the applicant’s leg was broken and stated that the injuries rendered him unfit for fifteen days. 10. On an unspecified date a criminal case was brought before the 12th Chamber of the Istanbul Criminal Court against the applicant for insulting the police officers. Subsequently, on 20 October 2003 the applicant lodged a petition with the trial court and requested that the police officers be punished for ill-treating him. 11. On 31 January 2005 the 12th Chamber of the Istanbul Criminal Court acquitted the applicant of the charges against him in respect of one of the officers. As regards the second officer, who had closed the car door on the applicant’s leg, the court found that the applicant had insulted him. However, since the officer had overstepped his authority by his actions, the court decided not to convict the applicant. 12. Meanwhile, on 4 May 2004 the Istanbul public prosecutor filed an indictment with the 1st Chamber of the Istanbul Criminal Court against the police officers, charging them with ill-treatment of the applicant. The applicant joined the proceedings as a civil party. 13. On 23 December 2008 the 1st Chamber of the Istanbul Criminal Court convicted the police officers as charged. The court found, in the light of the medical reports that it had obtained, plus the witness statements and the submissions of the accused and the applicant, that the police officers had beaten the applicant and had closed the car door on his leg and had thus caused the injuries found on the applicant’s body on 28 and 29 June 2003. The court sentenced the accused police officers to two months and fifteen days’ imprisonment. Having regard to the fact that the police officers did not have criminal records and to the manner in which they had committed the offence in question, the first-instance court considered that the police officers would not commit any further offence. It therefore decided to suspend the pronouncement of the judgment (hükmün açıklanmasının geri bırakılması) for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure (Law no. 5271). 14. On 29 December 2008 the applicant lodged an objection to the judgment of the first-instance court. In his petition, the applicant noted that he would make more detailed submissions after he had been provided with a copy of the reasons for judgment, and requested that a hearing be held. 15. On 21 April 2009 the Istanbul Assize Court dismissed the applicant’s objection of 29 December 2008 after obtaining the Istanbul public prosecutor’s opinion, without awaiting the applicant’s further submissions and without holding a hearing. As domestic legislation did not provide for an appeal, this decision was final. 16. On 8 May 2009 the decision of the Istanbul Assize Court was notified to the applicant. 17. A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts). 18. Suspension of the pronouncement of a judgment is regulated by Article 231 of the Code of Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows: “... (5) If the accused has been convicted of the charges against him and ordered to pay a fine or sentenced to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment... The suspension of the pronouncement of the judgment entails that the judgment shall not bear any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that; (a) the offender has never been found guilty of a wilful offence; (b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and] (c) the damage caused to the victim or to society is satisfied by way of restitution or compensation. ... (8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. ... (10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment [whose] pronouncement had been suspended will be cancelled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that [...] up to half of the total sentence will not be executed. If the conditions so permit, the court may also suspend the execution of [any] imprisonment or commute it to other optional measures. (12) An objection to the decision to suspend the pronouncement of the judgment may be filed.”

train

001-71424

ENG

MLT

ADMISSIBILITY

ABDILLA v. MALTA

Inadmissible

Christos Rozakis

The applicant, Mr Salvatore Abdilla, is a Maltese national, who was born in 1925 and lives in Birzebbuga (Malta). He is represented before the Court by Mrs M.A. Farrugia and Mr P. Lofaro, two lawyers practising respectively in St. Venera and in Valletta (Malta). The respondent Government were represented by their Agent, Mr S. Camilleri, Attorney General. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owned a farm and an adjacent portion of land in Zebbug, close to a road called Notabile Road. According to the original Government development schemes, a small part of this land should have been expropriated in order to widen the road with 60 centimetres. In 1985 the Maltese authorities entered into the property of the applicant, demolished parts of it and took 136.1 square meters of it. By a Presidential Declaration of 27 January 1986 (no. 78), issued in terms of the Land Acquisition Public Purposes Ordinance (Chapter 88 of the Laws of Malta), it was declared that the property taken from the applicant was required for a public purpose. The Presidential Declaration was published in the Government Gazette of 4 February 1986, as required by Article 9(1) of Chapter 88 of the Laws of Malta. At the relevant time, this publication did not transfer the ownership of the land to the Government. In particular, it was provided that the Commissioner of Lands should serve a copy of the Presidential Declaration on the owner of the land, together with a “notice to treat” informing him or her about the amount that the Commissioner was willing to pay. The owner subsequently had 21 days to state the amount which he claimed as compensation. If the owner and the Commissioner agreed on the amount of the compensation due, either party could request the Land Arbitration Board to make an order carrying the agreement into effect. In case of disagreement between the owner and the Commissioner, the latter should file an application with the Land Arbitration Board requesting it to determine the amount of compensation due. In either case, a public deed of transfer had to be signed by the Government and the owner. In the present case, until 2002 the Commissioner of Lands did not serve on the applicant the Presidential Declaration and the notice to treat. Therefore, the procedure to compensate the applicant and to transfer the legal ownership of the land was not initiated. In 2002 Chapter 88 of the Laws of Malta was amended. Under the new Article 22 of this Chapter, ownership of the property is transferred upon publication of the Presidential Declaration in the Government Gazette. According to the new rules, the Presidential Declaration should state the amount that the Government will pay as compensation, to be deposited in an interest-bearing bank account. If the owner of the land does not consider this amount adequate, he may institute proceedings before the Land Arbitration Board. According to a transitory provision of law, when, as in the applicant’s case, a Presidential Declaration had been issued before the entry into force of the 2002 amendments, the President should issue a fresh declaration wherein he shall state the amount of compensation which the Commissioner of Lands is willing to pay. According to the information provided for by the applicant on 24 March 2005, on that date no such fresh Presidential Declaration had been served on him. As a consequence, the applicant is still the legal owner of the land. The applicant alleged that in the meantime one of his neighbours, Mr Z., had been planning to develop his property into a petrol station and had been preparing the necessary infrastructures to do so. According to the applicant, Mr Z. was known as being very well connected with the then current administration. The applicant’s allegations were disputed by the Government on the ground that they were unsubstantiated. The original Government development schemes were not followed, and Notabile road, Zebbug was widened and re-aligned differently. According to the applicant, the result of these changes was that motor vehicles were driven into the planned petrol station and evasive action should be taken if a vehicle did not want to enter into it. If a vehicle had continued straight, it would have collided into the wall of Mr Z.’s property. Since 1989 the Traffic Control Board had requested the road department to re-locate the wall in issue, which was eventually demolished and moved backward. The applicant produced a plan which was annexed to the Presidential Declaration. According to the applicant, this document showed that the land was expropriated in such a way to make the main road lead directly into the property of Mr Z., thus creating an unnatural series of S bends. The re-alignment and widening of the road directed the traffic into three deviations, one to the left into the applicant’s property, then to the right to meet the roundabout alignment and finally to the left again to continue on the main road. The Government disputed these allegations. They argued that the description given by the applicant was “charged with poetic licence and substantially misleading”. Relying on seven photographs and on an aerial view of the area in question, they challenged the view that the taking of part of the applicant’s land was done also in order to facilitate access to the petrol station. The allegedly planned petrol station was never opened. On 3 April 1992 the applicant instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction against the Parliamentary Secretary for the Environment and Lands and against the Commissioner of Lands. He claimed that he had been deprived of his property illegally and without compensation and alleged a violation of Articles 37 and 38 of the Constitution of Malta as well as of Article 8 of the Convention and Article 1 of Protocol No. 1. The applicant submitted that the Presidential Declaration of 27 January 1986 was null and void and requested to be reinstated in his possession and to be granted a financial compensation for the loss suffered. In a judgment of 24 November 1995 the Civil Court dismissed the applicant’s claims. It held that as the acts complained of took place before 30 April 1987 (date of the incorporation of the Convention into the Maltese legal system), it had no power to decide on the alleged breach of the applicant’s rights under Article 8 of the Convention and Article 1 of Protocol No. 1. As far as the Constitution of Malta was concerned, there was no doubt that the applicant could have invoked the alleged breach of Article 38 (right to the protection of home) in front of the ordinary courts, asking them to impede the authorities from demolishing his farm. The same could not be said with regard to Article 37 of the Constitution (protection of property); however, it was apparent that the expropriation was done for a “public purpose”. This did not exclude the possibility that the expropriation might have involved the interest of third parties, provided that the use made by the said parties was connected with or ancillary to the public interest or utility. In the present case, in 1975 the architect of the Department of Lands had expressed the view that the realignment of the road was inevitable and in 1977 the Department of Lands had written to the Departments of Works to confirm that the expropriation had to be done. The latter was part of a project involving the entire road linking Zebbug and the town of Mdina. It was true that according to the original plan, the applicant’s property was going to be only slightly affected. However, the project was changed and the road went much deeper into the applicant’s land, leading to a petrol station, owned by Mr Z. The Civil Court could accept that the expropriation was done also in the interests of third parties, but this did not exclude the existence of a public purpose, as there was no doubt that a petrol station was of utility to the public. The applicant appealed to the Constitutional Court. In a judgment of 30 May 2003, the Constitutional Court declared that the taking of the applicant’s property before the issuing of the Presidential Declaration of 27 January 1986 constituted a violation of the plaintiff’s right of property (guaranteed by Article 38 of the Maltese Constitution and Article 1 of Protocol No. 1) and granted him a compensation amounting to 100 Maltese Liras (Lm – approximately 240 euros (EUR)). The Constitutional Court confirmed the judgment of the Civil Court as to the remainder and decided that the legal expenses should be borne one-third by the applicant and two-thirds by the respondents. The Constitutional Court first observed that the Presidential Declaration was only the commencement of the expropriation procedure, which entailed an interference with the right guaranteed by Article 1 of Protocol No. 1 lasting until the individual was unable to enjoy his possessions or until there was effective transfer of property. Thus, notwithstanding the fact that the Presidential Declaration was issued before 30 April 1987, the matter felt within the competence ratione temporis of the Constitutional Court. As to the lawfulness of the expropriation, it was to be noted that the authorities had entered the applicant’s property and demolished his farm already in 1985. This action was illegal as it was taken prior to the issuing of the Presidential Declaration and without prior notification. Moreover, the applicant did not have at his disposal any adequate means of redress, as any judicial action he might have commenced would have been nullified by the issuing of the Presidential Declaration. As far as the applicant was complaining that the expropriation was not done for a public purpose, but to serve the interests of Mr Z., the Constitutional Court observed that only a deprivation of property effected for no reason other than to confer a private benefit on a private party could not be “in the public interest”. As the European Court of Human Rights had pointed out in the case of James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98), the compulsory transfer of property from one individual to another might, depending upon the circumstances, constitute a legitimate aim for promoting public interest. The Constitutional Court therefore did not see any reason to depart from the Civil Court’s finding that, after the issuing of the Presidential Declaration, the expropriation pursued a legitimate aim. The acquisition of land for public purposes is regulated by Chapter 88 of the Laws of Malta. As amended in 2002, the relevant provisions of this Chapter read as follows. Article 7 § 2 "(a) With respect to land subject to a declaration by the President before the coming into force of this article ... article 12(3) of the Ordinance as amended by this article shall apply ... Provided that the interests as aforesaid shall be calculated on the value of the land on the date of the President’s Declaration or where no such Declaration was issued prior to the coming into force of this article on the date of taking over by Government of the land in question. (b) (i) The President may in relation to any land subject of a Declaration issued before the coming into force of this article issue a fresh Declaration wherein shall be stated the amount of compensation which the competent authority is willing to pay for the land to which the Declaration refers. ... Provided that when such fresh Declaration is issued the compensation shall be determined on the basis of the value of such land on the date of the service of any notice to treat in respect of such land, and where no such notice to treat has been so served, on the date of the issue of the fresh Declaration by the President. ...” Article 12 § 3 “(3) Simple interest at the rate of five per centum per annum shall accrue on a daily basis in favour of any person having a right to compensation in respect of any land acquired by the absolute purchase thereof under this Ordinance, from the date of the Declaration of the President up to the date when the compensation is paid or deposited in accordance with article 22. The interest due shall accrue on the amount of compensation as established in accordance with this Ordinance.” Article 22 §§ 1, 2, 3, 6, 7 and 10 “(1) If the competent authority and the owner agree as to the amount of compensation for any land, the Board, on the application of any one of the parties, shall make an order carrying the agreement into effect ... (2) Where the land is to be acquired by the absolute purchase thereof ..., the President’s Declaration ..., shall state the amount of compensation which the competent authority is willing to pay for the land to which the declaration refers. ... (3) Within fifteen working days from the publication of the President’s Declaration as is referred to in subarticle (2) in the Gazette the Government shall deposit in an interest bearing bank account (which will guarantee a minimum of interest per annum as the Minister responsible for lands may by regulation under this subarticle prescribe) a sum equal to the amount of compensation offered in the President’s Declaration. Such sum shall be freely withdrawn together with any interests accrued thereon by the person or persons entitled to such compensation upon evidence to the entitlement thereto, in a manner satisfactory to the competent authority. ... (6) Where the person entitled to compensation does not accept that the amount deposited is adequate, such person may apply to the Board for the determination of the compensation in accordance with the provisions of this Ordinance. Such application shall, on pain of nullity, state the compensation that in the opinion of the applicant is due. (7) Such application shall be filed in the Registry of the Board ... The Board shall determine such compensation and shall give all necessary orders and directives in accordance with this Ordinance. (10) Where the compensation payable in respect of land acquired by the absolute purchase thereof is determined, whether by agreement or by decision of the Board, any sum due as compensation over and above any sum deposited in accordance with this article together with interests thereon in accordance with article 12(3), shall be paid to the person entitled thereto by the competent authority not later than three months from the date on which such compensation was determined as aforesaid.” Article 27 § 1 “(1) Without prejudice to any special provision contained in this Ordinance, in assessing compensation the Board shall act in accordance with the following rules: (a) no allowance shall be made on account of the acquisition being compulsory; (b) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realize ...”