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ECHR

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train

001-97180

ENG

SWE

ADMISSIBILITY

ZUBCZEWSKI v. SWEDEN

Inadmissible

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

1. The applicant, Mr Andrzej Zubczewski, is a Swedish national who was born in 1939 and lives in Spain. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. When the applicant retired, he obtained a retirement pension (ålderspension). It appears that he was entitled only to the so-called supplementary pension, one part of which depends on the retired person's civil status. 4. In 2002, at the age of sixty-three, the applicant married. 5. Consequently, in accordance with the Earnings-related Old Age Pension Act (Lagen om inkomstgrundad ålderspension, 1998:674 – hereafter “the 1998 Act”), on 27 June 2003 the Social Insurance Office (försäkrings-kassan) in Gotland decided to reduce the applicant's pension. It appears that the applicant received 9,136 Swedish kronor (SEK) per month thereafter instead of the previous SEK 9,648 per month, thus a reduction of SEK 512 per month (approximately 50 euros). 6. The applicant complained against the decision. He stated that, after the marriage, his pension was lower than it had been when he was single, although now he had to support two persons as his wife did not have any income. The Social Insurance Office dismissed the complaint upon review on 10 November 2003. 7. The applicant brought the dispute before the County Administrative Court (länsrätten) in Gotland claiming that the 1998 Act was discriminatory and illogical and contrary to legal principles and human rights. 8. By a judgment of 31 March 2004 the County Administrative Court found against the applicant, inter alia, stating as follows: “[The applicant] has questioned the [1998] Act per se, as it distinguishes between married and unmarried pensioners and he states that the Act thereby violates, inter alia, human rights. The County Administrative Court notes however that marriage is an institution regulated by law which carries with it certain other rights and obligations than those concerning unmarried individuals. Having regard thereto and to [the applicant's] observations, the County Administrative Court cannot find that the [1998] Act, as challenged, manifestly runs counter to any rule of fundamental law or other superior statute or find that the adoption of the Act significantly disregarded established regulation. Thus, the County Administrative Court must apply the said law. Since [the applicant] is married, the Social Insurance Office calculated his pension fairly as for a married pensioner. Therefore the appeal shall be rejected.” 9. The applicant's request for leave to appeal against the judgment was refused by the Administrative Court of Appeal (kammarrätten) in Stockholm on 18 January 2005 and by the Supreme Administrative Court (Regeringsrätten) on 18 October 2007. 10. Under the 1998 Act, persons born between 1938 and 1953 are, subject to certain criteria being met, entitled to two types of pension upon retirement, income pension (“inkomstpension”), regulated by Chapter 5 of the Act, and supplementary pension (“tilläggspension”), governed by Chapter 6. 11. Income pension, to which the applicant was apparently not entitled, is based on how much a person has set aside for his or her pension while working and the life expectancy for persons born in a specific year. 12. Supplementary pension, which is at issue in the present case, consists of two parts, defined in Chapter 6, section 2 of the 1998 Act: “Unless otherwise indicated in sections 3-7, the annual supplementary pension amounts to the total of 1. 60% of the product of the price base amount [prisbasbeloppet] for the year in question under the Social Insurance Act [Lagen om allmän försäkring, 1962:381] and the average pension points earned by the person entitled to the pension or, if pension points have been earned for more than 15 years, the average of the 15 highest points, and 2. 96% of the price base amount for the year in question under the Social Insurance Act or, if the person is married, 78.5% of this base amount.”

train

001-5889

ENG

HRV

ADMISSIBILITY

JOVIC v. CROATIA

Inadmissible

Georg Ress

The applicant, Momir Jović, is a Croatian national, born in 1933 and living in Rijeka. He is represented by Mr Miloš Markiš, a lawyer practicing in Rijeka. 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 Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia. However, on 1 February 1993, the Croatian Social Security Fund, Rijeka Office, assessed the applicant’s pension, as from 1 October 1992, to 63,22 % of the amount he had received in December 1991. The applicant appealed against that decision and after his appeal was dismissed, instituted administrative proceedings with the Administrative Court, which dismissed the applicant’s claim on 2 February 1994. On 1 August 1994 the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and the Administrative Court violated his constitutional rights. The Constitutional Court rejected the applicant’s claim on 21 April 1999.

train

001-4592

ENG

FIN

ADMISSIBILITY

KARASSEV v. FINLAND

Inadmissible

Georg Ress

The application was originally submitted by four applicants of which Pasi Karassev was the fourth one (later; the applicant). The other applicants’ complaints were declared inadmissible by the European Commission of Human Rights on 14 April 1998. The present applicant was born in 1992 in Finland of parents who were born in the former Soviet Union and were citizens of that country. The applicant and his parents are currently resident at Poitsila in Finland. The facts of the case, as submitted by the parties, may be summarised as follows. A. The applicant’s parents and his brother, who was born in 1983 in the former Soviet Union, arrived in Finland from the then Soviet Union on 20 August 1991, holding tourist visas valid from 3 to 21 August 1991. On the last-mentioned day they requested asylum in Finland, referring to the attempted coup d’etat in the Soviet Union. On 11 May 1992 the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) rejected their asylum request and found no reason to grant them a residence permit. On 20 July 1992 the Hollola Police District proposed that the family be expelled. The family objected on 14 August 1992, arguing, inter alia, that although they had been citizens of the former Soviet Union they had not become citizens of the Russian Federation. On 4 November 1992 the Ministry of the Interior ordered their expulsion to the Russian Federation, considering, inter alia, that they were citizens of the former Soviet Union with no such ties to Finland as could prevent their expulsion. The Ministry also prohibited the family from returning to Finland or any other Nordic country during a period of two years. The family appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). On 16 December 1992 the present applicant was born. He was not registered as being entitled to Finnish social security benefits. The Social and Health Board (sosiaali- ja terveyslautakunta, social- och hälsovårdsnämnden) of Nastola refused the applicant’s mother’s request for maternity allowance, noting that she was not a Finnish citizen and had not been granted a residence permit in the country. No appeal was lodged against this refusal. The municipality donated to the applicant’s mother a maternity package with various supplies. In 1993 the applicant’s father obtained employment in Hamina. On 1 September 1993 the applicant’s parents were refused housing allowance, as they had no residence permits in Finland. They did not appeal. On 23 November 1993 the Supreme Administrative Court referred the matter back to the Ministry for renewed consideration, since the expulsion order had not concerned the present applicant. On 4 January 1994 the Hollola Police District proposed to that the applicant and his family be expelled. The applicant and his family objected and requested that the expulsion order would at least not be enforced until the applicant’s possible entitlement to Finnish citizenship had been examined. In February 1994 the applicant requested to be granted Finnish citizenship by application. On 26 April 1994 the Ministry of the Interior found no reason to grant him a residence permit. Instead the applicant and his family were ordered to be expelled to the Russian Federation, as they were all considered to be citizens of that State pursuant to its 1991 Citizenship Act which had entered into force on 6 February 1992. In a memorandum of 2 March 1994 the Ministry recalled that the applicant’s parents and his brother had arrived in Finland on a tourist visa. At the time when the Russian Citizenship Act had entered into force, the applicant’s parents and his brother had not been permanently residing in Finland but in the Russian Federation. As the applicant’s parents had thus become citizens of the Russian Federation, the Ministry concluded that the applicant had obtained Russian (and thus not Finnish) citizenship by birth. In the summer of 1994 the applicant’s father established his own company in Hamina. On 28 April 1995 the Supreme Administrative Court rejected the applicant’s and his family’s appeal against the new expulsion order. In the summer of 1995 the applicant and his family lodged a further request for residence permits, supported by, among others, the Chief of the Hamina Police District. He stated that the applicant and his family had integrated well in Finland and that it would clearly be unreasonable to refuse them residence permits. In three decisions of 16 August 1995 the Ministry of the Interior nevertheless rejected the applicant’s and his family’s request. They then lodged an extraordinary appeal (purkuhakemus, ansökan om återbrytande) to the Supreme Administrative Court, requesting that the Ministry’s decision be quashed. On 20 October 1995 the Ministry of the Interior objected to the applicant’s and his family’s request to the Supreme Administrative Court. The Ministry referred, inter alia, to its own inquiry according to which the applicant and his family had received Russian citizenship. On 1 February 1996 the Office for Alien Affairs (ulkomaalaisvirasto, utlänningsverket) requested the applicant’s local Police District to inform the parents of the applicant of the costs of a negative decision on pursuing the application for citizenship. On 1 February 1996 the Ministry of the Interior again considered that the applicant had already acquired Russian citizenship. Accordingly, he did not meet the conditions prescribed by section 4 of the 1968 Citizenship Act (kansalaisuuslaki, medborgarskapslag 401/1968) for granting him Finnish citizenship by application. On 19 February 1996 the Supreme Administrative Court rejected the applicant’s and his family’s extraordinary appeal. On 26 February 1996 the Consul General of the Russian Embassy in Finland certified that the applicant’s parents or his brother were not citizens of the Russian Federation. On 28 February 1996 the applicant’s request for Finnish citizenship by application was withdrawn. Instead he requested that his Finnish citizenship be confirmed by the President of the Republic, given that his parents had not acquired Russian citizenship whether by application, declaration or acceptance. It was therefore argued that he had received Finnish citizenship by birth, pursuant to section 1, subsection 1 (4) of the Citizenship Act. On 26 March 1996 the Consul General of the Russian Embassy certified that the applicant was not a citizen of the Russian Federation. On 25 April 1996 the Chief of the Hamina Police District ordered the applicant and his family to leave Finland by 24 May 1996. The applicant and his family objected, referring, inter alia, to the pending request for a confirmation of the applicant’s Finnish citizenship and stating that they lacked the necessary travel documents. On 29 April 1996 the head of the Consular Department of the Russian Embassy certified that pursuant to the Citizenship Act of the Russian Federation none of the applicant’s family members were Russian citizens. Their Soviet passports were no longer in force and were to be handed over to the Embassy. The family could request that new documents be issued to them by the Finnish authorities “because they were stateless”. They would be unable to enter the Russian Federation without proper documents. In the letter it was also stated that the applicant’s and his family’s expulsion from Finland “was not based on law”. On 20 May 1996 the local Social Welfare Board decided to afford the applicant municipal day care as from 1 June 1996. The applicant’s brother enjoys the right to attend a public school in Finland. On 21 May 1996 the Chief of Police of Hamina stated that the enforcement of the expulsion order had been postponed indefinitely. On 26 June 1996 and 22 July 1996 the head of the Consular Department of the Russian Embassy again confirmed that the applicant or his family were not citizens of the Russian Federation. On 7 January 1997 the Social Insurance Institution considered, pursuant to section 3 of the 1993 Act, that the applicant and his family were not entitled to sickness insurance benefits under the 1963 Sickness Insurance Act. The Social Insurance Institution noted that the members of the applicant’s family had arrived in Finland as refugees. Moreover, at the time of the Social Insurance Institution’s decision the applicant and his family had no passports or work permits in Finland nor had they been entered in the Finnish population register. The applicant and his family appealed to the Social Insurance Board (sosiaalivakuutuslautakunta, socialförsäkringsnämnden) on 10 January 1997, referring, in particular, to the fact that the applicant had been born in Finland. On 10 February 1997 the applicant’s parents and brother were granted one-year residence permits in Finland. The Ministry of the Interior now considered that their citizenship was unknown. It recalled that the attempts to enforce the expulsion order regarding the applicant and his family had failed. Most recently, the Russian authorities had stated, on 2 January 1997, that the applicant and his family would not be accepted back into that country. The applicant’s parents and his brother were granted aliens passports and temporary residence permits. The applicant has not lodged with the competent authorities an application for an alien’s passport and a residence permit On 19 February 1997 the Population Registration Authority (maistraatti, magistraten) of Kotka stated that it could not yet deal with the applicant’s request to be registered as resident in Finland and to be granted a personal identification number. The registration Authority referred to the pending citizenship proceedings and recalled that the applicant’s registration would require proof of his Finnish citizenship or residence permit. On 4 March 1997 the applicant’s mother was granted a monthly child allowance for the applicant’s brother exclusively. On 12 March 1997 the Ministry of the Interior requested the Ministry of Foreign Affairs to seek clarification from the Russian authorities as regards the applicant’s and his family’s citizenship. The Ministry of the Interior now stated that under the terms of the Russian Citizenship Act, citizens of the former Soviet Union who were permanently resident within the Russian Federation’s territory when the Act entered into force were automatically granted Russian citizenship provided they did not refuse it within a year from the entry into force of the Citizenship Act. In the view of the Ministry of the Interior, the applicant’s parents had not presented evidence of such a refusal (according to the applicant’s family, their objection to becoming Russian citizens was addressed to the Russian authorities and lodged with the Finnish Ministry of Interior). The Ministry requested especially clarification, inter alia, as to why the applicant may not have received Russian citizenship at birth or, if he did so receive the citizenship, why and when he lost it later. On 14 April 1997 the Social Insurance Institution granted the applicant’s mother a housing allowance as from 1 March 1997 and, on 18 April 1997, she was granted an employment allowance as from 13 March 1997. The applicant was not taken into account when the amounts of these allowances were fixed. On 16 May 1997 the employment allowance and housing allowance were nevertheless increased, both children having been taken into account. On 6 May 1997 the Population Registration Authority of Kotka registered the applicant as resident in Finland and gave him a personal identification number. The applicant is registered in the official registry as born in Nastola, which is a municipality in Finland, but stateless while the nationality of his mother is registered as unknown. In a diplomatic note of 26 May 1997 the Ministry of Foreign Affairs of the Russian Federation conveyed the reply of the Citizenship Commission of the President of the Russian Federation to the Finnish Ministry’s question concerning the citizenship of the applicant and his family. The Commission stated as follows (translation): “The Ministry of Foreign Affairs of the Russian Federation expresses its respect for the Embassy of the Republic of Finland and, referring to the Embassy’s notice no. MOSVO 11-40 dated 18 April 1997 and to the notice no. MOSVO 11-55 dated 24 April 1997, it gives notice that the Citizenship Commission of the President of the Russian Federation has examined the citizenship of the Karassev family and declares as follows. According to Decree no. 5206/1-1/17.6.1993 (the Russian Federation’s Decree implementing the Russian Federation’s Decree amending and supplementing of the Russian Federation’s Act on Citizenship of the Russian Federation) of the Highest Council of the Russian Federation, citizens of the former Soviet Union who, prior to 6 February 1992, were permanently resident abroad or had left the country temporarily for the purposes of work, studies, health care or private affairs, and who returned to the country after the Act on Citizenship of the Russian Federation entered into force, were, under section 13 subsection 1 of that Act, recognised as citizens of the Russian Federation. However, the Karassev family did not return to the country by this time and, as far as is known, have no intention of doing so. According to the Russian Federation’s Act on Citizenship of the Russian Federation, citizenship is constituted by a continuous legal connection to the State, expressed in the unity of the mutual rights, obligations and liability between the person concerned and the State. The International Court of Justice, which examined the Nottebohm case, which is comparable with the present case, defined nationality as a “legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties”. Given that the Karassevs have resided in Finland for over five years they have, in the Commission’s opinion, lost those ties to the Russian Federation and, more importantly, have not expressed their willingness to renew those ties. The Commission concludes that the Karassevs are, therefore, not citizens of the Russian Federation. ...” On 28 May 1997 the applicant’s mother was also granted a child allowance for the applicant. In response to the applicant’s and his family’s appeal of 10 January 1997 the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden), on16 September 1997, referred the matter back to the Social Insurance Institution. According to the applicant and his family, the Social Insurance Institution has considered it unnecessary to decide this matter separately and has referred to its decisions of 16 and 28 May 1997. In its opinion to the President of the Republic the Supreme Administrative Court, on 17 December 1997, considered that the applicant had not obtained Finnish citizenship on his birth in Finland. The Supreme Administrative Court noted, inter alia, that on their arrival in Finland the applicant’s parents and his brother had been citizens of the Soviet Union. They had not lost the citizenship of the successor State (the Russian Federation) by the time the applicant had been born. The Supreme Administrative Court’s decision discusses neither the Russian Decree of 1993 to which the Citizenship Commission of the President of the Russian Federation referred in the applicant’s and his family’s case nor the Russian Embassy’s certificates according to which the applicant and his family are not Russian citizens. On 22 December 1997 the Russian Embassy, in a statement signed by an attaché, certified that pursuant to the Russian Citizenship Act the applicant was not and had not been a citizen of that State. On 23 January 1998 the President of the Republic declared, with reference to the Supreme Administrative Court’s opinion, that the applicant was not a Finnish citizen. The applicant has petitioned to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) concerning the excessive length of the proceedings pertaining to the applicant’s request for a citizenship declaration. No decision has been made. B. Relevant domestic law Section 1, subsection 1(4), of the Citizenship Act (as amended by Act no. 584/1984) reads as follows (translation): “A child receives Finnish citizenship by birth: ... ... if [it] is born in Finland and does not at that time receive citizenship of any other country.” Under section 1 of the 1963 Sickness Insurance Act (sairausvakuutuslaki, sjukförsäkringslag 364/1963), every “resident” in Finland is entitled to the benefits guaranteed therein. The interpretation of “residence” shall be decided by the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) pursuant to the 1993 Act on Social Security based on Residence (laki asumiseen perustuvan sosiaaliturvalainsäädännön soveltamisesta, lag om tillämpning av lagstiftningen om bosättningsbaserad social trygghet 1573/1993). Under this Act a person shall be considered resident in Finland if his or her actual residence and home are in that country and he or she is permanently and principally staying there. An immigrant who intends to settle permanently can be considered resident as from his arrival, provided he or she is holding a residence permit valid for at least one year (should a permit be required). An asylum-seeker is not considered a resident if the decision on the asylum request or in the expulsion matter has not acquired legal force (section 3). An appeal against the Social Insurance Institution’s interpretation of “residence” lies to one out of several authorities, depending on the requested benefit which underlies the dispute (section 13). Under section 5 of the 1991 Aliens Act (ulkomaalaislaki, utlänningslag 378/1991; later amended) an aliens passport may be issued if the alien is unable to obtain a passport from his or her country of origin or if there is another exceptional reason for issuing such a document.

train

001-88622

ENG

GBR

ADMISSIBILITY

BRAGGER v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr George Bragger, is a British national who was born in 1938 and lives in Winsford. He was represented before the Court by Ms K. Burton, from the Citizens Advice Bureau in Winsford. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 29 October 1994. In November 2002, the applicant made a claim for widows’ benefits, namely Widow’s Payment and Widow’s Pension. On 2 January 2003 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security 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

001-89558

ENG

TUR

GRANDCHAMBER

CASE OF DEMİR AND BAYKARA v. TURKEY

Preliminary objection joined to merits and dismissed (ratione materiae);Violations of Art. 11;Damage - award;Non-pecuniary damage - award

Alvina Gyulumyan;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Lech Garlicki;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi;Vladimiro Zagrebelsky

14. The applicants, Mr Kemal Demir and Mrs Vicdan Baykara, were born in 1951 and 1958 and live in Gaziantep and Istanbul respectively. The first applicant was a member of the trade union Tüm Bel Sen and the second applicant was its President. 15. The trade union Tüm Bel Sen was founded in 1990 by civil servants from various municipalities whose employment was governed by the Public Service Act (Law no. 657). Under Article 2 of its constitution, the trade union’s objective is to promote democratic trade unionism and thereby assist its members in their aspirations and claims. Its head office is located in Istanbul. 16. On 27 February 1993 Tüm Bel Sen entered into a collective agreement with the Gaziantep Municipal Council for a period of two years, effective from 1 January 1993. The agreement concerned all aspects of the working conditions of the Gaziantep Municipal Council’s employees, such as salaries, allowances and welfare services. 17. As the Gaziantep Municipal Council had failed to fulfil certain of its obligations under the agreement, in particular its financial obligations, the second applicant, as President of the trade union, brought civil proceedings against it in the Gaziantep District Court (“the District Court”) on 18 June 1993. 18. In a judgment of 22 June 1994, the District Court found in favour of Tüm Bel Sen. The Gaziantep Municipal Council appealed on points of law. 19. On 13 December 1994 the Court of Cassation (Fourth Civil Division) quashed the District Court’s judgment. It found that, even though there was no legal bar preventing civil servants from forming a trade union, any union so formed had no authority to enter into collective agreements as the law stood. 20. In arriving at this conclusion, the Court of Cassation took into account the special relationship between civil servants and the public administration as regards recruitment, the nature and scope of the work concerned, and the privileges and guarantees afforded to officials by virtue of their status. It considered that this relationship was different from that which existed between employers and ordinary contractual staff (that is to say, employees in the private sector together with manual workers employed by a public administration). As a result, Law no. 2322, governing collective agreements and the right to take strike or lock-out action, could not apply to relations between civil servants and a public administration. Any agreement of a “collective” nature between civil servants’ unions and a public administration had to be grounded in specific legislation. 21. In a judgment of 28 March 1995, the Gaziantep District Court stood by its original judgment on the ground that, despite the lack of express statutory provisions recognising a right for trade unions formed by civil servants to enter into collective agreements, this lacuna had to be filled by reference to international treaties such as the conventions of the International Labour Organisation (ILO) which had already been ratified by Turkey and which, by virtue of the Turkish Constitution, were directly applicable in domestic law. 22. Among other things, the District Court indicated, firstly, that the trade union Tüm Bel Sen was a legally established entity which had filed its constitution with the provincial governor’s office a long time ago and which, since then, had carried on its activities without the slightest intervention by the competent authorities. The court added that, on this matter, there was no discrepancy between its judgment and that of the Fourth Civil Division of the Court of Cassation. 23. As regards the right of civil servants to enter into collective agreements, the court considered that, even if there was an omission in Turkish law on this point, the court to which a dispute was referred had an obligation, under Article 1 of the Civil Code, to make good the omission itself and to adjudicate the case. In the court’s view, the same obligation also arose from Article 36 of the Turkish Constitution, under which everyone was afforded the right of access to a court. In this context the relevant provisions of the ILO conventions ratified by Turkey had to be applied in the case, even though the specific national laws had not yet been enacted by the legislature. Directly applying the relevant provisions of these international instruments ratified by Turkey, the court considered that the applicant trade union did have the right to enter into collective agreements. 24. As to the question whether the validity of the collective agreement in question was affected by the fact that it had not been provided for by any legislation at the time it was entered into, the court considered that, since it concerned employer-employee relations, the agreement was of a private-law nature. In the context of the limits imposed by Articles 19 and 20 of the Code of Obligations, namely compliance with statutory provisions, customary law, morals and public order, the parties had been freely entitled to determine the content of this collective agreement. An examination of the text of the collective agreement in question did not reveal any contradiction with those requirements. Consequently, the court found that the collective agreement between the applicant trade union and the Gaziantep Municipal Council had been a valid legal instrument with binding effect for the parties. 25. The court awarded Mr Kemal Demir a sum equivalent to the increases in pay and allowances provided for by the collective agreement in question. 26. In a judgment of 6 December 1995, the Court of Cassation (combined civil divisions) quashed the District Court’s judgment of 28 March 1995. It found that certain rights and freedoms mentioned in the Turkish Constitution were directly applicable to litigants, whereas others were not. In fact, the Constitution, by the indication “the exercise of this right shall be governed by legislation” clearly earmarked the rights and freedoms which, to be used and applied, required the enactment of specific legislation. Absent such legislation, these rights and freedoms, which included the freedom to join a trade union and to bargain collectively, could not be exercised. 27. The Court of Cassation further considered that the principle of the individual’s free will was not absolute in respect of the establishment of legal entities. They could acquire legal personality, distinct from their constituent persons, only by complying with the formal conditions and procedures laid down by law for that purpose. The creation of a legal entity was no more than a legal consequence conferred by the law on an expression of free will by the founders. 28. The Court of Cassation pointed out that the freedom to form associations, trade unions and political parties, even if provided for in the Turkish Constitution, could not be exercised simply by a declaration of the free will of individuals. As there was no specific law on the subject, the existence of such a legal entity could not be recognised. According to the Court of Cassation, this finding was not at odds with the principles of “the rule of law” and “democracy” mentioned in the Constitution, since supervision of legal entities by the State, in order to ensure public usefulness, was necessary in any democratic legal system. 29. The Court of Cassation further pointed out that the legislation in force at the time when the trade union was founded did not permit civil servants to form trade unions. It added that the amendments subsequently made to the Turkish Constitution, recognising the right of civil servants to form trade unions and bargain collectively, were not such as to invalidate the finding that Tüm Bel Sen had not acquired legal personality and, as a result, did not have the capacity to take or defend court proceedings. 30. An application by representatives of the trade union for rectification of that decision was rejected by the Court of Cassation on 10 April 1996. 31. Following an audit of the Gaziantep Municipal Council’s accounts by the Audit Court, the members of the trade union Tüm Bel Sen had to reimburse the additional income they had received as a result of the defunct collective agreement. The Audit Court, in a number of decisions that it gave as the court of last resort in respect of the collective agreements entered into by the trade union, pointed out that the rules applicable to civil servants, including the salaries and allowances to which they were entitled, were laid down by law. It further considered that, since the amendment on 23 July 1995 of Article 53 of the Turkish Constitution and the enactment on 25 June 2001 of Law no. 4688 on civil servants’ trade unions, such unions were admittedly entitled to engage in collective bargaining under certain conditions of representation, but were not entitled to enter into valid collective agreements directly with the authorities concerned, unlike trade unions of ordinary contractual employees who could enter into such agreements with their employers. If an agreement was entered into between the employing authority and the trade union concerned, it could only become binding following its approval by the Council of Ministers. The Audit Court, after finding that the collective agreement entered into by the applicant trade union had not fulfilled these conditions, decided that the accountants who had authorised higher payments than those provided for by law should reimburse the surplus amounts to the State’s budget. 32. The Audit Court refused to apply section 4 of Law no. 4688, which required the discontinuance of any administrative, financial or judicial proceedings brought against accountants who were responsible for such payments. It considered that this provision did not render the collective agreements valid and did not release the accountants in question from the obligation to reimburse the State for any losses sustained by it as a result of payments made in accordance with those agreements. 33. The accountants concerned in turn brought proceedings against the civil servants who were members of the trade unions and had benefited from the additional payments granted under the defunct collective agreements. 34. The relevant provisions of the Turkish Constitution read as follows: “Ordinary contractual employees (işçi) and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and interests in the context of their labour relations. In order to form a union or a federation of unions, it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law. If it finds that this information and documentation are not in conformity with the law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or federation of unions. Everyone shall be entitled to join or resign from a trade union. No one shall be compelled to become a member, remain a member, or resign from a trade union. Ordinary contractual employees and employers shall not be entitled to join more than one trade union at a time. Employment in a particular workplace shall not be made conditional on membership or lack of membership of a trade union of ordinary contractual employees. In order to hold an executive post in a trade union or federation of trade unions of ordinary contractual employees, it is necessary to have effectively been employed as such an employee for at least ten years. The constitution, administration, and functioning of trade unions and federations of trade unions shall not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.” “Employees and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop the economic and social rights and interests of their members in the context of their labour relations, and to join or withdraw from such entities of their own free will. No one shall be compelled to join or resign from a trade union. The right to form a union may only be limited as prescribed by law in the interests of national security or public order, for the prevention of crime, for the protection of public health or morals or for the protection of the rights and freedoms of others. The formalities, conditions and procedures applicable to the right to form a trade union shall be prescribed by law. Membership of more than one trade union within the same sector of activity shall be prohibited. The scope of the rights in this sphere of public officials other than those who have the status of ordinary contractual employee, and the exceptions and limitations applicable to them, shall be prescribed by law in a manner appropriate to the nature of the services they provide. The constitution, administration and functioning of trade unions and federations of unions shall not be inconsistent with the fundamental characteristics of the Republic or with democratic principles.” “Ordinary contractual employees and employers shall be entitled ... to enter into collective agreements in order to regulate their economic and social position and conditions of work. Collective agreements shall be entered into in accordance with the statutory procedure. It shall be prohibited to enter into or apply more than one collective agreement in a single workplace at any given time.” “Ordinary contractual employees and employers shall be entitled ... to enter into collective agreements in order to regulate their economic and social position and conditions of work. Collective agreements shall be entered into in accordance with the statutory procedure. The trade unions and federations of unions which the public officials referred to in the first paragraph of Article 128 shall be entitled to form, and which do not fall within the scope of the first and second paragraphs of the present Article, nor that of Article 54, shall be entitled to take or defend court proceedings and to bargain collectively with the public administration in accordance with their objectives and on behalf of their members. If an agreement is reached as a result of collective bargaining, the text of the agreement shall be signed by the parties. This text shall be submitted to the Council of Ministers so that legal or administrative arrangements can be made for its implementation. If no such agreement is reached through collective bargaining, a record of the points of agreement and disagreement shall be drawn up and signed by the relevant parties and submitted for consideration by the Council of Ministers. The procedure for the implementation of this paragraph shall be laid down by law. It shall be prohibited to enter into or apply more than one collective agreement in a single workplace at any given time.” “... International treaties that are duly in force are directly applicable in domestic law. Their constitutionality cannot be challenged in the Constitutional Court. In the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute, the provisions of the international agreement shall prevail.” (Second sub-paragraph added by Law no. 5170 of 7 May 2004) “The essential and permanent duties necessitated by the public services that the State, public economic undertakings and other public-law entities are required to provide, in accordance with general principles of public administration, shall be performed by civil servants and other public officials. The qualifications, appointment, duties and powers, rights and responsibilities, and salaries and allowances of civil servants and other public officials, and other matters related to their status, shall be provided for by law. The procedure and principles governing the training of senior civil servants shall be specially provided for by law.” 35. Section 22 of the Public Service Act (Law no. 657 of 14 July 1965) stated that civil servants were authorised to form and join trade unions and professional organisations, in accordance with the conditions set out in special legislation. The second subsection of that provision stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities. Section 22 was repealed by Article 5 of Legislative Decree no. 2 of 23 December 1972. It was reinstated by section 1 of Law no. 4275 of 12 June 1997. The text now reads: “In accordance with the provisions of the Constitution and of the special legislation, civil servants shall be permitted to form and to become members of trade unions and federations of trade unions.” 36. The Civil Servants’ Trade Union Act (Law no. 4688 – which was enacted on 25 June 2001 and entered into force on 12 July 2001) applies, according to section 2, to public officials, other than those who have the status of ordinary contractual employees (işçi), working for government agencies and other public-law entities providing a public service, organisations operating on a general, supplementary or special budget, public administrations and municipal authorities in provinces and services attached thereto, publicly owned enterprises, banks and other private-law undertakings and establishments attached thereto, and for all other public organisations and establishments. Section 30 of the Act provides as follows: “The trade union with the greatest number of members in each branch of public administration and the federations to which those unions are affiliated shall have the capacity to bargain collectively. The delegate from the most representative trade union shall chair the delegation taking part in the negotiations.” The determination of which civil servants’ trade unions and federations are competent to bargain collectively is made by the Minister for Labour and Social Security on the basis of lists that are co-signed and presented by the public administrations and the trade unions (section 30 of Law no. 4688). During the collective bargaining, the employer is represented by the Public Employers’ Committee. Civil servants and other public officials are represented by the trade union that is recognised as competent and the federation to which it is affiliated. The Public Employers’ Committee and the trade unions and federations concerned are required to meet on 15 August every year. The parties then submit their proposals, which will form the starting-point and agenda of the collective bargaining. The principles governing the negotiations are determined by the parties (section 32 of Law no. 4688). The collective negotiations must be concluded within fifteen days. If agreement is reached within that time, the parties concerned sign a collective agreement which is sent to the Council of Ministers to enable the legal and administrative steps required for its implementation to be taken. The Council of Ministers takes the appropriate measures within a period of three months and presents its draft law to the Grand National Assembly of Turkey (section 34 of Law no. 4688). If the parties concerned are unable to reach an agreement within the time-limit thus fixed, each one may refer the matter to the Arbitral Board, which is made up of academics who are not members of political parties. If the parties approve the decision of the Arbitral Board, an agreement is signed and sent to the Council of Ministers. If there is still no agreement, the parties sign a record indicating the points on which they have agreed and disagreed. This record is also sent to the Council of Ministers (section 35 of Law no. 4688). 37. Article 2 of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (adopted in 1948 and ratified by Turkey on 12 July 1993) provides as follows: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” 38. In its Individual Observation to the Turkish government concerning ILO Convention No. 87, adopted in 2005, the Committee of Experts on the Application of Conventions and Recommendations stated as follows: “The Committee underlines that Article 2 of the Convention [No. 87] provides that workers without distinction whatsoever should have the right to form and join organisations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police. ...” 39. The ILO Committee on Freedom of Association declared as follows concerning municipal civil servants (see Digest of Decisions 1996, paragraph 217): “Local public service employees should be able effectively to establish organisations of their own choosing, and these organisations should enjoy the full right to further and defend the interests of the workers whom they represent.” 40. Article 22 of the International Covenant on Civil and Political Rights provides as follows: “1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. ...” 41. Article 8 of the International Covenant on Economic, Social and Cultural Rights provides as follows: “1. The States Parties to the present Covenant undertake to ensure: (a) the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; ... (c) the right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; ... 2. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. ...” 42. The relevant Articles of ILO Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (adopted in 1949 and ratified by Turkey on 3 January 1952) read as follows: “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.” “1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations. 2. In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.” “This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.” 43. The ILO Committee of Experts interpreted this provision as excluding from the scope of Convention No. 98 only those officials who are directly employed in the administration of the State. With that exception, all other persons employed by the government, by public enterprises or by autonomous public institutions should benefit, according to the Committee, from the guarantees provided for in Convention No. 98 in the same manner as other employees, and consequently should be able to engage in collective bargaining in respect of their conditions of employment, including wages (General Survey 1994, Freedom of Association and Collective Bargaining, on Conventions Nos. 87 and 98 [ILO, 1994a], paragraph 200). 44. The relevant provisions of ILO Convention No. 151 (adopted in 1978 and ratified by Turkey on 12 July 1993) concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service read as follows: “1. This Convention applies to all persons employed by public authorities, to the extent that more favourable provisions in other international labour conventions are not applicable to them. 2. The extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations. 3. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.” “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.” The General Conference of the ILO, in the Preamble to Convention No. 151, noted “the terms of the Freedom of Association and Protection of the Right to Organise Convention, 1948, [and] the Right to Organise and Collective Bargaining Convention, 1949” and took into account: “... the particular problems arising as to the scope of, and definitions for the purpose of, any international instrument, owing to the differences in many countries between private and public employment, as well as the difficulties of interpretation which have arisen in respect of the application of relevant provisions of the Right to Organise and Collective Bargaining Convention, 1949, to public servants, and the observations of the supervisory bodies of the ILO on a number of occasions that some governments have applied these provisions in a manner which excludes large groups of public employees from coverage by that Convention.” 45. Article 5 of the European Social Charter (revised), not yet ratified by Turkey, provides as follows: “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” 46. Principle 8 of Recommendation No. R (2000) 6 of the Committee of Ministers of the Council of Europe on the status of public officials in Europe reads as follows: “Public officials should, in principle, enjoy the same rights as all citizens. However, the exercise of these rights may be regulated by law or through collective agreement in order to make it compatible with their public duties. Their rights, particularly political and trade union rights, should only be lawfully restricted in so far as it is necessary for the proper exercise of their public functions.” 47. Article 12 § 1 of the European Union’s Charter of Fundamental Rights provides as follows: “Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.” 48. As to European practice, it can be observed that the right of public servants to join trade unions is now recognised by all Contracting States. This right applies to public servants under a career or contractual system and to employees of publicly owned industrial or commercial enterprises, whether national or municipal. Civil servants, whether they work for central government or a local authority, are generally entitled to join the trade union of their choosing. The density of trade-union membership is generally higher in the public sector than in the private sector. In the majority of member States, the few restrictions that can be found are limited to judicial offices, to the police and to the fire services, with the most stringent restrictions, culminating in the prohibition of union membership, being reserved for members of the armed forces. 49. Article 6 of the European Social Charter (revised), not yet ratified by Turkey, contains the following provision concerning the right to bargain collectively: “With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: 1. to promote joint consultation between workers and employers; 2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: 4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.” 50. According to the meaning attributed by the Charter’s Committee of Independent Experts (now the European Committee of Social Rights) to Article 6 § 2 of the Charter, which in fact fully applies to public officials, States which impose restrictions on collective bargaining in the public sector have an obligation, in order to comply with this provision, to arrange for the involvement of staff representatives in the drafting of the applicable employment regulations (see, for example, in respect of Germany, Conclusions III, pp. 34-35). 51. Article 28 of the European Union’s Charter of Fundamental Rights provides as follows: “Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.” 52. As to the practice of European States, it can be observed that, in the vast majority of them, the right for public servants to bargain collectively with the authorities has been recognised, subject to various exceptions so as to exclude certain areas (disciplinary procedures, pensions, medical insurance, wages of senior civil servants) or certain categories of civil servants who hold exclusive powers of the State (members of the armed forces and of the police, judges, diplomats, career civil servants at federal level). The right of public servants working for local authorities and not holding State powers to engage in collective bargaining in order to determine their wages and working conditions has been recognised in the vast majority of Contracting States. The remaining exceptions can be justified by particular circumstances.

train

001-94009

ENG

POL

CHAMBER

CASE OF MOSKAL v. POLAND

Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - award

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

5. The applicant, Ms Maria Moskal, is a Polish national who was born in 1955 and lives in Glinik Chorzewski. 6. The applicant is married with three children. She has a medium-level education. Prior to her early retirement she was employed for thirty-one years and had paid her social security contributions to the State. Her child, born in 1994, suffers from atopic bronchial asthma (atopowa astma oskrzelowa), various allergies and recurring sino-pulmonary infections. 7. On 6 August 2001 the applicant filed an application with the Rzeszów Social Security Board to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. The particular type of pension sought by the applicant was at the relevant time regulated 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”). 9. Along with her application for a pension, the applicant submitted, among other documents, a medical certificate issued on 2 August 2001 by a specialist in allergy and pulmonology from the Health Service Institution in Strzyżów (Zespół Opieki Zdrowotnej). The certificate stated that the applicant’s seven-year-old son had suffered from the age of three months from atopic bronchial asthma, various allergies, as well as frequent sinopulmonary infections often accompanied by fever and bronchial constriction (spastyczne skurcze oskrzeli). Consequently, he was in need of his mother’s constant care. It was further noted that the medical certificate had been issued in connection with the application for an early-retirement pension regulated by the 1989 Ordinance in view of the need to provide permanent care to the child from 31 December 1998 onwards. 10. On 29 August 2001 the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) issued a decision granting the applicant the right to an early-retirement pension in the amount of 1,683 Polish zlotys (PLN) gross (PLN 1,020 net), starting from 1 August 2001. In the same decision, however, the Social Security Board suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. 11. On 31 August 2001 the applicant resigned from her full-time job as a clerk at the Polish Telecommunications Company in Rzeszów, where she had been employed for the past thirty years. 12. Consequently, on an unspecified date, the Rzeszów Social Security Board issued a new decision authorising the payment of the previously awarded retirement pension starting from 1 September 2001. 13. Subsequently, the applicant was issued with a pensioner’s identity card marked ‘valid indefinitely’ and for the following ten months she continued to receive her pension without interruption. 14. On 25 June 2002 the Rzeszów Social Security Board issued two decisions. By virtue of the first decision, the payment of the applicant’s pension was discontinued starting from 1 July 2002. By virtue of the second decision, the Board revoked the initial decision of 29 August 2001 and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. The latter decision stated that on 4 June 2002 the proceedings concerning the applicant’s right to a pension had been re-opened ex officio and that, as a result, “the medical certificate attached to her application for a pension had been found to raise doubts [as to its accuracy]”. Furthermore, the following standard clause appeared in the decision: “In the light of the medical documentation obtained concerning the child, it was established that the condition with which the child had been diagnosed was not enumerated in the [1989] Ordinance, and the analysis of the level of severity and the course [of the disease] did not indicate an impairment of bodily functions to such a degree as to justify the award of the pension [on account of] the necessity of permanent care of the child. It follows that the medical certificate serving as the basis for the award of the benefit is not supported by medical documentation. Consequently the right to a retirement pension is denied.” 15. The applicant appealed against the decision of 25 June 2002 divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her son required her constant care, as confirmed by the medical certificate attached to the original application. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 16. On 26 February 2003 the Rzeszów Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. 17. A medical report by an expert in pulmonology was ordered by the Regional Court. Having examined the medical documentation concerning the applicant’s son, as well as the child in person, the expert found that the applicant’s son suffered from sporadic bronchial asthma and recurring sinopulmonary infections. The expert concluded that the child did not require, as of 31 December 1998 or at the time of the proceedings, his mother’s permanent care, her nursing or any further aid, since his bronchial asthma did not significantly impair his respiratory functions. He further observed that the applicant’s care was needed only when the child’s condition occasionally became more severe. 18. Relying on the above expert opinion, the Regional Court held that the applicant had been rightfully divested of the right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care. The Regional Court did not examine the case from the standpoint of the doctrine of vested rights. 19. On 16 October 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the aforementioned judgment. The Court of Appeal agreed with the findings of fact contained in the expert opinion produced in the course of the first-instance proceedings to the effect that the applicant’s son did not require at the relevant time his mother’s permanent care. 20. On the issue of the re-opening of the proceedings, the Court of Appeal observed that decisions concerning retirement and disability pensions were only of a declaratory character. Therefore, they could be quashed by a social security authority where new evidence had been submitted or relevant circumstances, which pre-existed the initial pension award but which had not been taken into consideration by the authority beforehand, had come to light. 21. Furthermore, the Court of Appeal observed that pension decisions could be verified even in the light of pre-existing circumstances which had not been taken into consideration as a result of the authority’s own mistake or negligence. On the other hand, the Court of Appeal agreed with the applicant that the proceedings could not be re-opened as a consequence of a different assessment of the very same evidence which had accompanied the original application for a pension. 22. The Court of Appeal found that, in the instant case, the impugned pension proceedings had been re-opened because relevant circumstances pre-existing the initial pension award had been discovered by the authority in the course of a supplementary examination of the child’s entire medical record by the Social Security Board’s doctor (lekarz orzecznik). 23. Finally, the Court of Appeal stated that the doctrine of vested rights did not apply to rights acquired unjustly, for example when a person had been granted a right to a pension whereas in fact he or she had never met the requirements laid down in the relevant provisions. The Court of Appeal recalled that the purpose behind the 1989 Ordinance was to enable the carers of children with extremely severe disorders to take early retirement. It was aimed at providing a substitute source of income in cases where persons had lost their wages owing to the need to terminate their employment in order to take care of their sick children on a permanent basis. The Court of Appeal emphasised that, in such circumstances, it was necessary for the social security authorities to make a careful examination of whether or not persons applying for the right in question satisfied all the requirements. 24. On 7 May 2004 (decision served on 7 August 2004) the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal, fully endorsing the Court of Appeal’authority had lacked evidence as to the severity of the child’s condition, since the medical certificate attached to the application did not specify those activities which the child could not perform due to his alleged impairment. The fact that the aforementioned evidence had been lacking at the date of the decision did not come to light until after the validation of the decision. Therefore, the impugned proceedings had been re-opened due to the discovery of new relevant circumstances and not on the basis of a reexamination of the very same evidence attached to the applicant’s application for a pension. 25. The applicant was not ordered to return her early-retirement benefits paid by the Social Security Board from 1 September 2001 until 1 July 2002, despite the revocation of her right to the early-retirement pension. 26. In the period from 1 July 2002 (the date on which the payment of the applicant’s “EWK” pension was discontinued) to 25 October 2005 the applicant was not in receipt of any social benefits. The applicant submitted that in that period she had had no other income. As a result of separate social security proceedings, which had been instituted by the applicant, the Strzyżów District Labour Office (Powiatowy Urząd Pracy) decided on 25 October 2005 to grant the applicant a preretirement benefit (zasiłek przedemerytalny) in the amount of 523 Polish zlotys (PLN) net. Because, under the applicable law, a three-year statute of limitations applies to social security claims the decision to grant the right had a retroactive effect, with a starting date of 25 October 2002. As a result, on an unspecified date, presumably on 1 August 2004, the applicant received a pre-retirement benefit in the form of a lump-sum payment for the period between 25 October 2002 and 31 July 2004, without interest. The benefit was at first paid by the Strzyżów Regional Labour Office (Powiatowy Urząd Pracy) and since 1 August 2004 it was paid by the Rzeszów Social Security Board. As of March 2008 the applicant’s preretirement benefit amounts to 594 Polish zlotys (PLN) net. 27. In the light of the law as it now applies, it appears that the applicant will qualify for a regular retirement pension in 2015. 28. Approximately 120 applications arising from a similar fact pattern have been brought to the Court. The applicant in the instant case and most of the other applicants form the Association of Victims of the Social Security Board (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region. 29. The applicant submitted, according to the Association, that only 10% of the total number of “EWK” pension recipients had been subjected to review and re-opening under Section 114 of the 1998 Law. 30. The Government submitted that as of the end of 2006 approximately 76,600 individuals had been in receipt of the “EWK” pension. Although there were no statistics as to how many pensions had been revoked either countrywide or in each region, that number was very small. 31. The system of social security in Poland is regulated by the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych) and a number of other acts applying to specific occupational groups and regulating specific types of benefits. Proceedings for granting welfare benefits are two-tier. First, an application for a benefit is made to the regional Social Security Board. The board makes an assessment of the eligibility criteria for each type of benefit and issues a decision. Then, in the event that an individual concerned appeals, the decision becomes subject to judicial review by a social security court, which is a specialised branch of a regional civil court. The Social Security Board is a State authority which carries out administrative functions and issues declaratory decisions. In the judicial review phase, the Board becomes a party to the proceedings before the social security court. A judicial decision taken by the regional social security court may then be challenged by either party to the proceedings before a special social security branch of a court of appeal. Ultimately, a decision delivered by an appellate court may be appealed to the Supreme Court. This remedy is available irrespective of the amount of the claim. 32. The 1989 Ordinance ceased to be in force on 31 December 1998. However, its provisions remained in operation with regard to persons who had met the requirements of an early-retirement pension before that date but had failed to apply for the benefit in due time. The conditions to be fulfilled by a person in order to qualify for an early-retirement pension were laid down by paragraph 1 of the 1989 Ordinance. Paragraph 1.1 contained a reference to section 26 paragraph 1 point 2 of the Law of 14 December 1982 on retirement pensions of employees and their families. In the relevant part it provided that persons entitled to an earlyretirement pension were those persons (both women and men) who had been employed for at least 20 or 25 years and who personally took care of a child. Paragraph 1.2 provided that for children under the age of 16 it was not necessary to submit an official Social Security Board disability certificate. It was sufficient to present a medical certificate issued by a specialist medical clinic stating: “due to the health condition, caused by one of the diseases enumerated in paragraph 1.3, the child requires permanent care”. Paragraph 1.3 provided that early retirement was justified by the following physical and/or mental conditions of the child: “1. Complete dysfunction of upper or lower limbs, pareses and palsies, which prevent the child from independent movement and from controlling his or her physiological functions; 2. Mild, moderate and severe mental retardation, mental disorders, injury or disease of the central nervous system, making impossible autonomy in decisions or in daily activities; 3. Mild mental retardation with accompanying significant impairment of movement, sight, hearing or other chronic diseases significantly impairing bodily functions; 4. Other diseases impairing body effectiveness to a very serious degree.” 33. The re-opening of the proceedings concerning the benefit in question is regulated in section 114 of the 1998 Law, which at the relevant time read as follows: “114.1 The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.” 34. In its resolution of 5 June 2003 (no. III UZP 5/03), adopted by a bench of seven judges, the Supreme Court (Sąd Najwyższy) dealt with the question submitted by the Ombudsman (Rzecznik Praw Obywatelskich) as to whether a different assessment of the evidence attached to the application for a pension, carried out by a social security authority after validation of the decision concerning the pension, might constitute a ground for reopening the proceedings leading to a review of the right to a pension in accordance with section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund. The answer was in the negative. The Supreme Court held, inter alia: “A different assessment of the [same] evidence as attached to the application for a retirement or disability pension, carried out by a social security authority after validation of the decision awarding the right to a pension, is not one of the circumstances justifying the ex officio re-opening of the proceedings for a review of the right to a pension in accordance with section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund.”

train

001-108537

ENG

UKR

CHAMBER

CASE OF BORISENKO v. UKRAINE

Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

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

4. The applicant was born in 1967 and lives in Novotroitske, in the Donetsk Region. 5. On 17 February 1999 criminal proceedings were instituted against the applicant and three other persons on suspicion of having robbed a café. 6. On 23 March 1999 a bill of indictment was drafted in the applicant’s respect and he was placed under an obligation not to abscond. However, as the applicant’s whereabouts were unknown, he was placed on the wanted list and the proceedings were suspended. 7. On 17 July 1999 the applicant was arrested by the police while attempting to flee after having robbed a store. Following this incident a new criminal case was initiated against him and he was remanded in custody. 8. On 30 December 1999 the Voroshylovsky District Court of Donetsk sentenced the applicant to four years’ imprisonment for having robbed a store on 17 July 1999. The court ordered that the term of imprisonment be calculated from 18 July 1999, when the applicant had initially been remanded in custody. Following this conviction, the applicant was detained in the Donetsk Region Correctional Labour Colony no. 57 (ВТК № 57). 9. On 22 November 2000 the criminal proceedings initiated against the applicant and three other persons in February 1999 were resumed and the applicant was presented with the bill of indictment of 23 March 1999. 10. On 28 December 2000 a decision was taken to transfer the applicant temporarily (for two months) from the Correctional Labour Colony where he was serving his sentence of 30 December 1999 to the Donetsk Temporary Detention Unit (SIZO) no. 5 (СІЗО № 5 м. Донецьк) for questioning in connection with the pending criminal case. 11. On 23 January 2001 the criminal case against the applicant was joined with twelve other criminal cases involving nine more defendants and concerning numerous robberies and other crimes committed by them as members of a gang. 12. On 31 January 2001 the applicant’s bill of indictment of 23 March 1999 was updated. Together with three other presumed gang members he was additionally charged with having robbed another commercial facility on 14 February 1999. 13. On 1 February 2001 the Dokuchayevsk Town Prosecutor authorised the applicant’s detention on remand in SIZO no. 5 until 28 March 2001 in connection with the pending criminal proceedings against him. By way of reasoning it was noted that the applicant was a convicted prisoner whose transfer to the SIZO was necessary in view of the need to investigate the accusations pending against him. 14. On 22 March 2001 the applicant’s bill of indictment was updated, in particular to mention his membership of a gang. 15. In March 2001 the defendants commenced familiarisation with the case-file materials. 16. In June 2001 the criminal case was transferred to the Dokuchayevsk Town Court. 17. On 21 June 2001 the court held a preliminary hearing and found that the case had been properly investigated and was ready for trial. It further ordered, without any additional reasoning, that the applicant should remain in custody in SIZO no. 5 pending trial. It did not specify for how long. The court scheduled the first hearing for 17 July 2001. This hearing did not take place, however, as the court allowed the applicant’s and several other defendants’ requests to familiarise themselves with the case file. 18. A new hearing was scheduled for 14 November 2001. It was adjourned because the applicant asked for it to be recorded but the requisite recording equipment was unavailable. The court also upheld the previously decided preventive measure – the applicant’s detention in SIZO no. 5 – without fixing any time-limits or giving any reasons. The next hearing was eventually scheduled for 4 September 2002. Between that date and August 2004 some fifty hearings were scheduled. On some fifteen occasions the hearings were adjourned because of the authorities’ failure to deliver the accused, who were in custody, for the hearings. On seven occasions the hearings were adjourned because the prosecutor failed to appear and on ten occasions because various private parties (victims, accused, witnesses) failed to appear. 19. In decisions on adjournments of the hearings of 24 September, 29 October, 12 and 22 November, 18 December 2002, 25 December 2003, 13 and 28 January, 9 June and 17 June 2004, the domestic courts also continued to uphold the applicant’s detention without giving any reasons or fixing any time-limits. 20. On 17 August 2004 the Dokuchayevsk Town Court remitted the case for additional investigation without deciding on the applicant’s further detention. 21. On 11 February 2005 the Donetsk Regional Court of Appeal set aside that decision and remitted the case to the trial court for fresh consideration. 22. On 26 April 2005 the applicant requested the Dokuchayevsk Court to release him from custody under an undertaking not to abscond. He referred to the incompatibility of his state of health with the conditions of his detention and to his hope of producing evidence of his innocence in the event of his release. On the same date the court rejected his request, citing the general legal provisions applicable, which authorised detention pending trial for defendants charged with serious crimes in order to prevent them from absconding, interfering with the establishment of the facts or continuing their criminal activities, as well as to ensure compliance with procedural decisions. It further stated, that the applicant did not substantiate his request and there were no grounds for his release under the undertaking not to abscond. 23. Between February and June 2005 some twenty-eight hearings were scheduled. About ten of them did not take place on account of the prosecutor’s failure to appear and five hearings were adjourned on account of the failure of various third parties to appear. 24. On 1 June 2005 the Dokuchayevsk Town Court convicted the applicant as charged and sentenced him to seven years’ imprisonment. The court further decided: “In accordance with part 3 of Article 42 of the C[riminal] C[ode] of Ukraine in the wording of 1960, the ultimate punishment shall be determined for the multiple offences, by the partial addition of the sentences under the judgment of the Voroshylovsky District Court of Donetsk of 30 December 1999 and under this judgment, as nine years’ imprisonment with confiscation of all personal property. The period of serving the sentence under this judgment shall include the part of the sentence served under the judgment of the Voroshylovsky District Court of 30 December 1999, which was one year, six months and seventeen days, and the ultimate [remaining] sentence shall be determined as seven years five months and seventeen days’ imprisonment and confiscation of all personal property. The term of the sentence of the convict Borisenko S.V. shall be calculated as from 1 February 2001.” 25. On 20 January 2006 the Donetsk Regional Court of Appeal upheld the applicant’s sentence. 26. The applicant appealed in cassation, submitting that the courts had wrongly determined his ultimate sentence as he considered that he had served his first sentence in full. He considered that he had been detained as a convicted person, referring to a number of parcels he had been allowed to receive. 27. On 14 November 2006 the Supreme Court of Ukraine rejected the applicant’s cassation appeal against the judgment of 1 June 2005. It noted in particular that the first-instance court had calculated the applicant’s sentences correctly and in accordance with the law, namely Article 42 § 3 of the Criminal Code of 1960, Article 65 of the Criminal Code of 2001 and Article 338 of the Code of Criminal Procedure. 28. Under section 4 of the Act, during the investigation and trial suspects may be kept in a SIZO (temporary detention centre) or a prison acting as a SIZO. Exceptionally the suspects can be kept in “IVS” short-stay cells in police stations. If a convicted person is under investigation in respect of another crime, he or she may be kept in the disciplinary detention unit of a correctional colony. Section 8 of the Act provides for suspects who have been convicted of a different offence to be kept separately from other detainees. 29. The Code provided for a convicted person normally to be kept in the same custodial institution (Article 22). Under Article 23 of the Code a person who was sentenced to imprisonment in a colony could be temporarily kept in a SIZO or prison in connection with different criminal proceedings, as a witness (for up to six months with the authorisation of the prosecutor) or as a suspect, under the general rules governing detained suspects under Article 156 of the Code of Criminal Procedure. 30. The relevant provision of the Code provides: Article 42 Sentencing for several crimes “If a person is found guilty of committing two or more offences under different articles of the criminal law, and has not been convicted for any of them, the court, having determined the punishment for each crime separately, shall ultimately determine the aggregate punishment by absorption of the less severe penalties by the more severe ones, or through full or partial cumulation of determined punishments within the limits established by the article of law that provides for the more severe punishment. The main punishment may be supplemented by any additional penalty provided for in the laws governing liability for the crimes of which the person was found guilty. The same rules shall apply when, after having been sentenced in one case, the sentenced person is found guilty of another crime, committed before the sentence was pronounced in the first case. In such cases the term of the sentence shall include the part or all of the sentence not yet served under the first judgment.” 31. The relevant provision of the Code provides: Article 65 General principles of imposition of punishment “1. A court shall impose a punishment: (1) within the limits prescribed by a sanction under that article of the Special Part of this Code which creates liability for the criminal offence concerned; (2) pursuant to provisions of the General Part of this Code; (3) having regard to the degree of gravity of the offence committed, the character of the offender, the method used and the motives for the offence, the nature and extent of the damage done, and any mitigating or aggravating circumstances. 2. The punishment imposed on an offender should be adequate and sufficient to reform the offender and prevent new offences. 3. The grounds for imposing a punishment milder than that prescribed for a given offence in the relevant article of the Special Part of this Code are specified in Article 69 of this Code. 4. A punishment heavier than that prescribed for a given offence in the relevant article of the Special Part of this Code may be imposed pursuant to Articles 70 and 71 of this Code in the event of cumulative offences and cumulative sentencing.” 32. The relevant provisions of the Code provide: Article 156 (as worded before 29 June 2001) Term for holding a person in custody “The term for remanding a person in custody during the investigation of criminal offences shall be not more than two months. This term may be extended to four months by district, city or military prosecutors, prosecutors of the fleet or command garrison, or other prosecutors of the same rank, if it is not possible to terminate the criminal investigation, and in the absence of any grounds for changing the preventive measure. A further extension of this term to six months from the time of arrest shall be effected – only if the case is exceptionally complex – by the Prosecutor of the Republic of the Crimea, regional prosecutors, Kyiv prosecutors, military prosecutors of the district or fleet, or other prosecutors equal to them in rank. Further periods of remand in custody may be extended for up to one year by the Deputy Prosecutor General of Ukraine, and up to eighteen months by the Prosecutor General. Subsequent to the above, no further extensions of detention on remand shall be allowed. The accused must then be immediately released. If it is impossible to terminate the investigation within these remand periods and there are no grounds for changing the preventive measure, the Prosecutor General or his Deputy shall be entitled to refer the case to a court in the part which relates to accusations which can be proved. As regards the incomplete investigation, the case shall be divided into separate proceedings and completed in accordance with the general rules. The material relating to the completed part of the criminal case shall be provided to the accused and his representative for examination not later than one month before the expiry of the remand period, as established by paragraph 2 of this Article. The time taken by the accused and his representative to apprise themselves of the material in the case file shall not be taken into account in calculating the overall term of remand in custody. If the court refers the case back for fresh investigation, and where the term of remand in custody has expiredextended by the prosecutor, whose task is to supervise the lawfulness of the pre-trial investigation in the case, within one month from the time he receives the case file. Further extension of such detention before the case is remitted to the court shall be governed by paragraphs 1, 2 and 6 of this Article.” After June 2001 the detention order was given along the same lines, but by the courts and not the prosecutor. Article 338 Calculation of the period of serving the sentence “The beginning of the serving of a sentence in the form of imprisonment or corrective labour for a defendant who has not been in custody prior to his conviction shall be calculated from the date of execution of the sentence. When the defendant, prior to his conviction, has been in custody for the purposes of the same case, the period of serving the sentence shall include the period of pre-trial detention. When the accused, while in custody, stayed in a medical institution, the period of stay there shall be included the period of serving the sentence. If the defendant, prior to conviction, has been in custody and is sentenced to correctional labour, the time spent in custody shall be included in the period of correctional labour at the rate of one day of custody for three days of correctional labour. If the defendant was sentenced to correctional labour, and during the re-hearing of the same cause he is sentenced to imprisonment, the served period of correctional labour shall be included in the term of imprisonment at the rate of three days of corrective labour for one day of imprisonment.”

train

001-90190

ENG

UKR

CHAMBER

CASE OF GOGIN v. UKRAINE

Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

4. The applicant was born in 1962 and lives in the town of Debaltseve, in the Donetsk region, Ukraine. 5. On 15 July 1998 the Dokuchayevsk Court ordered the State-owned mining company “Yuzhnodonbassakya-3” (“the company”) to pay the applicant 2,147.72 Ukrainian hryvnyas (UAH) in salary arrears and other payments. By another decision adopted on the same day the court ordered the company to pay the applicant UAH 312.11 for loss of salary and to rectify the records in his work book (трудова книжка) about the date and the reason of his dismissal. 6. On 1 September 1998 the same court ordered the company to pay the applicant UAH 949.90 for loss of salary and other payments. By the same judgment the court ruled again to rectify the records in his work book about the date of his dismissal. 7. On 6 January 1999 the same court ordered the company to pay the applicant UAH 1,438.42 for loss of salary and other payments. By the same judgment the court ruled to rectify the records in his work book about the date of his dismissal. 8. On 26 February 1999 the same court ordered the company to enforce the judgments of 15 July 1998. 9. On 1 October 1999 the same court ordered the company to provide the applicant with an apartment, as stipulated in his employment contract. On 4 March 2002 the same court, upon the applicant’s request, modified the manner of enforcement of the judgment of 1 October 1999 and ordered the company to pay the applicant UAH 13,137 instead of providing him with an apartment. 10. All the above judgments became final and the enforcement proceedings were instituted by the Vugledar Bailiffs Service (“the Bailiffs Service”). 11. On 22 February 2000 the Bailiffs Service informed the applicant that the enforcement proceedings had been suspended due to bankruptcy proceedings pending against the company. 12. In September 2003 the applicant instituted proceedings in the Vugledar Court against the Bailiffs Service seeking compensation for damage caused to him due to the non-enforcement of the above judgments. On 10 June 2004 the Vugledar Court rejected the applicant’s complaints against the alleged inactivity of the Bailiffs Service. On 26 August 2004 the Donetsk Regional Court of Appeal quashed the decision and remitted the case to the first-instance court for a new consideration. According to the applicant’s submissions, the proceedings are still pending. 13. The applicant rented a house owned by Mr. Ch. In December 2001 the applicant instituted proceedings against the municipal company Donetskoblvodokanal (ДОКП Донецькоблводоканал), and the Dokuchaevsk Water and Sewerage Company (Докучаєвське управління водопровідно каналізаційного господарства) claiming UAH 2,000 in compensation for non-pecuniary damage, alleging that the water supply to the house rented by him was unsatisfactory. The applicant also sought a recalculation of his water rates. 14. On 13 September 2002 the Dokuchayevsk Court allowed the applicant’s claims in part. On 5 December 2002 the Donetsk Regional Court of Appeal quashed that decision and remitted the case to the Dokuchayevsk Court for a fresh consideration by another judge. 15. On 6 May 2003 the Dokuchayevsk Court allowed the applicant’s claim in part and awarded him UAH 1,000 in compensation for non-pecuniary damage. On 21 July 2003 the Donetsk Regional Court of Appeal quashed this decision and remitted the case to the Dokuchaevsk Court for a fresh consideration by another judge. 16. On 13 August 2003 the President of the Dokuchayevsk Court requested that the Donetsk Regional Court of Appeal transfer the applicant’s case to another court on the ground that it only had two judges, who had both already considered the case. On 19 August 2003 the Court of Appeal granted the request and transferred the case to the Volnovakha Court. 17. Meanwhile, the applicant appealed in cassation against the ruling of the court of appeal of 21 July 2003. On 15 June 2005 the Supreme Court rejected the applicant’s cassation appeal. 18. On 8 February 2006 Mr Ch. entered the proceedings as a third party. On 22 February 2006 he requested that the Volnovakha Court suspend the proceedings in the applicant’s case since he had instituted other proceedings against the municipal company “Donetskvodokanal” in the Dokuchaevsk Court, and their outcome would have a bearing on the consideration of the case. On the same date the court granted the request. On 31 May 2006 the Dokuchaevsk Court left Mr Ch.’s claim unexamined because it lacked jurisdiction over the case. On 23 July 2006 the Volnovakha Court renewed proceedings in the applicant’s case. 19. On 7 November 2006 the Volnovakha Court allowed the applicant’s claim in part and awarded him UAH 200 in compensation for non-pecuniary damage. On 13 March 2007 the Donetsk Regional Court of Appeal upheld that decision. 20. On 19 September 2007 the Supreme Court dismissed the applicant’s appeal in cassation. 21. According to the materials in the case file, out of around forty-one scheduled hearings, seven were adjourned due to the absence or at the request of the defendants’ representatives. Four were adjourned because of the absence of both parties; four were adjourned because of the absence of the applicant or at his request; and one was adjourned due to the judge’s illness. 22. On 29 March 2002 the Volnovakha Tax Inspection Office fined the applicant with UAH 170 because he had submitted his VAT declaration out of time. 23. In May 2002 the applicant lodged a complaint with the Dokuchayevsk Court. 24. On 22 July 2002 the applicant’s complaint was transferred to the Volnovakha Court, which left it unexamined on the ground that the dispute fell within the jurisdiction of the commercial courts. On 4 November 2002 and 29 August 2003 the Donetsk Regional Court of Appeal and the Supreme Court, respectively, upheld that ruling. 25. On 2 March 2004 the investigator of the Debaltseve Department of the Interior appointed the applicant, acting as a legal advisor, as legal assistant to a minor, B., who was charged with robbery. On 5 March 2004 the Public Prosecutor of Debaltseve annulled this appointment; on 16 March 2003 B.’s mother cancelled the legal aid contract. 26. The applicant alleged that the Vice-President of the Donetsk Regional Court of Appeal ordered that lawyers without an advocate’s licence were not to be appointed as legal assistants. 27. The relevant domestic law is summarised in the judgments of Sokur v. Ukraine (no. 29439/02, §§ 17-22, 26 April 2005) and Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004).

train

001-75235

ENG

SVN

CHAMBER

CASE OF KUNSTIC 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 1935 and lives in Petrovče. 6. On 19 September 1996 the applicant was injured in a car accident. The company owning the bus that caused the accident had taken out insurance with the insurance company ZT. 7. On 14 October 1998 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,050,000 tolars (approximately 8,550 euros) for the injuries sustained. On 28 September 1999 and 30 March 2000 the applicant requested that a date be set for a hearing. Between 4 January 2001 and 16 October 2002 the applicant lodged four preliminary written submissions and/or adduced evidence. Of the five hearings held between 17 January 2001 and 16 October 2002 none was adjourned at the request of the applicant. During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed 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 27 December 2002. 8. On 30 December 2002 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed. On 8 April 2004 the court dismissed the appeals. The judgment was served on the applicant on 5 May 2004.

train

001-116104

ENG

UKR

ADMISSIBILITY

ZGONNIK v. UKRAINE

Inadmissible

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant, Mr Valeriy Vladyslavovych Zgonnik, is a Ukrainian national, who was born in 1965 and lives in Kostyantynivka, Donetsk region. He was represented before the Court by Mr M. Anikin, a lawyer practising in Kerch. On 9 July 2006 the applicant was detained on suspicion of murder. On 11 July 2006 he was taken to the Kostyantynivskyy Town Court, which held that it was necessary to make further enquiries about him and decided to extend the term of his detention to ten days. On 21 July 2006 the Kostyantynivskyy Court remanded the applicant in custody pending trial. The applicant’s pre-trial detention was extended by judicial decisions on three occasions, until 9 November 2006. On 7 November 2006 the investigator applied to the Donetsk Regional Court of Appeal (“the Donetsk Regional Court”) for another extension of the applicant’s detention, this time until 9 December 2006. According to the investigator, the applicant and his lawyer had received access to the case file only on 27 October 2006 and needed more time for studying it. On 9 November 2006 the Donetsk Regional Court refused to accept the investigator’s application as submitted with a delay. It held that the delayed provision of access for the applicant to the case file was not a valid reason for extending his detention and that he was to be released immediately after the expiry of the authorised detention term. The investigator referred the case for trial instead. However, he immediately requested the court to return it back for additional investigation on the grounds that the applicant and his lawyer had not had sufficient time to study the case file. According to the applicant, by doing so the investigator circumvented the legally established time-limits for his pre-trial detention. On 4 December 2006 the Donetsk Regional Court remitted the case for additional investigation in allowing the investigator’s application. It noted that the term of the applicant’s pre-trial detention had expired and that it had not been extended. At the same time, it held that, given the seriousness of the crime the applicant was charged with, he was to remain in detention. The applicant unsuccessfully challenged the above ruling to the Supreme Court, which held on 25 January 2007 that the issue of the preventive measure in his case was to be decided by the investigating authorities. On 23 April 2007 the investigator once again referred the case to the court for trial. However, on 17 May 2007 the Donetsk Regional Court remitted it for additional investigation once again. It held that the applicant had not been provided with the possibility to study the case file. Furthermore, the term of his pre-trial detention had been breached. Nonetheless, the court decided to keep the applicant in detention with reference to the seriousness of the criminal offence he was charged with. It therefore rejected his request for release. On 19 July 2007 the Supreme Court rejected the applicant’s cassation appeal against the above ruling. At some point thereafter the case was reassigned to another investigator. On 25 December 2007 the investigator terminated the criminal proceedings against the applicant for the absence of sufficient evidence that he had committed the crime in question. The applicant was released immediately. In November 2010 the applicant lodged a civil claim with the Voroshylivskyy District Court of Donetsk (“the Voroshylivskyy Court”) against the Donetsk Regional Prosecutor’s Office and the State Treasury seeking compensation for damages in respect of his allegedly unlawful criminal prosecution and detention. Namely, he claimed 39,057 Ukrainian hryvnias (UAH) in respect of pecuniary damage and UAH 10,000,000 in respect of non-pecuniary damage. The applicant submitted, in particular, that because of the inherent stress he had become ill with psoriasis during his detention. He referred in this connection to a medical certificate of 20 April 2010, according to which he had been assigned to the second category (medium) of disability on account of this disease, which was incurable and which had apparently been triggered by his stress related to his criminal prosecution and detention. On 15 November 2011 the Voroshylivskyy Court allowed the applicant’s claim in part and awarded him UAH 87,741.94 in compensation for non-pecuniary damage, UAH 7,280 in respect of lost income and UAH 19,262.25 in respect of medical treatment costs. The court held that the applicant had been a victim of unlawful criminal prosecution and detention from 9 July 2006 to 25 December 2007 (for seventeen months and seventeen days). It relied on the Law “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts”, according to which the termination of criminal proceedings for the lack of corpus delicti, like in the applicant’s case, provided grounds for compensation of damages. The Voroshylivskyy Court also referred to the medical certificate concerning the applicant’s disease of psoriasis and its link with his criminal prosecution and detention. On 16 December 2011 the Donetsk Regional Court of Appeal upheld the above judgment in the part regarding the compensation for the non-pecuniary damage. As to the compensation for the lost income and the medical treatment costs, it held that, according to the legally envisaged procedure, the applicant had to address first the respective investigation authorities which had been dealing with his case. On 2 February 2012 the Supreme Court upheld that ruling. The relevant provisions of the Law “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” can be found in judgment on the case of Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005.

train

001-67138

ENG

AUT

ADMISSIBILITY

RIEBERER AND ENGLEITNER v. AUSTRIA

Inadmissible

Christos Rozakis

The applicants, Ernst Rieberer and Gottfried Engleitner are Austrian nationals, who were born in 1951 and 1962 respectively and live in Vienna and Mitterbach. They were represented before the Court by Mr A. Friedberg, a lawyer practising in Vienna. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1992 the applicants concluded a sales contract with the A. company in respect of real estate situated in Mitterbach. On 21 April 1994 the applicants requested to be entered in the land register as owners. On 4 May 1994 bankruptcy proceedings were opened as regards the A. company. On 4 May 1994 the Lilienfeld District Court (Bezirksgericht) ordered the entry of the applicants as owners in the land register. Consequently, the applicants were entered in the land register. On 22 June 1994 the St. Pölten Regional Court (Landesgericht) quashed this decision upon the appeal of the A. company's bankruptcy trustee. It noted that a chair lift was situated on the real estate. It therefore qualified as a railway facility within the meaning of Section 26 § 4 of the Railway Act (Eisenbahngesetz) and no entry could be made in the land register until the sales contract had been approved by the competent authority under that Act. The applicants did not appeal to the Supreme Court against this decision. Thereupon, on 4 July 1994 the Lilienfeld District Court amended the land register, cancelling the entry of the applicants as owners. On 14 September 1994 the A. company, represented by its bankruptcy trustee, requested the Lower Austria Regional Governor (Landeshaupt-mann) to approve the sales contract. On 2 December 1994 the Lower Austria Regional Governor refused the request, finding that due to the sales contract the A. company could no longer fulfil the legal obligations resulting from its licence to run the chair lift on the real estate at issue. Therefore, the transaction ran counter to the public interest. This decision was served on the A. company but, erroneously, not on the applicants. On 19 December 1994 the A. company filed an appeal. On 4 October 1995 the Federal Minister of Public Economy and Transport (Bundesminister für öffentliche Wirtschaft und Verkehr) dismissed the A. company's appeal. This decision was served on the applicants. Subsequently, on 20 November 1995, the applicants filed a complaint with the Administrative Court (Verwaltungsgerichtshof). In these and the subsequent proceedings the applicants were represented by counsel. On 20 December 1995 the Administrative Court rejected the applicants' complaint. It noted that the applicants had not appealed against the Regional Governor's decision of 2 December 1994 and had therefore not exhausted available remedies. On 11 April 1996 the second applicant requested the Lower Austria Regional Governor to approve the sales contract. On 26 July 1996 the Lower Austria Regional Governor dismissed the second applicant's request. On 17 January 1997 the Federal Minister for Science, Traffic and Art (Bundesminister für Wissenschaft, Verkehr und Kunst) rejected the second applicant's appeal. Subsequently, the latter lodged a complaint with the Constitutional Court. On 31 July 1997 the Constitutional Court refused to deal with the second applicant's complaint for lack of prospects of success and transmitted the case to the Administrative Court. On 22 September 1997 the second applicant supplemented his complaint to the Administrative Court. On 25 September 1997 the Administrative Court instituted preliminary proceedings. On 18 February 1998 the Administrative Court dismissed the second applicant's complaint. Noting that the Regional Governor's decision of 2 December 1994 had become binding in respect of the A. company, it found that a separate request for approval of the sales contract by the second applicant did not justify a review of the case. However, according to the relevant provision of the General Administrative Procedure Act (see domestic law part below), the second applicant had been party to the above proceedings. He had been “omitted” in the proceedings, as the Regional Governor's decision had not been served on him. In accordance with the relevant case-law, it was up to him to request that a copy of that decision be served on him, so as to enable him to file an appeal against it. On 11 May 1998, upon the applicants' requests made in April 1998, they were served the Regional Governor's decision of 2 December 1994. On 18 December 1998 the Federal Minister for Science and Traffic (Bundesminister für Wissenschaft und Verkehr) dismissed the applicants' appeals. On 1 February and on 2 February 1999, respectively, the applicants filed a complaint with the Constitutional Court (Verfassungsgerichtshof). On 15 March 1999 the applicants supplemented their complaints. On 7 June 1999 the Constitutional Court declined to deal with the applicants' complaints and transmitted the case to the Administrative Court. On 17 August 1999 the applicants supplemented their complaint with the Administrative Court. On 30 August 1999 the Administrative Court instituted preliminary proceedings. On 13 October 1999 the applicants submitted supplementary observations. On 2 December 1999 the Federal Minister filed his comments. On 14 December 1999 the first applicant filed further submissions. On 26 January 2000 the Federal Minister commented on these statements. On 3 May 2000 the Administrative Court quashed the Federal Minister's decision of 18 December 1998. It noted, in particular, that the Minister had wrongly applied Section 26 § 4 of the Railway Act. The transaction did not run counter to public interest as the bankruptcy trustee of the A. company had returned the licence for operating the chair lift in January 1997 and the real estate at issue did therefore no longer qualify as a railway facility. On 12 July 2000 the Federal Minister for Traffic, Innovation and Technology (Bundesminister für Verkehr, Innovation und Technologie) quashed the Regional Governor's decision of 2 December 1994. In the meantime, the relevant legislation was changed and an approval of the transaction under the Railway Act was no longer required at all. On 29 August 2000 the applicants requested the Lilienfeld District Court to enter the contract into the land register. On 4 October 2000 the Lilienfeld District Court dismissed the applicants' request. On 22 February 2001 the St. Pölten Regional Court dismissed the applicants' appeal. It noted that the sales contract had not been approved under the Railway Act before the expiry of the validity of the rank of creditors in the bankruptcy proceedings concerning the A. company. Therefore, the real estate at issue had fallen into the bankrupt's assets and had been sold by the bankruptcy trustee. On 29 May 2001 (served on 14 August 2001) the Supreme Court rejected the applicants' extraordinary appeal on points of law. 1. Under Article 431 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) the procedure for the acquisition of real property is the entry of the acquisition title in the land register (see also Section 4 of the Land Register Act - Grundbuchsgesetz). Under Section 94 § 1 of the Land Register Act the Land Register Court can not proceed to enter a transaction in the land register until the transaction which is subject to approval has been approved by the competent authority. 2. Under the Section 26 §§ 3 and 4 of the Railway Act (Eisenbahngesetz) as in force at the relevant time, a sales contract concerning a train, a railway or real property qualified as railway facility was subject to approval by the competent authority. A sales contract without this approval was null and void (§ 5). 3. The procedure concerning the approval was governed by the General Administrative Procedure Act 1950 (Allgemeines Verwaltungsverfahrens-gesetz), section 8 of which reads as follows: "Persons who ... take part in the proceedings on the basis of a right granted to them or an interest protected by the law ... are parties [to the proceedings]." According to the case-law of the Administrative Court a person is regarded as a party whenever an administrative measure has a direct bearing on his or her personal rights. 4. Section 62 of the General Administrative Procedure Act provides that decisions of administrative authorities can be issued either by oral announcement or in a written form. According to the constant doctrine and the case-law of the Administrative Court, a decision of an administrative authority does not produce any legal effects on a party to which it had not been notified (see Antoniolli-Koja, Allgemeines Verwaltungsrecht, third edition, pp. 299, 581, with reference to Administrative Court VwSlg 8482A/1973, 8494A/1973, 9547A/1978, 9634A/1978, 10.542A/1981 and VwSlg 814A/1949, 8057 A/1971). An “omitted party” (übergangene Partei) can, therefore, in principle not take any legal remedies against the decision at issue. This party can, however, request a declaratory decision concerning its standing as a party in the proceedings at issue or request the service of the decision and file an appeal once the decision had been served upon it. (see Antoniolli-Koja, Allgemeines Verwaltungsrecht, cited above, p. 299 with reference to Administrative Court VwSlg 5794A/1962 ). 5. By virtue of Article 130 of the Federal Constitution (Bundesverfassungsgesetz), the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. Pursuant to Article 131 the application may be brought by any person claiming a violation of his or her rights by the administrative decision, provided that this person has exhausted all other remedies.

train

001-58358

ENG

CZE

CHAMBER

CASE OF SPACEK, s.r.o. v. THE CZECH REPUBLIC

Preliminary objection rejected (estoppel);No violation of P1-1

6. The applicant is a limited liability company incorporated under Czech law with its head office in Prague. 7. In 1991 Špaček SW (the predecessor of the applicant company) maintained its accounts by single-entry book-keeping in accordance with section 25 of Private Business Activities Act (No. 105/1990) (zákon o soukromém podnikání občanů) ("the Private Business Activities Act") and the Private Business Accounting Rules (zásady vedení účetnictví při soukromém podnikání občanů) ("the Rules") published in the Ministry of Finance's Financial Bulletin No. 5 on 15 June 1990. 8. On 31 May 1991 Špaček SW was registered in the Register of Commerce (podnikový rejstřík) pursuant to section 13(3) of the Private Business Activities Act. 9. On 1 January 1992 Špaček SW passed to double-entry book-keeping. On 19 November 1992 it ceased to exist, and the applicant company, Špaček, s.r.o. (společnost s ručením omezeným) was incorporated. 10. On 22 April 1993 the Prague 5 Finance Office (finanční úřad) notified the applicant company that it was required to pay additional income tax of CZK 385,600, including a penalty of CZK 37,200, for the 1991 tax year because Špaček SW had not increased the income tax base for the 1991 tax year by including certain assets amounting to CZK 713,971 even though, pursuant to section 4(e) of the Regulations on the procedure for passing from single to double-entry book-keeping (postup přechodu z jednoduchého na podvojné účetnictví) ("the Regulations") of 17 April 1991, published in Financial Bulletin No. 6/7 on 30 May 1991, it had been required to do so. The Finance Office held that Špaček SW had violated both section 25 of the Private Business Activities Act and the Regulations. 11. On 17 August 1993 the Prague Finance Department (finanční ředitelství) dismissed the applicant company's appeal. It stated that the Finance Office had correctly decided the case in accordance with the Rules published in Financial Bulletin No. 5 and the Regulations published in Financial Bulletin No. 6/7. It also stated that the Rules and Regulations were issued in order to clarify obligations arising from section 25 of the Private Business Activities Act. 12. On 14 October 1993 the applicant company appealed to the Prague Municipal Court (mĕstský soud). It submitted that in 1991 Špaček SW had maintained single-entry book-keeping in accordance with section 25 of the Private Business Activities Act and section 1(2) of the Rules issued by the Ministry of Finance on 18 April 1990 under number V/2-4900/90. It claimed that the Rules provided for single-entry book-keeping by businesses which were not registered in the Register of Commerce, or businesses which were registered in the Register of Commerce under section 13(3) of the Private Business Activities Act (i.e. voluntarily and not pursuant to the obligation to register under section 13(1) of the Act). The applicant company also submitted that, even though the contents of the Rules were not legally binding, businesses were applying them for the sake of convenience. It further maintained that the Prague Finance Department, having applied the Regulations which were not legally binding, had breached section 2(1) of Administration of Taxes Act (No. 337/1992) as amended (zákon o správě daní a poplatků), which had provided that tax administrators were obliged to act and decide in compliance with statutes (zákony) and other legislative or regulatory instruments binding in general (obecně závazné právní předpisy), and section 4(1) of the Income Tax Act (No. 157/1989) as amended (zákon o důchodové dani), as it had concluded that the profits of the applicant company had been increased by amounts by which its expenses had not been increased contrary to the law. 13. On 22 December 1993 the Prague Municipal Court rejected the applicant company's appeal. It considered that in 1991 the Ministry of Finance was entitled to regulate the way in which accounts were to be kept and that there was no law obliging the Ministry to publish principles and regulations concerning this matter in the Official Gazette. Under section 8(1)(b) of the Official Gazette Act (No. 131/1989) (zákon o sbírce zákonů), measures (opatření) of central administrative authorities and other central authorities were to be published only where statute so required. As the applicant company did not increase its income tax base for 1991, it had not complied with the Regulations, and there was a breach of section 25(2) of the Private Business Activities Act. 14. On 1 March 1994 the applicant company lodged a constitutional appeal alleging a violation of its right under Article 2(4) of the Constitution, according to which “everyone shall be allowed to do anything which is not forbidden by law, and no one shall be forced to do anything which is not required by law”. It also invoked Article 4(1) of the Charter of Fundamental Rights and Freedoms, according to which “obligations shall be imposed only by law, within its limits, and by observing fundamental rights and freedoms”. The applicant company claimed that the Prague Municipal Court had not decided whether the Regulations met the requirements of the Official Gazette Act regarding generally binding legislative or regulatory instruments, and had not taken into consideration the principle that any secondary legal act must be published in the Official Gazette (sbírka zákonů), must have an appropriate title and form, and must be intended to become valid and enforceable in order to be binding on individuals and legal entities not subordinate to the issuing body. 15. The applicant company also criticised the opinion of the Prague Municipal Court that it was obliged to observe internal regulations (interní normativní akty) which were not accessible to it and whose contents could not objectively be found out and applied. The applicant company concluded that in 1991 it had been required to fulfil obligations imposed on it by the Regulations, of which it had not been, and could have not been, aware as they had been imposed in a manner and form incompatible with the Official Gazette Act. 16. On 2 June 1994 the Constitutional Court (Ústavní soud) dismissed the applicant company's constitutional appeal as ill-founded. The Court found inter alia that: "Section 25 of the Private Business Activities Act ... established the obligation to keep single or double-entry book-keeping in compliance with accounting rules as prescribed by law. In 1991 the ... Ministry of Finance was entitled to set up conditions and requirements for accounting ... To specify obligations set out in section 25 ..., the ... Ministry of Finance issued the Private Business Accounting Rules, ... published in Financial Bulletin No. 5. This measure ... further defined obligations on businesses in respect of book-keeping. Moreover, section 29(1) and (3) define the responsibility of businesses for the state of their accounting records and set out the sanctions arising from a violation of the obligations under ... section 25 ... or from a failure to observe the Rules. This measure, which sets up standards of book-keeping for private businesses, was followed by the Ministry of Finance Regulations ... of 17 April 1991, ... published in Financial Bulletin No. 6/7 ... The date of the entry into force of these Regulations is not specifically given; nevertheless, it states that the transfer from single to double entry book-keeping shall always take place on 1 January of an accounting year ... ... as regards any insufficiency in the publication of those Regulations ..., the Court can, in general, agree with the applicant that ordinary legal acts become valid only when published in the Official Gazette. In cases where there is no reason to publish generally binding legal acts of central administrative authorities, such legal acts must be announced in the Official Gazette. The present case concerned a regulation of a ... central administrative authority which, in the light of section 8(1)(b) of the Official Gazette Act, had to be published in the Official Gazette only if so provided by law. This was not the case for section 25 of the Private Business Activities Act." 17. Czech tax legislation has adopted the principle that taxes and contributions may be imposed only on the basis of statute (zákon), as enunciated in Article 11(5) of the Charter of Fundamental Rights and Freedoms. 18. At the material time income tax was governed by the Income Tax Act (No. 157/1989) which came into force on 1 January 1990. Under section 4(1)(a), the tax base was the profits resulting from the activities caught by the tax, as established in the taxpayer’s accounts, together with any amounts by which the expenses shown in those accounts had been increased or the revenues reduced in violation of the law. The Act was successively amended by Acts Nos. 108/1990, 574/1990 and 578/1991. 19. On 1 January 1993 the Administration of Taxes Act (No. 337/1992) came into force. It governed, inter alia, the procedure for the assessment of tax obligations and the calculation of taxes to be applied by financial authorities and taxpayers. Under section 2(1), tax administrators were obliged to act in compliance with statutes and other generally binding legislative and regulatory instruments, and to protect the interests of the State while maintaining the rights and legal interests of taxpayers and other persons involved in tax proceedings. The Act was successively amended by Acts Nos. 35/1993, 157/1993 and 302/1993. 20. The obligation for businesses to keep single or double-entry book accounts in compliance with prescribed accounting principles was laid down by section 25(2) of the Private Business Activities Act (No. 105/1990), which came into force on 1 May 1990. According to the first paragraph of this provision, businesses were required to keep accounts showing their revenues, their expenses and the results of their business activities, and the assets used for, and the liabilities ensuing from, those business activities. The Act specified neither the legal form under which accounting principles be adopted nor the authority entitled to issue them. 21. The Ministry of Finance had jurisdiction over accounting matters by virtue of section 14 of the Socio-economic Information Act (No. 21/1971), as amended by Act No. 128/1989, which empowered the Ministry to regulate accounting, budgeting, calculation and matters of financial reporting, and to issue model accounts, related guidelines and other accounting standards. The Act did not require the Ministry to publish measures taken by it in the Official Gazette. 22. The Private Business Accounting Rules (“the Rules”), published in Financial Bulletin No. 5 on 15 June 1990, introduced the requirement for businesses to use single or double-entry book-keeping and indicated that the base accounting period was to be the calendar year. The Rules came into effect on 1 June 1990. They referred to the Private Business Activities Act and the fact that they were issued by the Ministry of Finance for the purposes of specifying the obligations introduced by section 25 of the Act. They did not, however, make transitional regulations for businesses which were starting to use double-entry book-keeping. They set out the sanctions arising from a violation of the obligations under section 25 and from a failure to observe the Rules. 23. The Regulations on the procedure for passing from single to double-entry book-keeping (“the Regulations”), published in Financial Bulletin No. 6/7 on 30 May 1991, made provision for the transition from single to double-entry book-keeping. Amongst other matters, Section 4(e) provided that, when the transition was made, the business’ income tax base for the current year was to be increased, apart from non-deductible and deductible items specified by statute, by the value of materials, depreciating assets and stock, if the relevant invoices were entered in the accounting books and had been paid before 31 December of the previous year. The Regulations did not contain any reference to the Private Business Activities Act and did not specify the date on which they would become effective. 24. Neither the Rules nor the Regulations were published or announced in the Official Gazette. 25. The Official Gazette Act (No. 131/1989), as amended by Act No. 426/1990, governed, inter alia, the manner of promulgating legislative or regulatory instruments binding on individuals and legal entities in general, as well as the measures of central authorities. 26. According to section 2, the full wording of all constitutional and other statutes (zákony) enacted by Parliament and legal measures (zákonná opatření) taken by the Parliamentary President’s office, orders issued by the Government (nařízení vlády) and legislative statutory instruments taken by central administrative or other central authorities - decrees (vyhlášky), save for the exceptions enumerated in section 3, must be published in the Official Gazette. 27. According to section 3, in the case of rulings (výnosy) issued by the central administrative or other central authorities, an announcement in the Official Gazette of their delivery will suffice if they concern, inter alia, a small number of recipients, or govern details of labour and social security rights and obligations of a group of closely linked persons. 28. Section 6 provides that the legal acts enumerated in sections 2 and 3 become valid on the day of their publication in the Official Gazette and are enforceable on the fifteenth day after such publication, unless otherwise postponed. 29. Section 8(1)(b) provides that measures (opatření) taken by the central administrative or other central authorities can either be published in full in the Official Gazette, or simply announced there where a statute so requires. According to section 8(2), such measures or internal instructions (vnitřní směrnice) are not to be described as “decrees” or “rulings”.

train

001-6016

ENG

NLD

ADMISSIBILITY

CICEK v. THE NETHERLANDS

Inadmissible

Elisabeth Palm;Gaukur Jörundsson

The applicant, Serdal Çiçek, is a Turkish national of Kurdish origin, born in 1979 and was expelled from the Netherlands to Turkey shortly before the introduction of the application. He is represented before the Court by Mrs G.E.M. Later, a lawyer practising in The Hague. The facts of the case, as submitted by the applicant, may be summarised as follows. On 19 January 1999, the applicant was apprehended and detained for the purposes of establishing his identity, nationality and residence status. On 20 January 1999, an order for his expulsion was issued and he was placed in aliens’ detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet). On 21 January 1999, the applicant filed an asylum request and was consequently placed in aliens’ detention under Article 26 § 1 (c) of the Aliens Act. On the same day, he filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) against his placement in aliens’ detention and requested this court to award him compensation. By decision of 4 February 1999, following a hearing held on 2 February 1999, the Hague Regional Court rejected the applicant’s appeal of 21 February 1999 as well as his request for compensation. It held that it had not been argued and that it had not appeared that the applicant’s apprehension and placement in aliens’ detention had been unlawful. It found established that the applicant did not have a valid residence title or any identity papers and that he did not have sufficient means for his subsistence or to finance his return journey. The Regional Court considered that the serious suspicion expressed by the State Secretary of Justice (Staatssecretaris van Justitie) to the effect that the applicant would seek to find ways of avoiding his expulsion were not unfounded. Since the applicant’s statements about the date of his arrival in the Netherlands were contradictory, the Regional Court rejected the applicant’s account that he had only arrived on 16 January 1999 as not credible. The Regional Court concluded that the applicant’s placement in aliens’ detention was in the interest of public order. As regards the applicant’s request for asylum, the Regional Court held that there were no indications that this should be considered as standing chances of success. The applicant’s mere contention that he was a deserter was held to be insufficient for a finding that his request for asylum might be successful. The Regional Court concluded that the State Secretary could correctly adopt the position that, pending the proceedings on the asylum request, the applicant should remain in aliens’ detention. On 10 February 1999, the State Secretary of Justice declared the applicant’s request for asylum inadmissible on the basis of Article 15b § 1 (f) of the Aliens Act. In accordance with Article 18a of the Aliens Act, the State Secretary further ordered that the applicant’s freedom of movement be restricted by assigning him to an asylum seekers centre, this order was to be suspended until the measure of the applicant’s placement in aliens’ detention was lifted otherwise than through a departure from the Netherlands. The applicant filed an appeal against this decision with the Hague Regional Court. As the applicant’s appeal was denied suspensive effect by the State Secretary as to his expulsion, the applicant requested the President of the Hague Regional Court on 12 February 1999 for an injunction on his expulsion pending the appeal proceedings. By decision of 9 April 1999, following a hearing held on 2 April 1999, the Acting President of the Hague Regional Court rejected the appeal and the request for an injunction. The Acting President held, insofar as relevant: “4. The president finds that the <State Secretary> has correctly declared the asylum request inadmissible pursuant to Article 15b § 1 (f) of the Aliens Act. He considers on this point that the applicant has made contradictory statements as to the date of entry to the Netherlands. According to the formal record of findings (proces-verbaal van bevindingen) of 29 January 1999 drafted under oath of office (ambtseed) by the Haaglanden police, the applicant stated that he had been in the Netherlands for three months. During the questioning in relation to his placement in aliens’ detention on 20 January 1999, the applicant stated that he had been in the Netherlands for about one week, whereas during the proceedings on the appeal filed against the order on deprivation of liberty under Article 26 of the Aliens Act he stated that he had arrived in the Netherlands on 16 January 1999. ... Since the applicant has only filed the request at issue on 21 January 1999 after having been apprehended on 19 January 1999, whereas it has by no means been established on what date the applicant has arrived in the Netherlands, the president finds that the <State Secretary> has declared the request for entry ... inadmissible on reasonable grounds. 5. The inadmissibility of the asylum request ... does not dispense the <State Secretary> from the obligation to examine whether the facts and circumstances submitted by the applicant form an obstacle to expelling the applicant to his country of origin if this would be contrary to Article 33 of the Convention relating to the status of refugees ... 6. The president agrees with the <State Secretary> that it has not been established that the applicant can be considered as a refugee within the meaning of the Convention <relating to the status of refugees>. It is considered at the outset that there are serious doubts about the sincerity of the applicant’s request for asylum. The applicant submits to fear persecution from the side of the Turkish authorities on grounds of evasion of military service. However, the applicant has only invoked the protection of the Convention <relating to the status of refugees> two days after he had been apprehended, during a public transport check, for travelling without having a valid ticket. This course of action does not indicate that the applicant finds himself in a situation requiring his immediate flight. 7. … the president considers that the general situation for members of the Kurdish population in Turkey is not such that the fact that an alien belongs to the Kurdish population group in Turkey makes him automatically a refugee. The applicant must therefore make it plausible that there are facts and circumstances relating to his person which justify his fear for persecution within the meaning of <the Convention relating to the status of refugees>. 8. In the president’s opinion, the applicant has failed to do so. The applicant has not made it plausible that he has attracted the negative attention of the authorities of his country of origin. The applicant has declared that he has never been a member of any political party or movement or that he has been engaged in political activities in his country of origin. He has submitted that he was a sympathiser of the HADEP party, but it has not been argued nor has it appeared that through this he has attracted the negative attention of the Turkish authorities. 9. As regards the applicant’s submissions in relation to his refusal to fulfil his military obligations in Turkey ... the applicant has attained the age of twenty on 1 January 1999, which is the military age in Turkey. … the president finds it sufficiently established that the applicant must fulfil his military obligations and that he is considered in Turkey as having refused to do his military service. 10. <This aspect of the case> must be examined in the light of the criteria formulated in the ... decision taken by this court <on 2 July 1998>, in which it was held that a draft evader or deserter is a refugee, if he a. has a well–founded fear of disproportionate or discriminatory punishment or execution of the punishment for refusing military service on grounds of his race, religion, belonging to a particular social group or political conviction, or if, on the basis of the above grounds, he has a well–founded fear for a different discriminatory or disproportionate punishment or execution of a punishment; b. has refused <to fulfil military obligations> because he has serious insurmountable conscientious objections on grounds of his religious of other deep-rooted conviction prescribing a refusal to do military service, and where there is no possibility in his country of origin to fulfil instead of military service a non-military service; c. has reached the decision to refuse military service or to desert, because he does not want to become involved in a (sort of) military action that has been condemned by the international community as being contrary to the basic principles of humane behaviour or that is in violation of fundamental norms applying during an armed conflict. As regards the category under a. ... the president considers that it cannot be derived from information known ex officio that the punishment of Turkish draft evaders of Kurdish origin is different from that of other Turkish draft evaders. The applicant cannot, therefore, be classified as falling within this category. As regards the category under b. ... the president considers that the applicant has only submitted during the appeal proceedings that his refusal to do his military service is connected with his Kurdish origins, without further substantiating this contention. The president finds that what has been submitted on this point is not sufficient for accepting this as a form of conscientious objection within the sense as meant here. ... As regards the category under c. the president considers that it has not appeared in the present case that a condemnation by the international community has in fact been made of the military actions in south-east Turkey on grounds of being contrary to the basic principles of humane behaviour or on grounds of a violation of fundamental norms applying during an armed conflict. Also in this respect, the applicant’s appeal on grounds of having refused military service fails. 11. ... Having regard to the considerations under 6, 7, 8, 9 and 10 it has not been established that a forcible return of the applicant to Turkey is contrary to Article 3 of the Convention.” On 12 May 1999, after having been notified of this decision on 7 May 1999, the applicant filed a second request for asylum or, alternatively, a residence permit on humanitarian grounds. This request was declared inadmissible by the State Secretary on 27 May 1999. On 28 May 1999, the applicant filed an appeal against this decision with the Hague Regional Court, which did not have suspensive effect as to his expulsion. On 10 June 1999 and accompanied by Dutch police officers, the applicant was expelled to Turkey. Upon his arrival at the İstanbul airport he was handed over by the Dutch police officers to the Turkish authorities. The applicant claims that he was blindfolded, placed in a car and driven to a place where he was detained for a period of two months. During his detention there, the applicant claims that he was interrogated about his knowledge of persons belonging to the PKK and that, during these interrogations, he was subjected to various forms of ill-treatment including beatings, kicking, hosing with pressurised cold water, squeezing of his testicles and branding with a hot iron. After his release from detention, the applicant returned to the Netherlands on 8 October 1999. On 12 October 1999, the applicant was medically examined by a doctor of Amnesty International, who found, inter alia, eleven scars on his back in the form of a horseshoe with a diameter of about 11 centimetres. These scars were found to be healing first to second degree burn wounds. The doctor concluded that a connection between the scars on the applicant’s back and his account of torture was very plausible and that the applicant’s psychological and physical condition could very well fit a recently suffered serious trauma. By letters of 17 November 1999 and 17 January 2000, the applicant requested the State Secretary to withdraw the decision of 27 May 1999 and to grant him asylum or a residence permit on the basis of Article 3 of the Convention. On 25 January 2000, the State Secretary advised the applicant to file a fresh request for asylum or a residence permit. On 26 January 2000, the applicant filed an objection (bezwaar) with the State Secretary against the contents of the letter of 25 January 2000. On 3 May 2000, as the State Secretary had failed to determine the applicant’s objection timely, the applicant filed an appeal with the Hague Regional Court. In its decision of 4 August 2000, the Regional Court noted that, on 30 May 2000, the State Secretary had in fact withdrawn the decision of 27 May 1999, but that no new decision on the applicant’s second request for asylum or a residence permit on humanitarian grounds had been taken by the State Secretary. It ordered the State Secretary to do so within six weeks after the notification of the decision. On 9 August 2000, the parties were notified of the decision of 4 August 2000. On 8 January 2001 the applicant filed a new appeal with the Hague Regional Court since no decision had yet been taken by the State Secretary. These proceedings are currently still pending. Article 15b of the Aliens Act, insofar as relevant and as in force at the relevant time, provides: “1. A request for admission as refugee will not be granted on grounds of inadmissibility when: ... f. the alien does not hold a travel document required for entering the Netherlands, unless he has, with indication of the place of entry to the Netherlands, immediately applied to a public official, entrusted with border control or control of aliens, claiming to have well–founded reasons to fear persecution within the meaning of Article 15 <of the Aliens Act>. Article 26 of the Aliens Act, insofar as relevant, provides: “1. Where the interests of public order, public peace or of national security so require, the following persons can be placed in aliens’ detention: a. aliens whose expulsion has been ordered; b. aliens in respect of whom there are serious reasons for expecting that their expulsion will be ordered; c. aliens who are not entitled to residency in the Netherlands under Articles 8-10 <of the Aliens Act>, pending a determination of a request for a temporary or permanent residence permit or a request for admission as refugees. 2. Placement in aliens’ detention will not be ordered when – and will be terminated as soon as – the alien indicates that he wants to leave the Netherlands and has the possibility to do so. 3. A placement in aliens’ detention under the first paragraph under b. or c. shall in no case exceed four weeks.” An alien who does not have any identity papers and whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens’ detention be lifted. According to Dutch case-law, the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, it may be that this point in time is reached at an earlier or later point in time than after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control. Article 34a of the Aliens Act provides: “1. A measure taken under this Act to the effect of a restriction or deprivation of liberty shall, for the application of Article 8:1 § 1 of the General Administrative Law Act (Algemene Wet Bestuursrecht), be considered on a par with a decision (besluit) <within the meaning of that provision>. 2. On a first appeal against a decision to the effect of a deprivation of liberty, the Regional Court shall hear the alien within two weeks, either during the preliminary phase of the proceedings under Article 8:44 of the General Administrative Law Act, or at the court hearing itself. 3. If the appeal is directed against a decision referred to in the second paragraph, the Regional Court shall set the time of the hearing without delay and in any event not later than two weeks after the day on which the appeal notice has been sent. Notwithstanding the provisions of Article 8:42 § 2 of the General Administrative Law Act the time–limit referred to in that provision shall not be extended. 4. The Regional Court shall give judgment in writing within two weeks after the hearing is closed, unless it immediately gives an oral judgment during the hearing. Notwithstanding the provisions of Article 8:66 § 2 of the General Administrative Law Act, the time–limit referred to in that provision shall not be extended. 5. If the Regional Court finds that the application or execution of the measure is in conflict with this Act or, having balanced all interests involved, cannot reasonably be considered to be justified, it shall declare an appeal under this provision well–founded and order the discontinuation of the measure or an alternate method of execution.” Although no appeal lies against a decision from the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127) There is no time-limit for filing an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention can file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point.

train

001-91430

ENG

BGR

CHAMBER

CASE OF VLADIMIROVA AND OTHERS v. BULGARIA

Violation of Article 1 of Protocol No. 1 - Protection of property

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

5. The first applicant, Mrs Nadezhda Stoyanova Vladimirova, was born in 1945. Her husband, Mr Hristo Velimirov Vladimirov, born in 1946, and her mother, Mrs Ivanka Marinova Petkova, born in 1920, are the second and third applicants. All applicants are Bulgarian nationals and live in Sofia. 6. In 1968 the applicants purchased from the State a four-room apartment of 140 square metres in the centre of Sofia. Until then, the applicants’ family and two other families had been sharing the apartment as tenants. The apartment had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following several years. The apartment was on the third floor of a five-storey building constructed in the beginning of the 1930s. 7. After the adoption of the Restitution Law in 1992, the former pre-nationalisation owners brought proceedings under section 7 of that law against the applicants. 8. By judgment of 30 July 1996 the District Court found that the 1968 transaction was null and void on several grounds, including abuse of office, since at the relevant time the second applicant’s father had been an employee of the municipal real estate service. The applicants appealed. 9. By judgment of 12 April 2000 the Sofia City Court upheld the lower court’s judgment while it modified its reasoning. The court found that the allegation about abuse had remained unproven, the very fact that a relative of the applicants had worked in the municipal real estate service being insufficient. 10. The court found, however, that a relevant document concerning the 1968 transaction had been signed by the deputy to the official in whom the relevant power had been vested. The court considered that as a result the applicants’ title was null and void. The applicants were ordered to vacate the apartment. 11. The judgment of the Sofia City Court was recorded in the court’s register on 19 June 2000. From that moment it became possible for the parties to learn about that judgment, if they visited the Sofia City Court’s registry. 12. The applicants, who had been waiting for the Sofia City Court’s judgment since 10 May 1999, the date of the last hearing, checked the register on an unspecified date between 19 August and 20 September 2000. On 20 September 2000 they submitted a petition for review (cassation) against the Sofia City Court’s judgment. 13. By decisions of 22 February 2001, 26 March and 25 October 2002 the Supreme Court of Cassation decided that the cassation appeal had been submitted outside the relevant two-month time limit, which had expired on 19 August 2000 and refused to renew that time limit. The Supreme Court of Cassation agreed with the applicants that the Sofia City Court had delivered its judgment more than one year after the last hearing in the case and that the applicants had never been informed that the judgment had been ready and recorded. It found, however, that according to the relevant law the twomonth period for the submission of a petition for review (cassation) ran from the date on which the impugned judgment had been made available in the court’s register. 14. On unspecified dates between 2000 and 2002, it became possible for the applicants to obtain compensation from the State, in the form of bonds which could be used in privatisation tenders or sold to brokers. The applicants did not avail themselves of this opportunity. 15. The applicants were evicted in March 2004. 16. In 2003 the applicants were granted the tenancy of a two-room municipal apartment, which they rented at low regulated price. In order to obtain this tenancy, the applicants were required to declare their financial situation. 17. In November 2005 the municipality sold that apartment to the applicants for a regulated price below market value – 31,300 Bulgarian levs (BGN), the equivalent of approximately EUR 16,000. The applicants paid, in addition, the equivalent of approximately EUR 650 in fees. 18. In 2003 the applicants issued proceedings for damages against the State under the State Responsibility for Damage Act, arguing that the State administration had been responsible for the omission that had led to the nullification of their title. In accordance with their practice in similar cases, the courts rejected those claims. The final judgment was delivered by the Supreme Court of Cassation on 1 November 2007. 19. The relevant background facts and domestic law and practice have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.

train

001-108619

ENG

RUS

CHAMBER

CASE OF KOSHELEVA AND OTHERS v. RUSSIA

Remainder inadmissible;Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

4. The applicants’ names and dates of birth are listed in the annex to the present judgment. They live in Velikie Luki, Pskov Region. 5. The applicants are former and current teachers at the boarding school for orphans and children deprived of parental care in Velikiye Luki, Pskov Region («Великолукская средняя школа-интернат для детей-сирот и детей, оставшихся без попечения родителей»). By virtue of a provision in the national law they were entitled to a monthly allowance for purchase of books and magazines (компенсация за книгоиздательскую продукцию и периодические издания) which had not been paid to them for a few years. 6. The applicants applied to a court seeking recovery of the unpaid allowance. 7. On 28 March 2003 the Justice of Peace of Court Circuit no. 34 of Velikiye Luki in the Pskov Region granted the applicants’ claim for the unpaid allowance and held that the Education Directorate of the Velikiye Luki Town Council should reimburse them various amounts. 8. On 3 June 2003 the Velikiye Luki Town Court of the Pskov Region upheld that judgment on appeal. 9. Following an unspecified period during which the judgment remained unenforced, the applicants allegedly applied to a court for indexlinking of the awards due to the inflation but had their claims rejected. They did not however submit any documents to support this claim, nor did they indicate the date of the judicial decision or the court adopting it. 10. The Government submitted copies of payroll records according to which the awards had been paid to the applicants in April and May 2004. 11. On 16 January 2008 the Court received letters from thirtysix applicants stating that they no longer had interest in pursuing the application due to the timely enforcement of the judgment in their favour. The applicants who sent the letters were nos. 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 21, 25, 26, 27, 30, 31, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 47, 50, 51 and 53 of the Annex. 12. In their observations received by the Court on 26 May 2008 the remaining seventeen applicants submitted that the town prosecutor’s office had summoned them for interviews, during which the authorities had apprised them of their right not to incriminate themselves and discussed their application. 13. The letter by the deputy prosecutor of Velikiye Luki of 28 December 2007 confirmed that in October 2007 the town prosecutor’s office had held interviews with the applicants concerning alleged breaches of their ‘Convention right to timely payment of the allowance for purchase of books and magazines’. The letter mentioned that the interviews had been conducted following an inquiry by the Government’s representative at the Court to the Prosecutor General of Russia.

train

001-67001

ENG

MDA

ADMISSIBILITY

RAHOTCHI v. MOLDOVA

Inadmissible

Nicolas Bratza

The applicant, Mr Oleg Rahotchi, is a Moldovan national, who was born in 1947 and lives in Chisinau. The applicant alleges that his grandfather was a victim of political repression in 1941, when he had to flee to Romania to save himself from persecution. He submits that his parents remained living in the house but were evicted in 1944 without any reason. On 24 October 1949 a local court found that the applicant's grandfather was in all probability killed during a bombing of Chisinau in June 1944 and declared him missing. The court also prolonged the term for accepting the inheritance of the applicant's grandfather's house in favour of the applicant's father. In 1952 the family house and the land around it were declared “property without an owner” and thus State property. On 10 May 1995 the applicant's father obtained a judgment of the local court confirming that the applicant's grandfather had been subjected to political repression and that his house and land were nationalised. In 1995 the applicant's father requested the return of the house and land which were by then owned by a third party. On 23 June 1996 the Centru District Court found in his favour and awarded him the house and the land claimed. In October 2001 the Prosecutor General filed a request for annulment of the judgment of 10 May 1995 asking the court to reject the claim that the applicant's father had been subjected to political repression. On 19 December 2001 the Supreme Court of Justice upheld the Prosecutor General's request for annulment and quashed the 1995 judgment. It ordered a full re-hearing of the case. On 11 April 2002 the applicant's father died. The applicant continued the proceedings. On 23 May 2002 the Centru District Court awarded the applicant the house and land. On 9 October 2002 the Chişinău Regional Court upheld that judgment in regard to the house but not in regard to the land. On 11 February 2003, the Court of Appeal set aside that judgment and rejected the applicant's claim because the crucial factual circumstance of repression against his father had not been proven. That judgment was final. The Court refers to its description of the relevant domestic law and practice in its decision of even date herewith in the case of Frunze v. Moldova (Application no. 42308/02).

train

001-92104

ENG

TUR

ADMISSIBILITY

KAYA v. TURKEY

Inadmissible

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

1. The applicant, Mr Hasan Kaya, is a Turkish national who was born in 1973 and lives in Istanbul. He was represented before the Court by Mr M. İriz and Mr R. Doğan, Mr Y. Aydın and Ms S. Turan, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. According to the applicant’s version of the events, on 10 February 2002, at around 6.00 to 6.30 p.m., the applicant was arrested by two plainclothes policemen and one uniformed police officer on a street in the Karadeniz district of Gaziosmanpaşa, Istanbul, on suspicion of having participated in an illegal demonstration. He was put in a commercial taxi and taken to the Karadeniz Police Station. There, the applicant was punched, kicked and beaten with truncheons by officers, who broke his nose, which started bleeding. The officers took him to the Karadeniz Clinic. The doctors applied a bandage to his nose. He was then taken to the Emergency Clinic of the Haseki Hospital and had a nose x-ray. On the same day, at around midnight, he was handed over to police officers from the anti-terrorism branch of the Istanbul Security Directorate. The applicant was subjected to further beatings at the anti-terrorism branch and was asked to become a police informer. 4. According to the Government, on 10 February 2002, the applicant took part in an illegal demonstration and was chanting slogans in favour of the PKK (Kurdistan Workers’ Party). When the security forces arrived at the scene of the demonstration to disperse the crowd, the applicant attempted to escape and fell on the ground. Thereafter, he was surrounded by a group of people living in the neighbourhood and beaten. The police officers rescued him and put him in a taxi and then took him to the Karadeniz police station. He was immediately taken to the Sultançiftliği L. Nuri Burat State Hospital for medical examination and treatment before placing him in custody. According to the medical report issued by a doctor, at 8.25 p.m., the applicant bore a number of injuries. The doctor noted the presence of scratches, oedema and lesions on the nose, an ecchymosis measuring 3x1 on the side of the left eye, an ecchymosis inside his lower lip as well as haematoma measuring 2x2 on the face. 5. Later that day the applicant was taken to the Haseki Hospital for further treatment. The medical report, issued at 10.35 p.m., stated that the applicant bore lesions and ecchymoses on his lower lip, nose and left knee. 6. On 11 February 2002, in his statements to the anti-terrorism police, the applicant stated that he had been beaten by the local people and had been rescued by the police officers. 7. On 12 February 2002 the applicant was taken to a branch of the Forensic Medicine Institute in Istanbul for medical examination. The medical report prepared by a forensic doctor stated that the ecchymoses, swelling and lesions observed on the applicant’s body as well as the broken nose were not life threatening but would prevent him to carry out his regular work for ten days. This medical report was signed by the applicant and also contained his hand written statement which read: “The bruises, swellings and scratches on my body as well as the broken bone in my nose had been caused by the assault of a 5-10 people at the exit of the local bazaar.” 8. On the same day, the applicant was brought before the Public Prosecutor, where he denied the charges against him. He was released the same day. 9. On 15 February 2002 the applicant filed two separate complaints with the Gaziosmanpasa and Fatih Public Prosecutor’s Offices against the police officers who had allegedly ill-treated him in custody at the Karadeniz Police Station and at the anti-terrorism branch, respectively. He also claimed that his statements dated 11 February 2002 had been obtained under duress and that he had been forced to sign those statements without reading. The Public Prosecutor then sent the applicant to the Fatih Forensic Institute for medical examination. 10. The preliminary medical report issued by the Forensic Institute on the same day indicated the presence of chest pain and an ecchymosis on the left leg, an ecchymosis of 3x2 cm under his left eye, an ecchymosis of 2x1 cm under his right eye, an ecchymosis inside his lower lip as well as an oedema. Given the applicant’s allegation that his nose could have been broken, the doctor recommended an x-ray examination. 11. On 19 February 2002 the Fatih Chief Public prosecutor took statements from the applicant in relation to his allegations of ill-treatment. The applicant claimed that following his arrest he had been beaten up by the police officers and that his nose had been broken. He asked the Public Prosecutor to initiate criminal proceedings against the police officers. 12. On 27 February 2002 the applicant was referred for a further medical examination by the Gaziosmanpasa Public Prosecutor. On 20 March 2002 the Forensic Medicine Institute issued a definitive report on his medical condition, which made reference to the findings of a report dated 15 February 2002 by the Haseki Hospital. In the latter, it was stated that the applicant had an ecchymosis of 1.5x1.5 cm under his left eye, estimated to be three or four days old, an ecchymosis of 1x1 cm under his right eye, an ecchymosis of 1x1 inside his lower lip as well as an oedema, estimated to be three or four days old, and pain in the nose. His injuries were not regarded as life threatening but were classified as sufficient to render him unfit for ten days. 13. On 9 May 2002 the Gaziosmanpasa public prosecutor filed an indictment with the Gaziosmanpasa Assize Court, charging twelve police officers from the Karadeniz Police Station with inflicting ill-treatment on the applicant, under Article 245 of the former Criminal Code. 14. On 15 May 2002 the Assize Court commenced the trial and scheduled the first hearing for 11 July 2002. 15. During the hearing of 11 July 2002, the Assize Court heard statements from the accused police officers and the applicant as the complainant. All defendants denied the allegations. The applicant identified a police officer, A.G., as being one of the officers who had arrested him and had beaten him at the Karadeniz Police Station. The same day, the public prosecutor submitted to the court that the offence in question fell within the scope of Law no. 4483 (the Law on the Prosecution of Civil Servants and Public Officials). Accordingly, he requested that the case file be sent to the District Governor for leave to prosecute the police officers under that law. The court complied with this request, stopped the trial and sent the case file to the District Governor’s Office. The District Governor then appointed an investigator to conduct an investigation into the applicant’s allegations. 16. On 5 August 2002 the investigator also heard Mr E.S., the taxi driver who took the applicant to the Karadeniz police station. The latter stated that he had parked his car in the area and had been watching the applicant being beaten up by the local people. Two police officers arrived at scene and had rescued him from the assault of the crowd. They then put the applicant in his car and had asked him to drive to the police station. He submitted that the applicant’s face had been covered with blood when he had been put in his car. 17. On 6 September 2002 the investigator took statements from twelve police officers who were on duty that day at the aforementioned police stations. The accused police officers claimed that, contrary to the applicant’s allegations, they had rescued him from the angry crowd and had brought him to the police station. 18. On 10 September 2002, relying on the investigation report prepared by the investigator, the District Governor decided not to permit the prosecution of the officers. This decision stated that the police officers, who had been patrolling after an illegal demonstration in the Karadeniz district, had seen some local people beating the applicant. The officers had put the applicant into a taxi and had taken him to the police station, and later that night they had handed him over to the anti-terrorism branch. The District Governor concluded that, apart from the applicant’s allegations, there was no evidence to prosecute the accused. 19. The applicant challenged this decision before the Istanbul Regional Administrative Court. 20. On 25 February 2003 the Regional Administrative Court upheld the Governor’s decision. It noted that the taxi driver that day had testified that the applicant’s face had been covered in blood when the police officers had put him into his vehicle. Moreover, the applicant, in his statement to the anti-terrorism police, had admitted that he had been beaten by some locals who had caught him as he was running away. 21. On 6 June 2002 the Fatih Public Prosecutor issued a decision of nonprosecution concerning the applicant’s complaint against the police officers from the anti-terrorism branch. He noted that in his statement of 11 February 2002 to the anti-terrorism police, the applicant had maintained that he had been rescued by the officers from local people who had been beating him. On 12 February 2002 he had been examined by the Forensic Medicine Institute at the State Security Court. The applicant had written in the medical report of that day that the injuries on his body and the fracture to his nose had been inflicted by some local people, and had added his signature. 22. The applicant appealed against this decision before the Beyoğlu Assize Court, which on 20 March 2003 upheld the decision. 23. A full description of the domestic law and practice at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004IV).

train

001-92693

ENG

TUR

CHAMBER

CASE OF ESAT BAYRAM v. TURKEY

Remainder inadmissible;Violation of Art. 2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

5. The applicant was born in 1973 and lives in Istanbul. 6. The applicant’s brother Halim Bayram, who was a Turkish citizen of Kurdish origin, was called up for military service in 1998. He was 20 years old at the time. 7. On 23 May 1998 Halim Bayram started his initial two months’ training in Izmir. On 10 August 1998 he was granted leave for fifteen days. On his return, he was informed that he had been appointed to Çanakkale. On 28 August 1998 Halim Bayram went to Çanakkale to join his unit. His superior was Mr Hüseyin Arabacı. 8. A few days later the applicant received a telephone call from his brother, who stated that he was being bullied by his superior. He told the applicant that he had been threatened with death by Hüseyin Arabacı. 9. On 7 September 1998 the applicant’s brother was posted to sentry duty. At about 12.30 p.m. he was seriously wounded by one bullet and he was immediately taken to the Çanakkale Military Hospital, where he was operated upon. At 5 p.m. the same day, Hüseyin Arabacı called the applicant and informed him that there had been an accident and his brother had shot himself. The applicant went to Çanakkale immediately. Hüseyin Arabacı and another soldier took the applicant to hospital. His brother was in the intensive care unit, unconscious. When the applicant asked Hüseyin Arabacı how the incident had happened, he told the applicant that he had been 20-30 metres away from Halim Bayram when he saw him point the gun towards himself and fire. He explained that Halim Bayram had been taken immediately to the hospital where he had been operated upon. 10. On 8 September 1998, the applicant was able to speak to his brother briefly at the hospital. Halim Bayram allegedly told the applicant: “I saw Hüseyin Arabacı approaching and I remembered his death threats. I thought he was going to shoot me. I do not remember what happened but I am sure that I did not shoot myself.” 11. The applicant’s brother told him that he wanted to be transferred to Istanbul. He also said that he had written a letter and given it to his friend Mr Kazım Ağın, also a conscript. 12. In the meantime, statements were taken from witnesses to the event, namely from Mr Barış Tulpar, Mr Celal Elbir and Mr Kazım Ağın. 13. In his statement Mr Tulpar said that after lunch, as he was walking around, he heard a single gun shot. When he went to see what had happened, he saw Halim Bayram lying on the ground, heavily injured. He was mumbling, saying “you have burnt me Emrah, I am burning, I am in pain”. Mr Tulpar said Halim Bayram’s rifle was between his knees. 14. Mr Celal Elbir said that when he heard the shot, he immediately went to the scene of incident. Halim Bayram was lying on the ground. He was alive but heavily bleeding. His rifle was between his legs. 15. In his statement, Mr Ağın maintained that Halim Bayram had told him that he would commit suicide as the girl whom he was in love with was getting married to someone else. He also said that Halim Bayram had given him a letter to be sent to his parents, should anything happen to him. 16. The same day, the applicant also spoke to Mr Kazım Ağın, who allegedly told him that Halim Bayram had been pressurised by his superior Hüseyin Arabacı. He told the applicant that the soldiers had been forced not to speak to Halim Bayram and added that Halim Bayram had no bed and was sleeping on the floor. Mr Ağın confirmed that Halim had given him a letter; however he explained that somebody had taken it from his bag. 17. The applicant wanted to transfer his brother to another hospital but the doctors refused. The applicant returned to Istanbul. 18. On 14 September 1998 the applicant’s brother developed disseminated intravascular coagulation and the doctors decided to transfer him to the GATA Military Hospital in Istanbul. He died from internal bleeding in the ambulance during the transfer. 19. On 15 September 1998 the applicant lodged an application with the Çanakkale Public Prosecutor’s office to clarify the circumstances in which his brother had died. He stated that he doubted that his brother had shot himself and requested an autopsy. 20. The body examination report, dated 15 September 1998, stated the following: “A surgical incision measuring 30 cm begins from the area between the nipples and extends centrally to below the navel. Several old razor wound scars are noted between the left and right shoulders and elbows, measuring 10-15 cm each. The name Emrah is carved with a razor or another sharp object on the outer side of the left arm. A bullet exit hole on the left lumbar region measuring 1 cm is noted. A bullet entry hole was observed in the stitched wound in the chest area” 21. The applicant was also present during this body examination. He stated that he had doubts about his brother’s death and requested a second autopsy. 22. On 15 September 1998 the Çanakkale Public Prosecutor conducted an examination of the scene of incident. 23. On 16 September 1998 the military investigation board started an investigation into Halim Bayram’s death. On 18 September 1998 the board took a statement from Hüseyin Arabacı. Mr Arabacı explained that when he heard that the applicant’s brother had shot himself, he immediately went to see what had happened and called an ambulance. He saw that there was blood on Halim Bayram’s abdomen. 24. On 22 September 1998 the military investigation board delivered its report and concluded that no fault could be attributed to Mr Hüseyin Arabacı or the hospital. 25. In the meantime, on 17 September 1998 a second autopsy was conducted on Halim’s body by the Morgue Expertise Directorate of the Forensic Medicine Institute. The report stated that no bullet was found in the body and that the detailed report would be delivered at a later date. Samples of the wound from the xiphoid process and back were sent for further chemical examination. 26. On 18 September 1998 the Forensic Medicine Institute delivered its report concerning the chemical examination of these two pieces of skin. Large amounts of nitrite-nitrate ions were observed on the piece of skin taken from Halim Bayram’s back and none was found on the piece of skin taken from the xiphoid process. 27. On 28 September 1998 the Çanakkale Public Prosecutor delivered a non-jurisdiction decision and transferred the file to the Gölcük Military Prosecutor. 28. Upon the request of the Military Prosecutor, on 11 November 1998 an expert examination was conducted on the hive obtained from the scene of the incident. While conducting the examination, the expert fired two further shots using the rifle that had been used by Halim Bayram. On 13 November 1998 the three spent cartridge cases, namely the one found following the incident and the two obtained by the expert, were examined at the Istanbul Criminal Police Laboratory and it was concluded that they all came from the same rifle. 29. On 16 November 1998 Miss Emrah Baynal gave a statement to the gendarmes. When asked about Halim Bayram’s suicide, Miss Baynal said that she had been friends with Halim Bayram for nearly two years. She explained that they loved each other and denied that she was engaged to somebody else. 30. On 9 December 1998 the applicant gave a statement to the Military Prosecutor. He explained that his brother Halim Bayram had been threatened with death by Hüseyin Arabacı. 31. On 26 February 1999 the Forensic Medicine Institute delivered its medical report. Making reference to its previous examinations dated 17 and 18 September 1998, it concluded that Halim Bayram had been shot in the back. According to the report, a bullet had entered his back and exited from the right below the xiphoid process. In order to establish the exact range from which the shot was fired, a further chemical examination of Halim Bayram’s clothes was requested. 32. In a report dated 25 October 1999 the physical ballistics expertise branch stated that no traces of gunfire were found on either the shirt or the vest of Halim Bayram. The reports further concluded that there was a hole in the back part of the shirt, measuring 1x 0.5 cm. 33. On 21 January 2000 the Forensic Laboratory Department delivered its final report. In its detailed report, it made reference to all of the previous forensic examinations. It stated that although when bullet entry and exit holes are examined, it is usually the small holes that are ascertained to be entry holes and large holes to be exit holes, it was medically possible for the opposite to be found as well. The report concluded that although the autopsy report dated 26 February 1999 had stated that the entrance hole had been in the back, as following the chemical examination no nitrite and nitrate ions had been found on Halim Bayram’s clothes, this should indicate that the bullet must have entered from the xiphoid process. In the report, it was further stated that there was no indication to determine whether the shot had been fired from close range or point blank range. It continued: “We unanimously agree that the bullet had entered the body from the lower left part of the xiphoid process, passing through the muscle under the skin into the abdominal cavity, passing slightly to the left, leaving the body from the upper part of the lumber region; and that because persons move, the route of the bullet through the body cannot assist in medically determining the direction from which the bullet had been fired or the height above the ground” As a result, in the report, it was unanimously accepted that the bullet had entered from the abdomen. 34. On 30 March 2000 the Military Prosecutor decided not to prosecute. The applicant appealed against that decision. On 9 August 2000 the Military Court rejected the applicant’s appeal and this was notified to the applicant on 22 August 2000. 35. On 20 July 2001 the applicant obtained a medical report from Mr Christopher Milroy, a professor of Forensic Pathology and Consultant to the Home Office. After making an analysis of the available documentary evidence, Mr Milroy concluded that the presence of a small circular gunshot wound in the back and a larger gunshot wound in the front of the abdomen was suggestive of the entrance wound being in the back. The presence of nitrate-nitrite ions on the skin taken from the back of the body and their absence on the front would provide confirmatory evidence that the back contained the entrance wound. However, it was also stated that these findings were inconsistent with the fact that no gunshot residue was identified anywhere on the clothing. In sum, Professor Milroy concluded that the evidence supported the theory that the entrance wound was in the back.

train

001-68882

ENG

POL

CHAMBER

CASE OF CHODECKI v. POLAND

Violation of Art. 5-3;Non-pecuniary damage - financial award

5. The applicant was born in 1955 and lives in Sosnowiec. 6. On 12 June 1994 he was arrested on suspicion of murdering his common-law wife. 7. On 13 June 1994 the Sosnowiec District Prosecutor (Prokurator Rejonowy) charged the applicant with homicide and remanded him in custody until 12 August 1994 in connection with the investigation against him. The prosecutor considered that, given the serious nature of the offence in question, keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course. On the same day the prosecutor ordered an autopsy. 8. On 23 June 1994 the applicant appealed and requested his release. 9. On 24 June and 4 July 1994 the prosecutor ordered expert opinions. On 6 July 1994 the prosecutor ordered a reconstitution of the events which had taken place on the day of the death. 10. On 11 July 1994 the Katowice Regional Court (Sąd Wojewódzki) dismissed the applicant’s appeal of 23 June 1994. It found the same justification for the applicant’s detention: the reasonable suspicion against him, the serious nature of the offence in question and the fear that the applicant might tamper with the evidence. 11. On 28 July 1994 the Sosnowiec District Prosecutor prolonged the applicant’s detention until 12 September 1994. 12. On 29 July 1994 the Sosnowiec District Court ordered that two psychiatric reports be obtained in order to establish the applicant’s criminal responsibility. 13. On 27 and 28 August 1994 the prosecutor ordered that two other medical reports be obtained. 14. On 5 September 1994 the Katowice Regional Court prolonged the applicant’s detention on remand until 30 October 1994, relying on the existence of a reasonable suspicion that he had committed the offence in question. The court referred also to the fact that two expert reports had to be prepared. They were submitted to the court on 9 September and 24 October 1994. 15. On 24 October 1994 the applicant obtained access to the case-file. 16. On 28 October 1994 the District Prosecutor submitted the bill of indictment to the Regional Court. The prosecutor asked the court to hear evidence from 38 witnesses. 17. The trial court held hearings on 12 January, 16 March, 21 March, 28 March, 1 June, 8 June, 20 June, 12 October and 12 December 1995, as well as on 28 March 1996. 18. On 28 March 1996 the Katowice Regional Court gave judgment. The court convicted the applicant as charged, and sentenced him to twelve years’ imprisonment. 19. On 30 May 1996 the applicant appealed. 20. On 13 August 1996 the Katowice Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case for re-examination. It pointed out that the conviction was based on circumstantial evidence and that certain facts required further clarification. 21. In the course of the retrial, the Regional Court held hearings on 10 December 1996, 27 February, 28 February, 26 March, 30 April, 8 May and 28 October 1997, as well as on 14 and 22 January 1998. The hearing scheduled for 17 February 1998 was adjourned. 22. At the hearings of 30 April 1997, 28 October 1997 and 17 February 1998 the applicant’s counsel applied for his release, but to no avail. 23. On 1 June 1998 the court prolonged the applicant’s detention until 30 November 1998. It made reference to the reasonableness of the suspicion that he had committed the offence in question. The court stressed the serious nature of that offence and the necessity to consider further evidence. 24. On 10 June 1998 the applicant’s lawyer appealed against that decision. He contested the reasonableness of the charge against his client, maintaining that it was solely based on presumptive evidence. He also submitted that the applicant’s prolonged detention no longer served the purpose of securing the proper course of the proceedings since all necessary evidence had been obtained by the courts. 25. On 24 June 1998 the Katowice Court of Appeal dismissed both appeals. It pointed out that the principle referred to by the applicant, whereby detention exceeding two years could be prolonged only by the Supreme Court, did not apply to his case. The court observed that that principle concerned only the proceedings before the trial court and it was no longer valid once that court had delivered its judgment, even if the judgment was subsequently quashed by the appellate court. 26. On 30 July 1998 the applicant appealed against this decision. 27. On 3 August 1998 the Katowice Court of Appeal informed the applicant that no appeal lay against a decision given by an appellate court. 28. On 24 September 1998 the Katowice Regional Court gave judgment. It again convicted the applicant of homicide and sentenced him to ten years’ imprisonment. The court deducted from the sentence the period spent by the applicant in detention. 29. On 26 November 1998 the applicant’s lawyer appealed. 30. On 27 November 198 the Katowice Regional Court prolonged the applicant’s detention on remand until 29 January 1999 in view of the applicant’s conviction and sentence the month before. 31. On 8 December 1998 the applicant challenged that decision before a court which did not have the necessary jurisdiction. Accordingly, on 11 January 1999 the matter was transferred to the Katowice Court of Appeal, which on 25 February 1999 dismissed both of his appeals. 32. On 26 April 1999 the applicant’s lawyer lodged a cassation appeal with the Supreme Court concerning the conviction and sentence. 33. On 6 March 2000 the Supreme Court dismissed that appeal. 34. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 “Code of Criminal Procedure” (Kodeks postępowania karnego) (“the Code”) entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision. 35. Article 209 set out the general grounds justifying the imposition of preventive measures, as follows: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 36. Article 217 § 1 defined the grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided as follows: “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 he has no fixed residence [in Poland] or his identity cannot be established; or (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or (3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or (4) an accused has been charged with an offence which creates a serious danger to society...” 37. On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read: “(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or (2) [as it stood before 1 January 1996].” Paragraph 2 of Article 217 provided: “If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.” 38. The Code envisaged a margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate. 39. On 4 August 1996 an amendment to the Code of Criminal Procedure entered into force, according to which time-limits for detention on remand were introduced. 40. From that date onwards, Article 222 of the Code read, in so far as relevant, as follows: ” 3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years. 4. In particularly justified cases, the Supreme Court may, upon the request of the court competent to deal with the case ... 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 suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time-limits referred to in paragraph 3.” 41. Article 263 of the 1997 Code provides, in so far as relevant: “3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed two years. 4. Detention on remand may be prolonged for a fixed period exceeding the periods provided for in paragraphs 2 and 3 only by the Supreme Court at the request of the court dealing with a case ... – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused, as well as other obstacles which could not be overcome.”

train

001-87359

ENG

EST

ADMISSIBILITY

JAASKA v. ESTONIA

Inadmissible

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant, Mr Kalmer Jaaska, is an Estonian national who was born in 1967 and lives in Põdra village, Tartu County. He is represented before the Court by Mr M. Paabumets, a lawyer practising in Tartu. On 4 July 2003 a police investigator drew up a decision to charge the applicant with unlawful felling of forest and aggravated fraud. On 8 July 2003 the Tartu County Court (maakohus) heard the police investigator’s request to take the applicant into custody. The hearing was held in the presence of the police investigator, public prosecutor and the applicant’s lawyer. The court granted the request and authorised the applicant’s detention for four months from the day of his arrest. It noted in its decision that according to the information presented by the investigator, the applicant had failed to appear before the investigator on three occasions in June 2003. On 2 July 2003 the police had sought to compel him by force to appear (sundtoomine) but he was not found at his place of residence. The court concluded that there were sufficient grounds to believe that the applicant was evading the proceedings and could commit further offences. On 10 July 2003 the applicant appeared before the police investigator. He was presented with the decision to bring charges against him and with the County Court’s decision, and was taken into custody. The applicant’s lawyer appealed against the County Court’s decision, complaining that the applicant had not been present at the court when his detention had been authorised and thus could not present his arguments against the detention. In any event, the applicant had been in contact with the police investigator and had not evaded the proceedings. Nor had there been any risk of the applicant committing further offences. The applicant’s lawyer noted in the appeal that the applicant wished to participate in the Court of Appeal (ringkonnakohus) hearing. On 30 July 2003 the Tartu Court of Appeal heard the appeal in the presence of the applicant’s lawyer and the prosecutor. It dismissed the appeal. The court did not agree with the argument of the applicant’s lawyer that application of a preventive measure (tõkend) could be decided only in the presence of the accused. The court pointed out that as the applicant had been evading the investigation it had been necessary to make a decision by default. The Court of Appeal’s decision was final. On 26 November 2003 the applicant was released from custody. According to the applicant’s lawyer he posted an application, together with copies of relevant documents, addressed to the Court, on 22 September 2003. The letter was sent by registered mail but without a request for receipt. It never arrived at the Court’s Registry. On 3 February 2005 the applicant’s lawyer sent an inquiry to the Court, noting that he had received no response. He asked for information about the state of the proceedings. Copies of the application of 22 September 2003 and of a receipt from the post office were appended to the letter. According to the post office receipt a letter from the lawyer’s law office to the Registrar of the European Court of Human Rights had been sent by registered mail on 22 September 2003. There was a printed text on the receipt according to which requests and complaints concerning registered mail could be made within six months from the date of the posting. By a letter of 15 February 2005 the Registry informed the applicant’s lawyer that the Court had not received his letter of 22 September 2003. A case file concerning the application was opened and the applicant’s lawyer was requested to complete the application form and submit copies of all pertinent documents. On 21 April 2005 the applicant’s lawyer submitted a completed application form together with copies of the application of 22 September 2003 and of the relevant documents. He also submitted a copy of his inquiry to the post office in Estonia, made on 16 March 2005, concerning the correspondence of 22 September 2003, and a reply of 18 March 2005, according to which it was possible to search for international registered mail within six months from the day following the posting of the correspondence. It had therefore not been possible to search for the letter sent by the applicant’s lawyer. The applicant’s lawyer requested that the Court consider 22 September 2003 as the date of the introduction of the application.

train

001-57698

ENG

SWE

CHAMBER

CASE OF JAN-AKE ANDERSSON v. SWEDEN

No violation of Art. 6-1

C. Russo;R. Pekkanen

9. Mr Jan-Åke Andersson, a Swedish citizen, is an engineer by profession and resides in Torsås in the South-West of Sweden. 10. On 26 February 1983 the applicant was stopped by police inspector B. while driving a tractor on a highway (motortrafikled), on which this was prohibited under the Traffic Ordinance of 1972 (vägtrafikkungörelsen 1972:603 - "the 1972 Ordinance"). He refused to pay a fine, maintaining that he had not seen any road sign indicating the category of the road or the prohibition in question. 11. On 17 May 1983 Mr Andersson was summoned to appear before the District Court (tingsrätten) of Ronneby, charged with having contravened sections 139 and 144 of the 1972 Ordinance. In a letter to the District Court he stated that he expected the public prosecutor to call certain police officers, including police inspector B., as witnesses, as he could not afford to call any himself. Moreover, the public prosecutor should, he said, produce the relevant official meteorological records (see the extracts from the District Court’s judgment in paragraph 12 below). In addition, he requested the District Court to appoint an official defence counsel. On 8 June 1983 this request was refused by the District Court, which considered that the case was simple and that the applicant was able to defend himself. His appeal against this decision was dismissed by the Court of Appeal (hovrätten) of Skåne and Blekinge on 15 June 1983, with no possibility of further appeal. 12. On 21 September 1983 the District Court held a hearing (huvudförhandling) during which both the applicant and police inspector B. were heard. It did not, however, order the production of the relevant meteorological records. On the same day it found the applicant guilty of the charge brought against him and sentenced him to a fine of 400 Swedish kronor. In its judgment the District Court stated: "[The applicant] has contested criminal liability and has made the following statement: He was on his way from Hässleholm to Torsås driving a tractor that he had just bought. He had travelled with his father to Hässleholm that morning and they had then, inter alia, travelled the same road but in the opposite direction. The mist had been very dense already in the morning and [the applicant] had observed nothing special as regards the road during the trip. He does not know what the concept ‘motortrafikled’ means. When he arrived on the ‘motortrafikled’ west of Karlshamn it was so misty that he saw no road signs that attracted his attention. He was therefore unaware of the character of the road he was driving on and even if he had noticed a road sign indicating ‘motortrafikled’ he would not have known what restrictions this would imply as regards driving certain vehicles. Police inspector B. has been heard as a witness but has not given any information other than that the weather was normal in the area of Ronneby without any signs of mist. [The applicant] - who was driving as alleged by the public prosecutor - drove a long distance by tractor and should therefore have paid particular attention to the rules applicable as regards the driving of such a vehicle. The fact that the weather was misty does not relieve him from his obligations as a driver. He shall therefore be convicted in accordance with the charge against him." 13. On 4 October 1983 the applicant appealed to the Court of Appeal of Skåne and Blekinge. He claimed that the proceedings before the District Court had been "unbalanced" and that numerous "interruptions" by the judge had prevented him from following the arguments and from presenting his case in a satisfactory manner; that the fine imposed was far too high; and furthermore, that the District Court had overlooked the fact that certain road signs had been missing. In his reply of 31 October 1983, the public prosecutor, referring to the evidence submitted before the District Court, maintained that the applicant was guilty and expressed the opinion that it was not necessary to hold a new hearing. On 2 November the Court of Appeal sent a copy of this reply to the applicant, advising him that since the case could be adjudicated without a new hearing, he was entitled to submit final written observations within two weeks. In his final observations of 9 November 1983, Mr Andersson asked the Court of Appeal to take the absence of certain road signs into account and to consider the weather situation and the fact that he was overtaken by an unmarked police car which failed to warn him. He also applied for a public hearing to be held in Karlskrona, for police inspector B. to be heard as a witness and for the relevant meteorological records to be examined. In addition, he requested free legal assistance since he needed defence counsel and did not have sufficient means to pay for one. 14. The Court of Appeal rejected the applicant’s requests and decided the case on the basis of the case-file. In its judgment of 10 February 1984, upholding the findings of the District Court, it stated: "From the photos which have been referred to, it appears that the fact that the road in question was a ‘motortrafikled’ did appear from appropriate and visible road signs at Stensnäs. For this reason and since [the applicant] nevertheless drove the tractor on [the road] from Stensnäs to Sörby, he committed the offence with which he has been charged by the prosecution." 15. Mr Andersson applied for leave to appeal to the Supreme Court (högsta domstolen), claiming that the appeal proceedings had been very "unbalanced" and had not complied with human-rights standards. The Supreme Court refused the application on 26 April 1984. 16. Under the rules on public access to official documents, contained in the Freedom of the Press Act 1949 (tryckfrihetsförordningen) and the Secrecy Act (sekretesslagen, 1980:100), the case-files from the courts involved were all accessible to the public. 17. According to Chapter 21 of the Code of Judicial Procedure, lower courts must not as a rule give judgment in criminal cases until the accused has been able to defend himself at an oral hearing. Exceptions to this rule do, however, exist, particularly at appellate level. Thus, Chapter 51, section 21, as worded at the relevant time (it was subsequently amended with effect from 1 July 1984), provided: "The Court of Appeal may decide the case without a hearing if the prosecutor appeals only for the benefit of the accused or if an appeal lodged by the accused is supported by the opposing party. The case may be decided without a hearing if the lower court has acquitted the accused or discharged the offender or found him to be exempted from punishment by virtue of mental abnormality or if it has sentenced him to a fine or ordered him to pay a money penalty (vite) and there is no reason to impose a more severe sanction than those mentioned above or to impose any other sanction ..." 18. The Court of Appeal has the power to review questions both of law and of fact. However, there are some limits to its jurisdiction. Section 23 of Chapter 51, for instance, lays down that the Court of Appeal may not normally change the lower court’s assessment of the evidence to the disadvantage of the accused without the evidence in question being produced afresh before the Court of Appeal; Chapter 51, section 25 (as amended by Laws 1981:22 and 228) also contains a rule prohibiting the appellate court, in cases where the appeal is lodged by the accused or by the prosecutor for the benefit of the accused, from imposing a sentence which can be considered more severe than that imposed at first instance.

train

001-57623

ENG

CHE

CHAMBER

CASE OF GROPPERA RADIO AG AND OTHERS v. SWITZERLAND

No violation of Art. 10;Not necessary to examine Art. 13

C. Russo;N. Valticos

10. Groppera Radio AG, a limited company incorporated under Swiss law, has its registered office at Zug (Canton of Zug) and produces radio programmes. Mr Jürg Marquard, Mr Hans-Elias Fröhlich and Mr Marcel Caluzzi are all Swiss nationals. Mr Marquard is a publisher and lives at Zug; he runs Groppera Radio AG and is its statutory representative and sole shareholder. Mr Fröhlich, who is a journalist and an employee of Groppera Radio AG, lives at Thalwil (Canton of Zürich). Mr Caluzzi is likewise employed by the company as a journalist and lives at Cernobbio in Italy but also has a home in Lucerne. 11. In 1979 an Italian private limited company, Belton s.r.l., built a radio station on the Pizzo Groppera - a 2,948 m peak in Italy, near Campodolcino, six kilometres from the Swiss border - for Groppera Radio’s predecessor, Radio 24 AG (see paragraphs 14-15 below). The station used a 50 kW transmitter and a directional aerial with a gain of about 100 kW, such that the apparent power radiated was of the order of 5,000 kW. Using this transmitter, the most powerful in Europe, the station broadcast to Switzerland over a distance of 200 km to the north-west and thus reached nearly a third of the country’s population, mainly in the Zürich area. 12. From 13 November 1979 to 30 September 1983 the Pizzo Groppera station was managed by Belton s.r.l. but operated by its owner, Radio 24 AG, a company that Mr Roger Schawinski had set up in order to evade the State broadcasting monopoly in Switzerland. The programmes, which were broadcast on VHF and were wholly financed by Swiss advertisers, were intended for listeners between the ages of 15 and 40. 13. On 7 June 1982 the Federal Council adopted an Ordinance on local radio trials, thereby ending the monopoly of the Swiss Radio Broadcasting Company. Nearly three hundred applications were made for trials of this kind, including one by Radio 24 AG, which wanted to serve the Zürich area. 14. On 20 June 1983 the Federal Council issued thirty-six licences. One of these went to Radio 24 AG, but it was issued on condition that the broadcasts from the Pizzo Groppera should cease after 30 September 1983. Mr Schawinski agreed to this but sold the station on the Pizzo Groppera to Mr Marquard. 15. From 1 October 1983 Groppera Radio AG used the Pizzo Groppera station to broadcast, under the name of Sound Radio, a slightly altered schedule to the Zürich area, on the frequency that had been used by Radio 24. These programmes could be received not only by the owners of car radios and other personal sets but also by cable-network companies, which retransmitted them. They consisted of light music, information bulletins, commercials and programmes in which the programme-makers and listeners communicated directly or indirectly with each other by telephone or over the air. Like Radio 24, Sound Radio broadcast only in the Zürich dialect. 16. Swiss local radio stations began broadcasting from 1 November 1983 and attracted a large number of listeners. They came into competition with Sound Radio, mainly because they could finance themselves through advertising, subject to certain conditions. An opinion poll carried out in the Zürich area and published on 1 December 1983 showed that Radio 24 reached 60% of listeners and Sound Radio 12%. 17. On 17 August 1983 the Federal Council issued an Ordinance relating to the Act governing correspondence by telegraph and telephone ("the 1983 Ordinance") to replace another of 10 December 1973. It came into force on 1 January 1984 and contained general provisions applicable to the licensing scheme. It created a third category of licence for receiving installations - community-antenna installations - which was additional to categories 1 (private receiving) and 2 (public receiving). By Article 78 § 1 (a) of the Ordinance, "A community-antenna licence shall entitle the holder to: (a) operate the local distribution network defined in the licence and rebroadcast by this means radio and television programmes from transmitters which comply with the provisions of the International Telecommunication Convention of 25 October 1973 and the international Radio Regulations and with those of the international conventions and agreements concluded within the International Telecommunication Union; ..." 18. From 1 January 1984 most of the Swiss cable companies ceased to retransmit the programmes put out by Sound Radio. Some of them, however, including the community-antenna co-operative of Maur and the surrounding district (Genossenschaft Gemeinschaftsantennenanlage Maur und Umgebung - "the co-operative"), continued to broadcast them. 19. On 21 March 1984 the Zürich area telecommunications office of the national Post and Telecommunications Authority (PTT) informed the co-operative that Groppera Radio AG’s broadcasts, since they did not comply with the international rules in force, were unlawful, so that under Article 78 §§ 1 and 3 of the 1983 Ordinance retransmission was not covered by the community-antenna licence. It added that the co-operative would be committing an offence if it continued to retransmit them, and it required the co-operative to cancel within thirty days all the technical arrangements made for receiving and broadcasting the programmes in question. 20. On 31 July 1984 this order was confirmed by the national head office of the PTT. 21. The co-operative and two of its subscribers challenged this decision by bringing an administrative-law appeal in the Federal Court. 22. On 30 August 1984 the Pizzo Groppera transmitter was damaged by lightning. It ceased broadcasting and has never resumed since, although the applicants claimed that the damage was quickly repaired. Later, in an interview published in the Tages-Anzeiger Magazin on 13 December 1986, Mr Marquard acknowledged that he had made an error of business judgment in acquiring the radio station. 23. Groppera Radio AG joined the appeal by filing pleadings on 18 September 1984. It claimed that it too was a victim of the provisions of the 1983 Ordinance concerning community-antenna licences, as the restrictions they imposed considerably reduced the number of its listeners, thereby cutting its revenue and jeopardising its financial survival. 24. On 12 November 1984 the Federal Court informed the parties that it had learned that the Pizzo Groppera transmitter had been destroyed and would apparently not be repaired. As there was no interest in pursuing the proceedings, the court proposed striking out the appeals without taking a decision on the merits ("die Beschwerde ohne Sachentscheid abzuschreiben"). The applicants refused to consent to this. 25. The Federal Court gave judgment on 14 June 1985, after deliberating in public on the same day. It ruled that the appeals were admissible inasmuch as they were directed not against the ban on retransmission itself but against the sanctions imposed by the PTT for disregarding the ban. It went on to dismiss the appeals for the following reasons (translated from German): "3. The Court can normally only hear an administrative appeal if the appellant has a live (present or future) interest in taking proceedings. If the interest in taking proceedings has ceased to exist, the case becomes purely academic and must not continue unless special circumstances require a decision on the merits, for example where it would otherwise not be possible to give a binding ruling on matters of principle in time ... (a) the Maur community-antenna co-operative and its subscribers have only a contingent interest in taking proceedings, depending on whether Sound Radio is going to resume broadcasting; so long as there are no broadcasts, there is nothing to feed into the cable network. If it is highly unlikely that the broadcasts will be resumed, there is no need to examine the merits of the appeal. Groppera Radio AG claimed to have made all the arrangements necessary for restarting its broadcasts in the event of the present appeal’s being held to have a suspensive effect (or of its succeeding). That statement, however, was unsupported by any evidence, although the burden of proof is on the appellant in this regard and Groppera’s submission is open to serious doubt. The company claimed to have ceased its broadcasts - independently of the consequences of the station’s having been struck by lightning - because of the PTT’s ban on retransmission. Other reasons may have weighed more heavily, however. With the arrival of experimental local radio stations and a third frequency for Radio DRS [Direktion Radio und Fernsehen der deutschen und rätoromanischen Schweiz], the transmitter on the Pizzo Groppera had to face serious competition, including that from Radio 24; the transmitter’s survival is accordingly no doubt in jeopardy irrespective of the ban on retransmission. That being so, Groppera Radio AG’s gratuitous statement that it was ready to resume its activities is not sufficient to prove that the Maur community-antenna co-operative and its subscribers have a live interest in taking proceedings. It follows that there is no need to examine the merits of their appeal. The Court does not need to determine the question whether there might be a live interest if the transmitter resumed or had already resumed its broadcasts, which are incompatible with international telecommunications law - subject to any contrary decision by the Italian courts and, possibly, by an international court of arbitration. (b) For the same reasons there is no need to consider the merits of the appeal brought by Groppera Radio AG. The company cannot plausibly maintain that if its appeal succeeded, it would resume its activities - which have been made impossible, short of new investment, by a storm that occurred after the appeal was brought - and would, furthermore, have the financial means to do so. Moreover, this case is a wholly exceptional one. Transmitters which broadcast in contravention of national or international law cannot usually survive for long. Matters are different as regards the Pizzo Groppera transmitter only because proceedings are still pending in Italy and because hitherto none of the means of settling disputes provided for in Article 50 of the International Telecommunication Convention ... has been used. It is unlikely that a second case of this kind will arise, if only because of the doubtful profitability of such transmitters. There is therefore insufficient justification for determining, with an eye to the future, the issues raised by the case, some of which are extremely sensitive. In any case, even if it were to be held that Groppera Radio AG had a possible interest in taking proceedings, its claim to retransmit again, through the co-operative’s cable network, its probably unlawful ... broadcasts, after resuming them, would not deserve the law’s protection." Lastly, the court made an order for costs against Groppera Radio AG since its appeal could not succeed as the company had breached the law by attempting to circumvent a ban on retransmission that had been imposed by the PTT and that, moreover, did not concern it directly. 26. From 13 November 1979 onwards Radio 24 (Sound Radio’s predecessor) broadcast to Switzerland from the Pizzo Groppera (see paragraph 12 above). On several occasions it changed its frequency in order to prevent interference with other radio stations. On 21 December 1979, following complaints from the German and Swiss telecommunications authorities, the Italian Ministry of Post and Telecommunications prohibited Belton s.r.l. (the manager of the station - see paragraph 12 above) from continuing its operations and threatened to put its transmitter out of action. The transmitter closed down on 22 January 1980, was functioning again three days later and then ceased broadcasting on 29 January. 27. Belton s.r.l. brought proceedings in the Lombardy Regional Administrative Court, which on 11 March 1980 refused an application for a provisional broadcasting licence. 28. On 19 March 1980 the Chiavenna magistrate declared that the closing down of the transmitter was unlawful, and broadcasting resumed on 23 March. 29. On 3 October 1980 the PTT again demanded that the broadcasts should cease. On 11 October a second application (no. 2442/82) was made to the Lombardy Regional Administrative Court, but on 18 November that court refused a stay of execution. On 25 November the Pizzo Groppera transmitter closed down for the third time. On 13 January 1981 the Consiglio di Stato granted an application for a stay of execution pending the proceedings in the Administrative Court, and Radio 24 began broadcasting again on 16 January. 30. In a judgment (no. 1515/81) of 1 October, which was filed at the registry on 4 December 1981, the Administrative Court held that Radio 24 was carrying on its activities in Italy unlawfully. The Pizzo Groppera station could not be considered as a local radio station under Italian law, since it had a broadcasting radius of more than 20 km and broadcast only to listeners living across the border. The court added that under Law no. 103 of 14 April 1975 ("new provisions concerning radio and television broadcasting"), the State had a monopoly of radio broadcasts intended for foreign countries. Lastly, the court upheld the closure order, which was executed on 21 January 1982. 31. On 4 May 1982, following an appeal by Belton s.r.l., the Consiglio di Stato adopted three decisions, the first of which was filed at the registry the next day and the other two on 26 October: (i) an order (no. 124/82) staying execution of the judgment of 1 October 1981, so that Radio 24 was able to resume broadcasting on 9 May; (ii) a judgment (no. 508/82) allowing the appeal in part and reserving a decision as to the rest; and (iii) an order (no. 509/82) referring the case to the Constitutional Court - as sections 1, 2 and 45 of the 1975 Law appeared to raise a constitutional issue - and staying the proceedings. 32. The Constitutional Court gave its decision on 6 May 1987 in a judgment (no. 153/1987) which was filed at the registry on 13 May. It declared section 2(1) of the impugned Law to be unconstitutional as it did not make any provision for the possibility of broadcasting programmes abroad under licences issued to private companies by the State authorities. 33. The International Telecommunication Convention, which was concluded in the International Telecommunication Union on 25 October 1973 and revised on 6 November 1982, has been ratified by all the Council of Europe’s member States. In Switzerland it has been published in full in the Official Collection of Federal Statutes (1976, p. 994, and 1985, p. 1093), and in the Compendium of Federal Law (0.784.16). Article 33, entitled "Rational Use of the Radio Frequency Spectrum", provides: "Members shall endeavour to limit the number of frequencies and the spectrum space used to the minimum essential to provide in a satisfactory manner the necessary services. To that end they shall endeavour to apply the latest technical advances as soon as possible." Article 35 § 1 reads: "All stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Members or of recognised private operating agencies, or of other duly authorised operating agencies which carry on radio service, and which operate in accordance with the provisions of the Radio Regulations." 34. The Convention is supplemented and clarified by three sets of administrative rules: the Radio Regulations, the Telegraph Regulations and the Telephone Regulations. Only the first of these is relevant in the instant case. 35. The Radio Regulations date from 21 December 1959 and were likewise amended in 1982 and also on other occasions. They run to over a thousand pages and - except for numbers 422 and 725 - have not been published in the Official Collection of Federal Statutes. The latter contains the following reference to them: "The administrative regulations relating to the International Telecommunication Convention of 25 October 1973 are not being published in the Official Collection of Federal Statutes. They may be consulted at the Head Office of the PTT, Library and Documentation, Viktoriastrasse 21, 3030 Berne, or may be obtained from the ITU, International Telecommunication Union, Place des Nations, 1202 Geneva." Apart from number 584 (see paragraph 36 below), the provisions of the Radio Regulations relevant to the present case are the following: "No transmitting station may be established or operated by a private person or by any enterprise without a licence issued in an appropriate form and in conformity with the provisions of these Regulations by the Government of the country to which the station in question is subject ..." "In principle, except in the frequency band 3900-4000 kHz, broadcasting stations using frequencies below 5060 kHz or above 41 MHz shall not employ power exceeding that necessary to maintain economically an effective national service of good quality within the frontiers of the country concerned." 36. By number 584 of the Radio Regulations, "Broadcasting stations in the band 100-108 MHz in Region 1 shall be established and operated in accordance with an agreement and associated plan for the band 87.5-108 MHz to be drawn up by a regional broadcasting conference (see Resolution 510). Prior to the date of entry into force of this agreement, broadcasting stations may be introduced subject to agreement between administrations concerned, on the understanding that such an operation shall in no case prejudice the establishment of the plan." 37. The work of the conference contemplated in this provision resulted in the adoption in 1971 of a regional convention better known under the name of the Darmstadt plan. This instrument, which was superseded in 1984 by the "Geneva plan", governed the use of the 100-108 MHz frequency band and laid down a procedure for considering new applications for frequency allocations; it also indicated the position and characteristics of the transmitters concerned. 38. Unlike Switzerland, Italy has not acceded to the plan. Nor have the two countries concluded an individual agreement as required before a transmitter can broadcast from one national territory to another. 39. The Swiss Government never jammed the broadcasts from the Pizzo Groppera in order to stop them. They did, however, make approaches to the Italian authorities and to the International Telecommunication Union. 40. Two delegations, one Swiss and one Italian, met in Berne on 29 and 30 November 1979 to study the "problem of external transmitters situated on Italian territory and broadcasting programmes to Switzerland". The minutes of the meeting mentioned the following points: "1. The Italian delegation confirmed that on 22 November 1979 the ‘Ministero delle Poste e delle Telecomunicazioni’ sent a warning to the Belton company (Signor Fedele Tiranti) in Como, and receipt of the document was acknowledged on 23 November. The document stated that the transmitter had to confine the scope of its activities to Italian territory. Those in charge of the station had seven days in which to comply with this order, failing which their transmitter would be put out of action (disattivazione). The Swiss delegation expected immediate action. In accordance with the agreements concluded in Rome on 22 and 23 October 1979, the Italian delegation assured the Swiss delegation that the Italian Post and Telecommunications Authority would pursue the course of action already embarked on with the despatch of the warning (diffida), in order to halt the broadcasts to Switzerland. The Swiss delegation stated nonetheless that if nothing was done by 20 December 1979 and if the broadcasts still continued, the case would have to be submitted to the International Telecommunication Union (ITU). 2. As regards the external transmitters which were disrupting broadcasting in Switzerland, some measure of agreement was reached. The Italian side had already taken measures to implement the rules in force. One transmitter had even temporarily ceased functioning. Future arrangements would be examined on a case-by-case basis by the representatives of the two authorities, i.e. Mr Blaser for Switzerland and Mr Cito for Italy. 3. The Swiss delegation insisted on measures being taken, in accordance with the international agreements, against other transmitters sited in Italy which broadcast programmes intended mainly for Switzerland. The Italian delegation, which was willing to settle the problem in accordance with its international commitments, said that it could not for the time being participate in any official co-ordination procedure, mainly because there was currently no legal basis for it. 4. The Swiss delegation confirmed its position vis-à-vis the international agreements and stressed the need for them to be applied unrestrictedly by the co-signatory countries. 5. Given the importance of the issues in question, the two delegations decided to continue their negotiations early in 1980." 41. In a letter of 20 January 1987 the Radio Rights Division (Head Office of the PTT) submitted a request for assistance to the chairman of the International Frequency Registration Board (International Telecommunication Union). It indicated inter alia: "In Italy, especially in the Po valley, there are a large number of private radio and television broadcasting stations transmitting on frequencies which have not been co-ordinated with the Swiss Post and Telecommunications Authority. This state of affairs contravenes Articles 2 and 4 of the regional broadcasting agreements (Stockholm 1961, Geneva 1984) and numbers 1214 and 1215 of the Radio Regulations, international agreements to which the Swiss and Italian authorities are parties. Some of these stations broadcast programmes and advertising designed for listeners in neighbouring Swiss towns and employ power exceeding that necessary to maintain economically an effective national service of good quality within the frontiers of the country concerned, contrary to number 2666 of the Radio Regulations. Furthermore, these private stations interfere with the proper functioning of Swiss radio services. To give a better picture of the situation, we are enclosing copies of the reports of harmful interference that we have sent to the Italian authorities (since 1984), pursuant to Article 22, Appendix 23 of the Radio Regulations. You will also find a summary table of Italian private radio stations which, through their presence on the airwaves, are preventing the implementation of our frequency allocations. For more than six years now, the various representations made by the Swiss PTT to the Italian authorities with a view to a co-ordination of effort have unfortunately produced no significant result. It is for this reason that before, if need be, taking the steps provided for in Article 50, number 189, of the International Telecommunication Convention (Nairobi, 1982), the Swiss authorities request the Board to take, as soon as possible, all necessary measures to remedy this situation." 42. On 8 July 1988 the chairman of the International Frequency Registration Board sent the Head Office of the Swiss PTT a copy of a letter sent the same day to the Italian Ministry of Post and Telecommunications informing it that frequency allocations were being used in breach of the Radio Regulations and regional agreements. The most recent of the Board’s representations to the Italian authorities was made in a telefaxed message on 29 November 1988, which read: "1. The Board has yet to receive any information about the solution of the cases of harmful interference reported by the Swiss authorities. Similar cases of harmful interference have recently been reported by the authorities of two other States. 2. On behalf of the International Frequency Registration Board I wish to express serious concern at the apparent lack of progress in eliminating the harmful interference caused to radio and television broadcasting stations in Switzerland and at the fact that a chaotic situation seems to have developed in the region which, to say the least, renders the existing international treaties nugatory. 3. In your letter of 8 August 1988 you informed the Board that an agreement had been reached with the Swiss authorities, but no practical measure seems to have been taken. Your Department has not yet replied to the Board’s letters of 3 April 1987, 21 August 1987 and 25 October 1988 and has not submitted any comments - as it was required to do under RR [Radio Regulations] 1444 - on the Board’s investigation pursuant to RR 1438 and RR 1442 into the harmful interference caused to the Swiss authorities’ radio and television broadcasting stations which was reported to you in the Board’s letter of 8 July 1988. ... 6. The Board wishes to draw your Department’s attention to the extremely serious situation currently prevailing. In particular: (I) The Board has concluded that the Italian authorities have failed to comply with the obligations which they freely undertook to fulfil in the International Telecommunication Convention, the Radio Regulations and the regional agreements. (II) More than a hundred Italian stations are currently causing persistent harmful interference to officially authorised stations in three neighbouring countries. (III) No means has been found of reducing this major interference, which continues to increase. (IV) There has been no specific reply to the Board’s letters. 7. In view of this situation, which has existed for several years now and has recently become alarmingly serious, the Board is bound to consider taking further measures with a view to overcoming the serious consequences for the authorities of France, Switzerland and Yugoslavia of the Italian authorities’ failure to fulfil their obligations. 8. Copies of this telefax are being sent to the authorities of France, Switzerland and Yugoslavia." The Board never received any reply from the Italian authorities.

train

001-4906

ENG

NLD

ADMISSIBILITY

C.C.F. v. THE NETHERLANDS

Inadmissible

Elisabeth Palm

The applicant is a Dutch national, born in 1970, and resides on the isle of Bonaire, the Netherlands Antilles. He is represented by Mr E.Th. Hummels, a lawyer practising in Utrecht, the Netherlands. On 25 February 1995, acting on information received that behind the X. snack on the isle of Bonaire drugs were being sold, the police officers R.P. and M.R. conducted an investigation on that location. Upon their arrival there, they saw two men, one of whom the applicant. According to the applicant, the two police officers searched him in public while he was made to stand facing a wall with his trousers and underpants lowered until the knees. No drugs were found on him. When the applicant refused to comply with the police officers' subsequent order to remove his underpants, he was arrested and taken to the police station According to the formal police record (proces-verbaal) on this investigation, the police officer R.P. saw that the applicant gave a small object to the other person present who gave the applicant a banknote in return. The applicant added this banknote to a bundle of notes, which he then put in his pocket. The police officers apprehended the applicant. The other person absconded. The officers searched the applicant. No drugs were found on him. An amount of 252.37½ Antillean Guilders found on him was seized. While searching the applicant, the police officer R.P. saw the applicant hide an object in his underpants. The applicant was arrested and brought by car to the police station. When the applicant got out of the car at the police station, he dropped a plastic bag on the floor. The police officer M.R. picked up the bag and secured it. The bag was found to contain six small plastic sachets each containing cream-coloured powder. Subsequent tests indicated that the powder found contained cocaine. Following his arrest, the applicant was placed in pre-trial detention. By summons of 27 April 1995, the applicant was ordered to appear on 9 May 1995 before the Court of First Instance (Gerecht in Eerste Aanleg) sitting in Bonaire on charges of possession of and trafficking in narcotics. On 9 May 1995, the Court of First Instance started its examination of the case. The defence stated that it had summoned E.J., B.W., G.S. and K.V. in order to be heard as witnesses, but that only K.V. had appeared. It granted the request by the prosecution to stay the proceedings in order to take evidence from these persons. It adjourned its examination until 13 June 1995. On 22 May 1995, Mr E.J. gave evidence before the investigating judge (rechter-commissaris). G.S. and B.W. gave evidence before the investigating judge on 29 May 1995. All three witnesses confirmed that, on 25 February 1995, the two police officers had forced the applicant to lower his pants and underpants when they searched him. On 13 June 1995, the prosecution sought a further stay, as it wished to verify certain allegations which had been made against the police. The prosecution further stated it wished to hear as witnesses the police officers R.P., M.R. and J. The defence did not object to a further stay, but requested the applicant's release from pre-trial detention. The Court of First Instance adjourned the case until 8 August 1995, ordered that the police officers R.P., M.R. and J. be heard before the investigating judge and further ordered the applicant's immediate release. The applicant was released on the same day. On 8 august 1995, upon the request of both the prosecution and the defence, the Court of First Instance adjourned the proceedings until 12 September 1995 in order to hear R.W. as a witness. On 12 September 1995, the Court of First Instance adjourned its examination until 3 October 1995 as the witness R.W. had not appeared. It ordered that this witness be forcibly brought before it on 3 October 1995. On 3 October 1995, the Court of First Instance took evidence from the applicant, who denied the charges. It further took evidence from R.W., who stated inter alia that he had bought two sachets of base (cocaine) from the applicant shortly before the latter was arrested on 25 February 1995. He himself had walked away. He further stated that he never bought any drugs from the applicant previously. He also stated to have been beaten by the police upon his arrest as he had refused to talk. Both the prosecution and the defence were given the opportunity to put questions to this witness. The Court of First Instance further considered various other means of evidence, including the formal police records of the investigation carried out on 25 February 1995 and statements made to the police officer A.W. on 23 November 1993 by L.B. and L.A. respectively, who had each declared to have bought base from the applicant. The court of First Instance further heard the parties' final pleadings and closed its investigation. In its judgment of 17 October 1995, the Court of First Instance convicted the applicant of trafficking in narcotics and sentenced him to eighteen months' imprisonment with deduction of the time spent in pre-trial detention. The applicant filed an appeal with the Joint Court of Appeal of the Netherlands Antilles and Aruba (Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en Aruba). On 2 April 1996, the Joint Court of Appeal heard the applicant, who stated to be innocent, and considered the means of evidence before it, including formal police records concerning the investigation of 25 February 1995, the report of the Curaçao Public Health Laboratory containing the findings of the test carried out on the powder found on 25 February 1995, a statement made to the police officer A.W. on 21 November 1993 by E.W., who had stated to have bought base from the applicant, statements made to the police officer A.W. on 23 November 1993 by L.B. and L.A. respectively, who had each declared to have bought base from the applicant, and a statement made to the police officer A.W. on 8 January 1994 by S.C., who had stated to have bought base from the applicant. The Joint Court of Appeal further heard the parties' pleadings and closed its investigation. By judgment of 23 April 1996, the Joint Court of Appeal quashed the judgment of 17 October 1995, convicted the applicant of trafficking in narcotics and sentenced him to eighteen months' imprisonment with deduction of the time spent in pre-trial detention. The Joint Court of Appeal rejected as not having been made plausible the assertion by the defence that the evidence against the applicant had been fabricated and that the finding of the cocaine had been faked. It found no reasons to doubt the veracity of the facts and circumstances as related in the formal police records. It further rejected the argument of the defence that the statements of the witnesses K.V., E.W., L.A., L.B., S.C., and R.W. could not be used in evidence on grounds that their statements concerned different facts. The Joint Court of Appeal considered that these statements mutually support each other, since they concern similar facts. The court added that these statements were only used in conjunction with the other means of evidence. It further rejected the argument by the defence that the witness R.W. had been afraid to retract his statement for fear of being prosecuted for perjury. The court held that it had not appeared that this statement had not been made freely. It added that this was also the case with the other statements used in evidence, The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). Pursuant to Article 99 of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) an appeal in cassation is limited to points of law and procedural conformity. In his appeal in cassation, the applicant complained that the prosecution should have been declared inadmissible on grounds that the applicant's rights under Article 3 had been violated in that the police officers had forced the applicant to lower his pants and underpants on a public place. The applicant further complained under Article 6 of the Convention that the Joint Court of Appeal had unjustly rejected his argument that the evidence against him had been fabricated and that the finding of the cocaine had been faked. He also complained under Article 3 of the Convention that he would have to serve his sentence in the Koraalspecht prison on the isle of Curaçao, where the conditions of detention, according to the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment in its Report CPT/Inf (96)1 of 18 January 1996, constitute inhuman and degrading treatment. In his advisory opinion to the Supreme Court, the Procurator-General (Procureur-Generaal) to the Supreme Court advised the Supreme Court to reject the first complaint on grounds that the defence had not raised this argument before the Joint Court of Appeal whereas in cassation proceedings no facts or circumstances can be invoked which have not been established before the trial courts. He further advised to reject the second complaint on grounds that the rejection by the Joint Court of Appeal of this argument was based on its comprehensible assessment of the facts, which cannot be further reviewed in cassation proceedings. As to the third complaint, the Procurator-General noted that this complaint had not been raised before the trial court and considered that this issue could not be raised for the first time in cassation proceedings as this would require an investigation of the conditions in which prison sentences imposed by courts in the Netherlands Antilles are habitually executed. In its judgment of 11 November 1997, referring to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie), the Supreme Court rejected the applicant's complaints in cassation without stating any further reasons. It further did not find any grounds on the basis of which the judgment of 23 April 1996 should be quashed ex officio. Article 101a RO provides as follows: <Translation> "If the Supreme Court considers that a complaint submitted cannot lead to cassation and does not prompt a determination of legal issues in the interest of legal unity and legal development, it can limit itself to this finding when giving the reasons of its decision on that point."

train

001-112101

ENG

RUS

CHAMBER

CASE OF BERLADIR AND OTHERS v. RUSSIA

No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) read in the light of Article 10 - (Art. 10) Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

4. The applicants were born in 1968, 1950, 1944, 1949, 1973, 1953, 1956, 1958, 1955 and 1965 respectively. They live in Moscow. 5. In November 2005 the Moscow city administration authorised a public gathering called “the Right March” by a number of nongovernmental organisations such as the Movement against Illegal Immigration and the Eurasian Youth Movement. The declared aim of the event was to commemorate the liberation of Moscow from occupation and to express the participants’ dissatisfaction with the flow of immigration into Russia. This public event included a parade from the Chistiye Prudy underground station down to Slavyanskaya Square, where a demonstration was held. The event lasted for some two and a half hours and attracted several thousand people, according to the applicants. Reportedly, a number of participants shouted “Russia for Russians, Moscow for Moscovites!” and displayed banners with slogans such as “Let’s clean the unwelcome guests out of the city!”; “Chechens, the war is over. It’s time to go home!” or “Russia belongs to us!” 6. Following the above event a “steering committee for an anti-fascist march” was formed, which included representatives of various human rights organisations. It was decided to hold a public gathering on 27 November 2005 to mark their opposition to the values proclaimed by the “Right March”. The event was planned to progress through several streets in central Moscow to Tverskaya Square (near the Moscow mayor’s office), where they would hold a demonstration. On 23 November 2005 the city administration stated that they would give permission only for the demonstration. The administration also wanted it to be held in a different place (Tverskaya Zastava Square) and for one hour instead of two. 7. The organisers did not challenge in court the conditions imposed by the mayor’s office. Instead, they preferred to withdraw their application to hold the march as planned, apparently considering that the modified conditions would work against the aims they sought to achieve by holding a public gathering. 8. Instead, the organisers opted to picket Tverskaya Square on the same date (27 November 2005 from 2 p.m. to 4 p.m.) next to the Dolgorukiy monument; they expected that up to fifty people would join the picket (пикетирование). There they intended to express their disagreement with the mayor’s office as to the location of the previously planned march and demonstration. It does not appear that this new event was meant any longer to be a direct reply to the “Right March”. 9. On 23 November 2005 thirteen persons, including one of the applicants (Mr Orlov), gave notice of the event, this time to the district authority, in order to comply with the Public Gatherings Act (see “Relevant domestic law and practice” cited in paragraph 19 below). 10. In a letter of 24 November 2005 referring to the “security of the participants” and the need to avoid causing obstruction to pedestrians and vehicles, the district authority suggested that this new event also be held in Tverskaya Zastava Square instead of Tverskaya Square from 2 p.m. to 3 p.m. It was explained that under a 1998 order the area around the Dolgorukiy monument was restricted to service vehicles of the mayor’s office. The organisers of the new event sent a letter expressing their disagreement with the authorities’ decision. On the same day, they informed the mayor’s office that they were no longer intending to hold a march and a demonstration as initially planned, in view of the mayor’s reply of 23 November 2005. 11. Prior to the date of the event, the organisers did not challenge in court the conditions imposed on the event by the district authority (see, however, the court decisions of 30 March and 3 October 2006 below). Instead, despite the position of the district authority, the organisers decided to hold a public gathering in Tverskaya Square on 27 November 2005 at 2 p.m. The special security squad proceeded to arrest some participants, allegedly without giving them time or opportunity to disperse after a verbal order to do so. 12. The applicants, with fifty other people, were taken to the Tverskoy police station and remained there until 7 p.m., while various records, including administrative offence records, were compiled. 13. On 29 and 30 November 2005 the Justice of the Peace delivered judgments finding the applicants guilty of a breach of the procedures for public gatherings (Article 20.2 of the Code of Administrative Offences). They were ordered to pay a fine of 1,000 Russian roubles (RUB) (except for the ninth applicant who had to pay RUB 500). The Justice of the Peace referred to the district authority’s letter of 24 November 2005 concluding that the public gathering was unlawful. 14. The court held as follows in respect of the first applicant: “Under the Public Gatherings Act, a picket means an expression by one person or several people of his or their opinion in public, by way of displaying posters, banners and other means of visual propaganda, albeit without movement or use of sound-amplifying technical means ... It follows from the Act that a right to hold public gatherings entails a corresponding duty of the public authorities. It should be noted that representatives of the relevant public authorities should be appointed to ensure the lawfulness of the event, public safety and public security. Thus, to enable the event participants and the public officers to fulfil their obligations and duties, there should be rules laid down for the event ... It follows from the material available that despite the orders of the police the event participants refused to stop the picket and thus committed a premeditated administrative offence ... It has not been established that the [applicant] acted as one of the event organisers. However, his actions disclosed a violation of the procedures for public gatherings because he did participate in a picket in a venue which had not been assigned for this purpose. At the same time, the court notes that he intended to take part in a public event and to express his opinion in relation to issues of general and political interest. He should also have observed the rules laid down for the event. However, failing to respect the circumstances, which were significant for the event and the police orders, he refused to stop the picket.” The court made similar findings in respect of other applicants, except for Mr Orlov. 15. The court added in respect of Mr Orlov as follows: “...’s actions disclosed a violation of the procedure for a picket because no proper notification had been made to the competent public authority in relation to the picket...” 16. The applicants appealed. By separate appeal decisions taken between 22 February and 10 April 2006 the Tverskoy District Court of Moscow upheld the decisions taken by the Justice of the Peace. 17. In separate proceedings Mr Orlov and another person sought to challenge the position taken by the district authority in its letter of 24 November 2005. In a judgment of 30 March 2006 the Taganskiy District Court of Moscow cited the relevant legislative provisionsOn 3 October 2006 the Moscow City Court endorsed the above conclusion on appeal. 18. Under Article 31 of the Russian Constitution, citizens have a right of peaceful assembly. This right can be limited by a federal statute in so far as it is necessary to protect the constitutional regime, morals, health or rights or interests of others (Article 55 § 3 of the Constitution). 19. Under sections 5 and 7 of the 2004 Public Gatherings Act in force at the relevant time, the organiser of a public event (except for an event involving one person) was to inform the competent authority of the event at least ten days in advance (at least three days in advance for a picket (пикетирование)). The organiser was required to indicate the purpose of the event, its form, the venue and the itinerary, as well as the date, timing and approximate number of participants. 20. The competent authority was to notify the organiser if it had a reasoned proposal for another venue and/or timing for the event. The organiser was required to inform the competent authority whether he or she refused or accepted the suggested new venue and/or timing. 21. The event could not take place if the event organiser and authority had not approved the alternative proposal (section 5 § 5). 22. A public event could be stopped if (i) there was a real threat to life or physical integrity of persons or property; (ii) the event participants had acted unlawfully or if the event organiser had knowingly breached the requirements of the Act as regards the conduct of the event (section 16). In such circumstances the representative of the public authority, who should be present at the event, could order the event organiser to put an end to the event. This representative should also explain the reasons for such order and should provide time for compliance with the above order. If the organiser had not complied, the public official could issue the same order to the participants. If both failed to comply, the police was to take the appropriate measures to stop the event (section 17). 23. A public event could not be held in zones close to dangerous industrial objects, the residences of the President of the Russian Federation, court buildings or prisons (section 8). 24. Under Article 20.2 § 2 of the Code a violation of the procedure concerning a public gathering is punishable by a fine. 25. By order no. 1471-RP of 30 December 1998, the Moscow city mayor introduced regulations concerning city-hall parking areas for service vehicles, including on Tverskaya Square, for some eighty vehicles (during weekdays, not Sundays or public holidays).

train

001-23320

ENG

TUR

ADMISSIBILITY

SEN and OTHERS v. TURKEY

Inadmissible

Georg Ress

The applicants, Sedat Şen and Yalçın İnanç, are Turkish nationals, who were born in 1962 and 1974 respectively and live in Uşak and İçel. They are represented before the Court by Mr Muharrem Turan, a lawyer practising in Istanbul. 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 applicants and their families were denied access to the military premises on the ground that the photographs showing their wives carrying Islamic scarves were not acceptable for the military and social security identity cards. The applicants’ close relatives carrying Islamic scarves were also not allowed into the military buildings. On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicants from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94 (b) of Law no. 926. The Government submit the following in the light of the intelligence reports concerning the applicants: – Non-commissioned officer Yalçın İnanç was a member of the Nurculuk branch of the Nakşibendi sect. He was involved in disseminating the ideology of the sect. He refused to attend social activities with his family and his wife refused to shake hands with men. He had an antisocial character and his wife wore an Islamic scarf. He was considered to be an insubordinate soldier by his superiors. – Non-commissioned officer Sedat Şen supported the “Revolutionary Islamic” opinion. He had an antisocial character and his wife wore an Islamic scarf. He refused to attend social events with his wife. He established contacts with other soldiers supporting the “Revolutionary Islamic” opinion. His wife continued to carry the Islamic headscarf despite warnings. He was considered to be an insubordinate soldier by his superiors. A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports concerning the applicants, that the applicants had breached military discipline and that they 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

001-58031

ENG

NLD

CHAMBER

CASE OF VAN RAALTE v. THE NETHERLANDS

Violation of Art. 14;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

C. Russo;N. Valticos

6. The applicant is a Netherlands national born in 1924 and resident in Amstelveen. He has never been married and has no children. 7. On 30 September 1987 the Inspector of Direct Taxes sent the applicant an assessment of his contributions for the year 1985 under various social security schemes, including the General Child Care Benefits Act (Algemene kinderbijslagwet, see paragraph 21 below). 8. The applicant filed an objection (bezwaarschrift - see paragraph 27 below) to this assessment on 21 October 1987. He based his argument on section 25 (2) of the General Child Care Benefits Act and on the royal decree of 27 February 1980 (Staatsblad (Official Gazette) no. 89 ("the royal decree") - see paragraph 23 below), by virtue of which unmarried childless women of 45 years or over were exempted from the obligation to pay contributions under the General Child Care Benefits Act; in his view the prohibition of discrimination such as was contained in Article 1 of the Netherlands Constitution (see paragraph 18 below) and Article 26 of the International Covenant on Civil and Political Rights (see paragraph 20 below) implied that this exemption should be extended to men in the same situation. 9. The applicant later received similar assessments for the years 1986, 1987 and 1988, against which he likewise filed objections. The Inspector reserved his decision on these, pending the outcome of the proceedings relating to the 1985 assessment. 10. On 25 November 1987 the Inspector issued a decision declaring the first objection unfounded on the ground that "under national legislation the application of section 25 (2) of the General Child Care Benefits Act is not possible since the person by whom the contributions are due is not female". 11. The applicant appealed to the Amsterdam Court of Appeal (see paragraph 27 below) on 29 December 1987. Relying on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) and Article 26 of the International Covenant on Civil and Political Rights, he claimed that the provisions of the royal decree should be given a "gender neutral" construction. Section 25 (2) of the General Child Care Benefits Act and the royal decree were in his view discriminatory. The Inspector lodged a written defence. Thereafter the applicant filed a reply, and the Inspector a rejoinder. 12. The exemption enjoyed by unmarried childless women of 45 or over from the obligation to pay contributions under the General Child Care Benefits Act was abolished by the Act of 21 December 1988 (Staatsblad 1988, no. 631), with effect from 1 January 1989. 13. The Amsterdam Court of Appeal gave its judgment on 6 October 1989, dismissing the applicant’s appeal and confirming the Inspector’s decision. Its reasoning included the following: "5.4. Neither the wording of the impugned provision nor its drafting history indicates that the legislature intended to discriminate or has caused discrimination. In particular, it cannot be said that the legislator wished to discriminate against unmarried men who had reached the age of 45 before the beginning of the calendar year and were not entitled to child care benefits under the General Child Care Benefits Act vis-à-vis comparable women. 5.5. By means of the provision set out in section 25 (2) of the General Child Care Benefits Act, the legislature merely wished to take due account of the difference in factual situation between women over 45 and men over 45 with regard to having (begetting or raising) children. 5.6. The fact, as stated by [the applicant], that it appears from statistical data that older men only rarely beget children makes no difference to what is considered in paragraph 5.5 above. The legislature has assessed the factual situation of the group of women referred to in section 25 (2) of the General Child Care Benefits Act differently on the basis of the possibility of their having children and not on the basis of the reality of their having children. Older men’s possibilities of procreating are fundamentally different from those of older women, in the sense that this difference is considerable irrespective of these statistical data. 5.7. The difference in treatment opposed by [the applicant] is therefore not based on a difference in sex, but on a difference in factual situation. This conclusion is not altered by the fact that this difference (partly) coincides with the difference between the sexes. The impugned provision does not therefore contravene the prohibition of discrimination. 5.8. It cannot be excluded in principle that the fairness and acceptability of the General Child Care Benefits Act benefit by taking account of these differences in factual situation. It not being for the Court of Appeal to rule on the intrinsic value of a statute, the Court cannot consider whether the differences in factual situation entirely justify the exemption in question. 5.9. Even if it were correct, contrary to what is set out above, that the impugned provision contravenes the prohibition of discrimination, this would not benefit [the applicant]. The Court of Appeal would not be at liberty to extend the exemption in question to one or more groups of individuals for whom the legislature definitely did not intend it. If the argument based on prohibition of discrimination should have to be accepted in principle, this could only lead to a finding that the impugned provision had no binding force. This would not be in [the applicant’s] interest." 14. The applicant filed an appeal on points of law (beroep in cassatie - see paragraph 27 below) to the Supreme Court (Hoge Raad) on 7 December 1989. In so far as is relevant here, he challenged the above reasoning of the Court of Appeal relying on Article 14 of the Convention (art. 14) and Article 26 of the International Covenant on Civil and Political Rights of 1966. The Inspector responded in writing. 15. The Supreme Court dismissed the appeal on 11 December 1991. Its reasoning included the following: "3.4. The third ground of appeal [middel] argues that the principle set out in section 25 (2) of the General Child Care Benefits Act violates Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the Convention (art. 14). To the extent that the ground of appeal relies on the latter provision (art. 14), it must fail as the present case does not relate to any of the rights and freedoms enumerated in the Convention. ... 3.6. In view of, inter alia, the drafting history of the provision in question the limitation of the exemption set out in section 25 (2) of the General Child Care Benefits Act to women of 45 and over was inspired by the idea that it would not be reasonable to levy contributions under the General Child Care Benefits Act from these women, since it had to be assumed that a great number of them would never have children and were prevented by social and - unlike men - biological factors from ever bearing children. The Supreme Court need not consider the question of whether the above-mentioned fact constitutes an objective and reasonable justification for exempting only women of 45 and over from paying contributions under the General Child Care Benefits Act. Since this difference in treatment between (unmarried) women and men, which in any case, given their biological differences, cannot be said to lack all reasonable ground, has been removed with effect from 1 January 1989 by the abolition of the exemption by the Act of 21 December 1988 (Staatsblad 1988, no. 631) there is no reason for a court to intervene by declaring the exemption applicable, for the year in question, to unmarried men of 45 and over. ..." 16. After the delivery of this judgment the Inspector issued decisions dismissing the applicant’s objections to the assessments for the years 1986, 1987 and 1988 (see paragraph 9 above). 17. According to figures published by the Netherlands Central Bureau for Statistics (Centraal Bureau voor de Statistiek), the number of "legitimate" children born alive in the Netherlands to fathers aged 45 or over in 1985 was 2,341, or approximately 1,43 % of the total number of "legitimate" children born that year (163,370). The corresponding figure for mothers aged 45 or over was 177, or approximately 1 per thousand. No figures are available for children born out of wedlock. 18. Article 1 of the 1983 Constitution provides: "All persons present in the Netherlands shall be treated in the same way in similar situations. Discrimination on the ground of religion, philosophical convictions, political leanings, race, sex, or any other ground whatsoever shall not be allowed." 19. Under Netherlands constitutional law, courts may not review the constitutionality of statutes. Article 120 reads: "The courts shall not rule on the constitutionality [grondwettigheid] of statutes and treaties." Delegated legislation, on the other hand, may be examined to determine whether it conforms with the Constitution and even with unwritten general principles of law (see the judgment of the Supreme Court of 1 December 1993, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases - "BNB") 1994, no. 64). 20. Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published. With regard to the prohibition of discrimination, the Netherlands is a party to, inter alia, the International Covenant on Civil and Political Rights of 1966 ("the Covenant"), Article 26 of which provides as follows: "All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." 21. The General Child Care Benefits Act was enacted in 1962. Until 1 January 1989 (see paragraph 28 below), section 25 of the General Child Care Benefits Act provided as follows: "1. Contributions are due by: (a) every person by whom contributions are due by way of assessment under the General Old Age Pensions Act (Algemene ouderdomswet); (b) ... 2. The first paragraph, under (a), may be derogated from by royal decree, subject to conditions and limitations if need be, in respect of unmarried women who have reached the age of 45. 3. ..." Persons referred to in sub-paragraph (a) were all those who had not yet reached the age of 65 and who were either Netherlands residents or, if not Netherlands residents, subject to the Wages (Tax Deduction) Act (Wet op de loonbelasting) in respect of work carried out in the Netherlands under a contract of employment (section 6 (1) of the General Old Age Pensions Act). 22. Any person who was either a Netherlands resident or subject to the Wages (Tax Deduction) Act in respect of work carried out in the Netherlands under a contract of employment was entitled to benefits under the General Child Care Benefits Act for children for whose maintenance he or she was financially responsible, whether they were his or her own by birth or marriage or foster children (sections 6 and 7 of the General Child Care Benefits Act). Such entitlement was not subject to the condition that the person concerned had contributed to the scheme. 23. At the time of the events complained of, the derogation from the general rule made possible by section 25 (2) was provided for by the royal decree of 27 February 1980 (Staatsblad no. 89). Section 1 provided: "In derogation from section 25 (1) (a) of the General Child Care Benefits Act, no contributions shall be due by an unmarried woman who has reached the age of 45 before the beginning of the calendar year and who is not entitled to child care benefits under that Act." 24. The Supreme Court recognised in its judgment of 2 February 1982 (Nederlandse Jurisprudentie (Netherlands Law Reports - "NJ") 1982, no. 424 (corrected in NJ 1982, no. 475)) that Article 26 of the Covenant is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts (see paragraph 20 above). However, in a number of judgments it has declined to construe Article 26 of the Covenant in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted illegal discrimination between men and women, holding that, where various options were open to the national authorities to remove such discrimination, the choice should be left to the legislature in view of the social and legal implications attending each possible course of action (see the judgments of the Supreme Court of 12 October 1984, NJ 1985, no. 230, and 23 October 1988, NJ 1989, no. 740). In its judgment of 16 November 1990 (NJ 1991, no. 475), cited in the European Court of Human Right’s Kroon and Others v. the Netherlands judgment of 27 October 1994 (Series A no. 297-C), the Supreme Court came to a similar finding with regard to Article 14 of the Convention taken together with Article 8 (art. 14+8) (loc. cit., p. 50, para. 14). 25. The Central Appeals Tribunal (Centrale Raad van Beroep) - the administrative tribunal competent to decide most types of social-security disputes but not, inter alia, disputes relating to contributions due under the General Child Care Benefits Act - has held that Article 26 of the Covenant is in principle directly applicable in the field of social security. Thus, in its judgment of 14 May 1987 (Rechtspraak Sociaal Verzekeringsrecht (Social Security Law Reports - "RSV") 1987, no. 246), the Central Appeals Tribunal considered discriminatory the rule that to qualify for benefits under the Victims of Persecution (1940-1945) Benefits Act (Wet uitkering vervolgingsslachtoffers 1940-1945) a married woman had to be a "breadwinner" whereas no such requirement applied to married men. In three judgments delivered on 5 January 1988 (Nederlandse Jurisprudentie - Administratiefrechtelijke Beslissingen (Netherlands Administrative Law Reports - "AB") 1988, nos. 252-54), it came to a similar finding with regard to the General Disability Act (Algemene arbeidsongeschiktheidswet), but only with effect from 1 January 1980 - the date on which legislation entered into force that was intended to remove discrimination but which had failed to do so adequately. Similarly, in its judgments of 7 December 1988 (NJCM-Bulletin 1989, no. 14, p. 71, and AB 1989, no. 10), it recognised the right of a widower to claim a widow’s pension (weduwenpensioen) under the General Widows and Orphans Act (Algemene weduwen- en wezenwet). 26. Contributions under the General Child Care Benefits Act and certain other social-security schemes were levied by the Tax Inspector in the same way as income tax (sections 21 and 22 of the General Exceptional Medical Expenses Act (Algemene wet bijzondere ziektekosten), declared applicable by analogy under section 26 of the General Child Care Benefits Act). 27. It was possible to file an objection against an assessment with the Inspector (section 23 (1) of the State Taxes (General Provisions) Act - Algemene wet inzake rijksbelastingen). An appeal against the Inspector’s decision lay to the Court of Appeal (sections 2 and 26 (1) of the State Taxes (General Provisions) Act). A further appeal could be filed on points of law to the Supreme Court (section 95 of the Judicial Organisation Act - Wet op de rechterlijke organisatie). 28. As noted above (see paragraph 12), the possibility provided for under section 25 (2) came to an end when the Act of 21 December 1988 (Staatsblad 1988, no. 631) came into effect on 1 January 1989. Accordingly, on that date men and women became equally liable to pay contributions under the General Child Care Benefits Act whatever their age and whether or not they were married or had children.

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001-68160

ENG

AUT

CHAMBER

CASE OF SYLVESTER v. AUSTRIA (NO. 2)

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

Christos Rozakis

7. The applicant was born in 1953 and lives in Cincinnati, Ohio. 8. In April 1994 the applicant married an Austrian citizen. The marriage was concluded in the United States of America and the couple set up their common residence in Michigan. On 11 September 1994, their daughter was born. 9. On 31 October 1995, after his wife had left the United States with their daughter without obtaining the applicant’s consent and had set up her residence in Austria, he brought a petition for divorce in the Oakland Circuit Court (Michigan). He also introduced court proceedings in Austria requesting the return of his daughter under the 1980 Hague Convention on the Civil Aspects of Child Abduction. 10. On 2 November 1995 the applicant’s wife brought a petition for divorce in the Graz District Civil Court. 11. On 16 April 1996 the Oakland Circuit Court confirmed a default decree of divorce issued in January 1996, noting that Mrs Sylvester had failed to comply with the requirements for setting aside the default. Further, it awarded the applicant sole custody over the couple’s daughter and ordered that she should reside with him in case of her return. 12. On 5 June 1996 the applicant filed a request for recognition of the divorce decree with the Austrian Federal Ministry of Justice. 13. On 26 September 1996 the Federal Ministry of Justice refused to grant this request. Referring to Section 24 § 1 of the Fourth Implementing Regulation to the Marriage Act (4. Durchführungsverordnung zum Ehegesetz), it considered that a recognition of the divorce decree would be contrary to Austrian ordre public as the applicant’s wife, being the defendant in the proceedings before the Oakland Circuit Court, had not been heard as she was considered to be in default, despite the fact that the applicant’s petition for divorce had not been duly served on her. 14. Thereupon, on 15 November 1996 the applicant filed a complaint with the Administrative Court. The latter instituted preliminary proceedings on 25 November 1996. 15. On 9 January 1997 the Administrative Court received the observations of the Federal Ministry of Justice and, on 20 January 1997, it received the observations of Mrs Sylvester as a third party. 16. On 18 December 1998 the Administrative Court referred the case to the Constitutional Court requesting it to review the constitutionality of Section 24 § 1 of the Fourth Implementing Regulation to the Marriage Act. 17. It argued that Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which has constitutional rank in Austrian law, applied to the proceedings concerning the recognition of foreign divorce decrees as their outcome had a direct effect on the civil law relationship of the persons concerned. However, it was incompatible with that Article that the Federal Ministry of Justice, an administrative authority, decided upon the request for recognition. The subsequent control by the Administrative Court was not sufficient where the subject matter, such as family law relations, fell within the very core of the notion of “civil rights”. 18. The Constitutional Court received the Administrative Court’s request on 19 February 1999. The Administrative Court submitted three further requests raising the same issue, which were received by the Constitutional Court on 13 July, 21 October and 12 November 1999, respectively. The proceedings in these cases were joined to proceedings in the applicant’s case. 19. On 4 February 2000 the Administrative Court supplemented its request in the applicant’s case. 20. On 28 February 2001 it supplemented its requests in the three other cases. 21. On 16 June 2001 the Constitutional Court gave its judgment, finding that Section 24 § 1 of the Fourth Implementing Regulation to the Marriage Act was in conformity with the constitution. 22. The Constitutional Court noted firstly that the proceedings at issue were concerned with the questions whether recognition was compatible with Austrian ordre public. Thus, the recognition of foreign divorce decrees was closely linked to the question whether they could be enforced in Austria. Referring to a number of decisions, in which the European Commission of Human Rights had found that Article 6 did not apply to enforcement proceedings, the Constitutional Court expressed doubts as to the applicability of Article 6. 23. Even assuming that Article 6 applied, referring to the Court’s Zumtobel v. Austria judgment (of 21 September 1993, Series A no. 268-A), the Constitutional Court held that the Administrative Court’s scope of review was sufficient, since proceedings concerning the recognition of foreign divorce decrees involved mainly questions of law. Where an assessment of facts was required, as for instance where the question arose whether an action had been duly served, the Administrative Court was empowered to review whether the administrative authority’s assessment was correctly based on the contents of the file. 24. On 5 October 2001 having resumed its proceedings, the Administrative Court dismissed the applicant’s complaint. The decision was served on the applicant on 29 October 2001.

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001-122247

ENG

TUR

CHAMBER

CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY

Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

6. Mr Mustafa Tunç and Mrs Fecire Tunç were born in 1946 and 1952 respectively and live in Istanbul. They are the father and mother of Cihan Tunç, who was born in 1983 and died on 13 February 2004. Mr Yüksel Tunç, the applicants’ son and brother of Cihan Tunç, was born in 1978 and lives in Istanbul. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 13 February 2004, at about 5.50 a.m. and in the course of carrying out his military service in Kocaköy, on a site belonging the private oil company NV Turkse Perenco (“Perenco”) for which the national gendarmerie was providing security services, sergeant Cihan Tunç was injured by gunfire. He was one of the gendarmes on duty and assigned to the guard post known as “tower no. 3”. The incident took place at the guard post known as “tower no. 2”. 9. Cihan Tunç was transported to hospital immediately after the incident by several servicemen, including sergeant A.A. and private M.S., who was the last person to have seen Cihan Tunç before the incident. 10. Cihan Tunç was pronounced dead shortly after his arrival at Diyarbakır Military Hospital. 11. The Diyarbakır military prosecutor’s office was informed immediately after the incident and a judicial investigation was opened as a matter of course. 12. A military prosecutor went to the hospital to which Cihan had been admitted and was joined there, on his instructions, by a team of criminal investigation experts from the national gendarmerie. He also sent another team to the scene of the incident and asked the Kocaköy (civilian) prosecutor to attend, in order to supervise the initial investigations and take any measures necessary to secure evidence. 13. A few hours after the incident an external examination of the corpse and an autopsy were conducted at the hospital, under the military prosecutor’s supervision. 14. Several photos were taken of the corpse. The deceased’s clothing was removed and sent for laboratory analysis with a view to determining the distance from which the shot had been fired. Fingerprints were taken from the deceased and from M.S., the last person to have seen Cihan Tunç alive. Swabs were also taken from their hands, to be checked for gunshot residue. Finally, the deceased man’s pockets were emptied and their contents recorded. 15. The prosecutor then instructed forensic doctor L.E. to examine the body with a view to ascertaining the cause of death, and, if appropriate, making observations on the circumstances of the death. 16. The forensic doctor found as follows: body height, 1.75 metres; entry wound with abrasion ring on the right side of the neck; exit wound measuring 4 x 2 centimetres on the left side of the back, under the lower edge of the shoulder blade. 17. He noted no trace on the body of blows or violence. 18. He stated that death had occurred following a haemorrhage caused by a bullet wound, and that the bullet had struck the trachea and left lung. 19. He also mentioned that the shot had probably been fired at point-blank range (yakın atış). 20. He based that conclusion on the presence of certain residue material. The relevant part of his report on this point reads as follows: “No skin coloration due to a burn or smoke was observed on the right side of the face or on the neck area. Traces of gunpowder were noted only on the right side of the face, on the lower curve of the chin.” 21. All of those observations were recorded in a document entitled “Record of the post-mortem examination and autopsy”. 22. The military prosecutor also questioned private M.S. and sergeant A.A. (see paragraphs 32-34 and 42-45 below), who had arrived at the hospital in the vehicle transporting Cihan Tunç. 23. Simultaneously, a team of experts from the gendarmerie’s criminal investigation laboratory and the Kocaköy prosecutor went to the site a few hours after the events. 24. According to the Kocaköy prosecutor’s report, the site had a total of six guard posts: a watchtower, known as the “high tower” and five guard posts. The incident took place in a building measuring 2 x 2 metres, with a ceiling height of 2.33m and openings placed 1.5m from the ground. 25. Again according to the report, two cartridges and a bullet shell were found lying on the ground inside the guard post. The ceiling had an impact mark which resembled that of a shot. Small pieces of cement debris from the ceiling were found on the floor, on which there were also large bloodstains. 26. The report also mentioned that a summary examination of the deceased man’s weapon, a G-3-type rifle that had been placed under lock and key pending the prosecutor’s arrival, made it possible to confirm that it had been used a short time previously. This weapon, as well as the weapon assigned to private M.S., an MG-3-type rifle which seemed not to have been used, had been sent to a laboratory for scientific analysis. 27. Finally, the report specified that a detailed description had been drawn up, two sketches had been drawn, photographs taken and a video recording made. 28. On 16 February 2004 the gendarmerie’s criminal research laboratory issued an expert report (report no. 2004/90/chemical). It indicated that analysis of the samples taken from the hands of the deceased man and M.S. using the so-called “atomic absorption spectrometry” technique had revealed the presence of lead, barium and antimony on the deceased’s hands, and of barium and antimony on those of M.S. After noting that those elements were residues from the discharging of a weapon, the report noted that gunpowder residues contained micrometric particles which passed very easily from one surface to another and that those residues frequently migrated to the hands when administering first aid. 29. The report also noted that the tests on Cihan Tunç’s clothes indicated that he had been the victim of a shot fired at point-blank range. 30. On 17 February 2004 the national police criminal laboratory in Diyarbakır also issued an expert report (report no. BLS-2004/464) following ballistic tests carried out on the bullet shell and two weapons found at the site of the incident. The reports indicated that the two rifles were operating normally and confirmed that the bullet shell that had been found came from Cihan Tunç’s weapon. 31. As part of the investigations carried out by the military prosecutor’s office and the gendarmerie’s internal investigation, numerous servicemen were questioned on the day of the incident. 32. In his evidence to the military prosecutor, M.S. stated: “Cihan arrived at the tower where I was on duty fifteen to twenty minutes before the start of his guard, since that was where the handover was to take place... He told me that he was feeling down. When I asked him why, he answered “Forget it, mind your own business, you wouldn’t understand in any case”. His reply annoyed me, I had the impression he thought I was an idiot. I lit a cigarette and [Cihan] went into the tower ... he began playing with the cocking lever on his rifle. I came in and told him to stop ... He told me to mind my own business and go and have a cigarette ... At that point I went out ... I was five or six metres from the tower when I heard a shot. I ran inside. [Cihan] was lying on the ground ... his rifle was on his right hand and the barrel was on his shoulder. I removed the rifle and tried to revive [Cihan] by shaking him, blood had begun to flow... Sergeant A.A. arrived [with other soldiers]”. 33. In response to the prosecutor’s questions, M.S. replied that he had not had a dispute or a problem with Cihan Tunç, either during the duty shift or before it. He confirmed that he had not tried to remove the weapon from his hands at any point. He testified that he had not shot his comrade. 34. In response to another question, he stated that, when Cihan Tunç had loaded and then unloaded the weapon several times, he had seen full cartridges being ejected from the side of the rifle. 35. During questioning by the gendarmerie’s internal investigator, he stated: “Sergeant A.A. came past about 5 a.m., during his patrol, to check up. Cihan Tunç arrived shortly afterwards, at about 5.50 a.m. ... he came into the tower room and began to play with his weapon, he loaded and then unloaded it three or four times, and removed the magazine and put it back on. I asked him to stop, and said that we would both be punished if a senior officer were to come in unannounced... He stopped for a moment. I was standing seven or eight metres away from him. Then, [when] outside the post, I heard the noise of the cocking lever two or three times, followed by the sound of the weapon going off ... [Cihan] was lying on the ground, the weapon was on his chest. I tried to revive him. At that point, sergeant A.A. and the soldiers who were due to replace us arrived. We carried Cihan close to the container, then we took him to Diyarbakir Hospital in a Renault car belonging to the Perenco company...” 36. To the question “how do you explain the fact that two cartridges were found on the site of the incident?” M.S. replied that he had no explanation. He added that perhaps these were cartridges which had fallen when Cihan Tunç was loading and unloading the weapon. 37. In response to another question, he said that he was unable to state if the magazine had been on the weapon at the time of the incident, since he had paid no attention to that point. 38. The investigator also asked M.S. about the positions of the weapon and Cihan Tunç. More particularly, he asked if the latter had been sitting or standing when manipulating his rifle. 39. M.S. indicated that, while he was inside the post with Cihan Tunç, the latter had pointed the weapon towards the ceiling and charged it, and had then removed the magazine and operated the lever to eject the loaded cartridge. As he left the post, he saw Cihan Tunç sit down on an ammunition chest. While still outside, he heard the sound of the cocking lever a further two times, then a bang. 40. Finally, the investigator questioned M.S. about the location of the weapons. According to M.S., his rifle was on a rack inside the post, and the tripod was folded. Cihan’s weapon was on his chest. 41. In those two statements, the premises where the incident took place is described indiscriminately by the terms “duty station no. 4” (4 nolu nöbet mevzisi) or “tower no. 2” (2 nolu kule). 42. In his statement to the military prosecutor, sergeant A.A. indicated that he had heard a gunshot and, together with several privates, had rushed to the spot from where the sound had come. They found Cihan Tunç lying on the ground. After attempting to find the injured man’s pulse, A.A. ordered that he be transported to the canteen and then to hospital. 43. With regard to the guard posts, sergeant A.A. indicated that only three were in use. The first was situated at the entrance to the site (nizamiye); the second post, known as the “low tower”, although in reality located in fourth position from the entrance, was also known as “tower no. 2”, since the two preceding posts were not used. The third post was known as “tower no. 3” or “the high tower”. 44. A.A. also specified that he did not know of any problems experienced by Cihan Tunç or M.S. 45. In reply to a question from the prosecutor, he repeated the account of the events given to him by M.S. This account corresponded to the statement made by M.S. 46. A.A. gave similar evidence to the gendarmerie’s internal investigator. 47. Captain S.D. and Staff Sergeant C.Y. indicated that they had become aware of the incident while they were in the Kocaköy barracks. On arrival at the scene, they very quickly inspected the premises without disturbing the scene of the event. They had seen an empty bullet shell and two cartridges for the G-3 rifle, one on the ground and the other on the rack. They had also noted blood on the ground. 48. Sergeant A.K. gave the following evidence to the investigator: “Cihan was on duty at post no. 2 ... During my patrol, at about 5.15 a.m.... everything was normal. I exchanged a few words with Cihan, who was on duty in the high tower... When I arrived at the scene of the incident, M.S. was trying to lift Cihan.” 49. As to the position of the magazine, sergeant A.K. stated that he had not paid attention to it at the time. However, he remembered that, after carrying Cihan to the canteen, private S.K. went and brought the weapon to him, and he observed that the magazine was not in place on the rifle. 50. To the question “why did the incident take place at post no. 4, where M.S. was on duty, although Cihan Tunç had been assigned to the high tower?” he replied: “I do not know. It is possible that Cihan left his post to go there because he was almost at the end of his duty period. When I did my round, at about 5.15 a.m., Cihan was at his post in the high tower.” 51. Private S.K. confirmed A.K.’s statement, indicating that the weapon and the magazine were inside the guard post, but that the magazine was not on the weapon. 52. Private E.C. stated that when he arrived on the scene M.S. was attempting to lift Cihan Tunç. He also confirmed that the magazine was not on the weapon. 53. The following additional elements emerged from other statements. 54. Cihan Tunç had arrived one week previously in the Perenco site protection team, which was composed of sixteen persons. He had no known problems and had not had a dispute with the other soldiers. 55. At the time of the incident, private S.S. was on sentry duty at the first guard post, located at the entrance to the site. 56. After sergeant A.A. and the other servicemen arrived on the scene of the incident, M.S. was sent to the canteen to get help. 57. On 30 June 2004, holding that there were no grounds for finding that another person had been responsible for Cihan Tunç’s death, the prosecution service issued a decision not to bring a prosecution. The prosecutor set out the evidence gathered during the investigation. He considered that the shot had been fired when the young man, with his chest bent, had been leaning towards his right side and the barrel of the rifle was pointed towards his neck. He stated that this explained, in particular, the bullet impact on the ceiling. However, the prosecutor’s decision gave no reason for the shot having suddenly been fired. 58. On 16 July 2004 the prosecutor, in response to a request from the applicants’ lawyer, sent her correspondence containing a copy of the decision and a letter in which he indicated that, in application of the Practice of the Legal Profession Act, the entire case file was at her disposal, and that she could examine it and have a copy made of any item of evidence she considered relevant. 59. The applicants appealed against the decision, alleging that several grey areas remained as to the circumstances of Cihan’s death. In particular, they claimed that the trajectory followed by the bullet had not been clearly defined. 60. On 14 October 2004 the Diyarbakır air-force military court upheld the applicants’ appeal and ordered the prosecution service to carry out an additional investigation. In particular, it considered that the bullet’s trajectory and the firing position needed to be clearly established, on the basis of the entry and exit wounds on the body and the impact mark of the bullet on the ceiling. It also indicated that no plausible grounds for suicide had been identified. It added that, in any event, the position of the body at the time of the shot had been unusual for a suicide. Finally, it stated that no explanation had been provided for the gunshot residue on the hands of M.S., the last person to have seen Cihan Tunç before the incident. 61. On 24 November 2004 the military prosecutor went to the Perenco site, accompanied by three criminal investigation experts. 62. The group went to the guard post where the incident had taken place. Once all of the materials in the case file had been examined, a reconstruction of the events was carried out, assisted by an individual who was similar in build to the deceased man. 63. Steps to determine the bullet’s trajectory were taken, particularly through the use of a string stretched between the impact mark on the ceiling and the barrel of a G-3 rifle. Photographs were taken. 64. The experts observed that the floor was made of concrete, although the previous records described a dirt floor. According to material provided by the site managers, various premises, including several dirt tracks, had been cemented over since the incident, with a view to keeping the soldiers’ uniforms clean. During this work, the floors had not been raised. This was confirmed by measurements which established that the ceiling height was still 2.33 metres. 65. In the light of all the evidence gathered, the experts reached the following conclusion: Cihan Tunç had been sitting or crouching and was holding his rifle in his right hand; when he tried to stand up by leaning on his weapon, and with his knees still bent, his hand had pulled the trigger and the shot had been fired. 66. During his visit to the site, the prosecutor questioned private E.C. He stated that, when he arrived, M.S. was crouching down behind Cihan Tunç and was trying to lift him by pulling him under the arms. 67. All of this evidence was set out in a report dated 24 November 2004. 68. On 8 December 2004 the prosecutor completed the investigations and sent the file to the military court, together with a report on the additional investigation requested (report no. 2004/632E.O), setting out the measures taken and responding to the shortcomings noted by the court. With regard to the traces of gunshot on the hands, he pointed out that the file contained an expert report indicating that gunshot residue was very volatile and that it could have moved from the dead man’s clothes or hands to M.S.’s hands immediately after the incident. He added that several statements had supported such a hypothesis, in that they confirmed that M.S. had been in physical contact with the deceased when attempting to lift him. 69. With regard to the court’s claim that the firing position hardly corresponded to that of an individual who intended to commit suicide, and its argument about the lack of a motive, the prosecutor stated that the decision not to prosecute contained no indication that the incident had been a suicide and, furthermore, that the conclusion of suicide had not been entertained. 70. As to ascertaining the bullet’s trajectory in the light of the impact mark on the ceiling and the entry and exit wounds on the body, he stated that the following theory had been accepted: Cihan Tunç had been sitting on an ammunition box and playing with the rifle’s cocking lever and magazine; when he was holding the weapon, with the magazine removed and at an angle on his right side, he had leaned forward and towards his right side with the intention of using the rifle as support in standing up, his hand on the part of the weapon near the trigger, and the shot went off; the bullet had entered through the right side of his neck and emerged under the lower edge of the left shoulder-blade, before hitting the ceiling; thus, Cihan Tunç had not committed suicide, he had been the victim of an accident. The prosecutor added that he had organised a reconstruction of the scene of the incident on 24 November 2004, in order to ascertain the credibility of this hypothesis, having regard to the entry and exit points of the bullet, the point of impact on the ceiling and the deceased man’s build, and that the conclusions of the reconstruction confirmed the scenario put forward. 71. He attached the record of the reconstruction of the incident to his report. 72. On 17 December 2004 the military court dismissed the applicants’ appeal. 73. A letter dated 21 December 2004 was sent to the applicants’ lawyer, informing her of that decision. 74. Neither the date of posting nor the date of receipt of the letter is specified in the case file. 75. The applicants submitted that they received the letter in question at the end of December 2004. 76. The Government made no submissions on this point. 77. The applicants submitted a non-official expert report, prepared at their request by a British expert, Dr Anscombe, and dated 11 October 2005. 78. Dr Anscombe drew up his report in English, on the basis of his examination of a number of documents from the case file, which had been translated into English. 79. The relevant parts of this report read as follows: “I am a Consultant Forensic Pathologist, accredited by the Home Office Policy Advisory Board for Forensic Pathology (...). In preparing this report I have been provided with English translations of the following documents relating to Cihan Tunç: The Inquest and Autopsy Report dated 13th February 2004. Preparatory investigation report document number 2004/632EO entitled “Widening of the Investigation”. Two expert reports dated 16th and 17th February 2004, reference numbers ELS-2004/464 and 2004/90 Chemical. Three Colour images of the deceased, one taken in life and two taken post mortem, when the deceased is apparently within a coffin. An image of G3 rifle. The deceased was taken to a nearby Military Hospital and the autopsy examination carried out later on the day of his death. Such promptness should be regarded as a good practice. ... Initial examination then appears to involve removing the clothing from the deceased and the photographing it, collection of samples for forensic laboratory investigation, and recording detail content of pockets, etc. In itself, this process appears to have been carried out appropriately, with collection of appropriate samples given the nature of the incident. Having completed this stage, the [autopsy] report appears to indicate that the pathologist Dr. E was “called in”, by which I understand had his first opportunity to examine the deceased. If my understanding is correct, this would cause me some considerable concern because, particularly in the case of shooting fatality, the pathologist should be given as much information as possible as regards the scene and state of the deceased, the latter including the opportunity to inspect and examine the undisturbed clothing. ... The remainder of the details of the autopsy examination are somewhat brief and sketchy. Otherwise, the essential autopsy examination findings are included in the report. The conclusion as to the cause of death is reasonable in the light of the stated autopsy findings (i.e. there are no internally inconsistent findings and conclusions). ... Cihan Tunç sustained a gunshot entry wound to the front side of his neck, and an exit wound on the back of the left shoulder. The photographs demonstrate a small entry wound, and a larger exit wound, and there is in my opinion no possibility that entry and exit have been got “the wrong way round”. If the bullet has passed through the deceased and embedded itself in the ceiling, then the only way that I can conceive this trajectory of being achievable, is if the deceased was bent over the moment the gun discharged. The autopsy report indicated that traces of unburned gunpowder were found on the right side of the face and on the curve of the lower jaw, but there was no smoke staining or burning of the skin. This indicates that the muzzle end of the barrel was close to but not in contact with the skin of the deceased. Whilst such discharge deposits depend to some extent on the nature of the weapon and ammunition used, the likely range of fire (i.e. muzzle to skin distance) would be in the region of 15-30 cm. I am informed that the length of a G3 rifle, believed to be the sort used by the deceased, is 102.3cm. From the image provided, the trigger is approximately two thirds of the length of the rifle away from the muzzle. Depending on the length of the deceased’s arm, the trigger might just be reachable (say with an outstretched finger), if he was bent over the rifle at the time. The only two other possibilities I can think of are that either the rifle malfunctioned and discharged unexpectedly for some reason (e. g. it was dropped on the floor, or that the rifle was fired by another person – however, this would require that person to be lying on the floor pointing the rifle upwards with the deceased bent over the muzzle (his neck at a distance of 15 – 30 cm) at the time. There were no autopsy signs that the deceased had been involved in a struggle or a fight.” 80. On 21 April 2004 the Mehmetçik Foundation, which is a subdivision of the armed forces and whose purpose is to support the families of soldiers who die in service, awarded 4,916,700,000 former Turkish lira (a little over 3,000 euros) to the deceased man’s family in financial support. 81. The relevant provisions of the Constitution read as follows: “Judicial power shall be exercised by independent courts on behalf of the Turkish nation.” “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.” “Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post.” “Military justice shall be dispensed by military courts and military disciplinary organs. These courts shall have jurisdiction to try military personnel for military offences, for offences committed by them against other military personnel or in military places, or for offences connected with military service and duties. ... The organisation of military judicial organs, their functions, matters relating to the status of military judges, relations between military judges acting as military prosecutors and the office of the commander under whom they serve, shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges and with the requirements of military service.” 82. Section 2 of the Military Courts Act (Law no. 353) provided, at the relevant time: “Save as otherwise provided in this Act, the military courts shall be composed of two military judges and an officer (subay üye).” 83. The words “and an officer” were set aside by the Constitutional Court, ruling on an application for judicial review, in a decision of 7 May 2009 which was published in the Official Gazette on 7 October 2009. The Constitutional Court held that, in contrast to the military judges, the officer judge did not offer all the necessary guarantees, in that he was not released from his military obligations during his term of office and was subject to the authority of his superiors. Furthermore, it considered the fact that no provision prevented the military authorities from appointing a different officer for each case to be incompatible with Article 9 of the Constitution. 84. Following that judgment the legislation was amended. Section 2 of Law no. 353 now provides: “Save as otherwise provided in this Act, the military courts shall be composed of three military judges.”

train

001-57428

ENG

PRT

CHAMBER

CASE OF BARAONA v. PORTUGAL

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

C. Russo

9. The applicant, a Portuguese national born in 1930, is a businessman resident at Vitoria in Brazil. Until May 1975, he lived with his wife and their five children at Cascais (in Portugal). On 17 May 1975, the chairman of the "Commission for co-ordinating the disbandment of the PIDE/DGS (the International Political Police for the Protection of the State/Directorate-General of Security) and the LP (the Portuguese Legion)" ordered the applicant’s immediate arrest on the grounds that he was a "dangerous reactionary" and that it was necessary to "investigate his reactionary activities". At the time, following the attempted coup of 11 March 1975, Portugal was going through a difficult period, which lasted until the adoption of the new Constitution on 25 April 1976. Having learned that he was about to be arrested, the applicant fled to Brazil with his family and did not return to Portugal until September 1978, after the warrant for his arrest had been revoked. 10. In his absence the employees of his civil-engineering firm took over the company and other assets of his, including his house, furniture and bank accounts. On 31 May 1976, the Cascais District Court declared the applicant’s business insolvent. Furthermore, the Cofre da Previdência, a public bank from which the applicant had bought his house, repossessed the house for default on payment and sold it to someone else. The applicant was later able to reach a friendly settlement and recover possession of the house on payment of certain sums to the bank and to the other person involved. 11. On 30 July 1981, the applicant brought a civil action in the Administrative Court (auditoría administrativa) of Lisbon seeking damages from the State under Legislative Decree no. 48.051 of 21 November 1967 on the State’s non-contractual liability for acts of public administration (see paragraph 30 below). He contended that the warrant for his arrest had been illegal as it did not specify an offence and did not have a "proper purpose". The applicant claimed 8,800,000 escudos in compensation for pecuniary and non-pecuniary damage. The next day, the court registered the originating application (petição inicial) and issued a summons to the defendant - represented by State Counsel’s Office (ministério público) - requesting a reply within twenty days, in accordance with Article 486 § 1 of the Code of Civil Procedure (see paragraph 32 below). 12. On 28 October 1981 and again on 27 January 1982, the Administrative Court granted a three-month extension of time applied for by State Counsel under Article 486 § 3 of the aforementioned Code (see paragraph 32 below). 13. On 26 April 1982, State Counsel again applied for an exceptional thirty-day extension on the ground that he needed more information in order to prepare his submissions in reply (contestação). The court granted the application on 28 April 1982. Two further applications for exceptional thirty-day extensions were made by State Counsel on 8 June and 21 July 1982, on the ground that he did not yet have all the material with which to prepare his reply. The court granted these applications on 14 June and 27 July respectively. 14. On 30 July 1982, the applicant complained to the court of this series of extensions and requested copies of some of the documents in the file in order to complain to the Supreme Council of the Judiciary and to the European Commission of Human Rights of a breach of Article 6 § 1 (art. 6-1) of the Convention. 15. On 29 September 1982, he lodged notice of an appeal against an interlocutory order (de agravo - "interlocutory appeal") to the Supreme Administrative Court (Supremo Tribunal Administrativo) in respect of the Lisbon Administrative Court’s decision of 27 July in allowing State Counsel more time. He lodged the appeal with the lower court, with a request that it should be forwarded immediately to the higher court. On 15 October 1982, the Administrative Court declared the interlocutory appeal admissible but ordered that it should be placed on the file with the main appeal and not separately forwarded to the Supreme Administrative Court straightaway. It added that the interlocutory appeal had no suspensive effect. 16. In his statement of grounds of appeal (alegações) dated 26 October 1982, the applicant contended that the Administrative Court had infringed Article 486 § 3 of the Code of Civil Procedure in extending the time allowed to State Counsel to file his pleadings by more than six months without exceptional cause, and that State Counsel had failed to specify what evidence and information he still needed. Such an extension of time could not be granted by the court arbitrarily, but only on exceptional grounds, and it could not exceed six months. Yet on this occasion more than a year had passed without State Counsel submitting his pleadings or giving valid reasons for not doing so. 17. On 4 November 1982, State Counsel applied for another exceptional ten-day extension on the ground that the Administrative Court had moved into other premises and that for a time this had halted his office’s work. When invited by the court on 9 November to comment on this application, the applicant replied - on 15 November - that he considered it unjustified; he further demanded that it should be refused and that the time allowed to State Counsel should be declared to have expired. 18. State Counsel’s pleadings were filed with the Administrative Court on 18 November and immediately forwarded to Mr. Baraona by the registrar of the court. In the belief that the Administrative Court had decided to include these in the file and have a copy served on him, the applicant lodged with that court notice of an interlocutory appeal to the Supreme Administrative Court on 25 November and requested that the appeal should be forwarded immediately to the higher court and should have suspensive effect. On 30 November, the applicant nevertheless filed his reply (réplica) to the pleadings lodged by State Counsel, who made a rejoinder (tréplica) on 17 December. 19. On 21 December 1982, State Counsel submitted his observations (contra-alegações) on the applicant’s interlocutory appeal of 29 September. As grounds for the requested extensions, he alleged the need not only to assemble evidence but more particularly to decide on the general thrust of his pleadings, especially as regards objections. Moreover, there was no requirement under Article 486 § 3 of the Code of Civil Procedure to give detailed reasons for his application; a general justification was sufficient. Admittedly, Article 266 of the Code of Civil Procedure required the court to remove any hindrance delaying the proceedings, but that was a discretionary power which in the present case could not be usefully exercised. 20. On 11 February 1983, the Administrative Court of Lisbon reversed its decision of 27 July 1982 to allow State Counsel more time and instead refused the application. Relying on Article 486 § 3 of the Code, it ruled that an extension of time could only be granted if State Counsel neither had the necessary information nor could obtain it in the time allowed. In addition, he had to specify the subject on which he needed information and the steps he had taken to obtain it. In the present case he had simply said he needed more information, without giving further particulars. The court accordingly excluded as having been filed out of time all pleadings submitted by the parties after 27 July 1982, that is to say State Counsel’s pleadings of 18 November 1982, the applicant’s reply of 30 November and the rejoinder of 17 December, and ordered that they be removed from the file. Noting, lastly, that State Counsel’s pleadings had been sent to the applicant by the registrar and not by the court itself, the court refused to entertain the applicant’s interlocutory appeal of 25 November 1982, as no appeal lay to the higher court against actions by the registrar, and a complaint should be made to the court itself. 21. On the same day, the court ordered a number of investigatory measures, including a search for the warrant issued for Mr. Baraona’s arrest in 1975. When it became apparent that no trace of the warrant could be found, the Administrative Court gave a preliminary decision (despacho saneador) on 30 December 1983 declaring the case admissible and setting out a list of the facts agreed by the parties (especificação) and a list of matters to be clarified at the hearing (questionário). 22. On 20 January 1984, under Article 511 § 2 of the Code of Civil Procedure, the applicant lodged a complaint against this decision. He argued that, as State Counsel’s pleadings had been withdrawn from the case file, all the allegations he had made in his own statement of claim were to be regarded as admitted, since Article 485 sub-paragraph (b) and Article 490 § 4 of the Code of Civil Procedure (see paragraph 32 below) had been abrogated by Article 6 § 1 (art. 6-1) of the Convention, which laid down the principle of equality of arms. Consequently, all the matters which the court had considered needed clarification at the hearing should have been put in the especificação as having been conceded. State Counsel’s comments on the complaint were lodged with the court on 27 January. 23. On 2 February 1984, the registrar submitted the file to the court, and on 12 April the judge dismissed the complaint, apologising for the delay caused by his absence abroad on official business from January to March. He acknowledged that the applicant’s arguments were lent support by a learned article and by a court decision at first instance; but the latter had been set aside by the Oporto Court of Appeal on 7 June 1983, and he stated his agreement with that court’s decision: State Counsel’s Office had less opportunity to meet those it represented, particularly where the defendant was a State body. In addition, the law, in order to be fair, sometimes had to treat the parties differently if they were not to be equal on paper only; the principle of equality of arms entailed compensating for initial inequality - for example, by providing legal aid or setting more generous time-limits in the case of persons resident in a distant country or whose whereabouts were unknown. 24. On 8 May 1984, this decision was communicated to Mr. Baraona, who on 10 May 1984 lodged notice of an interlocutory appeal against it to the Supreme Administrative Court. On 17 May, the Administrative Court decided to forward the appeal to the higher court together with the entire case file and to give it suspensive effect. In his statement of grounds of appeal dated 5 June, the applicant put forward substantially the same arguments as in the complaint he had made to the Administrative Court of Lisbon on 20 January. On 20 and 24 July 1984, State Counsel and the latter court submitted their observations on the appeal. 25. The file reached the Supreme Administrative Court in October 1984, whereupon State Counsel was asked to submit his opinion, and two judges of the court then drew up their report. On 21 March 1985, the Supreme Administrative Court dismissed both interlocutory appeals, of 29 September 1982 and 10 May 1984. With regard to the first appeal, against the Administrative Court’s decision of 27 July 1982, the Supreme Court found that on 11 February 1983 the judge below had himself rectified the situation by rescinding the impugned decision and excluding all pleadings submitted after 27 July 1982 as being out of time. With regard to the second appeal, against the Administrative Court’s decision of 12 April 1984, the Supreme Court ruled that, contrary to the applicant’s contention, Article 485 sub-paragraph (b) of the Code of Civil Procedure had not been abrogated by Article 6 § 1 (art. 6-1) of the Convention. The State was in any case differently placed from private companies. Accordingly, not all Mr. Baraona’s submissions as to the facts were to be regarded as having been conceded; it was for the Administrative Court to consider them in the light of evidence adduced at the hearing. 26. On 8 April 1985, the applicant appealed against this decision (acordão) to the Constitutional Court, asking it to rule whether Article 485 sub-paragraph (b) was still in force. The Constitutional Court registered the appeal on 16 April 1985. The applicant and State Counsel filed their pleadings on 15 July and 24 October 1985 respectively. State Counsel submitted that the court had no jurisdiction, as no breach of the Constitution had been alleged by the applicant either at first instance or before the Supreme Administrative Court. Mr. Baraona replied on 12 November 1985 that a breach of the principle of equality of arms was contrary both to the Convention and to the Constitution. On 5 March 1986, the Constitutional Court dismissed the objection and proceeded to consider the question of the principle of equality of arms. In a judgment on 19 November 1986, it dismissed the appeal, and the applicant immediately challenged the judgment as being null and void; but it was confirmed on 14 January 1987. 27. The proceedings in the Administrative Court of Lisbon have since resumed and are at the preliminary stage. 28. Following the revolution of 25 April 1974, the "Armed Forces Movement" promulgated Law no. 3/74, of 14 May, which upheld the existing schedule of basic rights and freedoms in the 1933 Constitution and also laid down fundamental principles concerning judicial independence and defence rights. Article 8 § 17 of the 1933 Constitution recognised "the right to reparation for actual infringements of rights"; as to non-pecuniary damage, statutory provision could be made for financial compensation. Most of the existing provisions of civil and criminal law were retained, in particular Legislative Decree no. 48.051 of 21 November 1967 on the State’s non-contractual liability. By Legislative Decree no. 36/75 of 31 January 1975, the powers of the "Commission for co-ordinating the disbandment of the PIDE/DGS and the LP" - a commission which had been set up pursuant to an order (despacho) issued by the Army Chief of Staff on 7 June 1974 - cover the preparation of proceedings against individuals who belonged to the relevant police forces or collaborated with them (Article 2 § 3); the chairman of the Commission had the same powers as those conferred on commanding officers of the military regions under the Military Criminal Code (Article 2 § 4). 29. By Article 21 of the Constitution of 25 April 1976: "1. The State and other public bodies shall be jointly and severally liable in civil law with the members of their agencies, their officials or their agents for actions or omissions in the performance of their duties, or caused by such performance, which result in violations of rights, freedoms or safeguards or in prejudice to another party. 2. Wrongly convicted persons shall have a right to retrial and to compensation for damage sustained, on conditions to be laid down by law." The Constitution was amended by Constitutional Law no. 1/82 of 27 September 1982, Article 22 of which reproduces the foregoing Article 21 § 1 unchanged, however. 30. The Civil Code of 1966, which is still in force, deals with the State’s civil liability but only in respect of acts of "private administration" (Article 501). As regards acts of "public administration", Legislative Decree no. 48.051 of 21 November 1967 contains provisions on the non-contractual liability of the State and other public bodies for acts due to negligence, abuse of authority or deceit by their agencies or officials. The most important of these are as follows: "Article 2 1. The State and other public bodies shall be liable to third parties in civil law for such breaches of their rights or of legal provisions designed to protect the interests of such parties as are caused by negligent acts (actos ilicitos culposamente praticados) of their agencies or officials in the performance of their duties or as a consequence thereof. 2. Where any compensation is paid pursuant to the previous paragraph, the State and other public bodies shall have a right of recourse against the members of the agency or the officials at fault if they failed to act with proper diligence. Article 3 1. Members of the agency and officials of the State and other public bodies shall be liable to third parties in civil law for unlawful acts in breach of their rights, or of legal provisions designed to protect the interests of such parties, where they have exceeded their powers or if they acted with wrongful intent in exercising them. 2. The public body shall always be jointly liable with the members of the agency or the officials concerned for acts performed with wrongful intent. Article 4 1. The negligence (culpa) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code. 2. Where more than one person is liable, Article 497 of the Civil Code shall apply. Article 5 1. The right to compensation under the foregoing provisions shall be time-barred after expiry of the periods laid down in the Civil Code. 2. Limitation of actions by the State to enforce its right of indemnity is likewise governed by civil law. ..." 31. Under the Administrative Code, actions for damages in respect of liability of public authorities come within the jurisdiction of the administrative courts (auditores - Articles 815 and 820). With the exception of certain rules regarding locus standi and limitation (Articles 824 and 829), Article 852 explicitly refers to the provisions governing ordinary civil procedure. Decisions of administrative courts are subject to appeal as to the merits, interlocutory appeal and complaint (Article 853). Certain interlocutory appeals have a suspensive effect and must be referred forthwith to the Supreme Administrative Court, in particular those made against a decision to dismiss a complaint against a preliminary decision (Article 859 sub-paragraph (d)), while others must be forwarded with the case file when the final decision is appealed, and have no suspensive effect (Article 860). 32. The procedure in question must therefore comply with the rules in the Code of Civil Procedure. Article 484 § 1 of the Code provides that "if the defendant fails to submit pleadings in reply notwithstanding the proper issue of a summons ..., the facts as pleaded by the plaintiff shall be deemed to have been admitted". Article 485 lays down certain exceptions to this principle, however; in particular, sub-paragraph (b) states that the rule does not apply where the defendant is a legal person. Under Article 486 § 1 the defendant has twenty days in which to reply to the claim, but paragraph 3 of the same Article provides: "State Counsel shall be granted more time when he needs information he cannot obtain within the time-limit or when he is awaiting a reply from a higher authority. The extension may not exceed six months unless exceptional cause is shown." Article 490 § 1 of the Code of Civil Procedure stipulates that "the defendant shall reply clearly to each item of fact in the originating application; items not expressly (especificadamente) disputed shall be regarded as agreed between the parties except where obviously inconsistent with the defence as a whole, or not capable of being admitted, or provable only by written document". By paragraph 4, however, this provision applies neither to defence counsel assigned by the court nor to State Counsel. Under Article 511 § 2, once the parties have been informed of the preliminary decision they may make "any complaints they wish about the list of the facts agreed by the parties or the list of matters to be clarified at the hearing on grounds of procedural irregularity (deficiência), irrelevance (excesso), complexity or obscurity".

train

001-76598

ENG

TUR

ADMISSIBILITY

GURTEKIN AND OTHERS v. TURKEY

Inadmissible

The applicants, whose names appear in the appendix, are Turkish nationals. They were living in Güldiken village of Lice district of Diyarbakır at the time giving rise to the applications. They are represented before the Court by Mr Mesut Beştaş and Ms Meral Beştaş, lawyers practising in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. Until December 1992 the applicants lived in Güldiken village of Lice, Diyarbakır. On 10 December 1992 the applicants’ village was forcibly evacuated by the security forces on account of intense terrorist activities in the region. After the evacuation, the security forces burned down the houses in the village. Ever since the incident, the applicants have been living in Diyarbakır. On 30 March 1993 the village headman filed a petition with the Governor’s Office in Diyarbakır on behalf of the villagers, requesting a damage assessment and compensation. On the same day the Governor transferred the letter to the Diyarbakır Head Office for Public Works (Bayındırlık ve İskan Müdürlüğü). The experts from this office assessed the damage and drafted a report. The report was submitted to the Governor who, however, did not inform the applicants about it. On 4 November 1998 the applicants applied to the Governor’s Office to obtain a response to their petition. On the same day the Governor informed the applicants that their petition and the relevant report had been sent to the Diyarbakır Head Office of Public Works. On 12 November 1998 the applicants filed a petition with the Ministry of Interior requesting compensation for their losses and permission to return to their village. The Ministry of Interior referred the applicants’ request to the Governor’s Office. On 30 December 1998 the Governor sent a letter to the applicants informing them that the District Social Aid and Solidarity Association (İlçe Sosyal Yardımlaşma ve Dayanışma Vakfı Başkanlığı) could not afford to pay the compensation requested by the applicants. On 26 April 1999 the applicants filed an action with the Diyarbakır Administrative Court against the Ministry of Interior requesting compensation for their losses. They also applied for legal aid and submitted to the court documents obtained from certain state authorities indicating their poverty. On 23 June 1999 the Diyarbakır Administrative Court rejected the applicants’ request. The court held that, since the applicants had sufficient means to be represented by a lawyer, they could not be considered to be in need of legal aid according to the case law of the Court of Cassation and the rules of civil procedure. On 28 October 1999 the court decided to discontinue the proceedings on the ground that the required legal fees had not been paid. The decision was served on the applicants on 28 November 1999. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not destroyed the applicants’ village or forced them to leave their homes. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI)

train

001-100395

ENG

ROU

CHAMBER

CASE OF CHIS v. ROMANIA

Violation of Art. 6-1

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

4. The applicant was born in 1953 and lives in Bucharest. 5. The applicant worked as chief of the catering division of TAROM company (the Romanian Air Transport company), a State-owned company. In 1990, by a Government decision, the catering branch of TAROM became a new company, CASROM. In 1998 CASROM merged into the COMCHIM company, a private company. In 2004 that company changed its name into ROMAQUA. 6. On 8 February 1990 the applicant was dismissed from his job. He challenged that decision and on 9 November 1992 the Ilfov District Court ordered CASROM to reinstate the applicant in his previous job or in an equivalent post, and TAROM to pay him 154,043 Romanian lei (ROL) as overdue salary for the period February 1990 to September 1992, and also to pay him salary until effective reinstatement. That judgment became final on 28 May 1993. 7. On 6 June 1996 the applicant lodged an action against TAROM and CASROM for payment of salary until effective reinstatement and for bringing the amount of ROL 154,043 up-to-date in accordance with inflation. On 3 February 2005 the Bucharest Court of Appeal, by a final decision, ordered TAROM to pay the applicant that amount indexed to take account of inflation. 8. In March and April 2004, and then in April 2005, the bailiff sought to attach the company's financial assets in several banks in respect of the salaries due. Those seizures were endorsed by the courts. 9. On 28 April 2004 the Bucharest District Court declared that the judgment of 9 November 1992 could be enforced. 10. On 19 May 2004 TAROM lodged an objection to execution, alleging that the applicant's right to request enforcement of that judgment had become time-barred. The Bucharest County Court upheld that request by a final decision of 17 June 2005, declaring that the applicant's right to request enforcement of the judgment of 9 November 1992 was time-barred. 11. On 23 March 2007 the Bucharest County Court dismissed as time–barred an action by the applicant for payment of salaries from 1990 to 1999 and of other pecuniary rights related to his employee capacity. However, on 27 September 2007 the decision was quashed by the Bucharest Court of Appeal and the case sent for fresh consideration. No information on the outcome of the proceedings is available to the Court. 12. On 26 April 2007 the Bucharest County Court dismissed an action by the applicant for payment of salary and connected rights from 1999 onward, for lack of responsibility of TAROM. The court considered that the applicant should have taken action against COMCHIM/ROMAQUA. That judgment became final. 13. On 13 March 1995 the applicant sought comminatory damages from CASROM for noncompliance with the judgment of 9 November 1992. 14. On 13 June 1996 the Bucharest District Court set comminatory damages of ROL 50,000 per day until the applicant's effective reinstatement. The court held that CASROM had systematically refused to reinstate the applicant. That judgment became final on 9 June 1997. 15. On 5 December 1997 the applicant requested quantification and payment of comminatory damages. 16. On 11 January 1999 the Bucharest District Court upheld his request and set to ROL 69,250,000 the amount corresponding to damage for non-compliance between 5 October and 14 December 1998. On 6 October 1999 Bucharest County Court upheld that judgment. On 16 November 1999 ROMAQUA paid that amount. 17. On 5 June 1999 the applicant sought again quantification and payment of comminatory damages. 18. On 20 December 2000 the Bucharest District Court ordered the debtor to pay ROL 54,627,890, of which ROL 10,467,750 was comminatory damages for 14 December 1998-15 November 1999 and ROL 44,160,140 was indexation of the damages set on 11 January 1999. On 26 April 2001 the Bucharest County Court declared the debtor's appeal null and void for non-payment of court fees. On 21 May 2001 ROMAQUA paid that amount. 19. On 22 October 1999 the Bucharest County Court ordered COMCHIM to pay the applicant ROL 200,000,000 for non-pecuniary damage caused by the refusal to comply with the court orders. 20. On 13 March 2001 the Bucharest Court of Appeal upheld that judgment. 21. On 3 September 2002 COMCHIM paid the applicant ROL 395,900,000, representing the updated above-mentioned amount. 22. However, on 17 December 2002 the Supreme Court of Justice quashed the previous decisions and sent the case back to the County Court. 23. After retrial, on 24 November 2003 the County Court dismissed the action on the grounds that it had been objectively impossible for the debtor to comply with the obligation to reinstate the applicant because of the reorganisation of the company. 24. On 9 June 2004 the Bucharest Court of Appeal allowed an appeal by the applicant, quashed the previous judgment and ordered ROMAQUA to pay the applicant ROL 500,000,000 for nonpecuniary damages. It considered that the “objective impossibility” had not been proved and that in any case it could not justify non-compliance. That judgment became final on 27 January 2006. 25. On 26 August 2004 Bucharest District Court attached ROMAQUA's financial assets in a bank. On 3 February 2005 the Bucharest Court of Appeal upheld that interlocutory judgment. 26. On 1 September 2004 ROMAQUA paid ROL 500,000,000. 27. On 27 September 2004 ROMAQUA objected to the execution, submitting that it had already paid ROL 395,900,000 and that the execution should have been continued only for the remaining until ROL 500,000,000. On 14 July 2005 the Bucharest County Court, by a final decision, upheld the objection and annulled the execution insofar as it concerned the payment of ROL 395,900,000 in the applicant's favour. 28. According to the applicant, ROMAQUA had not claimed the difference that it had paid. 29. On 8 August 2002 the applicant lodged an action against the Ministry of Justice, seeking pecuniary and non-pecuniary damages for length of the proceedings related to his dismissal. On 4 November 2002 the Bucharest County Court dismissed his action, considering that the Ministry of Justice bore no responsibility for the alleged facts. That judgment became final on 18 March 2004. 30. On 11 June 1993 CASROM invoked the impossibility to reinstate the applicant in a post corresponding to his qualifications and offered him the post of night watchman, which was rejected by the latter. 31. On 6 June 1995 TAROM paid ROL 154,043 for salaries for the period February 1990 to September 1992, as ordered by the judgment of 9 November 1992, as well as ROL 217,563 for salaries until 30 June 1993. 32. On 17 March 1999 COMCHIM reinstated the applicant. 33. On 12 November 2004 TAROM paid ROL 4,235,986,868 for due and updated salaries. 34. On 20 June 2005 the bailiff also received for the applicant ROL 340,000,000 from TAROM, in compliance with the judgment of 9 November 1992, representing salaries from 15 February 1990 to 17 March 1999 indexed. 35. On 1 July 2009 the Bucharest District Court allowed a request by TAROM and ordered the applicant to return the amount of 457,598.68 new Romanian lei (RON). The court considered that TAROM had paid all the debt. The applicant appealed and the proceedings are still pending. 36. In 1991 and then in 1992 the applicant passed two competitions for a post within the Financial Control Office. Following refusal by that institution to employ him, the applicant brought court proceedings. 37. On 14 December 1995 Bucharest District Court ordered the Financial Control Office to employ the applicant as from 20 October 1992 and to pay him ROL 2,000,000 for damages and ROL 100,000 for court fees. That judgment became final on 30 May 1997. 38. In 1999 the courts declared that the judgment had become enforceable and that it could be enforced. However, the applicant was not employed allegedly because he was a collaborator of the former State Security Department (Securitate). By a decision of 25 September 2007 the National Council for the Study of the Archives of the Securitate declared that the applicant had not been a collaborator. 39. On 25 February 2008 the applicant sought again employment with the Financial Control Office. On 27 March 2008 the bailiff enjoined that institution to employ the applicant. However, the Financial Control Office considered that the applicant's right to request enforcement was time-barred. 40. On 9 May 2008 the bailiff certified in an official record the institution's refusal to employ the applicant and considered necessary to apply a pecuniary penalty for delay in enforcement. 41. On 12 May 2008 the applicant brought proceedings against the Financial Control Office, seeking from the court to order that institution to employ him as from 20 October 1992, as ordered by the judgment of 14 December 1995, and to pay him damages. 42. On 16 June 2008 the Bucharest District Court rejected his request to be employed as res judicata. It further held that his right to request enforcement of that judgment was time-barred. 43. On 22 September 2008 the Bucharest County Court allowed an appeal by the applicant, quashed the previous judgment and send the case back for a fresh consideration. On 23 June 2009 the Bucharest Court of Appeal upheld that judgment by a final decision. 44. The proceedings are still pending.

train

001-102109

ENG

UKR

CHAMBER

CASE OF BULANOV v. UKRAINE

Violation of Art. 6-1

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

4. The first applicant was born in 1951 and lives in Sebastopol. The second applicant was born in 1961 and lives in Lysychansk. 5. On 21 December 2004 the first applicant instituted proceedings in the Zaliznodorozhnyi District Court of Sympheropil against the enlistment office, seeking recalculation of his pension. 6. On 4 July 2005 the court rejected the first applicant's claim as unsubstantiated. On 13 December 2005 the Crimea Court of Appeal upheld the judgment of the first-instance court. In the operative part of its decision the Court of Appeal stated that the first applicant could challenge the decision before the Supreme Court within two months. 7. On 20 January 2006 the first applicant lodged a cassation appeal with the Supreme Court. 8. On 6 February 2006 a judge of the Supreme Court ruled that the first applicant's cassation appeal should be referred to the Higher Administrative Court, stating that the latter court was the court of cassation in administrative cases pursuant to Article 210 of the Code of Administrative Justice of 2005. 9. In a ruling of 7 August 2006 a judge of the Higher Administrative Court dismissed the first applicant's cassation appeal as having been lodged out of time. The judge, relying on Article 212 paragraph 2 of the Code of Administrative Justice, held that the first applicant's cassation appeal ought to have been lodged within one month of the date of the decision of the Court of Appeal. 10. In a letter of 29 August 2006 the First Vice-President of the Higher Administrative Court informed the first applicant that he could resubmit his cassation appeal with a request for an extension of the expired time-limit. 11. On 23 September 2006 the first applicant resubmitted his cassation appeal to the Higher Administrative Court. 12. In June 2007 the first applicant received a letter from the Higher Administrative Court, enclosing a copy of a ruling dated 15 March 2007. By that ruling, the Higher Administrative Court declined jurisdiction to consider the first applicant's cassation appeal on the grounds that the case had been determined by the Court of Appeal under the rules of civil procedure subsequent to the entry into force of the Code of Administrative Justice on 1 September 2005, and thus that the Supreme Court was the court of cassation for the first applicant's case. 13. The rulings of 6 February and 7 August 2006 and 15 March 2007 each stated that they were final and not subject to appeal. 14. On 8 November 2005 the second applicant instituted proceedings in the Lysychansk Town Court against his former employer, the Lysychansk Town Police Department, seeking recovery of salary arrears. 15. On 16 March 2006 the court rejected the second applicant's claim, doing so partly on the basis that it found the claim to be unsubstantiated and partly as having been lodged out of time. On 22 May 2006 the Lugansk Regional Court of Appeal upheld the judgment of the first-instance court. In the operative part of its decision the Court of Appeal stated that its decision could be appealed against to the Supreme Court by way of a cassation appeal within two months. 16. On 18 July 2006 the second applicant lodged a cassation appeal with the Supreme Court. 17. On 11 September 2006 a judge of the Supreme Court dismissed the second applicant's cassation appeal, holding that it was to be considered by the Higher Administrative Court. 18. On 18 December 2006 the second applicant submitted his cassation appeal to the Higher Administrative Court. 19. On 16 November 2007 a judge of the Higher Administrative Court found that the appeal fell to be dealt with by the Supreme Court, as the case had been considered by the lower courts under the rules of civil procedure after the entry into force of the Code of Administrative Justice on 1 September 2005. The judge ruled that the cassation appeal was to be returned to the second applicant, together with an explanation of the right to lodge a cassation appeal with the Supreme Court. The ruling was final and not subject to appeal. 20. The relevant provisions of the Constitution read as follows: “In Ukraine the system of courts of general jurisdiction is formed in accordance with the principles of territoriality and specialisation. The Supreme Court of Ukraine is the highest judicial body in the [hierarchy] of courts of general jurisdiction. The respective higher courts are the higher judicial bodies of specialised courts. Courts of appeal and local courts shall operate in accordance with the law. The creation of extraordinary and special courts shall not be permitted.” 21. The relevant provisions of the Code of Civil Procedure of 1963, as worded at the material time, read as follows: “... Legislation on civil court procedure shall establish procedures for the consideration of cases concerning disputes arising from legal relations in the civil, family, labour and collective farming spheres, cases concerning administrative legal relations...” “The court of cassation instance is the Supreme Court of Ukraine.” “The parties and other persons taking part in the case ... have the right to challenge in cassation judgments and rulings adopted by a first-instance court which have been considered by a court of appeal, as well as rulings and judgments of the court of appeal. The grounds for [an appeal] in cassation are the wrongful application by the court of norms of substantive law or a violation of norms of procedural law.” “The question of referral ... shall be decided by a court composed of three judges ... In the absence of grounds for referral ... the court shall adopt a ruling dismissing the appeal. This ruling ... shall not be subject to appeal. If the court has dismissed the cassation appeal, the case shall be returned to the court of first instance ...” 22. The relevant provisions of the Code of Civil Procedure of 2004, as worded at the material time, read as follows: “1. The courts shall consider, within the framework of civil court procedure, cases ... concerning legal relations in the civil, housing, land, family and labour spheres, as well as other legal relations, provided they do not fall to be considered under the rules of a different type of court procedure...” “1. The court of cassation instance in civil cases is the court which is envisaged by the Judiciary Act as the court of cassation in such cases.” “1. The parties and other persons taking part in the case ... have the right to challenge in cassation: (1) judgments of the court of first instance after they have been reviewed on appeal, judgments and rulings of the appeal court adopted [in the course of] the consideration [of the case] on appeal... 2. The grounds for [an appeal] in cassation are the wrongful application by the court of norms of substantive law or a violation of norms of procedural law.” “... 2. The reporting judge shall refuse to open cassation proceedings if: (1) the case does not fall to be examined in cassation within the framework of civil procedure ... 5. A copy of the ruling ... refusing to open cassation proceedings, together with the materials annexed to the appeal, shall be forwarded to the appellant, and the cassation appeal shall remain with the court of cassation.” “... 9. Claims and complaints in cases concerning administrative [matters] ... lodged before the entry into force of this Code ... shall be considered pursuant to [the rules of] the Code of Administrative Justice ...” 23. The relevant provisions of the Code of Administrative Justice of 2005, as worded at the material time, read as follows: “1. The administrative courts shall enjoy jurisdiction over: (1) disputes between physical persons or legal entities and subjects vested with public powers concerning the latter's decisions ... actions or lack of action; (2) disputes relating to the recruitment, careers and termination of public service of citizens...” “... 3. The Higher Administrative Court of Ukraine shall review in cassation the judicial decisions of local administrative courts and administrative courts of appeal...” “1. The court of cassation instance in administrative cases is the Higher Administrative Court of Ukraine.” “1. The parties and other persons taking part in the case ... have the right to challenge in cassation judicial decisions of the court of first instance after they have been reviewed on appeal, as well as judicial decisions of the court of appeal in full or in part... 3. A violation by a court of norms of substantive or procedural law shall constitute a ground for [an appeal] in cassation.” “... 3. The reporting judge shall refuse to open cassation proceedings in the case if: (1) the case does not fall to be examined in cassation within the framework of administrative procedure... 5. A copy of the ruling ... refusing to open cassation proceedings, together with the materials annexed to the appeal, shall be forwarded to the appellant, while the cassation appeal shall remain with the court of cassation.” “1. Parties ... may challenge, in the light of exceptional circumstances, court decisions in administrative cases after their review in cassation and decisions of the court of cassation before the Supreme Court of Ukraine. 2. Decisions of the Supreme Court of Ukraine in administrative cases may also be challenged in the light of exceptional circumstances [on the basis] set out in subparagraph 2 of Article 237 of this Code. ...” “1. Court decisions in administrative cases may be reviewed in the light of exceptional circumstances by the Supreme Court of Ukraine, if they are challenged on the [following] grounds: (1) dissimilar application of the same provision of law by courts of cassation instance; (2) a finding by an international judicial body that the courts' decisions [in a case] are infringing Ukraine's international obligations.” “1. An appeal shall be lodged within a month of the discovery of the circumstances capable of serving as grounds for [appeal] in the light of exceptional circumstances. 2. An appeal lodged after the expiry of [that] term ... shall be left without consideration, if, upon a request by the appellant, the Supreme Court of Ukraine finds no grounds to renew [the term]...” “1. A panel of at least five judges of the judicial chamber of the Supreme Court dealing with administrative cases ... shall decide on the admissibility of an appeal made in the light of exceptional circumstances within fifteen days of its receipt and without summoning the persons taking part in the case. At the same time, [the panel] may decide on [the question of] the extension of the term for lodging an appeal made in the light of exceptional circumstances. 2. An appeal shall be considered admissible ... if at least three judges have reached [such a conclusion]. ...” “1. ...[A] panel of judges ... shall adopt, by a majority vote, one of the following decisions... (1) allowing the appeal in full or in part; (2) dismissing the appeal. ... 3. The decision of the Supreme Court of Ukraine [concerning an appeal made in the light of exceptional circumstances] is final and may not be appealed against, save for in the circumstances envisaged by Article 237 paragraph 2 of this Code.” “1. The Supreme Court of Ukraine shall allow an appeal if it discovers a dissimilar application of the same provision of law by courts of cassation instance. 2. If the Supreme Court of Ukraine establishes that the contested court decision is unlawful, it shall quash it in full or in part and remit the case for fresh consideration to the court of first, appeal or cassation instance, as appropriate, depending on which court was the first to infringe a provision of substantive or procedural law resulting in the incorrect determination of the case. The Supreme Court of Ukraine may also quash decisions of courts of appeal or cassation and leave wrongfully quashed decisions of courts of first or appeal instance in force. ... 4. The decision of the Supreme Court of Ukraine allowing an appeal shall be reasoned.” “1. This Code shall enter into force as from 1 September 2005... 5. Before the district administrative courts and administrative courts of appeal start to operate, cases falling within their jurisdiction shall be decided by the respective local and appeal courts of general jurisdiction ... pursuant to the rules of the Code of Administrative Justice of Ukraine... 7. After the entry into force of this Code, claims and complaints in cases concerning administrative [matters] ... as well as appeals and appeals in cassation ... in such cases, which were lodged, but not determined, before the entry into force of the Code of Administrative Justice of Ukraine, shall be considered pursuant to [the rules of] this Code. Such claims or complaints ... may not be left without further action or returned pursuant to this Code, if they were lodged in compliance with the relevant requirements and jurisdictional rules established by the Code of Civil Procedure of Ukraine of 1963 ... 10. Appeals in cassation against judgments of the courts of first instance in the situations envisaged in paragraph 7 of this Chapter which were lodged before the entry into force of this Code and which have not been considered by the Supreme Court of Ukraine shall be referred to the Higher Administrative Court of Ukraine ...” 24. The relevant provisions of the Judiciary Act of 21 June 2001, as worded at the material time, read as follows: “1. The Supreme Court of Ukraine is the highest judicial body within the [hierarchy] of courts of general jurisdiction ... 2. The Supreme Court of Ukraine: (1) ... shall consider cases in cassation in the situations envisaged by law ...” “... (9) ... The chamber of the Supreme Court of Ukraine which hears civil cases shall consider civil cases in cassation until such time as another court [vested with functions] of a court of cassation in civil cases is determined by legislation.” 25. Relevant extracts from the Joint Opinion on the Law on the Judicial System and the Status of Judges of Ukraine by the Venice Commission and the Directorate of Co-operation within the Directorate General of Human Rights and Legal Affairs of the Council of Europe, adopted by the Venice Commission at its 84th Plenary Session (Venice, 15-16 October 2010), read, in so far as relevant, as follows (emphasis added in the original text): “4.1.4. The Supreme Court ... 28. ...[T]hree different orders of jurisdiction, topped by three courts of cassation that are independent of each other, may well lead to numerous and often complex conflicts of jurisdiction. The least that one would expect in such a situation, is that there would be an efficient system for the solution of such conflicts, e.g. through a special “conflicts” court. ... The Supreme Court should fit that purpose ... 31. ... [T]he idea of a supreme court generally interpreting the law in an authoritative way and thus paving the way for a uniform interpretation of the law by all courts, even before contradictions have arisen. ... 14. Conclusion 125. ... The Supreme Court's jurisdiction should ... reflect[s] its constitutional status as the highest judicial body in the system of courts of general jurisdiction ... 129. Recommendations for improvement of the Law include inter alia: ... 2. The Supreme Court should be allowed to exercise its jurisdiction to resolve conflicts between the high specialised courts also in matters of procedural law and the Court should be able to decide itself on the admissibility of cases involving a conflict in the interpretation of the law. It should also be made competent to resolve conflicts of jurisdiction between the three sorts of jurisdiction (civil and criminal, commercial and administrative). ...”

train

001-77993

ENG

POL

CHAMBER

CASE OF SKIBINSCY v. POLAND

Violation of P1-1;Non-pecuniary damage - reserved;Pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings;Costs and expenses partial award - domestic proceedings

Nicolas Bratza

8. The applicants owned a number of plots of land located in Częstochowa, on Wręczycka Street. 9. In 1979 a local land development plan was adopted under which a local health centre was to be built on their land. However, this plan was not implemented and apparently the land was later designated for the construction of small individual houses. 10. In 1991 the applicants requested the municipal authorities to reclassify their land so that it could be used for construction purposes. In December 1991 they were granted an initial approval for a development project on their land (decyzja o warunkach zabudowy). In June 1992 they obtained a permit under Article 10 of the Land Administration and Expropriation Act 1985 to divide their plot, which was listed in the local land register as plot no. 1/1, into 15 smaller plots suitable for the construction of individual houses (decyzja o zatwierdzeniu projektu podzialu nieruchomości). 11. In 1994 the Częstochowa Municipal Council announced that it was intending to adopt a new land development plan under which part of the applicants’ property was to be used for the construction of a major roadway. On 17 October 1994 the applicants lodged their objections against the proposed amendments. On 27 October 1994 the amendments were adopted by the Council. The applicants’ objections were not taken into consideration. 12. On 28 November 1994 the applicants requested that final construction permits (zezwolenie na budowę) be granted to them in respect of certain plots on the basis of the decisions given in 1991 and 1992 (see paragraph 10 above). 13. In June 1995 the local State administration obliged the City Hall to draw up a financing plan for local infrastructure investments, including the road network, and to fix time-limits for the purchase from their owners of plots necessary for the implementation of the plans. 14. On 4 September 1995 the applicants requested the City Hall to amend further the local plan as amended in 1994 by providing that the projected roadway would, instead of 40, be 18 metres wide, as provided for in the 1991 and 1992 decisions allowing their property to be divided into smaller construction plots. 15. In a letter to the City Hall of 6 September 1994, communicated to the applicants for information, the Częstochowa Governor stated that the construction of the roadway would not be provided for in the financing scheme for the local land development plan until at least 2010. Therefore, no purpose was served by blocking the development of the properties concerned. 16. Subsequently, in 1995 the local municipality informed the public that it would start proceedings in order to amend the 1979-1994 land development plan in its part concerning the projected roadway. 17. On 8 August 1996 the applicants submitted a request to obtain a final construction permit for their plot no. 1/9 on Wręczycka Street. Those proceedings were subsequently stayed, the authorities considering that no decision could be given before the changes to the development plan had been adopted. 18. In early 1997 the local municipality made public the proposed amendments to that plan. In April 1997 the applicants lodged their objections against them. 19. On 23 April 1997 the applicants asked the Mayor when the Town Council would discuss the new amendments to the plan. 20. On 16 June 1997 they were informed that the Town Council would discuss the amendments to the plan at its session to be held on 19 June 1997, but that it would most likely decline to make any changes to it. 21. On 19 June 1997 the Council decided not to make any changes to the 1979-1994 plan as proposed by the applicants and other persons who had lodged objections against the amendments. It was observed that the proposed changes had resulted in a number of objections being lodged by the owners of properties concerned. It was impossible to reconcile all of the conflicting interests. It was further acknowledged that the proposed amendments to the plan would free some of the applicants’ plots. However, on the whole, and having regard to the number of serious objections against the changes, it was not considered feasible to amend the plan accordingly. In particular, it would not have been feasible to build the projected roadway if it were to be only 18 metres wide, as had been proposed inter alia by the applicants. Moreover, had the plan been amended, the municipality would have incurred substantial expenditure for the purchase of plots which would have to be used for the construction of the roadway. It was further noted that the local investment plan did not provide for the construction of the road to begin before 2010. Nevertheless, it would be premature to give up the construction, since there remained a possibility that the necessary funds might eventually be secured from the European Union funds. 22. The applicants lodged a complaint against this decision with the Supreme Administrative Court. The court rejected their complaint as it was still open to them to have recourse to a remedy provided by local government legislation, namely requesting the Town Council to bring its actions into conformity with the law. The applicants accordingly did so. 23. On 2 December 1997 the Town Council refused the applicants’ request. 24. On an unspecified later date the applicants’ request for the final construction permits for their plots was dismissed, regard being had to the fact that these plots were in the vicinity of the projected road. 25. The applicants lodged a complaint with the Supreme Administrative Court against the municipality’s failure to adopt changes to the local development plan. They argued that under the 1979-1994 land development plan they could not use their property in accordance with their wishes. Their requests to obtain final construction permits had been refused. The local investment plans did not provide for any work in connection with the construction of the roadway to be carried out before 2010 at the earliest and until then they were be prevented from making use of their property. Therefore, they had to bear an intolerable burden in that the local municipality had adopted the plan to build a roadway which would necessitate their expropriation at some undetermined time in the future. However, that plan could not be implemented in the foreseeable future because of lack of financial resources. 26. On 23 July 1998 the Supreme Administrative Court dismissed their complaint. The court recalled the history of the local development plan dating back to 1979. The court noted the municipality’s argument that the current budget did not allow for the construction of the roadway. It considered that the applicable planning laws did not make it obligatory for the municipality to amend existing land development plans in response to every request of the public. The nature of the policy functions of the municipality in the area of land development was such that the municipal organs could not be taken to be under an obligation to amend the plan once it had started the relevant proceedings. 27. The 1979 local development plan for the applicants’ municipality expired on 31 December 2003 (see paragraph 38 below). Apparently no new plan was adopted thereafter. In 2004 the first applicant requested the municipal authorities to grant her initial planning permission and it was granted in April 2004. 28. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984. 29. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995. 30. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994. 31. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act. 32. Under the provisions of land planning legislation as applicable at the relevant time, land development plans were adopted by organs of local government. A decision to prepare a new plan was taken by a local council. Subsequently, the local mayor prepared, with the assistance of the local administration, a draft land development plan. The public was informed of the decision to prepare a new plan and a draft plan was to be made available to the local public for a period not shorter than 21 days. All members of the public were entitled to submit objections and comments on the draft plan. A final plan was adopted by way of a resolution of a local council. The council, when voting on the draft plan, also decided whether and, if so, in what manner, objections and comments submitted by the local public were to be considered. 33. Under the Local Planning Act of 12 July 1984 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property and the reduction in its value originating in expropriations to be carried out at a future undetermined point in time. 34. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were to be expropriated at an undetermined future date under land development plans adopted by competent municipal authorities. The municipalities were obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots within six months from the date on which a relevant request was submitted by the owner, or to award compensation for damage caused by the fact that the plot was designated for future expropriation. 35. However, this obligation and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, that is to say, to plans adopted by local municipalities after 1 January 1995. 36. Pursuant to the 1994 Act, plans adopted before the date of its entry into force were to expire on 31 December 1999. 37. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years, namely until 31 December 2001. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995. 38. Under Section 87 of the 2003 Act (see paragraph 31 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 39. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 33 above), were in essence maintained by the 2003 Act. Pursuant to Section 36 of that Act, when, following adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts. 40. From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (the “1985 Land Administration Act”). 41. Article 50 of this Act provided that properties could be expropriated only for the benefit of the State or a municipality. 42. Pursuant to Article 53 (1) of the Act, a decision on expropriation had to include in particular: “(1) an indication of the property to be expropriated, ... (3) an indication of the party upon whose initiative the property is being expropriated, (4) an assessment of the amount of compensation, (5) identification of the persons (name, surname and address) entitled to compensation, (6) detailed factual and legal grounds, (7) instructions on appeal procedures.” 43. Under Article 55 of the Act, expropriation was to be carried out against payment of compensation. The payment was to be made within fourteen days from the date on which a decision to expropriate had become final. 44. On 1 January 1998 the 1985 Land Administration Act was repealed and the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) was adopted, containing similar provisions on expropriation and compensation. 45. Until 1 January 1995 the organisation of construction was governed by the Building Act 1974 (Prawo budowlane). 46. Section 3 of that Act provided that construction works could be carried out only on land designated for construction purposes in local land development plans adopted under relevant provisions of land development legislation. Section 4 of that Act read: “Every person has a right to build on land, provided that he or she possesses a right to use this land for building purposes and that the building project is in compliance with applicable provisions of building laws.” 47. Section 10 of the Land Administration Act 1985 (see paragraph 40 above) provided that division of land into smaller plots designated for construction purposes could be effected by way of an administrative decision only if such a division was in compliance with the local land development plan. 48. Section 20 of the Building Act 1974 provided that all essential urban planning, architectural and technical questions connected with a given building project were to be resolved before construction was started. Pursuant to Section 30, the local land development plan was the basis on which all relevant decisions were to be taken. 49. Land owners wishing to commence building projects . were obliged to obtain first from the local administration an initial development permit (decyzja o warunkach zabudowy i zagospodarowania terenu). 50. Under Section 28 of the Act, building works could be commenced after a final construction permit (pozwolenie na budowę) had been granted. 51. The Construction Act 1974 was repealed by a new law enacted on 7 July 1994. It entered into force on 1 January 1995. 52. Under Section 28 (1) of the Act, building works could be commenced once a final construction permit (pozwolenie na budowę) had been granted. 53. Under Section 32 (4) of Act, prior to submitting to the competent local authority a request to be granted a construction permit, an owner is obliged to obtain from the local authorities a decision on building conditions (decyzja o warunkach zabudowy i zagospodarowania terenu), provided for in Section 59 (1) of the Local Planning Act 2003 as it stands today. Under this latter provision, such a decision should specify the essential characteristics of the land concerned and of the future construction project, if they differ from the use of that land provided for by the local land development plan. Under Section 39 of the Building Act, once such a decision has been obtained, the owner can apply for a construction permit (pozwolenie na budowę).

train

001-58831

ENG

BGR

CHAMBER

CASE OF VELIKOVA v. BULGARIA

Violation of Art. 2 with regard to the applicant's death;Violation of Art. 2 with regard to the lack of effective investigation;Violation of Art. 13;No violation of Art. 14;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses partial award

Matti Pellonpää

12. The applicant is a Bulgarian national, born in 1942 and residing in Pleven. At the relevant time she lived in Bukovlak, a village in the district of Pleven. 13. In the early hours of 25 September 1994, the man with whom the applicant had lived for about twelve years, Mr Slavtcho Tsonchev, 49 years old, belonging to the ethnic group of the Romanies (Gypsies), died after he had spent about twelve hours in police custody following his arrest and detention on charges of cattle theft. 14. On 24 September 1994 at 11 a.m. the Pleven police received a telephone call from the village of Bukovlak informing them of the theft of nine cows. Police Sergeant Ivanov and his colleague Petranov were immediately dispatched to the village, where they met Mr N., the person who had been tending the cattle. Mr N. was brought to the police station in Pleven. There he initially stated that the cows had been stolen by unknown persons who had sprayed him with nerve gas, but then explained that, at about 10 a.m., Mr Tsonchev, accompanied by a 10-year-old boy, had taken away the nine cows through the use of threats and had warned him that if asked about the incident he should maintain that someone had sprayed him with nerve gas. Mr N. affirmed that he was afraid of Mr Tsonchev, who had been drunk at the time of their encounter. 15. In his testimony given later, Sergeant Ivanov relayed the following: “We were told that the perpetrator was Slavtcho [Tsonchev] – a Gypsy from the village of Bukovlak whose nickname was Patcho. We knew this person as he was from our criminally active contingent.” It transpires from all testimonies that Mr Tsonchev's relatives, who were later questioned in relation to the investigation into his death, also knew the police officers and their nicknames. 16. The same police patrol drove back to the village of Bukovlak, where they were joined by two of the cattle owners and all four started searching the village for Mr Tsonchev. They found him at about 2 p.m. at his aunt and uncle's house. According to Sergeant Ivanov's testimony, Mr Tsonchev was “drinking alcohol in the company of other Gypsies”. 17. According to the testimonies of Mr Tsonchev's cousin and Mrs K., an elderly woman who was a neighbour of Mr Tsonchev's relatives, he had spent the late morning and early afternoon of 24 September 1994 digging a ditch at the house of Mrs K. During this time Mr Tsonchev drank four beers. He had apparently also drunk alcohol before that. According to the same testimony and that of Mr Tsonchev's uncle and aunt, he came to their house in the early afternoon, about fifteen minutes before the arrival of the police. The uncle further testified that Mr Tsonchev had not complained of any medical problem and had behaved normally. 18. The police officers invited Mr Tsonchev to come with them. He answered that he wished to finish his beer, to which the police officers agreed. Mr Tsonchev was then placed in the back seat of the police car, between the two cattle owners. The car first drove for several minutes to the home of the cattle owners. According to the statement of one of the police officers, during this short drive the persons in the back of the car “had an argument with the Gypsy but ... did not beat him. They only talked”. The car arrived at the home of the cattle owners, where a crowd of about twenty to thirty persons had gathered. According to police officer Ivanov they wanted to beat up Mr Tsonchev, but he and his colleague did not allow this to happen. The police car then drove to the Pleven police station where not later than 2.30 p.m. Mr Tsonchev was handed over to Sergeant Kostadinov, the officer on duty. 19. Sergeant Kostadinov stated in his testimony to investigator Enchev that he had locked Mr Tsonchev in the arrest cell, as he had been too drunk to be questioned. Mr N., the person who had reported the cattle theft and who had been waiting at the police station to give evidence, claimed that Mr Tsonchev had been seated on a couch in the hallway. Both Sergeant Kostadinov and Mr N. testified that Mr Tsonchev had been very drunk. According to Mr N. at some point, while seated, Mr Tsonchev had defecated into his trousers. It appears that Mr Tsonchev had some verbal exchanges with others while at the police station. An internal police note of 20 October 1994 concerning the death of Mr Tsonchev (see paragraph 33 below) stated that he had denied having stolen the cows. The source of this information was not mentioned in the note. Mr N. on his part relayed in his testimony that at some point Mr Tsonchev had been asked questions about the cattle theft, but had replied that he had slaughtered one of the cows. 20. At 5 p.m. Sergeant Kostadinov contacted by telephone police officer Lubenov who arrived at the police station and started questioning the witness, Mr N. According to officer Lubenov, Mr Tsonchev was too drunk to be questioned. Police officer Lubenov issued an order for the detention of Mr Tsonchev after having consulted the prosecutor on duty, Ms Popova. The order stated that it was issued on 24 September 1994 at 7 p.m. 21. According to the testimony of police officers Kostadinov and Lubenov, at about 7 p.m. Mr Tsonchev “complained that he was not feeling well” whereupon Sergeant Kostadinov contacted the emergency unit of the local hospital for an ambulance. At the police station were present Mr N. and one of the owners of the stolen cattle, who had arrived at about 7 p.m. to report that the cows had been found earlier in the afternoon. The two men left shortly after 7 p.m., Mr N. apparently having spent the whole afternoon at the police station. The testimony of Mr N. does not contain any reference to the fact that Mr Tsonchev had displayed signs of ill-health. Apparently, the other person present was not questioned in the course of the investigation, as no such testimony has been submitted by the Government. According to the internal police note of 20 October 1994, all the above events, including Mr Tsonchev's complaint that he did not feel well and the arrival of an ambulance, happened at about 10 p.m. and not at about 7 p.m. The note did not specify the source of this information. 22. According to the testimony of officers Kostadinov and Lubenov, a physician and a paramedic arrived at the police station shortly after the call for an ambulance and examined Mr Tsonchev briefly. The physician allegedly pressed and touched Mr Tsonchev's body, but said that the latter was too drunk to be examined and that he would examine him when he sobered up. No written record of this medical examination is to be found among the documents in the files, as submitted by the Government, of all authorities which had dealt with the case. During the investigation into the death of Mr Tsonchev apparently no questions were put to the police officers about the identity of the members of the medical team and no further detail was established. 23. At about 11 p.m. a Mr I.P., who had been arrested for violent behaviour, was brought to the police station and detained there. According to the internal police note of 20 October 1994, Mr I.P. had testified that Mr Tsonchev was drunk. No such testimony can be found in the material submitted by the Government. 24. According to the testimony of Sergeant Kostadinov, the officer on duty, at a certain point during the night Mr Tsonchev started vomiting in the cell where he had been placed. He was allowed to go to the toilet and was not locked up afterwards, but sat on a couch in the hallway. After midnight Mr Tsonchev went to the toilet again. On his way back to the couch, he fell on the floor. Police officer Kostadinov instructed the detained Mr I.P. to help to get Mr Tsonchev seated on the couch. Officer Kostadinov noticed that Mr Tsonchev was sick and he called the hospital emergency unit again. At that point Mr I.P. was released and left the police station. The internal note of 20 October 1994 specified that Sergeant Kostadinov had seen Mr Tsonchev lying on the ground at about 1.50 a.m. on 25 September 1994. The source of the information about the hour was not mentioned. 25. According to the police officers' testimonies, the same physician and paramedic, whose identities have not been disclosed, arrived at around 2 a.m. and found Mr Tsonchev dead. The doctor did not draw up a death certificate. This was done later by Dr Dorovski, the forensic expert who visited the site with the investigator, Mr Enchev, and who also conducted the autopsy. 26. Immediately after Mr Tsonchev was found dead, the police informed the investigator on duty, Mr Enchev, who arrived at 2.30 a.m. to inspect the scene. According to the written record of the inspection, the dead body of Mr Tsonchev was found in the hallway of the first floor, southern section, of the Pleven police station. He was seated on a couch, with two hands hanging on both sides of the couch, and the head hanging back. The victim was dressed in a white shirt, wide open at the chest, with unbuttoned trousers and no underwear. The report further states that “[o]n the right side of the face there was a bruise. Because of the dark colour of the skin, there were no other visible injuries on the body”. The investigator finished the inspection at 3 a.m. The inspection record states that a forensic expert, Dr Dorovski, and three other persons were present during the inspection. None of them signed the record, which was only signed by the investigator. Photographs of the scene were taken during the inspection. The Government have not submitted copies thereof. 27. Dr Dorovski issued death certificate no. 217 on 25 September 1994 indicating “acute anaemia, fat embolism and haematomas on the trunk and the limbs” as the causes of death. He also marked the option “accident” in the column requesting information about the possible circumstances. He left blank the space provided to indicate the time of death. 28. On 25 September 1994 Mr Enchev, regional investigator, issued an order for the opening of a criminal investigation into the death of Mr Tsonchev. On the same day early in the morning, after 4.25 a.m., investigator Enchev questioned three of the police officers involved, officers Ivanov, Kostadinov and Lubenov. The documents in the files of the authorities which investigated the death of Mr Tsonchev, as submitted by the Government, contain no trace of any questioning of police officer Petranov, who had been together with Sergeant Ivanov during Mr Tsonchev's arrest and his transfer to the police station. 29. The investigator also ordered a biochemical report and a forensic medical report. The forensic medical report was assigned to Dr Dorovski, who had been present at the inspection of the corpse. He was requested by investigator Enchev to answer the following questions: “1. What traumatic injuries are to be found on the corpse [of Mr Tsonchev]? 2. What was the cause of his death? 3. How were the injuries inflicted?” 30. The forensic expert carried out a post-mortem examination between 8.30 a.m. and 11.30 a.m. on 25 September 1994. He found a haematoma of purple-blue colour under the lower right eyelid; oval bruises of a red-brown colour measuring 2 by 0.5 to 1 cm beneath the lower eyelid and on the opposite side of the face under the cheek bones; one bruise of the same colour on the left side of the lower jaw measuring 0.5 by 0.5 cm; one bruise of a red-brown colour, oblong, measuring 2 by 0.5 cm on the centre of the chin; symmetrical haematomas of a strong purple-blue colour measuring 40 by 18 cm on the front side of both armpits and the upper part of the arms; and three haematomas of purple-blue colour on the left buttock and on the upper back of the left thigh, perpendicular to the femur, measuring 8 to 10 cm by 1.5 to 2 cm. The laboratory analysis of the blood and the urine of Mr Tsonchev revealed an alcohol content of 0.4 per thousand. The report concluded: “The inspection and the autopsy of Slavtcho Tsonchev's corpse discloses a state of acute loss of blood – pale post-mortal spots, anaemic internal organs, massive haematomas on a large surface of the upper limbs and the left buttock, a bruise on the left eyelid, scratches on the face. The cause of Mr Tsonchev's death was the acute loss of blood resulting from the large and deep haematomas on the upper limbs and the left buttock, as it appears from the autopsy. The injuries are the result of a blunt trauma. The injuries described as double stripped haematomas on the left buttock resulted from the impact of one or more long hard objects, approximately 2 cm wide. The haematomas in the upper limbs resulted from the impact of – blows by or collision with – a hard, blunt object. They do not have a characteristic shape and it is therefore not possible to identify the object which had caused them. The injuries on the face could have been caused by blows, or could have been the result of falling, as they are located on the protruding parts of the face. The analysis of the corpse did not disclose any ailment which could be related to the death [of Mr Tsonchev]. No injuries from sharp objects or firearms were found.” The report placed the time of the death at about ten to twelve hours prior to the autopsy. The report expressed no opinion as to the timing of the injuries which had caused the death. No such question had been put by the investigator. 31. On the morning of 25 September 1994 the applicant, who went to the police station to wait for the release of Mr Tsonchev, was informed that he was dead. When later that day his body was transported to the applicant's house in the village of Bukovlak, the applicant allegedly observed numerous bruises and injuries. Upon her request neighbours called journalists from local newspapers. Mr Tsonchev was buried that evening. 32. On 28 September 1994 the investigator questioned Mr Tsonchev's uncle, aunt and cousin, Mrs K., their neighbour, and Mr N., the person whose cows had been stolen. 33. On 20 October 1994 a colonel from the Directorate of the National Police (Дирекция на националната полиция) in Sofia drew up a note on the death of Mr Tsonchev, apparently in the framework of an internal inquiry conducted within the police department. The note described the events and concluded that the case was within the competence of the investigation authorities. No other document in respect of this police inquiry can be found among the material submitted by the Government. 34. On 21 December 1994 an expert in chemistry issued a report on the analysis of samples of stomach contents as well as liver, kidney and brain tissue taken from the corpse. The purpose of the analysis, as defined by the investigator, had been to search for traces of toxic substances. No such substances were found. Insignificant quantities of aspirin, pain killers and codeine were detected. 35. The material submitted by the Government in response to the Court's request for “all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev” does not show any investigation activity after December 1994. 36. In the months following the death of Mr Tsonchev, the applicant regularly visited the office of investigator Enchev to ask for information about the progress of the investigation. In 1995 counsel for the applicant allegedly visited Mr Enchev's office on several occasions and spoke to him on the telephone several times. Mr Enchev allegedly refused to release any specific information. Also, according to the applicant, those of the documents in the investigation file to which counsel was permitted access contained no information concerning any investigation proceedings which may have been conducted after 21 December 1994. 37. On 5 December 1995 counsel for the applicant requested the Pleven Regional Prosecutor's Office (Окръжна прокуратура) to expedite the investigation. As no response was received, on 28 February 1996 counsel filed a request with the Chief Public Prosecutor's Office (Главна прокуратура). On 19 March 1996 regional prosecutor Popova issued an order suspending the criminal proceedings in the death of Mr Tsonchev. The order stated, inter alia: “Tsonchev's death [was] caused by a number of internal haemorrhages and acute loss of blood, as a result of deliberate beating. The deceased Tsonchev was detained under a police order for [a maximum period of] twenty-four hours pursuant to the Police Act [Закон за националната полиция], for the theft on 24 September 1994 of nine cows in the vicinity of the village of Bukovlak, Pleven District ... In the course of the investigation, it proved impossible to determine whether Tsonchev was beaten up in the Pleven police station or outside it. Nor was there any evidence demonstrating whether it was the cattle owners or police officers who did the beating.” 38. In her ensuing appeal of 20 May 1996 to the Chief Public Prosecutor's Office, the applicant argued that the investigation had not been thorough and that there had been significant omissions. She suggested that all evidence indicated that the injuries resulting in the death had been inflicted after the victim had been taken to the police station. She also objected to the significant delays in the investigation. By an order of 8 July 1996 prosecutor Slavova of the Chief Public Prosecutor's Office granted the applicant's request for the reopening of the investigation. The order stated, inter alia: “[A] careful reading of the file demonstrates that the investigation [was] not thorough and complete. Not all possible investigations were carried out, for which reason the decision to suspend the investigation is unfounded ... ... it is necessary to establish Mr Tsonchev's particular health problems during his stay at the police station and the findings of the emergency medical team on his state of health. The physician and the paramedic of the emergency unit who examined [Mr Tsonchev] should be found and questioned, and the relevant documents recording the examinations be requested. The reasons why no medical care was offered to the victim should be established (there is no evidence in that respect, at least up to this moment) and, depending on the findings, a conclusion should be drawn as to whether a crime, under Article 123 of the Criminal Code [Наказателен кодекс], was committed. The health condition of Mr Tsonchev prior to his arrest should be ascertained. An additional medical report should be ordered, to be carried out by three forensic experts, which should establish in particular the cause of the death, the manner in which the injuries were inflicted and the time at which the injuries occurred. [This] should be used to identify the person who inflicted the injuries on that same day or on the previous day. The death certificate of Mr Tsonchev should be requested and attached to the file, and [the applicant's] allegation of incorrect documents should be investigated. After all these issues, as well as others that may come up during the investigation, are clarified, a decision on the merits should be taken.” 39. According to the applicant, during the months following the order of the Chief Public Prosecutor's Office, her counsel spoke by telephone, on at least two occasions, with investigator Enchev. In both conversations investigator Enchev allegedly declined to provide any information concerning the investigation. On 6 January 1997 counsel filed a complaint with the Pleven Regional Prosecutor's Office, asserting that no investigation was taking place in defiance of the order of the Chief Public Prosecutor's Office, and requested that investigator Enchev be taken off the case. Counsel for the applicant received no reply to his written complaint for more than four months. On 22 May 1997 counsel Dimitrov allegedly spoke to investigator Enchev over the telephone. Investigator Enchev informed counsel that he was still the investigator responsible for the case. During the conversation it allegedly became apparent that no investigation had been undertaken since the order of the Chief Public Prosecutor's Office of 8 July 1996. Following this conversation, counsel for the applicant filed another complaint with the Chief Public Prosecutor's Office renewing his request for investigator Enchev to be taken off the case and to expedite the proceedings. 40. On 17 August 1997 counsel received a copy of a letter signed by regional prosecutor Popova and dated 3 June 1997, addressed to the Chief Public Prosecutor's Office. In apparent response to counsel's complaint of May 1997, the letter stated that no further investigation was possible, and that in prosecutor Popova's opinion the investigation should be suspended. According to the prosecutor, “there are no clues as to the identity of the offender and this precludes any further investigation”. She also refused to remove investigator Enchev and expressed her frustration with the numerous complaints raised by counsel Dimitrov. The investigation has apparently not been suspended as there is no formal order to that effect. In December 1997, in a telephone conversation with counsel Dimitrov, investigator Enchev allegedly confirmed that he was still working on the case. 41. Under Bulgarian law, criminal proceedings can be brought only by the decision of a prosecutor or an investigator (Article 192 of the Code of Criminal Procedure (Наказателно процесуален кодекс)). In accordance with the law as in force at the relevant time and until 1 January 2000, a decision to terminate pending criminal proceedings was subject to appeal by the victim to the higher prosecutor (Article 237 § 6 of the Code as in force until 1 January 2000). In practice, as in the applicant's case, appeals to the higher prosecutor were also possible against a decision to suspend criminal proceedings (Article 239 of the Code as in force until 1 January 2000). No further remedies existed under the relevant law.

train

001-68098

ENG

BGR

CHAMBER

CASE OF SIDJIMOV v. BULGARIA

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

Christos Rozakis

8. The applicant was born in 1973 and lives in Pazardjik. 9. On 19 August 1993 he was arrested, charged with the rape of a minor and remanded in custody. Six other persons were also charged. 10. According to the indictment, the victim had been abducted by a Mr. A. and had been raped numerous times by several persons, some of whom had paid to Mr A. for having sex with the victim. Mr A. was charged with rape and acting as a procurer of prostitution. According to the applicant, all accused persons and the alleged victim are of Roma origin. 11. On unspecified dates an investigator interrogated the alleged victim and other accused persons and heard several experts. 12. In June 1994 the applicant and six other persons were indicted and the case listed for trial. 13. In September and October 1994 the trial court referred the case to the prosecutor in view of certain deficiencies in the investigation. On 17 February 1995 the applicant was released on bail. 14. In November 1995 the investigator concluded his work and submitted the file to the prosecutor. 15. In May 1996 the prosecutor ordered additional investigation. In June 1996 the investigator submitted the case to the prosecutor with the proposal that the applicant should be indicted. 16. In 1999 the applicant’s lawyer lodged requests with the prosecuting authorities complaining of the length of the criminal proceedings. 17. On 27 February 2001, noting that the case had remained dormant since June 1996, a prosecutor ordered the resumption of the proceedings and referred the case to an investigator. 18. On 4 April 2002 the investigator objected, stating that in view of the lapse of time, the ensuing evidentiary difficulties and the workload of the investigation service it was preferable to terminate the proceedings. 19. The prosecutor did not accept the investigator’s proposal and on 22 April 2002 ordered additional investigation. 20. It appears that as of November 2004 the proceedings were still pending. 21. In June 2003 an amendment to the Code of Criminal Procedure, the new Article 239a, introduced the possibility for an accused person to have his case examined by a trial court if the investigation has not been completed within the statutory time-limit (two years in investigations concerning serious crimes and one year in all other investigations). 22. By letter postmarked 17 December 2001 the applicant’s lawyer stated that his client had informed him that he did not intend to pursue the application since his relatives and the persons with whom he stood co-accused feared “an adverse reaction by the State” if he maintained his application. 23. After the Court’s admissibility decision the parties exchanged observations on the merits and on just satisfaction. The applicant’s lawyer submitted that the Court should continue the examination of the case which disclosed a flagrant denial of justice. The Government objected. 24. On 24 November 2004 the applicant submitted a written declaration stating that he did not claim monetary compensation from the State, but insisted that the criminal proceedings against him should be terminated, as he had already suffered a lot. He also stated that he left the issue of costs at the Court’s discretion.

train

001-58018

ENG

GBR

CHAMBER

CASE OF GREGORY v. THE UNITED KINGDOM

No violation of Art. 6-1;No violation of Art. 14+6

John Freeland;N. Valticos

7. The applicant, who is black, is a British citizen born in 1966 and currently living in Manchester, England. 8. The applicant was tried for robbery at Manchester Crown Court between 26 and 28 November 1991. He was legally represented at the trial. 9. On the final day of the trial, at 10.46 a.m., the jury retired to consider their verdict. An hour and three quarters later a note was passed by the jury to the judge. It read: "JURY SHOWING RACIAL OVERTONES. 1 MEMBER TO BE EXCUSED." 10. In the absence of the jury, the trial judge showed the note to counsel for the prosecution and defence and consulted them on the appropriate response to it. 11. There is some uncertainty as to the stance taken by defence counsel with regard to the follow-up to be given to the note. Prosecution counsel recalls that defence counsel did not raise strong objections to the approach which the judge indicated he intended to pursue, namely to recall the jury and give clear directions on their duty to return a verdict on the basis of the evidence alone. However, defence counsel seems to recall that he did in fact ask the trial judge to discharge the jury in the circumstances, but his application was refused. Defence counsel based his recollection on the grounds of appeal and advice on appeal which he drafted shortly after the trial on 10 December 1991. However, neither of these documents suggests that defence counsel made an express request to the judge to discharge the jury. Under point 4 of his grounds of appeal, defence counsel concluded: "It is submitted that, in the circumstances aforesaid, some enquiries should have taken place with a view to acceding to the request of the jury that one of their numbers be discharged." In the accompanying advice on appeal, defence counsel stated: "It seems to me that it is at least arguable that the trial judge should have enquired further into the matter with a view to acceding to the request that the jury were making." 12. The judge’s recollection is that both counsel agreed to his proposed course of action (see paragraph 11 above). 13. The jury were recalled at 12.47 p.m. Pausing at appropriate junctures to ensure that his statement was being understood, the judge redirected the jury in the following terms: "You are brought here as twelve people from your various walks of life, your various backgrounds. Everybody has preconceived ideas and thoughts but you are brought here from twelve different backgrounds expecting to apply your twelve different minds to the problems that are put before you ... you decide this case according to the evidence and nothing else in the case. Any thoughts or prejudice of one form or another, for or against anybody, must be put out of your minds. You decide this case on evidence. It is the evidence alone which decides the case. Do you understand that, members of the jury? You are the judges and you decide it on the evidence, and weighing the individuals as you saw them and allowing no other factor to influence your decision, but your decision about the quality of the evidence and the way in which a particular individual you are considering, treating them all alike and making no distinction whether a person is a defendant or otherwise, where he lives, where he comes from. Do you understand that? I am certainly not going to discharge any member of the jury because he or she may wish [me] to do so because they dislike certain overtones in the conversation. Decide this case according to the evidence. Members of the jury, I am not saying you should be biased in favour or against it. Look at the way it was given. Decide the case that way and no other. That is your sworn duty. I expect you to abide by your sworn duty." 14. The jury then retired at 12.50 p.m. At 2.21 p.m. the jury, being unable to reach a unanimous verdict, were recalled by the judge. He informed them that the time had come when he could accept a verdict of at least a majority of ten. The jury retired again at 2.24 p.m. At 3.27 p.m. the jury were still undecided and they were called back again. The judge further directed the jury as follows: "Members of the jury, each of you has taken an oath to reach a true verdict according to the evidence. Remember that is the oath you took two days ago. Not one of you must be false to that oath. You do have a duty, not only as individuals but collectively as a jury. That, of course, is the strength of the jury system. So each of you when you go into your jury room take with you your individual experience and wisdom ... Your task is to pool that experience and wisdom. You must do that by giving your views and listening to the views of other people. Of necessity there will be discussion ... There has got to be argument and there has got to be give and take within the scope of the oath that each of you has taken. That is the way you achieve agreement." 15. At 4.06 p.m. the jury returned and delivered a ten to two majority verdict finding the applicant guilty. The applicant was sentenced to six years’ imprisonment. 16. The applicant sought leave from the Court of Appeal to appeal against conviction. He submitted that in the circumstances the trial judge had wrongly failed to make any enquiry into the note with a view to determining whether one of the members of the jury should be discharged on the grounds of racial prejudice and that this failure gave rise to a material irregularity at the trial (see paragraph 11 above). Leave to appeal was refused by the single judge on 28 February 1992. He stated that: "The learned judge dealt with the novel and delicate situation presented by the jury note with tact and sensitivity. It would have been entirely inappropriate for him to have conducted some sort of enquiry. There was no material irregularity at your trial." 17. The applicant renewed his application to the full Court of Appeal. On 19 January 1993 the application was dismissed. The Court of Appeal noted that the trial judge "... took the view and this Court agrees with it, that the nature of the jury’s anxiety was that one member of the jury felt that there was a general overtone of racial comment which was unacceptable and not, as the applicant is suggesting, one member of the jury being so racially prejudiced as to be unable to give proper consideration to the matters before him". The court continued: "Matters of this kind raise delicate issues. The jury system does require an element of give and take after proper directions from the judge. In our judgment His Honour Judge Hammond dealt with this matter sensitively, sensibly and correctly, and cannot be faulted for a conclusion that the jury should continue the deliberations which they had given their oath to undertake. We, therefore, find no ground for complaint and we dismiss this application." 18. The trial judge is the arbiter of issues of law. He must ensure that the trial is properly conducted according to law. He is required at the end of a trial, inter alia, to sum up the evidence, to direct the jury to disregard evidence which is inadmissible, to remind juries of their duties and functions, to explain any law which the jury is required to apply, to direct the jury on the onus and burden of proof and to ask the jury to reach a verdict on the evidence they have heard. 19. The jury in Crown Court trials consists of twelve members who have taken an oath or affirmed to "faithfully try the defendant and give a true verdict according to the evidence". The jury is the arbiter of fact. 20. Jury service is regarded as an important civic duty. The Juries Act 1974, as amended, governs qualification for jury service, ineligibility, disqualification, excusal, discharge and other relevant matters. 21. Every person between 18 and 70 who satisfies the requirements set out in section 1 of the Juries Act 1974 is qualified to serve on a jury and liable to do so if summoned under section 2 of that Act. The electoral register serves as the basis of jury selection. 22. Random selection of potential jurors is regarded as a key safeguard against corruption or bias in a sworn jury. There are a number of other guarantees, including: 23. It is lawful for enquiries to be made as to whether potential jurors are disqualified by reason of previous convictions. For this purpose a search may be made of criminal records in order to ascertain whether or not a jury panel includes a disqualified person. Furthermore, in cases involving national security or terrorism additional steps may be taken to test the integrity of a potential juror. The Attorney-General has laid down guidelines on the conduct of jury checks. 24. On the trial of an indictment, and before the jurors are sworn, the accused and the prosecution may object to the jurors who are called to serve. Challenges are of two kinds: (1) "to the array", that is to say to the whole number of persons in the panel, and (2) "to the polls", that is to say to individual jurors. 25. Challenges to the polls must be for cause. The Juries Act 1974 specifies the causes for challenge including the presumed or actual partiality of a potential juror. Any challenge for cause must be decided by the judge before whom the accused is to be tried. The challenging party must provide prima facie evidence of good cause for this purpose. If the challenge for cause is allowed, the juror is ordered to stand down and a fresh juror is called. Challenges for cause are unlimited. 26. The prosecution alone are entitled to require a juror "to stand by" in which case he returns to the panel from which jurors are selected. The Attorney-General issued Guidelines in November 1988 on the exercise of the prosecution’s right to ask jurors to stand by. The Guidelines indicate, inter alia, that the right should be asserted only on the basis of clearly defined and restrictive criteria. 27. In certain types of criminal proceedings it is also the practice for the trial judge to put questions to the panel of jurors before the trial begins in order to pre-empt any risk of partiality. This practice is typically used in terrorist cases as well as in cases involving allegations of police misconduct or fraud against companies or government departments. The judge’s questions are designed to establish whether, for example, a potential juror is related to or is a close friend of police officers or members of the armed forces, or is employed by the company or government department involved in the criminal proceedings. 28. Section 17 of the Juries Act 1974 states that the verdict of a jury in proceedings in the Crown Court need not be unanimous if (a) in a case where there are not less than eleven jurors, ten of them agree on the verdict, and (b) in a case where there are ten jurors, nine of them agree on the verdict. The jury must spend at least two hours in deliberations before a majority verdict can be accepted. 29. At any time during their deliberations the jurors may send a note to the trial judge asking for further assistance or clarification. On receipt of a jury note the established practice is for the trial judge to show the note to counsel for the prosecution and defence in the absence of the jury and to invite their submissions on a suitable response. Where a judge receives a note from a jury, including one alleging misconduct or bias within the jury, the following options are available to the judge: (a) to give the jury a further direction; or (b) to discharge up to three jurors and to allow the trial to continue with the remaining jurors (section 16 of the Juries Act 1974); or (c) to discharge the entire jury and order a retrial before a fresh jury, if the judge considers there is a high degree of need for this course of action; or (d) to enquire of the jury as a whole whether they are capable of continuing and returning a verdict. 30. Where an application to discharge a juror on the ground of misconduct or bias is made, it is established in English statute law (see paragraph 31 below) and common law that enquiries or investigations should not be made into what is said in the jury room after the jury have retired (R. v. Orgles [1994] 1 Weekly Law Reports 108). 31. The rule governing the secrecy of jury deliberations is set out in section 8 (1) of the Contempt of Court Act 1981. Section 8 (1) states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. 32. In the case of R. v. Gough ([1993] 2 All England Law Reports 724) the House of Lords restated and clarified the law on bias which was applicable at the time of the conviction of the applicant. If the possibility of bias on the part of a juror comes to the attention of the trial judge in the course of a trial, the trial judge should consider whether there is actual bias or not (a subjective test). If this has not been established, the trial judge must then consider whether there is a "real danger of bias affecting the mind of the relevant juror or jurors" (an objective test). In this latter respect Lord Goff, in the Gough case, stated as follows: "... I think it is unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court, in such cases as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time ... I would prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias." 33. Section 95 of the Criminal Justice Act 1991 came into force on 31 October 1991. The Secretary of State is obliged under section 95 to publish each year such information as he considers necessary for the purpose of, inter alia, facilitating the performance by persons engaged in the administration of criminal justice of their duty to avoid discriminating against any persons on the ground of race. 34. In March 1991 the Lord Chancellor announced the formation of an Ethnic Minorities Advisory Committee as a sub-committee of the Judicial Training Board. By 10 November 1993 this sub-committee had initiated its first seminar on ethnic minority issues for members of the senior judiciary. Race-awareness training for full and part-time members of the judiciary began in early 1994 and is the largest single judicial training exercise ever conducted in the United Kingdom.

train

001-86889

ENG

UKR

CHAMBER

CASE OF SOLAZ v. UKRAINE

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

Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

5. The applicant is a limited liability company registered in Moscow. 6. On 2 September 1992 the applicant company purchased an aircraft from the Kharkiv State Aviation Industrial Enterprise (Харківське державне авіаційне підприємство, hereafter “the Enterprise”) for 5 million United States dollars (USD). By February 1993 this amount had been paid in full to the Enterprise. On 19 April 1993 the applicant company and the Enterprise signed an aircraft acceptance certificate, entailing, according to the applicant company, the transfer of ownership. On 20 April 1993 a Ukrainian crew – including the chief pilot Mr I. – flew the aircraft to Russia. 7. Until April 1994 the aircraft underwent test flights at the Ramenskoye airfield, located in the Moscow region. On 5 April 1994 and for unspecified reasons, the aircraft was flown back to Ukraine where it landed at the Enterprise’s airfield. 8. In the meantime, namely on 30 March 1994, a Ukrainian Customs officer had drawn up a report that customs rules had been violated. According to this report, when the aircraft had crossed the Ukrainian-Russian border in April 1993, it had been declared by officials of the Enterprise as temporarily exported for test flights whereas it had in fact been exported by way of sale to the applicant company. 9. On 27 May 1994 the Ukrainian Customs authorities instituted criminal proceedings for the attempted smuggling of the aircraft to Russia. On an unspecified date the case was transmitted to the Kharkiv Regional Department of the Security Service (Управління Служби Безпеки України по Харківській області, hereafter “the USBU”). 10. By rulings of 3 December 1994 and 13 November 1995, the USBU investigator decided to classify the aircraft as material evidence (визнав речовим доказом) and attached it to the case file pending the outcome of the criminal proceedings. 11. On 14 December 1995 the Deputy Head of the Investigative Unit of the USBU decided to put the aircraft up for sale by issuing a formal order to this effect (ухвала про долю речового доказу). 12. By letter of 17 January 1995 the Acting Head of the Investigative Unit of the USBU informed the applicant company that the aircraft had been acquired by the Ministry of the Interior (hereafter “the Ministry”) for amount of USD 25,000. 13. On an unspecified date the USBU investigator charged Mr I. with smuggling. In August 1996, the same charge was brought against the Enterprise’s Deputy Director General Mr N. and – in July 1997 – also against the Enterprise’s Director General. The charge against the latter was subsequently dropped for lack of any corpus delicti. 14. By letter of 6 September 1997, the Deputy Prime Minister of the Russian Federation requested the Prime Minister of Ukraine to expedite the criminal proceedings relating to the aircraft at issue. 15. On 16 August 1997 the case was sent to the Kyivsky District Court of Kharkiv (hereafter “the Kyivsky Court”) for trial proceedings. On 16 October 1997 the Kyivsky Court allowed the applicant company to join the criminal proceedings as a civil claimant. On an unspecified subsequent date the Ministry joined the proceedings as a civil respondent. 16. At a preparatory hearing on 1 December 1997 the Kyivsky Court held that further investigations were required and remitted the case to the Kharkiv Regional Prosecutor’s Office (hereafter “the Prosecutor’s Office”), which filed an appeal against this decision. 17. On 20 January 1998 the Kharkiv Regional Court dismissed the prosecution’s appeal, holding inter alia: “The AN-72 aircraft, which constitutes material evidence, was unlawfully sold at the pre-trial stage of the proceedings, thereby prejudging any subsequent court decision. In view of the fact that [the applicant company’s] ownership of the AN-72 aircraft is not disputed by anyone and that this company has been admitted as a civil claimant in the proceedings, the investigating authorities should take measures, as provided by law, in order to fulfil the claim in kind or to secure an equivalent amount of money.” 18. The Deputy Prosecutor of the Kharkiv Region filed a protest (extraordinary appeal) against the Kyivsky Court’s decisions of 16 October 1997 and 1 December 1997. On 24 June 1998 the Presidium of the Kharkiv Regional Court dismissed this protest. As regards the decision of 16 October 1997, it found no reason to deny the applicant company the status of civil claimant in this criminal case. 19. On 1 July 1999, the Prosecutor’s Office submitted the case to the Kyivsky Court, which committed Mr I and Mr N for trial. 20. On 17 November 2000 the applicant company requested the Kyivsky Court to quash the investigator’s order of 14 December 1995 to put the aircraft up for sale or, alternatively, to impound the aircraft pending trial. On the same day, the Kyivsky Court dismissed the first request and – accepting the applicant company’s argument that operating the airplane would entail wear and tear and depreciate its value – accepted the request to impound the aircraft for the duration of the criminal proceedings. 21. On 20 February 2001 the Zaliznychny District Bailiffs’ Service of Kyiv arrested the aircraft which, at that time, was parked at Kyiv airport. However, according to a letter dated 30 March 2001 by the Head of this Bailiffs’ Service, the arrest could not be maintained as the aircraft had disappeared from its parking place at this airport. 22. On 2 April 2001 the Kyivsky Court ordered the Ministry of the Interior to inform the court of the whereabouts of the aircraft and to implement its seizure order of 17 November 2000. 23. On 3 April 2001 the Ministry of International Affairs of the Russian Federation filed a note with the Ministry of International Affairs of Ukraine, stating that it “would be grateful for the return as soon as practically possible of the AN-72 aircraft to [the applicant company]”. 24. On 22 May 2001 the Ministry of the Interior appealed against the seizure order of 17 November 2000 to the President of the Kharkiv Regional Court and requested its suspension pending the determination of the appeal. On 28 May 2001 the Kyivsky Court granted this request and suspended the enforcement of the seizure order. No further information about these appeal proceedings has been submitted by the applicant company. Apparently, the seizure order has never been implemented. 25. On 22 June 2001 the Kyivsky Court decided to disjoin the applicant company’s civil claim from the criminal case, considering that it would be more appropriate to determine it in civil proceedings. The applicant company appealed. 26. On 6 July 2001 the Kyivsky Court found that the pre-trial investigations were insufficient and remitted the case to the Prosecutor’s Office. The accused Mr N. appealed. 27. On 22 January 2002 the Kharkiv Regional Court examined both appeals. It upheld the Kyivsky Court’s decision to remit the case for additional investigations, but quashed the impugned decision of 22 June 2001 and reinstated the applicant company’s status as civil claimant in the criminal proceedings. 28. On 30 July 2002 the Kharkiv Regional Prosecutor forwarded the case to the Chervonozavodsky District Court of Kharkiv (hereafter “the Chervonozavodsky Court”) for trial proceedings. 29. On 13 March 2003 the Chervonozavodsky Court accepted a request filed by the applicant company to seize the aircraft pending the trial proceedings. 30. In the course of a hearing held on 17 July 2003, the Ministry challenged the above seizure order on the ground that the law did not entitle a court to order a general seizure of State property, but only to order the owner to refrain from specified actions. The Chervonozavodsky Court held that there was no proof that the Ministry owned the impugned aircraft. In particular the sales contract was said to be lost and the license to operate the plane, issued by the Ministry of Defence, authorised a certain Ministry’s unit to use it, without any reference being made as to who was its owner. However, the court decided to quash its ruling of 13 March 2003 and prohibited the Ministry from disposing of the aircraft in any form whatsoever and from moving it outside the Zhuliany airport, where it was stationed at the material time. 31. In the meantime Mr I. died and the charge against him was dropped. 32. On 13 October 2004 the Chervonozavodsky Court acquitted Mr N, who by that time had become the sole defendant in the proceedings, on the ground of lack of corpus delicti (відсутність складу злочину). The court further held that that the investigating authorities’ decision to sell the aircraft was unlawful. Moreover, there was no cogent proof of the Ministry’s ownership of the aircraft. The aircraft, which thus remained the applicant’s property and an item of material evidence, could be disposed of by a court in a judgment on the criminal case. Based on these findings the Chervonozavodsky Court ordered that the aircraft be handed over to the applicant. It, however, found that it had no jurisdiction, in the criminal case, to entertain the applicant company’s claims for damages against the Ministry, the Enterprise, the USBU and the Customs. The prosecutor, the applicant company, the Ministry and Mr N. (who considered that he should have been acquitted for lack of any offence – відсутність події) filed appeals against this judgment. 33. On 31 March 2005 the Kharkiv Regional Court of Appeal (hereafter “the Court of Appeal”) decided not to entertain the prosecution’s appeal on the ground that it was not signed by the prosecutor who had participated in the proceedings before the first instance court. The appeals of the Ministry, the applicant and Mr N. were rejected as unsubstantiated. The same parties made cassation appeals. 34. On 11 April 2006 the Supreme Court quashed the decision of 31 March 2005 and remitted the case for fresh appellate hearing on the ground that the Court of Appeal’s refusal to entertain the prosecutor’s appeal had not been reasonable. 35. On 1 August 2006 the Court of Appeal granted the appeal of the prosecutor, quashed the judgment of 13 October 2004 and remitted the case to the Prosecutor’s Office for further pre-trial investigations. 36. The investigation in the case is still pending.

train

001-84644

ENG

CZE

ADMISSIBILITY

KOLECKAR v. THE CZECH REPUBLIC

Inadmissible

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

The applicant, Mr Pavel Kolečkář, is a Czech national who was born in 1961 and lives in Rousínov. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 November 1990 the applicant lodged an action for damages against the State, represented by the Ministry of Justice, with the Prague 2 District Court (obvodní soud), seeking payment of the sum of 90,760 CZK (3,387 EUR). The court transferred the case to the Vyškov District Court (okresní soud). On 2 August 1996 the Brno Regional Court (krajský soud) decided to disqualify all the judges of the District Court and, at the same time, referred the case to the Brno Municipal Court (městský soud). It appears that the proceedings are still pending. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).

train

001-93135

ENG

RUS

CHAMBER

CASE OF VDOVINA v. RUSSIA

Violation of Article 13 - Right to an effective remedy;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 1932 and lives in Tula. 5. In 1999 the applicant inherited a flat. On 19 August 1999 Mr L., the grandson of the testator, brought an action against the applicant seeking invalidation of the will and transfer of the title to the flat. Judge A. of the Zarechinskiy District Court of Tula adjourned the examination of the action until 10 October 1999, ordering Mr L. to pay a court fee. 6. After the fee had been paid, the District Court fixed a preliminary hearing for 19 July 2000. At that hearing it ordered a post-mortem forensic psychiatric examination of the testator to establish whether she had been competent to make a will. The proceedings were stayed until 27 September 2000. According to the Government, the examination was not performed as the case file did not contain the materials necessary for the experts to carry out their inquiry. 7. No hearings were held between October 2000 and 27 June 2001. 8. On 27 June 2001 the case was assigned to judge P., who held a preliminary hearing on 16 July 2001. At that hearing the parties asked the District Court to obtain the attendance of certain witnesses. The Government submitted that the next hearing had not been scheduled to take place until 25 October 2001 because the presiding judge had to study the parties’ requests. 9. On 25 October 2001 the District Court, at Mr L.’s request, again ordered a post-mortem psychiatric examination of the testator and stayed the proceedings. The expert examination was performed on 30 December 2002. Three months later the District Court resumed the proceedings. 10. The hearing fixed for 27 March 2003 was postponed until 14 May 2003 to allow the applicant’s representative to lodge requests. 11. On 14 May 2003 the Zarechinskiy District Court adjourned the proceedings because Mr L. had died on 28 April 2003 and it was necessary to identify his heirs or legal successors. The proceedings were resumed on 3 December 2003 and a hearing was scheduled for 18 December 2003. 12. Of the four hearings listed between 18 December 2003 and 1 June 2004, two were adjourned because the applicant’s representatives defaulted, one was rescheduled because the claimant’s lawyer did not attend and one was postponed because a witness did not attend. 13. On 1 June 2004, at the request of the applicant’s lawyer, the District Court authorised an additional post-mortem psychiatric examination of the testator. The experts completed the examination on 17 November 2004. The District Court received the case file with the expert report on 13 January 2005. 14. Due to judge P.’s resignation, the case was assigned to judge D., who fixed the first hearing for 4 March 2005. That hearing and the subsequent hearings on 6 and 11 April 2005 were postponed because the claimant’s lawyer was ill. 15. On 7 June 2005 the District Court once again stayed the proceedings to identify Mr L.’s heirs. In the meantime, judge D. resigned and the case was assigned to judge M., who resumed the proceedings on 1 November 2005 and fixed the first hearing for 15 November 2005. Ms S. joined the proceedings as the claimant. 16. Of the fourteen hearings scheduled between 15 November 2005 and February 2007, five hearings were adjourned either because the applicant and her representatives defaulted or she filed applications for the examination of additional evidence, six hearings were postponed because Ms S. and her lawyer did not attend, two hearings were rescheduled at Ms S.’s request and one hearing was adjourned because the claimant’s witness defaulted. 17. On 7 February 2007 the District Court dismissed the action in full. On 2 August 2007 the Tula Regional Court upheld the judgment. 18. According to the applicant, her numerous complaints to various State bodies about the excessive length of the proceedings were futile. In particular, on 14 November 2005 the applicant received a letter from the acting President of the Tula Regional Judicial Qualification Board. He noted that “no unjustified procrastination in the civil case ha[d] been established”.

train

001-77121

ENG

RUS

ADMISSIBILITY

KHOLODOVY v. RUSSIA

Inadmissible

Christos Rozakis

The applicant, Mr Yuriy Viktorovich Kholodov and Mrs Zoya Aleksandrovna Kholodova, are Russian nationals who were both born in 1937 and live in Moscow. They were represented before the Court by Ms K. Moskalenko and Mr M. Rachkovskiy, lawyers practising in Moscow. s, may be summarised as follows. The applicants are the parents of Mr Dmitriy Yurievich Kholodov, a journalist writing for the Moskovskiy Komsomolets newspaper, who was killed in his office on 17 October 1994 by a bomb explosion. On 6 March 1995 the applicants were granted the victim status in the criminal case concerning their son’s assassination. The investigation charged five officers of the Russian Army and one civilian with intentional murder of Mr D. Kholodov. It was alleged that the plot had been designed to put an end to Mr Kholodov’s publications about corruption in the Russian Army. The newspaper and another wounded journalist, but not the applicants, constituted themselves as civil parties in the criminal proceedings. On 26 June 2002 the Military Court of the Moscow Command acquitted the defendants of all charges. On 27 May 2003 the Military Division of the Supreme Court of the Russian Federation quashed the acquittal and remitted the matter for a new examination by a different formation. The second trial began on 22 July 2003. On 10 June 2004 the Military Court of the Moscow Command again pronounced an acquittal. On 14 March 2005 the Military Division of the Supreme Court upheld the acquittal in the final instance.

train

001-72933

ENG

ITA

GRANDCHAMBER

CASE OF GIUSEPPINA AND ORESTINA PROCACCINI v. ITALY

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 applicants were born in 1932 and 1938 respectively and live in Benevento. 13. On 23 October 1989 Mr G.P., the applicants’ father, brought proceedings against E., a company, in the Benevento District Court to have a contract for the installation of windows in his flat set aside and seeking compensation for the damage incurred. 14. Preparation of the case for trial began on 30 November 1989. Of the eighteen hearings listed between 22 March 1990 and 18 May 1998 three were adjourned by the court of its own motion and three because E.’s lawyer had failed to appear, four were devoted to organising expert evidence, five to hearing evidence from witnesses, one was adjourned because the judge had withdrawn from the case, another one was adjourned because Mr G.P.’s lawyer had failed to appear and a further one was adjourned at his request. The applicants declared their intention to continue the proceedings following Mr G.P.’s death on 27 March 1995. 15. 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 15 February 1999 and 9 October 2001 two were adjourned by the court of its own motion, one was adjourned by the judge responsible for preparing the case, one was devoted to a request to set the case down for hearing of oral submissions and two to hearing the submissions. 16. In a judgment of 30 May 2002, the text of which was deposited with the registry on 31 October 2002, the court granted the applicants’ claims in part and awarded them 945.40 euros (EUR) in compensation for the damage sustained. 17. On 10 October 2001 the applicants 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 excessive length of the above-described proceedings. The applicants requested the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the non-pecuniary damage sustained. The applicants claimed 25,000,000 Italian lire (EUR 12,911.42) each in non-pecuniary damages plus an unquantified amount for costs and expenses. 18. In a decision of 25 February 2002, the text of which was deposited with the registry on 23 April 2002, the Court of Appeal found that the proceedings had been excessively long. It held as follows: “Whereas... the applicants, as Mr Giuseppe Procaccini’s heirs, continued the proceedings he had instituted in the Benevento District Court by a summons served on 23 October 1989 seeking an order against the defendant company to replace a number of defective frames that it had installed; – during the proceedings an expert report was ordered and produced; – the proceedings are still pending before the sezione stralcio bench; – there has without any doubt been a breach of the reasonable-time requirement in respect of proceedings that have lasted 9 years; – for want of proof of pecuniary damage, a total amount of 2,250 euros can be awarded under the head of non-pecuniary loss for damage to quality of life plus statutory interest to accrue from the date of the claim, on account of the very low stakes involved in the proceedings.” The Court of Appeal dismissed the claim for pecuniary damages for lack of proof and awarded a global sum of EUR 2,250, on an equitable basis, in compensation for non-pecuniary damage and EUR 750 for costs and expenses. That decision was served on 20 December 2002 and became final in February 2003. 19. When payment was not forthcoming, on 26 May 2004 the applicants served notice on the authorities to pay the amounts owed. When that proved unsuccessful they applied for a garnishee order, which was granted them on 12 May 2005 against the Bank of Italy. According to the information provided by the applicants at the hearing on 29 June 2005, the Court of Appeal’s decision had not yet been executed. 20. In a letter of 7 January 2003 the applicants informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of their application. In the same letter the applicants also informed the Court that they did not intend to appeal to the Court of Cassation because an appeal to that court could only be on points of law. 21. 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 “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.” 22. 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.” 23. 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)”. 24. 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...” 25. 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. 26. 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. 27. 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. ... 28. 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. 29. 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...” 30. 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. ...” 31. 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. ...” 32. 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. 33. 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

001-58214

ENG

GRC

CHAMBER

CASE OF AVIS ENTERPRISES v. GREECE

Lack of jurisdiction (out of time)

C. Russo;N. Valticos;R. Pekkanen

5. The applicant company owns a 13,800 sq. m plot of land on the island of Santorini, a popular tourist destination in Greece. On 15 February 1978, by decision no. 1103/1978 of the Prefect of the Cyclades islands, the State expropriated real estate covering a surface of 4,200 sq. m, with a view to installing floodlights for Santorini Airport. 270 sq. m of the applicant company’s land were expropriated. 6. On 20 December 1979 the State applied to the Court of First Instance of the island of Syros for a provisional amount of compensation per square metre of land expropriated to be assessed. The applicant company was not summoned to appear and did not do so. On 23 February 1981 the court assessed the provisional amount of compensation. On 19 August 1982 the provisional compensation was paid to the Bank for Official Deposits, but the applicant company refused to accept it on the ground that it was substantially less than the value of the land that had been expropriated from it. 7. On 18 August 1981 the applicant company had applied to the Court of Appeal of the Aegean Sea for a final amount of compensation per square metre to be assessed. It had also sought special compensation for three other parcels of its land that had not been expropriated, on the ground that their value had diminished as the expropriated part had divided the land in two. On 6 July 1984 the Court of Appeal assessed the final amount of compensation and special compensation for the three unexpropriated parcels. 8. On 8 March 1985 the State appealed to the Court of Cassation. On 27 June 1986 the Third Division of the Court of Cassation upheld the Court of Appeal’s judgment in so far as it had assessed the final amount of compensation and remitted the case to the Fourth Division to rule on the merits of the action brought by the applicant company on 18 August 1981. On 10 July 1987 the Fourth Division of the Court of Cassation dismissed the applicant company’s claim for special compensation in respect of two of the three unexpropriated parcels of land. The difference between the amount of compensation as provisionally assessed and as finally assessed by the Court of Cassation was not at that time paid to the applicant company. 9. On 25 June 1990 the applicant company applied to the Court of Appeal of the Aegean Sea for a declaration that the expropriation had been rescinded by operation of law as the final amount of compensation due had not been paid. On 20 March 1991 the Court of Appeal dismissed that application as unfounded. 10. On 29 May 1991 the difference between the amount of compensation as provisionally assessed and the amount as finally assessed by the Court of Cassation was paid to the Bank for Official Deposits. The applicant company, which has not yet accepted that sum, alleges that it was not at any stage advised that it had been deposited. 11. On 10 June 1991 the applicant company appealed to the Court of Cassation against the judgment of 20 March 1991. It also sought an order that the State pay the costs of the proceedings. On 20 June 1995 the Court of Cassation upheld the impugned judgment and dismissed the applicant company’s appeal. It also held that the applicant company was to bear the costs. In the earlier stages of the proceedings, there had been a set-off between the parties in respect of costs, even though the applicant company had requested that the costs be borne by the State.

train

001-87142

ENG

LTU

CHAMBER

CASE OF MILINIENE v. LITHUANIA

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Nona Tsotsoria

8. The applicant was born in 1964 and lives in Vilnius, where she formerly worked as a judge. 9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. On 10 June 1998 the applicant was approached by SŠ, an acquaintance, with whom, she alleged, she had merely discussed the sale of her car. Unbeknownst to her, their conversation during that meeting was secretly recorded by SŠ. 11. On 16 June 1998 a special anti-corruption police unit of the Ministry of the Interior (Specialiųjų tyrimų tarnyba, hereafter referred to as the STT) received a complaint by SŠ that the applicant had demanded a payoff, in the form of a new car, in return for admitting and deciding SŠ’s civil claim to declare null and void the auction of his property. 12. On the same date the STT applied to the Deputy Prosecutor General, requesting a “Criminal Conduct Simulation Model” (“the model”) to be authorised for a period of one year. The STT stated in the application: “[T]he STT received an application by [SŠ] concerning [the applicant’s] demand for a bribe in return for admitting his civil action and ruling in [his] favour. [The applicant] ... guaranteed that the auction would be lifted by a court decision taken by her. In return, [the applicant] asked for a good car, to be bought by [SŠ] with his money. With a view to recording and discontinuing [the applicant’s] unlawful act, [SŠ] has agreed to collaborate with STT officers, and simulate the following crimes: the buy-off and breach of currency and securities regulations ... under Articles 284 and 329 of the [Criminal Code]. [The model] will be executed by STT officers by way of a separate operational action plan. Basis - application by [SŠ].” 13. On 17 June 1998 the model was authorised by the Deputy Prosecutor General. The text of the model reiterated the wording of the STT application of 16 June 1998. 14. On 8 October 1998 the STT wrote a letter to the Prosecutor General, informing him, as follows, about the facts established on the basis of the conversations secretly recorded by SŠ with technical equipment provided by the STT: a) By 16 June 1998 SŠ had met the applicant three times: on 10 June in her office; on 16 June at 11.30 a.m. again in her office; on 16 June at 5 p.m. in SŠ’s car. In the course of their exchanges, the applicant had demanded a bribe of 10,000 American dollars (“USD”) in return for a favourable resolution of SŠ’s civil dispute. Following the authorisation of the model on 17 June 1998, SŠ had been given money by the anti-corruption police. In the morning of that day he had handed over USD 1,000 to the applicant and, in the afternoon, he had given her a further USD 9,000, to be used by the applicant for a new car. At a meeting in the evening of 17 June 1998, the applicant had drafted SŠ’s civil claim and had instructed him on the future course of the proceedings. On 30 June 1998 the applicant had further instructed SŠ on his case, whilst assuring him of its favourable outcome. b) On 11 September 1998 the applicant had asked SŠ to obtain new winter tyres for her car. On 24 and 25 September 1998 the applicant had informed SŠ that further payments might be required to buy off certain judges of the higher court. On 28 September 1998 the applicant had taken from SŠ a further bribe of USD 500 for the winter tyres. On the same date she had obtained from him USD 1,000 for bribing higher judges. The applicant had thus taken a total of USD 10,500 in personal bribes, as well as USD 1,000 to buy-off certain higher court judges. 15. The STT also submitted that the case materials disproved any element of undue instigation as the applicant had: - recommended a particular lawyer to SŠ for his civil case; - drafted his claim, assuring him of its favourable outcome; - registered SŠ’s case in court and had personally undertaken to examine it; - bought a new car after having received the bribe; and - met SŠ on a number of occasions on her own initiative, whilst assuring him of the favourable outcome of his claim. 16. On 9 October 1998 the applicant was apprehended in her office whilst receiving a further USD 4,000 from SŠ. On the same date the STT wrote a letter to the Prosecutor General, requesting the applicant’s prosecution, whereupon the Prosecutor General decided to institute criminal proceedings against the applicant for accepting a bribe (Article 282 of the Criminal Code as then in force). 17. On 12 October 1998 the Prosecutor General applied to the Seimas (Parliament), requesting that the applicant’s judicial immunity be lifted and that she be suspended from her functions pending the outcome of the criminal case. It was noted in this connection that the applicant had demanded and obtained a bribe from SŠ. On 5 November 1998 Parliament lifted the applicant’s immunity. By a decree of 10 November 1998, the President dismissed the applicant from her position as a judge. 18. SŠ died on 12 April 1999. 19. On 25 May 1999 the applicant was indicted for accepting a bribe in large amounts (Article 282 paragraph 2 of the Criminal Code as then in force), cheating (Article 274) and official malpractice (Article 285). On 4 August 1999 the prosecution rejected the applicant’s request to discontinue the case. On 9 August 1999 the case was transmitted to the Vilnius Regional Court, a judge of which, on 17 August 1999, committed the applicant for trial on the above counts. 20. On 7 October 1999 the applicant requested the Vilnius Regional Court to apply to the Constitutional Court to examine the compatibility of the Operational Activities Act with the Lithuanian Constitution. In particular, she claimed that the Act had not duly protected persons from possible incitement by the investigating authorities to commit offences. In addition, it was alleged that the power conferred upon the prosecution under the Act to authorise the model - which effectively allowed private persons like SŠ to imitate criminal acts but avoid criminal liability - had gone beyond the constitutional competence of the prosecutors. Consequently, the authorisation of such models should only have been issued by courts. She further claimed that a judicial authorisation should have been required for certain intrusive measures under the Act such as the secret recording of conversations. 21. On 8 October 1999 the Vilnius Regional Court accepted the request and applied to the Constitutional Court with a view to establishing the compatibility of the Operational Activities Act with the Constitution. On 8 May 2000 the Constitutional Court found this legislation to be generally compatible with the Constitution (see Ramanauskas v. Lithuania, [GC], no. 74420/01, § 34). 22. In the course of the trial, the Vilnius Regional Court reclassified the charge of cheating as an attempt to buy off State officials. 23. On 22 September 2000 the Vilnius Regional Court convicted the applicant of accepting a bribe in large amounts (Articles 282 paragraph 2 of the Criminal Code as then in force), attempting to buy off State officials (Articles 16 and 284) and official malpractice (Article 285). She was acquitted of cheating (Article 274). The applicant was sentenced to four years’ imprisonment, banned from State service for five years, and had her property confiscated. The court based the conviction mostly on the recordings made by SŠ when implementing the model, finding that she had promptly accepted a bribe from him of USD 10,000 on 17 June 1998 and then a further USD 500 on 28 September 1998. On 28 September 1998 she had obtained from SŠ another USD 1,000 with which to bribe certain higher court judges in order to ensure the favourable outcome of his case on appeal. It was established that, in return for the bribe, the applicant had drafted SŠ’s civil claim (as of the evening of 17 June 1998), had made the necessary arrangements to be appointed as the judge in his case, and had started examining it. The court did not find that the USD 4,000 obtained by the applicant from SŠ on 9 October 1998 had been used for any criminal purpose. She was therefore acquitted of any offence in respect of this money. 24. As regards the applicant’s allegations of incitement, the court held as follows: “The acts of [SŠ] as a whole are not considered to be a provocation because he acted under [the model] authorised in accordance with the law[.] From his application [of 16 June 1998] it appears that he applied to the law enforcement authorities alleging, in his opinion, unlawful actions on the part of [the applicant]. ... The case contains no objective evidence of close or intimate relations between [SŠ and the applicant], or that she had been intimidated [by SŠ] ... [T]he model was authorised on 17 June 1998, while [SŠ] applied to the officers on 16 June 1998[;] and on the same day he taped his meeting with [the applicant] by a voice recorder given by the officers ... This recording constitutes proper evidence, in that it was made in order to collect and verify the preliminary information about the crime ... On 17 June 1998, [only after] the STT officers had properly verified the preliminary information about [the applicant’s] criminal intentions and [following] the authorisation of the model in accordance with the law, [SŠ] “joined” the continuing, but not completed, offences of the applicant ... . The chamber considers that [SŠ] did not overstep the limits established by [the] model.” 25. The court excluded from the incriminating evidence against the applicant the transcript of a secretly taped telephone conversation between her and SŠ at 9 a.m. on 16 June 1998, as it had been obtained without the appropriate judicial authorisation. However, the court found no domestic unlawfulness in the admission as evidence of the remainder of SŠ’s recorded conversations with the applicant. 26. Upon the applicant’s appeal, on 23 November 2000 the Court of Appeal amended the lower judgment, quashing the applicant’s conviction for official malpractice, but upholding her conviction for accepting a bribe and the attempted buy-off. The sentence of imprisonment remained unchanged. The Court of Appeal confirmed the exclusion from the evidence of the recording of the early morning telephone conversation of 16 June 1998. However, the court ruled that the secret recording by SŠ of his other conversations with the applicant, and the rest of the evidence subsequently collected in implementing the model, had been lawful, there being no signs of incitement to commit the offences. 27. The applicant submitted a cassation appeal in which she alleged the unlawfulness of the recordings of her conversations with SŠ obtained between 10 June 1998 and 9 October 1998, and the improper use of those recordings as evidence to support her conviction. The applicant also complained that SŠ and the authorities had entrapped her into committing offences upon which she had not been ready to embark. In this respect, the applicant complained that the authorities had had no good reason to suspect her of contemplating taking a bribe, as her meeting with SŠ on 10 June 1998 had only attested to their discussion about her intention to sell her car. She stated that, in his application to the STT of 16 June 1998, SŠ had seriously distorted the facts. The applicant alleged that, in executing the model, the authorities had exceeded its scope by paying a much more significant amount of money than had been required to obtain her conviction for bribery. She claimed that all the investigative actions by SŠ and the authorities should have been discontinued upon her receiving the first instalment of USD 1,000 in the morning of 17 June 1998. The subsequent payments had served only to inflate the impugned criminal act (accepting a bribe) out of all proportion, and to obtain the commission by her of a further crime (the attempted buy-off of higher court judges) which had not been foreseen when authorising the model. 28. On 13 March 2001 the Supreme Court amended the appeal judgment, but upheld the conviction for accepting a bribe and the attempted buy-off of higher court judges. The applicant’s sentence remained unchanged. In reply to the applicant’s allegations of incitement, the Supreme Court stated inter alia: “The recording of the conversation of 10 June 1998 ... attests that [SŠ] asks [the applicant] to accept his suit and declare the auction null and void ... The applicant, albeit not eagerly, agrees to take the case, asking [SŠ] to sell her car. [SŠ] presented this recording to [the STT] together with his application, stating that [the applicant] demands a bribe ... This was the initial information about the preparation of the offence (Article 4 paragraph 1 of the Operational Activities Act, hereinafter the OAA). Since that [information] was insufficient to undertake operational steps, the STT officers decided to verify it (Article 4 paragraph 2 (2) of the OAA). For this purpose, on 16 June 1998 [SŠ] was given a recorder to tape secretly his [next] conversation with [the applicant]. It was established during the verification that the applicant has for some time intended to get a newer car ... She ... asked [SŠ] to sell the car in her possession, and buy a newer car with the money received. [SŠ] explained to the applicant [the] difference between the value of her present car and the desired car ... [whilst] offering to cover the price difference with his own money, in return for [the applicant] admitting his civil action ... and deciding it in his favour ... The applicant agreed with this proposal, i.e. the preliminary information on [the applicant’s] readiness to accept a bribe was confirmed. The cassation arguments that [the applicant] was provoked into commit the crime are unsubstantiated. The above circumstances confirm that [the applicant] had wanted to take a bribe, in that she immediately accepted the offer without any outside pressure. The recordings also confirm that on 16 June 1998 [SŠ and the applicant] agreed upon the specific object of the bribe, a car ... costing 10,000 US dollars. The specific agreement about the bribe corresponds to the preparatory stage of a crime provided for in Article 282 of the Criminal Code. The criminal conduct simulation model was only approved the next day, on 17 June 1998. Therefore [the authorities] “joined” the crime already being committed, in conformity with the decision of the Constitutional Court of 8 May 2000. ... [While the interests of SŠ] in applying to file the action ... to a familiar judge was unlawful, ... this fact does not invalidate the criminal conduct simulation model, which served to protect the more important general interest of preventing someone who has accepted a bribe to work as a judge ... . An offer to accept a bribe cannot be considered to be active pressure to commit an offence, which is not allowed by Article 8 paragraph 1 (3) of the OAA, and which would contradict the Constitutional Court’s decision of 8 May 2000 ... The criminal conduct simulation model [as authorised in this case] confirms that its limits were defined not by a number of actions, but by specifying the Articles of the Criminal Code establishing criminal responsibility for the simulated offences ... On 17 June 1998 the STT officers could not discontinue the execution of the model because it was necessary to establish if the applicant would keep her word - if she were to admit [SŠ’s] action [on her case docket] and decide it in favour of the plaintiff. The qualification of [the applicant’s] actions depended on her future conduct: had [she] refused to examine the case, her act would have been classified not under Article 282 paragraph 2, but under Article 274 paragraph 3 of the Criminal Code (obtaining property in large amounts by deception). Nor were the confines of the model exceeded in terms of time, in that [it] had been authorised for a year ... The evidence collected in the course of executing the model ... confirm that [the applicant] was indeed trying to keep the promise given to [SŠ]: she accepted (without the knowledge of the court president) and rectified [his] draft civil claim, gathered favourable evidence, consulted her mother [a lawyer] on this question, and discussed the questions raised by [SŠ’s] civil case even during her holidays.” 29. The Supreme Court also found that the recordings made by SŠ had been properly admitted as evidence, and that the unlawfully-obtained evidence (the secretly taped telephone conversation of 16 June 1998; paragraph 26 above) had been rightly excluded from the case. That decision was final. 30. On an unspecified date the applicant was released from prison after having completed her sentence. 31. The relevant domestic law and practice, as well as the relevant international law, have been summarised in the judgment of 5 February 2008 in the case of Ramanauskas v. Lithuania ([GC] no. 74420/01, §§ 31-37).

train

001-57781

ENG

AUT

CHAMBER

CASE OF HERCZEGFALVY v. AUSTRIA

No violation of Art. 3;No violation of Art. 5-1;No violation of Art. 5-3;No violation of Art. 8;Violation of Art. 5-4;Violation of Art. 8;Violation of Art. 10;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

C. Russo;R. Pekkanen

8. Mr Istvan Herczegfalvy is a Hungarian citizen who has lived in Austria since 1964. He currently resides in Vienna. 9. From 13 May 1972 to 13 May 1977 he served two prison sentences in succession, following convictions pronounced by the Vienna Regional Criminal Court (Landesgericht für Strafsachen) and confirmed in part by the Supreme Court (Oberster Gerichtshof), inter alia for assaults on his wife, clients of his television repair business and public officials. 10. The Inner Vienna District Court (Bezirksgericht Wien Innere Stadt) on 23 December 1975 and the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen), acting as guardianship court (Pflegschaftsgericht), on 3 November 1977 declared the applicant partly incapacitated (beschränkt entmündigt) and appointed an adviser (Beistand) for him. They did so on the basis of a psychiatrist’s report which had been drawn up following numerous complaints by him about prison conditions. On 9 August 1983 the District Court appointed a new adviser, who has acted as such since then. According to a ruling of the guardianship court of 19 July 1984, his position was equivalent as from 1 July 1984 to that of a curator (Sachwalter) within the meaning of Article 273 (3), sub-paragraph 3, of the Civil Code (see paragraph 54 below). 11. In the meantime, further prosecutions were brought against Mr Herczegfalvy for assaults on warders and fellow prisoners and for serious threats against judges. On 10 May 1977 the Regional Court ordered that once he had finished serving his sentence on 13 May (see paragraph 9 above) the applicant should remain in detention under Article 180 (2), sub-paragraphs 1 and 3, of the Code of Criminal Procedure (see paragraph 40 below), as there was reason to fear that he might attempt to abscond and might commit other offences. The applicant unsuccessfully appealed to the Review Chamber (Ratskammer) of the Regional Court and to the Vienna Court of Appeal (Oberlandesgericht), whose rulings were given on 18 May and 21 June respectively. The pre-trial detention (Untersuchungshaft) was confirmed by the presiding judge of the Regional Court on 2 November 1977. 12. In accordance with the opinions of several experts, the presiding judge on 9 January 1978 ordered Mr Herczegfalvy’s provisional placement (vorläufige Unterbringung) in an institution for mentally ill offenders (Article 438 of the Code of Criminal Procedure; see paragraph 44 below). The order was confirmed by the Review Chamber on 6 March and the Court of Appeal on 19 April 1978, and the applicant was transferred to the special prison at Mittersteig, Vienna. 13. According to the psychiatrists who examined him, he was suffering from paranoia querulans, which was equivalent to a mental illness and meant that he was not responsible for his acts; he was extremely aggressive and incapable of understanding that his behaviour was unlawful, and there was a risk that attendance at the trial could harm his health. Following these reports, the public prosecutor’s office amended the indictment on 15 June 1978 and now sought Mr Herczegfalvy’s detention rather than conviction. From that date the detention in issue was based on Article 429 (4) of the Code of Criminal Procedure (see paragraph 44 below). The applicant’s appeal against the amended indictment was dismissed by the Court of Appeal on 30 August 1978. 14. The hearing before the Regional Court took place on 9 and 10 January 1979. It had previously been necessary to adjourn a hearing arranged for 14 December 1976 because the case-file had been lost, to adjourn a hearing of 3 May 1977 because of the applicant’s request for further witnesses to be called, a hearing of 25 October 1977 because the presiding judge was absent, one of 2 November 1977 because fresh evidence had been produced, one of 6 March 1978 because of mistakes in sending out summonses, and one of 5 April 1978 because the applicant had spat in the presiding judge’s face, which had led to the indictment being amended (see paragraph 13 above). On 10 January 1979 the court found that the charges against Mr Herczegfalvy had been proved and ordered him to be detained under Article 21 (1) of the Criminal Code (see paragraph 45 below), on the grounds that he was dangerous and not criminally responsible for his acts. The court relied on the opinions of three psychiatrists who had each diagnosed paranoia querulans which from 1975 at least had been equivalent to a mental illness. 15. The applicant brought an application for a declaration of nullity (Nichtigkeitsbeschwerde) to the Supreme Court. The Regional Court decided, however, that pending the decision he should remain provisionally detained under Article 429 (4) of the Code of Criminal Procedure, but in prison, on the psychiatrist’s recommendation. 16. On 28 June 1979 the Regional Court, relying on section 50 of the Hospitals Law, ordered that the detention should be continued and that the applicant should be transferred as a matter of urgency to a psychiatric hospital, so that the treatment he required could be carried out. Mr Herczegfalvy stayed there from 29 June to 23 July 1979 and was then returned to the prison. The Vienna Court of Appeal, to which the applicant had appealed, held on 29 August 1979 that it had no jurisdiction: as Article 429 (4) of the Code of Criminal Procedure was the only provision which could apply, it was for the Review Chamber of the Regional Court to hear the appeal. 17. On 5 September 1979 the Review Chamber upheld the detention in issue. Applying Article 429 (4) of the Code of Criminal Procedure, it ordered Mr Herczegfalvy to be sent to the Vienna psychiatric hospital so that he could receive urgent medical and socio- and psycho-therapeutic treatment there, which was essential inter alia because of the hunger strike he had carried on since 2 August 1979. On 10 September 1979 he was admitted to ward 23 of that hospital, and stayed there until his release on 28 November 1984. The applicant’s appeal against this decision was dismissed by the Vienna Court of Appeal on 8 October 1979. 18. In the meantime the Supreme Court had on 3 October 1979 varied the judgment of 10 January 1979 in part (see paragraphs 14-15 above), quashed the detention order and remitted the case to the Regional Court. 19. On 4 December 1979 Mr Herczegfalvy requested his release. On 14 December the investigating judge informed him that he continued to be detained in accordance with Article 429 (4) of the Code of Criminal Procedure. At that judge’s request, the psychiatric hospital submitted a report dated 17 January 1980 expressing the opinion that it was not possible to place the applicant in ordinary pre-trial detention, as his aggressive behaviour was still causing danger to those around him. Pursuant to Article 429 (4), the Review Chamber and the Court of Appeal extended the detention in question in 1980. 20. After hearings on 20 March and 9 April 1980 the Regional Court, to which the case had been remitted (see paragraph 18 above), found that the charges against Mr Herczegfalvy - which included further serious threats against a judge on 24 December 1979 - had been proved and ordered him to be detained in an institution for mentally ill offenders under Article 21 (1) of the Criminal Code. It based its decision on the judgment of 10 January 1979, the three psychiatric reports on which it had been based (see paragraph 14 above), and the opinions of the authors of the reports, who had appeared at the hearing and stated that despite certain improvements there had been no fundamental change in the situation. As the applicant had withdrawn his appeal and application for a declaration of nullity in writing on 30 October 1980 and at a hearing on 6 November, the judgment was on the latter date declared binding by a final order (Endverfügung), which set the date of 1 October 1981 for the next judicial review of the detention (Article 25 (3) of the Criminal Code; see paragraph 46 below). The applicant subsequently challenged the validity of his declarations. He said that he had made them only with a view to his repatriation to Hungary, which was discussed on 6 November 1980 but did not come about. 21. On 8 February 1982 the Regional Court, acting under Article 21 (1) of the Criminal Code, extended Mr Herczegfalvy’s detention, as a psychiatric report produced at the request of that court stated that he was a dangerous person. The court took its decision under Article 25 (3) of the Criminal Code, after an official of the psychiatric hospital had stated to the court that the annual review of the lawfulness of the detention should have taken place on 1 October 1981 at the latest (see paragraph 20 above). 22. On 13 July, 19 September and a date in October 1983 the applicant requested his release, pointing out that the period for carrying out the annual review had expired on 8 February 1983. On receiving the first of these applications, the court consulted a psychiatrist, who submitted a report on 22 October recommending the applicant’s release subject to supervision (see paragraph 33 below). An application to exercise its supervisory jurisdiction (Dienstaufsichtsbeschwerde) was made to the Court of Appeal, which ordered the Regional Court to reach a decision speedily; on 16 February 1984 the latter court ordered a further extension of the detention in issue. Taking into account the opinions of the psychiatric expert and the director of the hospital, filed on 25 January 1984, it considered that there had been no fundamental change in Mr Herczegfalvy’s mental state. He was still suffering from paranoia querulans, and if released would undoubtedly refuse to follow the necessary course of treatment; he would consequently be likely to bring numerous complaints or even carry out the threats he had made, in particular those against the prison staff (see paragraph 33 below). On 4 April 1984 the Court of Appeal dismissed the applicant’s appeal and confirmed that the requirements for his release under Article 47 (2) of the Criminal Code were not satisfied. 23. Mr Herczegfalvy made further applications for release on 6 June and 23 September 1984. He was conditionally released on 28 November in accordance with the court’s decision of 14 November, itself based on a psychiatric report dated 14 September (see paragraph 34 below). The court found that the applicant’s paranoia had admittedly worsened, but that it was primarily due to his detention (Haftquerulanz); the vexatious complaints and petitions (Rechtsquerulanz) did not constitute a danger within the meaning of Article 21 of the Criminal Code; since being detained the applicant had behaved with genuine aggressiveness on a few occasions only; although the possibility could not be excluded of his becoming aggressive in the event of frustration, his psychiatric history did not permit the conclusion that his abnormal personality would induce him to commit criminal offences; moreover, continued psychiatric treatment or treatment by drugs was not considered necessary by the expert, although it was recommended. 24. On being returned to prison after his stay in the Vienna psychiatric hospital from 29 June to 23 July 1979 (see paragraph 16 above), Mr Herczegfalvy had begun a hunger strike on 2 August 1979 as a protest against his detention and the refusal to give him his files. He collapsed on 28 August and was transferred to a clinic where he received intensive medical care. On 10 September 1979 he was transferred back to the Vienna psychiatric hospital, where he remained until his release on 28 November 1984 (see paragraph 23 above). 25. As the applicant was in an extremely weak state when returned there, the director of the hospital ordered him to be force fed, pursuant to section 8 (3) of the Hospitals Law (see paragraph 51 below). The applicant refused all contact and refused to have any medical examination or treatment, and was also given sedatives against his will (three doses of 30mg each of Taractan IM); on 14 and 15 September 1979 he was attached to a security bed, the net and straps of which he succeeded in cutting through. On 17 September he was given a different neuroleptic (Sordinol IM), as infiltrations had appeared. He stopped refusing food on 27 September 1979, after being allocated a single room and being given some of his files. 26. Mr Herczegfalvy again went on hunger strike from 26 November to 13 December 1979, on which date he allegedly eventually agreed to be fed through a tube (Sondenernährung) once daily. However, he later denied that his consent had been validly given. 27. In view of the deterioration of his physical and mental state, he was injected by force with 90mg of Taractan on 15 January 1980, in order to bring about a state of somnolence (Dämmerschlaf) in which it would be possible to treat him by means of perfusions. Since he had resisted this with violence, the emergency team had had to overpower him. On 18 January he was transferred to the intensive care unit, as he showed symptoms of pneumonia and nephritis; he stayed there until 30 January 1980. 28. He had not made a complete recovery when he left, and he still needed treatment with antibiotics and neuroleptics. On his return to the closed unit he was handcuffed and a belt placed around his ankles because of the danger of aggression and the death threats he was making; the restraints were not removed until 14 February 1980. According to the Government, their position was changed regularly, in order to avoid nervous paralysis, and on 12 February he had agreed to be fed by a woman doctor. The applicant stated, however, that other belts had been put around his thighs and stomach and had been untied for the first time only on 2 February; in order to obtain his files and writing materials with which to write his complaints, he had continued his hunger strike without interruption, and had been artificially fed throughout this period. 29. From 19 February 1980 the applicant calmed down and behaved in a more co-operative manner. Although he continued to insult the staff from time to time, he agreed to communicate with those around him and consented to being fed through a tube by a female doctor twice weekly. On 22 February he was given paper and a ballpoint pen. 30. Following a dispute about his correspondence, Mr Herczegfalvy was forbidden on 27 December 1980 to watch television. As his physical resistance to the forced administration of neuroleptics had frequently been in vain and had even led to injuries (loss of teeth, broken ribs and bruises), he brought a complaint of assault on each occasion that he was given medicaments. These letters, which he claimed had not been communicated to the relevant authorities, filled six binders; they were given to him on his discharge. 31. During this period he continued to refuse, at least in part, to take nourishment other than through a tube, but on 12 November 1982 he stated that he no longer needed to be fed artificially, as a doctor had persuaded him to end his hunger strike by explaining to him that it was endangering his life. Hospital reports had, however, stated that he appeared to be adequately nourished. 32. In an opinion of 5 March 1983 an expert considered that conditional release of the applicant would be possible if certain accompanying psychiatric and social measures were taken. In his view, Mr Herczegfalvy’s behaviour was much improved, so that there was now virtually no danger. 33. After a further series of complaints which were regarded as vexatious, the Regional Court consulted the hospital on 28 July 1983 as to the applicant’s possible release. On 22 October 1983 an expert noted the progress which the applicant had made and expressed the opinion that troublesome behaviour did not constitute a risk within the meaning of Article 21 of the Criminal Code. However, in a letter of 25 January 1984, the director of the hospital advised the court not to terminate Mr Herczegfalvy’s detention; as the treatment carried out, based on medication, had only a sedative effect, the possibility could not be excluded that if he were released, he would again become aggressive and dangerous. The Regional Court thereupon on 16 February 1984 refused to release the applicant (see paragraph 22 above). 34. He eventually recovered his liberty on 28 November 1984, after a further expert report dated 14 September 1984 (see paragraph 23 above). 35. While in detention Mr Herczegfalvy addressed an extremely large number of petitions and complaints to various authorities, relating inter alia to his medical treatment and the proceedings brought by him. As he considered that he did not have the necessary money, he refused on several occasions to put stamps on his letters, or sent them to the Ministry of Justice for that purpose. In order to stem this flow of correspondence, he was deprived from time to time of writing materials, and his unstamped letters were frequently returned to him, with the exception of those addressed to the public authorities, in particular the courts. 36. With respect to the letters written at the psychiatric hospital, the hospital management had agreed with the applicant’s curator that they would be transmitted to him regularly and it would be for him to decide whether it was necessary to send them on; this system would apply to all letters other than those to his lawyer, his adviser and the guardianship court. Mr Herczegfalvy has complained that even those letters were not all sent on. 37. When he left the hospital the applicant was given six binders containing the originals of these letters and also about fifty sealed letters; the postal register showed that the latter had never been sent to their addressees, namely the police, the public prosecutor’s office and the courts. 38. Mr Herczegfalvy also claimed that he had been deprived of reading matter, radio and television for long periods during his detention, in particular from 15 January 1980 to the end of February of that year and from 27 December 1980; from 15 June 1981 there had been no television set in his cell or in the ward. He alleged that these measures had been taken for disciplinary purposes only. 39. According to the Government, these measures were based on section 51 (1) of the Hospitals Law (see paragraph 51 below), had been justified for therapeutic reasons, and had lasted for a short time only on each occasion. 40. Article 180 (1) and (2) of the Code of Criminal Procedure, in the version in force at the time, permits the pre-trial detention of a person (where there are serious reasons for suspecting him of having committed a criminal offence) if there is a danger of absconding, collusion or repetition of offences. 41. The risk of absconding cannot be presumed if the accused is liable to a penalty of not more than five years’ imprisonment, is living in normal conditions and has a permanent address in Austria, unless he has already attempted to abscond (Article 180 (3)). 42. The accused can bring an application for release at any time (Article 194 (2)). Under Articles 194 and 195 the request is examined by the Review Chamber of the Regional Court at a hearing in private, in the presence of the accused or his lawyer. If the accused or the public prosecutor’s office appeals to the Court of Appeal, the hearing also takes place in private, in the presence of a member of the principal public prosecutor’s office, but in the absence of the accused and his lawyer. If no such application is made by the accused, the Review Chamber of its own motion reviews the detention when it has lasted for two months or where three months have passed since the last hearing and the accused has no lawyer (Article 194 (3)). After the definitive indictment or the fixing of the hearing date for the trial, these review hearings cease. Decisions on the continuation of the detention are now taken by the trial court during the hearing and by the Review Chamber, sitting in private, at other times (Article 194 (4)). 43. Detention on remand is terminated at the latest at the time when a person who has been convicted begins to serve his sentence; the time spent in detention on remand is automatically deducted from the sentence (Article 38 of the Criminal Code). 44. In two cases specified in Articles 429 (4) and 438 of the Code of Criminal Procedure, pre-trial detention may take the form of placement in an institution for mentally ill offenders: "If one of the reasons for detention specified in Article 180 (2) or (7) exists, or if the person concerned cannot remain at liberty without there being a danger for himself or other persons, or if medical observation of him is necessary, an order shall be made for his provisional detention in an institution for mentally ill offenders or for his admission to a public hospital for mental illnesses ..." "If there are sufficient reasons for presuming that the conditions in [Article] 21 (2) ... of the Criminal Code are fulfilled, and if reasons for detention (Article 180 (2) and (7)) exist, but the accused cannot without difficulty be detained in the prison of a court, an order shall be made that detention on remand is to take the form of provisional placement in an institution for mentally ill offenders ..." 45. Under Article 21 of the Criminal Code: "(1) If a person commits an offence punishable with a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility (Article 11) resulting from a serious mental or emotional abnormality, the court shall order him to be placed in an institution for mentally ill offenders, if in view of his person, his condition and the nature of the offence it is to be feared that he will otherwise, under the influence of his mental or emotional abnormality, commit a criminal offence with serious consequences. (2) If such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking responsibility, commits an offence punishable with a term of imprisonment exceeding one year under the influence of his severe mental or emotional abnormality. In such a case the placement is to be ordered at the same time as the sentence is passed." 46. The duration of these preventive measures is governed by Article 25 of the Criminal Code, which states that: "(1) Preventive measures are to be ordered for an indefinite period. They are to be implemented for as long as is required by their purpose ... (2) The termination of preventive measures shall be decided by the court. (3) The court must of its own motion examine at least once yearly whether the placement in an institution for mentally ill offenders ... is still necessary. ..." 47. Article 184 of the Code of Criminal Procedure provides that: "Pre-trial detention is intended to counteract the dangers specified in Article 180 (2). In accordance with the statutory provisions and the regulations based thereon, persons in pre-trial detention may be subjected to restrictions only if they serve the purposes of detention or the maintenance of security or order in the institutions. Prisoners in pre-trial detention are to be treated with calm, seriousness and firmness, in a just manner and with respect for their sense of honour, human dignity and with as little as possible interference with their personality." 48. Articles 187 and 188 of the Code of Criminal Procedure govern the correspondence of prisoners in pre-trial detention: "(1) Prisoners in pre-trial detention may, without prejudice to Article 45 of this Code and sections 85 and 88 of the Law on Enforcement of Sentences, correspond in writing with all persons who are not likely to prejudice the purpose of the pre-trial detention, and to receive visits from such persons. (2) Correspondence shall not be subject to any restrictions, unless surveillance is prejudiced by the exceptional volume of the correspondence of a prisoner in pre-trial detention. In such a case the restrictions which are necessary for proper surveillance shall be ordered. Letters which are likely to prejudice the purpose of the detention are to be withheld, unless provided otherwise by sections 88 and 90 (4) of the Law on Enforcement of Sentences, relating to written correspondence with official bodies and legal advisers. Letters from prisoners in pre-trial detention which give rise to suspicion that an offence, not being an offence which can be prosecuted only at the request of a person concerned, is being committed by means of them, are always to be stopped, unless they are addressed to a national general representative body, a national court or another national authority, or to the European Commission of Human Rights. ..." "Decisions as to which persons prisoners in pre-trial detention may correspond in writing with and which visits they may receive, surveillance of correspondence and visits, and all other orders and decisions relating to contacts between prisoners in pre-trial detention and the outside world (sections 86-100 of the Law on Enforcement of Sentences) are to be taken by the investigating judge, with the exception of surveillance of parcels. Surveillance of correspondence can be waived only in so far as no prejudice of the purpose of detention is to be feared as a result thereof." 49. Unless provided otherwise, the provisions of the Law on Enforcement of Sentences (Strafvollzugsgesetz) applicable to persons in prison also apply by analogy to persons placed in institutions for mentally ill offenders (section 167 (1) of that law). They lay down detailed regulations, for example, with respect to: - the right to necessary medical treatment (sections 66 et seq.), and compulsory medical treatment and force-feeding (section 69); - the right of access to information by means of books, magazines, newspapers, radio and television (sections 58 et seq.); - the right of correspondence, in particular with close relatives and other persons, lawyers, courts and other authorities, representative bodies, the ombudsman, the European Commission of Human Rights and, in the case of a foreign national, his consulate (sections 86 et seq.); - the right to bring petitions and complaints (sections 119 et seq.). Prisoners may submit petitions concerning their conditions of imprisonment (section 119) and complain of actions of the prison staff which in their opinion infringe their rights (section 120). Complaints are to be addressed to the governor of the prison or, where the complaint is brought against the governor, to the Federal Ministry of Justice (section 121); this remains subject to review by the Administrative Court and the Constitutional Court (Articles 130 and 144 of the Federal Constitution). Prisoners may submit petitions and requests, other than those relating to their medical treatment, by means of an application to a higher official, but this does not give the right to an administrative decision (section 120 (1), second sentence, and section 122). 50. Section 165 (1) authorises restrictions on the rights of mentally ill offenders only to the extent necessary for the attainment of the purpose of the detention, and prohibits all interferences with their human dignity and with the rights guaranteed them by sections 119 to 122. It also provides that complaints which have obviously been brought solely because of the detainee’s mental or emotional disturbance and which are not based on an infringement of his rights shall be rejected without any formal procedure. 51. Before the establishment of special institutions for mentally ill offenders, they were placed in closed units of public psychiatric hospitals, regulated by the Hospitals Law (Krankenanstaltengesetz). That law provides inter alia: "(1) The medical service must be organised in such a way that medical assistance is always immediately available in the hospital. (2) Hospital patients may be medically treated only in accordance with the principles and recognised methods of medical science. (3) Special curative treatments including surgical operations may be carried out on a patient only with his consent, but if the patient has not yet reached the age of eighteen or if because he lacks mental maturity or health he cannot assess the necessity or usefulness of the treatment, only with the consent of his legal representative. Consent is not required if the treatment is so urgently necessary that the delay involved in obtaining the consent of the patient or his legal representative or in appointing a legal representative would endanger his life or would entail the danger of serious harm to his health. The medical director of the hospital or the doctor responsible for the management of the hospital department concerned shall decide on the necessity and urgency of treatment." "Patients who are compulsorily detained ... may be subjected to restrictions with respect to freedom of movement or contact with the outside world." 52. The applicant’s partial legal incapacitation, which was pronounced in 1975 (see paragraph 10 above), was based on sections 1 (2) and 4 of the Incapacitation Regulations (Entmündigungsordnung) of 1916: "Adults who are unable to look after their own affairs and, because of a mental illness or a handicap, need the assistance of an adviser (Beistand) to look after their affairs appropriately, may be declared partially incapacitated." "(1) A person who is partially incapacitated shall be treated as a minor over fourteen years (mündiger Minderjähriger) and shall be given an adviser. ... (3) The adviser shall have the rights and duties of a guardian (Vormund), but the guardianship court may reserve to the adviser the right to dispose over what the incapacitated person acquires by his work." 53. The functions of a guardian are defined in Article 188, first sentence, of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), which reads as follows: "A guardian must primarily take care of the person of the minor, but also administer his property." Article 216 (1) states that if care for the person and education of a minor is not the responsibility of a person having parental authority, the guardian shall have responsibility therefor. 54. Under the Law of 1983 on the appointment of curators of handicapped persons (Sachwaltergesetz), persons who have been declared totally or partly legally incapacitated are to be regarded from 1 July 1984 as having the assistance of a curator (Sachwalter), empowered under Article 273 (3), sub-paragraph 3, of the Civil Code to look after all their affairs. Under Article 282 of the Civil Code a curator has the same rights and obligations as a guardian, but must also care for the person of a handicapped person, in particular his medical and social treatment, unless a court decides otherwise. 55. Any administrative act, including the exercise of direct administrative compulsion against a particular person, may in principle be challenged as to its lawfulness before the Administrative Court (Verwaltungsgerichtshof, Article 130 of the Federal Constitution) and as to its constitutionality before the Constitutional Court (Verfassungsgerichtshof, Article 144). However, there does not appear to be any example in the case-law of such an application against the acts of a psychiatric hospital of the type of those in issue in the present case.

train

001-111981

ENG

UKR

CHAMBER

CASE OF GLOBA v. UKRAINE

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

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

5. The applicant was born in 1949 and lives in Kulikove, Poltava Region. 6. At the material time the applicant was employed by a collective agricultural enterprise in which the State held no shares. The enterprise had its own housing which was allocated to its workers or members. Since there was no vacant housing for the applicant he was placed first in the waiting list. When a flat became available, by a decision of the enterprise of 18 August 1995 two private individuals who were behind the applicant in the waiting list were offered the tenancy of the flat. On the same date and based on this decision, the Kulykove Town Council (“the Town Council”) issued a tenancy authorisation (ордер на житлове приміщення) in the name of the private persons in respect of the flat. 7. In November 1995 the applicant instituted proceedings before the Leninskyy District Court, Poltava (“the Leninsky Court”) against the Town Council, the private individuals and the enterprise. He sought revocation of the tenancy allocation. 8. On 10 March 1999 the Leninsky Court allowed the applicant’s claim in part, finding that he had the right to the tenancy of the flat since, according to the internal regulations of the enterprise and national law, he had priority over private individuals for occupation of the flat. The court ordered the private individuals to be evicted from the flat and the enterprise to allocate the flat to the applicant and to find other housing for the two private individuals to be evicted. On 8 April 1999 the Poltava Regional Court (since June 2001 the Poltava Regional Court of Appeal, “the Court of Appeal”) upheld the judgment of 10 March 1999 and it became final. 9. On 26 January 2000 the applicant requested the Prosecutor General to intervene by lodging an appeal for supervisory review (protest) against the court decisions. On 4 February 2000 the Presidium of the Court of Appeal, acting on the protest, changed part of the lower courts’ decisions in respect of the size of the housing to be provided to the private individuals. 10. On 12 December 2000 the Leninsky Court rejected the applicant’s request for interpretation of the judgment of 10 March 1999. The applicant did not appeal. 11. Having twice refused to open enforcement proceedings due to shortcomings in the writs of execution of the judgment of 10 March 1999, the Poltava Oktiabrsky District Bailiffs’ Service (“the bailiffs”) eventually opened the proceedings on 8 February 2001. Subsequently, the bailiffs several times requested the Leninsky Court to clarify the judgment at issue as, from their point of view, it was not sufficiently clear for enforcement purposes. 12. On 4 September 2002 the Town Council decided to take over the property, including the housing of the enterprise, which had gone into liquidation in the meantime. 13. On 24 December 2002 the bailiffs, on the basis of this decision, replaced the debtor company with the Town Council and ordered the head of the Town Council to comply with the judgment. Subsequently, due to non-compliance with the judgment, the bailiffs twice fined the Head of the Town Council. The latter challenged these decisions before the Poltava Oktiabrsky District Court, which, on 1 October 2004, found the bailiffs’ decision lawful and reasoned, but quashed the imposed fines on the ground that the debtor had not complied with the judgment for lack of appropriate housing. The parties did not appeal. 14. In the meantime, on 29 September 2004, the Town Council had authorised the private individuals to privatise the flat in issue. 15. On 14 March 2005 the Leninsky Court rejected the requests by the bailiffs and the applicant for the manner of execution of the judgment to be changed. On 7 June 2005 the Court of Appeal upheld the first-instance decision, finding that the bailiffs had failed to enforce the judgment by not attaching the flat, which had led to its privatisation, and by not taking any action against the Town Council. This decision was upheld by the Supreme Court on 4 April 2006. 16. On 16 February 2009 the Leninsky Court rejected the applicant’s request for the manner of execution of the judgment to be changed. It found that the judgment was not enforced because the occupants of the flat had in the meantime privatised it and the Town Council had no substitute housing whatsoever. The higher courts left the applicant’s appeals unexamined as the ruling of 16 February 2009 was not subject to appeal. 17. The flat at issue remains occupied by the private individuals. According to the Government, the applicant is now occupying another flat that the enterprise provided him with on an unspecified date. According to the applicant, he has not been offered any housing since 2000. 18. On 27 July 2006 the applicant lodged a complaint with the Leninsky Court, alleging that when opening the enforcement proceedings the bailiffs had failed to attach the flat in issue. He requested the court to take measures in respect of the bailiffs so that they could enforce the judgment, and to lodge a claim on his behalf seeking revocation of the privatisation of the flat. On 11 January 2007 the court rejected the complaint, finding that the applicant’s requests for relief were without merit. It also found that the bailiffs had not taken all possible measures to ensure the implementation of the judgment when opening the enforcement proceedings, but that subsequently they looked for ways, and took measures, to implement it. On 6 March and 19 November 2007 respectively the Court of Appeal and the Supreme Court upheld the decision of 11 January 2007. 19. By the bailiffs’ most recent decision, of 30 September 2008, the enforcement proceedings were discontinued, with the judgment of 10 March 1999 remaining unenforced. The applicant challenged this decision. On 4 November 2008 the Leninsky Court confirmed the decision, finding, in particular, that the bailiffs requested criminal prosecution of the Head of the Town Council and had no other option to enforce the judgement. On 11 December 2008 the Court of Appeal upheld the ruling of 4 November 2008. The parties did not appeal on points of law.

train

001-84651

ENG

SVN

ADMISSIBILITY

ATTEMS AND OTHERS v. SLOVENIA

Inadmissible

Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre

1. The applicants, Mr Johannes Attems, Mrs Eleonore Drasche, Mrs Gabrielle Rau, Mr Ferdinand Attems and Mr Alois Attems, are Austrian nationals who were born in 1947, 1943, 1953, 1945 and 1927 respectively. 2. Mr Johannes Attems, Mrs Gabrielle Rau and Mr Ferdinand Attems live in Vienna, Mrs Eleonore Drasche lives in Ebereichsdorf and Mr Alois Attems lives in Graz. 3. The application was lodged together with two more applicants, who died during the proceedings: Mr Franz Attems, who was born in 1926, lived in Graz and died on 13 May 1999, and Mr Edmund Attems, who was born in 1924, lived in Vienna and died on 4 January 2006. 4. The applicants were represented by Mr Johannes Attems. 5. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 6. In accordance with Article 36 § 1 of the Convention and Rule 44 of the Rules of Court, the Registrar informed the Government of the Republic of Austria of their right to submit written comments. In their reply of 30 November 2006, the Government of the Republic of Austria did not indicate that they wished to exercise their right. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicants are heirs of Mr Ferdinand Attems and his wife, Mrs Wanda Attems. 8. The Attems family has lived in what is today Slovenia since 1605. By 1945 they had acquired, exclusively by purchase, extensive real estate and numerous companies, as well as movable assets (such as objects of art, etc). 9. After the Second World War, Slovenia became a constituent part of the newly formed Democratic Federal Yugoslavia. Its former legislative body was the Antifascist Council for the National Liberation of Yugoslavia (“the AVNOJ”), the highest political body in Yugoslavia during and immediately after the Second World War. On 21 November 1944 it adopted a decree (“the AVNOJ decree,” see under “Relevant domestic law and practice”) which prescribed, inter alia, the nationalisation of all property belonging to the German Reich and its citizens which was on the territory of Yugoslavia, of people of German origin, except those who were fighting for the national liberation movement, and finally, of all persons who were criminally convicted by a military or an ordinary court and sentenced to forfeiture of their property (see “Relevant Domestic Law and Practice”). 10. On 17 August 1945 the Maribor Military Court convicted Mr Ferdinand Attems and Mrs Wanda Attems of the offence of high treason during the Second World War. Mr Ferdinand Attems was sentenced to two years' and Mrs Wanda Attems to thirteen months' deprivation of liberty with forced labour. They were also stripped off of their political and civil rights and ordered to forfeit all their property to the State. 11. Probably towards the end of 1945, Mr Ferdinand Attems, Mrs Wanda Attems and Mr Emil Hans Attems (the first son of Ferdinand Attems) lost their lives in a work camp in circumstances that still remain unclear. On 20 February 1950 the Graz Regional Court (in Austria) adopted a decision to the effect that Mr Ferdinand Attems and Mrs Wanda Attems should be deemed no longer to be alive after 2 January 1946. 12. On 16 April 1993, after the independence of Slovenia and the change of the political regime, the Senate of the Maribor Basic Court (Senat Temeljnega sodišča v Mariboru), at the request of Mr Johannes Attems and Mr Edmund Attems, decided to reopen the criminal proceedings against Mr Ferdinand Attems and Mrs Wanda Attems. On 3 June 1993 the Public Prosecutor withdrew the indictment against Mr Ferdinand Attems and Mrs Wanda Attems. Consequently, the Maribor Basic Court quashed the convictions and discontinued the criminal proceedings against them. The decision became final on 12 July 1993. 13. On 22 April 1992 Mr Johannes Attems also lodged a request for declaratory decisions concerning the citizenship of Mr Ferdinand Attems and Mrs Wanda Attems with the Slovenska Bistrica Municipality. On 17 March 1993 the Municipality adopted two decisions certifying that Mr Ferdinand Attems and Mrs Wanda Attems were Yugoslav and Slovenian citizens until their death. 14. On 7 December 1991 the Denationalisation Act (Zakon o denacionalizaciji, see “Relevant Domestic Law and Practice”) came into force, following which the applicants lodged a request for restitution of the property forfeited by Mr Ferdinand Attems and Mrs Wanda Attems with the Denationalisation Commission of the Slovenska Bistrica Municipality's Assembly (Komisija za denacionalizacijo, Skupščina Občine Slovenska Bistrica). On 9 January 1992 the latter informed the applicants that their request was incomplete, informed them about the requirements set forth by the Denationalisation Act and instructed them to amend their request. 15. Between 31 March and 26 April 1993, the applicants lodged claims for restitution of property under the Denationalisation Act with the Slovenska Bistrica Municipality, the Brežice Municipality, the Krško Municipality and the Šmarje pri Jelšah Municipality, respectively. At an undetermined time, a claim under the same provisions was lodged with the Ministry of Culture of the Republic of Slovenia. 16. On 7 January 1994 the applicants and a company, Terme Čatež d.d., reached an out-of-court settlement regarding the restitution of a part of the company's property which constituted a part of the property the applicants claimed in the proceedings before the Brežice Municipality. The applicants were awarded company shares worth approximately 1.1 million euros. The settlement was confirmed by the Brežice Municipality on 10 October 1994 and the proceedings concerning this property were terminated. 17. On 30 December 1995 the Act on Temporary, Partial Suspension of Restitution of Property (Zakon o začasnem, delnem zadržanju vračanja premoženja) was adopted, which temporarily suspended the restitution of certain types of property, and which affected also the denationalisation proceedings to which the applicants were parties. 18. On 8 July 1996 the applicants withdrew all their claims made under the Denationalisation Act, and started restitution proceedings under the Act on Implementation of Penal Sanctions (Zakon o izvrševanju kazenskih sankcij, see below, and under “Relevant domestic law and practice”). Consequently, the different sets of denationalisation proceedings to which the applicants were parties were terminated. 19. On 8 July 1996 the applicants also instituted proceedings against the Republic of Slovenia in the Ljubljana District Court (Okrožno sodišče v Ljubljani), seeking compensation for the loss of profit they had incurred by being prevented from using the forfeited property. At an undetermined time, the proceedings were stayed until the termination of the proceedings concerning the restitution of the property (see below). 20. On 8 August 1997 the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act on Implementation of Penal Sanctions (Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij, see “Relevant domestic law and practice”) was adopted. This resulted again in a stay of all the proceedings to which the applicants were parties. 21. In July 1996, after withdrawing their restitution claims under the Denationalisation Act, the applicants lodged requests for restitution of property under the provisions of the Act on Implementation of Penal Sanctions (Zakon o izvrševanju kazenskih sankcij, see “Relevant domestic law and practice”) with four Local Courts. 22. On 11 July 1996 the applicants instituted uncontentious civil proceedings in the Slovenska Bistrica Local Court (Okrajno sodišče v Slovenski Bistrici) against twenty-four legal entities, among them the Republic of Slovenia, the Municipality of Slovenska Bistrica (Občina Slovenska Bistrica), the Farmland and Forest Fund of the Republic of Slovenia (Sklad kmetijskih zemljišč in gozdov Republike Slovenije, “the Fund”) and several museums. They requested restitution of numerous plots of land, buildings, an extensive collection of art paintings, and other property taken from their predecessors, Mr Ferdinand Attems and Mrs Wanda Attems, following the Military Court's judgment of 17 August 1945. They also requested the court to allow certain interim measures preventing the sale or encumbrance of the property at issue, which was at the time in the possession of the company Ritoznojčan. 23. After a hearing held on 15 December 1998, the court on 18 January 1999 allowed the interim measure. After three subsequent sets of appellate proceedings and new requests for re-examination of the case, the Maribor Higher Court (Višje sodišče v Mariboru) on 5 January 2001 confirmed the first-instance court decision on the interim measure as final. 24. On 13 December 2000 the applicants urged the court to decide promptly on the case. 25. On 30 January 2002 the court delivered a decision inviting the applicants to amend their request of 11 July 1996 in order to satisfy the requirements under the Denationalisation Act. 26. On 14 May 2002, upon the applicants' request, the court extended the deadline for an additional ninety days. 27. On 26 August 2002 the applicants lodged written submissions supplementing their original request. 28. On 18 October 2002 the court issued a decision rejecting the applicants' request with respect to six adversaries since the applicants had failed to amend correctly their request. With respect to the other eighteen adversaries, the court found that under the Act on Implementation of Penal Sanctions they were not the entities liable for restitution of property. The applicants' respective requests were therefore dismissed. The decision was served on the applicants on 11 November 2002. 29. On 25 November 2002 the applicants appealed to the Maribor Higher Court. They also appealed against the decisions of 30 January 2002 and 14 May 2002. 30. On 5 August 2003 the court allowed the applicants' appeals, set aside the three impugned decisions and remitted the case to the Slovenska Bistrica Local Court. 31. On 21 October 2003 the Slovenska Bistrica Local Court held a hearing and heard submissions from the applicants and their six opposing parties. 32. On 20 November 2003 the court, by an interim decision, upheld the applicants' claim and decided that Mr Ferdinand Attems and Mrs Wanda Attems were entitled to restitution of all the property taken from them in 1945. The court found that the property in question had not been forfeited already by the nationalisation provisions of the AVNOJ decree of 21 November 1944, but only by the later criminal judgment of the Military Court handed down on 17 August 1945. Therefore, the property should be returned to the applicants according to the Act on Implementation of Penal Sanctions, and not under the provisions of the Denationalisation Act. 33. On 23 and 24 December 2003 the Slovenska Bistrica Municipality, the Republic of Slovenia and the Fund appealed to the Maribor Higher Court. 34. On 2 February 2004 the applicants replied and on 9 March 2003 they requested priority treatment of their case, which was granted. 35. On 14 May 2004 the Maribor Higher Court dismissed the appeals and upheld the decision of the first-instance court. The decision was served on the applicants on 9 June 2004. 36. On 29 June 2004 the Republic of Slovenia lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). 37. On 7 October 2004 the applicants replied. On 27 March 2006 they lodged additional documents and requested the court to decide promptly on the case. 38. On 26 October 2006 the Supreme Court set aside the decisions of the second- and first-instance courts in the part concerning the Republic of Slovenia and remitted the case to the first-instance court for re-examination. As for the other adversary parties to the proceedings, including the Municipality of Slovenska Bistrica, the decision of the Maribor Higher Court of 14 May 2004 became final. The court found that the Act on Implementation of Penal Sanctions was not necessarily the right basis for the restitution of the property in this case. It instructed the first-instance court to establish clearly whether the property at issue had been confiscated already by the nationalisation provisions of the AVNOJ decree of 21 November 1944, or by the criminal judgement of 17 August 1945. If the property had already been nationalised by the AVNOJ decree, the property should be returned under the denationalisation provisions of the Denationalisation Act and subject to the limitations for restitution set forth in that Act. If, on the other hand, the forfeiture of the property had been ordered as a penal sanction following the conviction, the property should be returned under the Act on Implementation of Penal Sanctions. 39. On 29 December 2006 the Republic of Slovenia lodged preliminary written observations. 40. On 6 November 2007 the applicants specified before the Slovenska Bistrica Local Court which plots of land should be returned by the Municipality of Slovenska Bistrica further to the Maribor Higher Court's decision of 14 May 2004. 41. The proceedings before the Slovenska Bistrica Local Court are still pending. 42. On 10 July 1996 the applicants instituted uncontentious proceedings against the Republic of Slovenia, the Brežice Municipality (Občina Brežice), the Farmland and Forest Fund and four other legal entities in the Brežice Local Court (Okrajno sodišče v Brežicah). They requested restitution of the property forfeited by Mr Ferdinand Attems and Mrs Wanda Attems, which was at the time allegedly in the possession of these entities. They also requested an interim measure prohibiting the sale or encumbrance of the property. 43. On 18 February, 8 June, 4 October and 13 December 2000 the applicants requested the court to start processing their case and to inform them of the application number of their case. 44. At an undetermined time, the judge dealing with the case was replaced. 45. On 30 March 2001 the court held a hearing which was adjourned sine die to allow the applicants to prepare a reply to the submissions of the adversaries. In addition, the court requested the applicants to supplement their request for an interim measure of 10 July 1996. 46. On 28 June 2001 the court dismissed the request for an interim measure. The applicants appealed against this decision to the Ljubljana Higher Court (Višje sodišče v Ljubljani) on 17 July 2001. It is not determined what was the final decision of the court regarding the interim measure. 47. In March 2002, the acting judge was again replaced. 48. On 26 November 2002 the applicants lodged written submissions with the Brežice Local Court, specifying their claims. 49. On 13 June 2003 the court held a hearing, took submissions from the parties and adjourned the hearing until 12 September 2003. 50. At the hearing held on 12 September 2003, the court decided to issue a partial decision. 51. By a letter of 13 March 2006, the applicants requested the court to issue the decision, as announced on 12 September 2003. They also lodged a supervisory appeal. 52. On 29 November 2006 the first-instance court held another hearing and on 10 March 2007 it issued a partial decision, stating that Mr Ferdinand Attems and Mrs Wanda Attems were entitled to restitution of all the property taken from them in 1945. The court found that the property in question had been forfeited by the criminal judgment and not by the AVNOJ decree. Hence, the applicants' claims made under the Act on Implementation of Penal Sanctions were justified and should be upheld. 53. On 24 April 2007 and 4 April 2007 respectively, the Republic of Slovenia and the Brežice Municipality appealed against this decision to the Ljubljana Higher Court. 54. The proceedings are still pending. 55. On 8 July 1996 the applicants instituted uncontentious proceedings against the Republic of Slovenia, the Krško Municipality (Občina Krško) the Farmland and Forest Fund and five other legal entities in the Krško Local Court. They requested restitution of the property forfeited by Mr Ferdinand Attems and Mrs Wanda Attems, which was at the time allegedly in the possession of these entities. They also requested that an interim measure be issued prohibiting the sale or encumbrance of the property. 56. On 15 July 1996 the court upheld the applicants' requests for an interim measure. The Republic of Slovenia objected to this decision. The applicants replied to this objection on 13 January 1997. 57. On 25 February 1997 the court held a hearing. 58. On 18 February, 4 October and 13 December 2000 the applicants urged the court to decide on the objection and resume the proceedings on the merits of the case. 59. On 14 March 2001 the court rejected the objection of the Republic of Slovenia. The court also dismissed the applicants' request that their adversaries transfer possession of the property in question to the applicants for the duration of the proceedings. 60. On 12 April 2001 and on 18 June 2001 the court held hearings. The latter was adjourned due to the objection of three parties as to the jurisdiction of the court. It is not certain when the court dismissed this objection. 61. On 18 June 2002 the court delivered a partial decision. It found that under the Act on Implementation of Penal Sanctions, the Republic of Slovenia was liable to return to Mr Ferdinand Attems certain plots of land and that he should be registered as the owner of these properties in the Land Register (Zemljiška knjiga). The court decided to defer issuing a decision concerning the remainder of the claims. The decision was served on the applicants on 18 July 2002. 62. On 29 and 31 July 2002, respectively, the Republic of Slovenia and the Fund appealed to the Ljubljana Higher Court. 58. On 9 July 2003 the Ljubljana Higher Court allowed the appeals in part, because the first-instance court had wrongly decided which of the parties was liable for the return of the property. In this respect the case was remitted to the first-instance court for re-examination. 63. On 6 and 7 October 2003, respectively, the Republic of Slovenia and the Fund lodged an appeal on points of law with the Supreme Court. 64. On 6 September 2004 the applicants requested priority treatment of their case. In a letter of 27 September 2004, the Supreme Court informed them that cases such as the applicants', which concern the restitution of property on the basis of the Act on Implementation of Penal Sanctions, were regularly dealt with priority. 65. On 19 January 2006 the Supreme Court allowed the appeals on points of law, set aside the decisions of the first- and second-instance courts and remitted the case to the Krško Local Court for re-examination. The court found that the Act on Implementation of Penal Sanctions was not necessarily the basis for the restitution of the property in this case. The first-instance court would need to establish clearly whether the property at issue had been confiscated by the AVNOJ decree or by the criminal judgment. The decision was served on the applicants on 6 March 2006. 66. On 29 May 2007 the first-instance court held another hearing. 67. The proceedings are still pending. 68. On 11 July 1996 the applicants instituted uncontentious proceedings against the Republic of Slovenia, the Šmarje pri Jelšah Municipality (Občina Šmarje pri Jelšah) the Farmland and Forest Fund and six other legal entities in the Šmarje pri Jelšah Local Court (Okrajno sodišče v Šmarju pri Jelšah). They requested restitution of the property forfeited by Mr Ferdinand Attems and Mrs Wanda Attems, which was at the time allegedly in the possession of these entities. 69. The hearings scheduled for 4 July 1997 and 23 March 1998 were cancelled. 70. On 6 April 1998 the court held a hearing and requested the applicants to specify their claim and amend it so as to meet the requirements set by the law. 71. On 5 January 1999 the applicants lodged preliminary written submissions and increased their claim by seeking damages due to the dilapidation of some real estate. 72. A hearing scheduled for 12 April 1999 was cancelled. 73. On 12 November 1999 the court held a hearing and adjourned it until 14 January 2000 in order to acquire the criminal file and documents related to the forfeiture of the property from the Celje Historical Archives (Zgodovinski arhiv Celje). The rescheduled hearing was subsequently cancelled because the requested files had not yet been delivered. 74. The hearing scheduled for 14 January 2000 was cancelled. 75. On 20 January 2000 the court held a hearing which was adjourned. The applicants were given thirty days to submit additional documents. 76. On 18 May and 8 September 2000 the court held hearings. The latter hearing was adjourned, since the court had found that there existed a discrepancy between the transcripts from the Land Registry and the facts established by the court. The applicants were ordered to furnish documents identifying all the plots of land claimed within two months. 77. On 23 March 2001 the court held a hearing and decided to deliver a written decision. 78. On 26 April 2001 the court delivered a written decision. It decided that it had no jurisdiction to hear the case and set aside all the procedural steps taken. This decision was consistent with its finding that the property in question had not been confiscated by the judgment of the Military Court but by the AVNOJ decree, and should thus be sought under the Denationalisation Act and before the competent authorities. The court also found that Mrs Wanda Attems had not been the (co-)owner of the property claimed. On 16 May 2001 the decision was served on the applicants. 79. On 23 May 2001 the applicants appealed to the Celje Higher Court (Višje sodišče v Celju). 80. On 29 January 2002 the applicants sought priority treatment of their case in the Celje Higher Court. 81. On 3 May 2002 the applicants again sought priority treatment of their case in the Celje Higher Court and submitted Supreme Court case-law references in similar cases. 82. On 27 June 2002 the Celje Higher Court allowed the appeal in part and remitted the case for re-examination. The decision was served on the applicants on 4 September 2002. 83. The remainder of the case was given a new application number. 84. On 20 November 2002 the court held a hearing. 85. On 14 May 2003 the court held a hearing and decided to deliver an interim and a partial decision in writing. 86. On 30 June 2003 the court found that Mr Ferdinand Attems and Ms Wanda Attems were entitled to the restitution of property, since it had been forfeited by the criminal judgment of the Military Court. The court ordered the Fund to return to the applicants several plots of land. The decision was served on the applicants on 7 July 2003. 87. On 10 July 2003 the applicants appealed to the Celje Higher Court against the decisions concerning the costs and expenses. On 7 and 8 August 2003, respectively, the Ministry of Culture and the Fund cross-appealed. The Republic of Slovenia also cross-appealed. 88. On 1 October 2003 the applicants requested the Celje Higher Court for priority treatment of their appeal. 89. On 8 April 2004 the applicants again sought priority treatment of their case. 90. On 5 May 2004 the president of the Celje Higher Court informed the applicants that their case would be dealt with after the court's summer recess. 91. On 22 September 2004 the Celje Higher Court allowed the applicants' appeal in part and allowed the appeals of their adversaries. The decision of the first-instance court was set aside and remitted for re-examination. The court found that the first-instance court had failed to take into consideration the latest case-law of the Supreme Court concerning the interpretation of the legal effects of the AVNOJ decree. The decision was served on the applicants on 18 November 2004. 92. On 13 July 2005 the court held a hearing and decided to issue a written decision. 93. On 14 July 2005 the first-instance court dismissed all the applicants' claims. It held that the property at issue had been confiscated by the AVNOJ decree and not by the criminal judgment. Therefore, restitution could not be sought under the provisions of the Act on Implementation of Penalty Sanctions, but rather under the Denationalisation Act. 94. On 18 November 2005 the applicants appealed to the Celje Higher Court. 95. On 10 May 2006 the court allowed the appeal, set aside the judgment of the first-instance court and remitted the case for re-examination. The decision was served on the applicants on 30 May 2006. 96. On 25 September 2006 the first-instance court held a hearing. After being asked by the applicants to stay the proceedings due to the out-of-court settlement procedure taking place between the parties, the court adjourned its decision for 30 days. 97. On 31 January 2007 the court held a hearing and decided to deliver the final decision in writing. 98. The proceedings are still pending. On 21 November 1944, the Antifascist Council for the National Liberation of Yugoslavia (AVNOJ) adopted the Decree on the Transfer of Enemy Assets to State Ownership, on State Administration of the Assets of Absent Persons and on the Seizure of Assets which the Occupying Authorities Have Forcibly Estranged (Odlok o prehodu sovražnikovega imetja v državno svojino, o državnem upravljanju imetja odsotnih oseb in o zasegi imetja, ki so ga okupatorske oblasti prisilno odtujile, “the AVNOJ decree”), which entered into force on 6 February 1945. Its section 1 provided for nationalisation of the following categories of property: a) all the property of the German Reich and its citizens which is on the territory of Yugoslavia; b) all the property of people of German origin, except those who were fighting for the national liberation movement and its partisan forces, or are the citizens of neutral countries and did not act for the enemy side; c) all the property of war criminals and their supporters, irrespective of their nationality, as well as all the property of every person who was convicted by an ordinary or a military court and sentenced to forfeiture of his or her property to the State. The Denationalisation Act (Zakon o denacionalizaciji, Official Journal no. 27/91) formed the basis for restitution of property (or its value) that had passed into State ownership through previous legislation (agrarian reform, nationalisation, confiscation, etc.). Section 3 provides that all natural persons whose property had passed into State ownership on the basis of the listed legislation adopted in the aftermath of the Second World War, including the AVNOJ decree, the Criminal Code and the Act on Criminal Acts against the Nation and the State, are entitled to denationalisation. Section 4 further specifies that all other natural persons whose property was nationalised by a legal act issued before 1963 are entitled to denationalisation. In section 92, the Denationalisation Act originally extended its provisions also to property forfeited by virtue of criminal judgments handed down before 31 December 1958. This provision was rescinded by the Constitutional Court on 5 November 1992, partly on the ground that it was retroactive and therefore violated Article 155 of the Slovenian Constitution (decision no. U-I-10/92). According to these findings, the restitution of property which was forfeited by virtue of criminal judgments handed down before 31 December 1958 should instead be governed by the Act on Implementation of Penal Sanctions. On 30 December 1995, the Act on Temporary, Partial Suspension of Restitution of Property (Official Journal no. 74/95) entered into force, which held in abeyance certain types of restitution proceedings for a period of three years. Prior to 1998 amendments, the Act on Implementation of Penal Sanctions (Zakon o izvrševanju kazenskih sankcij, Official Journal no. 17/78, 8/90) applied also to the restitution of property forfeited in criminal proceedings which had terminated before 31 December 1958 and the decision of which had later been quashed. The 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Penal Sanctions (Zakon o spremembah in dopolnitvah Zakona o izvrševanju kazenskih sankcij, Official Journal no. 10/98) made minor amendments to Section 145 of the 1978 Act. It also added new Sections 145A and 145C to the 1978 Act. As far as the criminal proceedings terminated before 31 December 1958 are concerned, Section 145A replaced Section 145 and referred to the provisions of the Denationalisation Act to govern the form and scope of restitution, the restrictions on restitution and the valuation of property in case of claims for restitution of property forfeited in criminal proceedings terminated before 31 December 1958. Section 145C expressly removed the right to compensation for the previous owner's inability to make use of the property during the period of forfeiture. Section 3 made the change applicable in non-contentious and contentious proceedings concerning the restitution of confiscated property when such proceedings had commenced before the Act came into force but had not become final by that time. In June 2002, further to the Constitutional Court's ruling of 15 November 2001, Section 145C was amended again so that persons entitled under Section 145A might claim compensation for being unable to use or to manage the property or for loss of earnings incurred throughout the period running from the quashing of the forfeiture of the property until the decision on its restitution becomes final. On 8 August 1997 the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act on Implementation of Penal Sanctions (Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij, Official Journal no. 49/1997) was adopted. Its Section 2 suspended, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998, proceedings concerning claims for the restitution of or compensation for property which had been confiscated by virtue of criminal judgments handed down before 31 December 1958, or which was of a “feudal origin”. The following provisions of the 1991 Constitution (Ustava Republike Slovenije, Official Journal no. 33/91) are particularly relevant for the present case: “Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. ... “Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office ...” On 13 February 1998 the Constitutional Court decided in favour of the applicants and some other individuals, who had lodged a constitutional appeal challenging the provisions of the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act on Implementation of Penal Sanctions. It ruled (a joined decision U-I-200/97), that the legislator did not have a justified cause to differentiate between the claims for restitution of property of a feudal and non-feudal origin. Following another constitutional appeal lodged by Mr Johannes Attems and some other individuals, the Constitutional Court ruled on 16 July 1998, (a joined decision no. U-I-60/98), that the challenged provisions of section 145A and 145C of the 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Legal Sanctions did not conflict with the Constitution because such interference with the constitutional rights granted in Articles 30 (right to rehabilitation and compensation in criminal proceedings) and 33 (right to own and inherit property) of the Constitution was indispensable for the protection of the rights of other claimants under the Denationalisation Act. The Constitutional Court further ruled that Section 3 of the 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Legal Sanctions was in conformity with the Constitution notwithstanding the fact that it retroactively interfered with acquired rights, because the retroactive effect of the Act was justified by the public interest. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings. Section 3 provides for two remedies to expedite pending proceedings - a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) - and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).

train

001-109080

ENG

NLD

CHAMBER

CASE OF ROMET v. THE NETHERLANDS

Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

5. The applicant was born in 1968 and lives in Maastricht. 6. On 3 November 1995 the applicant reported to the police that his driving licence had been stolen in September of that year. On 14 March 1997 the applicant was issued with a new driving licence. He had applied for it only shortly before, i.e. in 1997. 7. During the intervening period, between 3 November 1995 and 14 March 1997, the Government Road Transport Agency (Rijksdienst voor het Wegverkeer – “the Agency”) registered a total of 1,737 motor vehicles in the applicant’s name in the vehicle registration system (kentekenregister), but without his consent. It would appear that these registrations were effected upon presentation of the applicant’s stolen driving licence. 8. As a consequence of these vehicles being registered in his name, the applicant received large numbers of motor vehicle tax assessments (aanslagen motorrijtuigenbelasting/houderschapsbelasting), he was on many occasions prosecuted on the basis of the Motor Liability Insurance Act (Wet aansprakelijkheidsverzekering motorrijtuigen) and fined by the public prosecutor (officier van justitie) on the basis of the Traffic Regulations Administrative Enforcement Act (Wet administratiefrechtelijk handhaving verkeersvoorschriften) in respect of offences committed with the cars. Having been ordered by the competent court to pay these fines, he was detained for failure to comply with these orders (gijzeling) pursuant to Article 28 of the latter Act. The applicant ended up paying fines imposed on him on the basis of these motor vehicle registrations in respect of offences not committed by him. On several occasions the applicant was held liable by the Motor Traffic Guarantee Fund (Waarborgfonds Motorverkeer) for damage caused by uninsured vehicles registered in his name. The applicant’s welfare benefits were stopped, as his financial means were considered to be quite adequate in view of the sheer number of vehicles registered in his name. 9. The applicant alleges that on 1 July 1996 he requested the Agency to annul all the vehicle registrations, bar the one relating to his own car and was met with a refusal. Likewise, he alleges that he made several unsuccessful attempts in 1996 to rectify the situation by, inter alia, writing complaints to the Public Prosecutor who had imposed fines on him. The Government state that no official record exists to support these allegations. 10. The applicant furthermore appealed, on 12 February 2004, to the Amsterdam Court of Appeal (gerechtshof) against the refusal of the Public Prosecution Service (Openbaar Ministerie) to prosecute those responsible for the malicious vehicle registrations in his name. In its decision of 22 June 2005, the Court of Appeal considered, as relevant to the case before the Court, that although the police could admittedly have proceeded more effectively with the investigation, too much time had passed (the events in issue, i.e. the malicious registration of motor vehicles, had taken place between November 1995 and March 1997) to expect any viable investigation to be conducted by the authorities concerned. The Court of Appeal therefore dismissed the appeal, but it nevertheless noted that it was in favour of the course of action as advised by the Advocate-General, namely a complete remission in a single administrative act (eenmalige sanering) of all (administrative) sanctions imposed on the applicant which were an effect of the malicious registrations. According to the applicant’s representative, no such remission took place. Moreover, the Tax and Customs Administration (Belastingdienst) initially prevented the applicant from being eligible for debt rescheduling under the Debt Rescheduling (Natural Persons) Act (Wet Schuldsanering Natuurlijke Personen). 11. On 16 January 2004 the applicant again requested the Agency to annul, with retroactive effect, the motor vehicle registrations in question. 12. On 3 April 2004 the Agency partially granted the request, cancelling 240 registrations as of that date. The remaining registrations were no longer in the applicant’s name at that time. The Agency expressly stated that it was unable to cancel the registrations retroactively, as had been requested by the applicant, as that would be detrimental to the reliability of the motor vehicle registration system. 13. The applicant lodged an objection on 28 April 2004, arguing, in particular, that the motor vehicle registration system was already flawed owing to the existence of the impugned registrations; that not granting the desired retroactive effect would have substantial financial consequences for him; and that the Agency, in 1996, had offered to annul the stolen driving licence for purposes of motor vehicle registrations on condition that the applicant apply for a new licence, which condition the applicant had been unable to meet at that time for financial reasons. 14. The applicant’s objection was dismissed on 2 September 2004. The Agency decided that cancellation of registrations with retroactive effect would lead to legal uncertainty and would entail the Agency’s interference with competencies of other authorities, e.g. the Public Prosecution Service or the Tax and Customs Administration, in that it could affect the legality of decisions which those authorities had made or might make on the basis of the contents of the motor vehicle registration system. 15. The applicant appealed against the Agency’s decision to the Rotterdam Regional Court (rechtbank), arguing in particular that he had, already in 1996, made a similar request to the Agency and had reported the fraudulent use of his driving licence to the police, yet to no avail. The applicant also submitted that the motor vehicle registration system, as it was at the relevant time, had been sensitive to fraud, a risk which, in the applicant’s view, should not be for the general population to bear. He argued furthermore that the requirement which existed in 1996 to have to apply for a new driving licence in order to disallow motor vehicle registrations with a stolen one was unjust and discriminatory. 16. The Regional Court concurred with the Agency’s decision and considered that no exceptional circumstances existed warranting a deviation from the standard practice not to grant retroactive effect. It noted in that respect that, although he had lodged complaints in 1996, the applicant had allowed more than seven years to pass before starting the proceedings at issue. 17. On 5 April 2005 the applicant appealed against the Regional Court’s judgment to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State – “the Administrative Jurisdiction Division”). The applicant argued, in relevant part, that his rights under Article 8 of the Convention were being violated due to the unlawful registrations of motor vehicles in his name and that the vehicle registration system was flawed in that it allowed such large-scale fraud to occur so easily. 18. The Administrative Jurisdiction Division gave its decision on 7 December 2005. Its reasoning included the following: “As the Administrative Jurisdiction Division has held [in an earlier case], it cannot be found that the Agency’s policy of denying in principle retroactive effect to decisions ... to cancel the registration of a vehicle is not reasonable. The purity of the vehicle register and legal certainty of the registration of vehicles justify such a policy, as the Regional Court has rightly held. The Regional Court has rightly held that the Agency was not obliged to consider the applicant’s submissions in this matter a ground to deviate from this policy and retroactively cancel the registration of the said motor cars with effect from the date requested by the applicant. That being so, the applicant’s complaint that the Regional Court’s decision is incomprehensible and improperly reasoned must fail. As regards the [applicant’s] argument that the Vehicle Registration Regulations (Kentekenreglement) violate, inter alia, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995; hereafter: the Directive), the Administrative Jurisdiction Division finds as follows. Contrary to what the [applicant] suggests, it cannot be deduced from the fact that the guideline includes a right of correction that the processor of those personal data is obliged to do so sua sponte and unasked and might not make the desired correction dependent on a request to that effect. In addition, contrary to what the [applicant] suggests, the processing of personal data pursuant to the Directive is also permitted without the permission of the person concerned if such processing is necessary for the performance of a task carried out in the exercise of official authority. In the opinion of the Administrative Jurisdiction Division, the use of a driving license involves recording the data of that driving license in a data filing system and processing them in the performance of the duty to secure compliance with legal obligations such as those here in issue. The [applicant’s] complaint fails. Nor does the Administrative Jurisdiction Division agree with the [applicant] that the Vehicle Registration Regulations violate the right to liberty and security of person, laid down in Article 5 of the Convention and Article 9 of the International Covenant on Civil and Political Rights. Regardless of whether these provisions can be relevant to the decision-making process based on the Vehicle Registration Regulations – these regulations do not, after all, provide for the deprivation of liberty referred to by the [applicant] – these provisions contain an exception to the right to liberty and security of person in order to secure the fulfilment of an obligation prescribed by law. In this connection, the Administrative Jurisdiction Division notes in addition that this exception is also covered by the circumstance, referred to by the [applicant], that he was deprived of his liberty because he had not taken the measures needed to correct the [registration of vehicles wrongly registered in his name].” 19. No further appeal lay against this decision. 20. The 1994 Road Traffic Act (Wegenverkeerswet 1994) entered into force on 1 January 1995. At the relevant time, as pertinent to the case before the Court, it provided as follows: ... 3. A person to whom a registration number (kenteken) for a vehicle or trailer is issued will be treated, subject to evidence to the contrary, as the owner or registered user (houder) of that vehicle or trailer for the purposes of the provisions laid down by or pursuant to this Act. ... 1. The Government Road Transport Agency shall keep a vehicle registration system listing the registration numbers issued. 2. The vehicle registration system shall contain data concerning vehicles and trailers for which a registration number has been issued and the name of the person to whom such registration numbers have been issued, as well as data concerning other vehicles and trailers in so far as such data: (a) are necessary for the proper implementation of this Act and for the enforcement of the regulations laid down by or pursuant to this Act, or (b) are necessary for the proper implementation of the Motor Vehicle Tax Act 1994, the Car and Motorcycle Tax Act 1992, the Motor Liability Insurance Act or other statutory provisions concerning vehicles and trailers, and for the enforcement of the regulations laid down by or pursuant to these statutory provisions. ... 1. Without prejudice to section 122 and section 131, subsection 3, a driving licence will cease to be valid: (a) when a new or replacement driving licence is issued; (b) when it is exchanged for a driving licence issued to the holder by a competent authority outside the Netherlands for the category or categories of motor vehicle to which the exchange relates; (c) during a period in which the holder is disqualified from driving vehicles; (d) if unauthorised changes are made to it; (e) upon the death of the holder; and (f) when it is declared invalid for the category or categories to which the declaration of invalidity relates. ...” 21. At the relevant time, the Vehicle Registration Regulations, in their relevant part, provided as follows: 1. The registration in the register will lapse as soon as: ... (h) Our Minister has declared the registration certificate to be invalid ...; ... (k) Our Minister has declared the registration to have lapsed on the grounds of a request as referred to in paragraph 2. 2. A person who is, in his view, wrongly listed in the register as the holder of a registration certificate may request Our Minister to arrange for the registration to be cancelled. Our Minister will arrange for the registration to be cancelled if he considers that sufficient grounds exist for this. ” 22. At the relevant time, the Vehicle Registration Certificates and Registration Plates (Proof of Identity) Order (Regeling legitimatievoorschriften kentekenbewijzen en kentekenplaten), in its relevant part, provided as follows: 1. The following identity documents shall be presented with an application for part II of a registration certificate if the application is submitted by a natural person: (a) a valid driving licence ...” 23. At the relevant time, the Traffic Regulations Administrative Enforcement Act (Wet Administratiefrechtelijke Handhaving Verkeersvoorschriften), in its relevant part, provided as follows: If it has been established that a vehicle for which a registration number has been issued was involved or instrumental in the action [i.e., for present purposes, the offence] and the identity of the driver of the vehicle cannot immediately be established, the administrative fine will be imposed on the person listed in the vehicle registration system as the holder of the registration certificate at the time of the action. The provisions of section 8 will be drawn to his attention. 1. The person to whom a decision is addressed may challenge the imposition of the administrative sanction by applying to the public prosecutor in the district court area in which the action took place. If it cannot be determined in which district court area the action took place, the application may be made to the public prosecutor in the district court area in which the person concerned has his place of residence. ... If, in the case of section 5, the holder of the registration certificate as listed in the vehicle registration system plausibly shows that the vehicle was used by another person against his will and that he could not reasonably have been expected to prevent this use, if he produces a written contract of hire entered into for a term not exceeding three months showing who was the hirer of the vehicle at the time of the action or if he produces a notice of indemnity issued pursuant to the Road Traffic Act 1994 showing that at the time of the action he was no longer the owner or keeper of the vehicle concerned, the public prosecutor will quash the decision. In such a case the public prosecutor may impose an administrative sanction on the person who performed the action, the person who was the hirer of the vehicle or the person to whom the vehicle was transferred. [Section 6] will then apply by analogy. 1. A person who has challenged the imposition of the administrative sanction may apply to the District Court (kantonrechter) within whose area the action took place or, in the case referred to in section 6, subsection 1, second sentence, to the District Court within whose area the person concerned has his place of residence, for judicial review of the decision of the public prosecutor. 2. The application for review may be lodged on the grounds that: (a) the action did not occur or, other than in the case of section 5, the person to whom the decision is addressed did not perform the alleged action; (b) the public prosecutor should have decided that the circumstances in which the action occurred did not warrant the imposition of an administrative sanction or that, in view of the circumstances of the person concerned, the administrative sanction should have been set at a lower amount; (c) the public prosecutor wrongly failed to quash the decision by virtue of section 8. ... 1. If the amount [of the administrative fine] has not been recovered – or not recovered in full – in accordance with sections 26 and 27, the public prosecutor may, no later than three years after a final and unappealable decision has been given in respect of the imposed administrative fine, apply to the District Court in the area in which the person subject to the fine has his address for an order authorising him to apply one or more of the following coercive measures for each action in respect of which an administrative sanction has been imposed: (a) taking the vehicle which was involved in the action out of commission (or, if it cannot be found, a similar vehicle in the possession of the person on whom the administrative sanction has been imposed) for a maximum of one month; (b) confiscating the driving license of the person on whom the administrative sanction has been imposed for a maximum of one month; (c) committing the person on whom the administrative sanction has been imposed to a remand centre for a maximum of one week. ... 2. No decision will be made on the application until after the person on whom the sanction has been imposed has been heard by the District Court or has in any event been properly summonsed to appear. No appeal or other remedy lies against the decision. ...” 24. Section 123(1)(h) of the 1994 Road Traffic Act, enacted by the Act of 28 June 2006, Staatsblad (Official Gazette) 2006, no. 321, provides that a driving license will cease to be valid when it is reported missing. It entered into force on 1 October 2006. 25. Also on 1 October 2006 a new model driving licence was introduced. It includes a number of security features aimed at countering misuse which the previous models lacked. 26. As relevant to the case before the Court, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995) provides as follows: Definitions For the purposes of this Directive: (a) ’personal data’ shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity; (b) ’processing of personal data’ (‘processing’) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction; (c) ’personal data filing system’ (‘filing system’) shall mean any structured set of personal data which are accessible according to specific criteria, whether centralized, decentralized or dispersed on a functional or geographical basis; (d) ’controller’ shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law; (e) ’processor’ shall mean a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller; (f) ’third party’ shall mean any natural or legal person, public authority, agency or any other body other than the data subject, the controller, the processor and the persons who, under the direct authority of the controller or the processor, are authorized to process the data; (g) ’recipient’ shall mean a natural or legal person, public authority, agency or any other body to whom data are disclosed, whether a third party or not; however, authorities which may receive data in the framework of a particular inquiry shall not be regarded as recipients; (h) ’the data subject’s consent’ shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed. 1. Member States shall provide that personal data must be: (a) processed fairly and lawfully; (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that Member States provide appropriate safeguards; (c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed; (d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified; (e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. Member States shall lay down appropriate safeguards for personal data stored for longer periods for historical, statistical or scientific use. 2. It shall be for the controller to ensure that paragraph 1 is complied with. Member States shall provide that personal data may be processed only if: (a) the data subject has unambiguously given his consent; or (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (d) processing is necessary in order to protect the vital interests of the data subject; or (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1). Right of access Member States shall guarantee every data subject the right to obtain from the controller: (a) without constraint at reasonable intervals and without excessive delay or expense: - confirmation as to whether or not data relating to him are being processed and information at least as to the purposes of the processing, the categories of data concerned, and the recipients or categories of recipients to whom the data are disclosed, - communication to him in an intelligible form of the data undergoing processing and of any available information as to their source, - knowledge of the logic involved in any automatic processing of data concerning him at least in the case of the automated decisions referred to in Article 15 (1); (b) as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data; (c) notification to third parties to whom the data have been disclosed of any rectification, erasure or blocking carried out in compliance with (b), unless this proves impossible or involves a disproportionate effort.”

train

001-77940

ENG

UKR

CHAMBER

CASE OF NEGRICH v. UKRAINE

Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Peer Lorenzen

4. The applicant was born in 1930 and lives in the city of Kherson, Ukraine. 5. On 20 September 1999 the Komsomolskiy District Court of Kherson allowed the applicant's claim against the State-owned enterprise “Khersonskyy Sudnobudivelnyy Zavod” (the “KSZ”), and ordered the latter to pay the applicant UAH 1,070 in salary arrears. On 6 October 1999 the Komsomolsky District Bailiffs' Service (the “Bailiffs”) instituted enforcement proceedings. 6. By decisions of 16 November 1999, 30 January 2002 and 15 May 2002, the Labour Disputes Commission allowed the applicant's claims and ordered the KSZ to pay the applicant a total of UAH 3283.09. The Bailiffs instituted enforcement proceedings on 30 November 1999, 1 March 2002 and 13 June 2002 respectively. 7. On 27 December 1999 the Kherson Regional Court of Arbitration instituted bankruptcy proceedings against the debtor and, consequently, all enforcement proceedings were suspended. On 10 January 2001 the bankruptcy case was terminated and the enforcement proceedings were resumed. 8. In 2001 a substantial part of the debtor's assets was attached by the Bailiffs; however its sale was barred by the Law on the Introduction of a Moratorium on the Forced Sale of Property, which banned the forced sale of assets belonging to undertakings in which the State held at least 25% of the share capital. 9. On 6 May 2001, 6 December 2001, 17 May 2002 and 1 March 2004 the Bailiffs informed the applicant that the decisions in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor and the debtor's lack of funds. 10. On 23 June 2005 the applicant was paid the amounts due to him in full. 11. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18 and 39-41, 27 July 2004).

train

001-58153

ENG

GRC

CHAMBER

CASE OF HORNSBY v. GREECE (ARTICLE 50)

Damage - financial award;Costs and expenses - claim dismissed

John Freeland;N. Valticos

9. On 30 June 1997, the Rhodes Administrative Court allowed in part the applicants’ claims in the action for damages against the State, brought on 3 July 1992 (see paragraph 19 of the principal judgment). It held inter alia: “It appears from the documents in the file and particularly from the accounts … of the limited partnership ‘D. and A. Hornsby and Co’ that during the whole of the period concerned the plaintiffs … were running a private foreign language school, despite the defendant’s refusal to grant them the relevant authorisation. It is therefore not possible to prove the damage they alleged they had sustained in the form of loss of profit, particularly the school fees they would have expected to receive had it not been for the defendant’s unlawful conduct, since they were in fact carrying on the activity for which the relevant administrative authority had refused a licence… Regard being had to the above considerations, neither the alleged damage nor the existence of any loss of profit can be proved. For these reasons, the action must be dismissed as unfounded… On the other hand, the Administrative Court considers that the defendant’s repeated unlawful refusals to grant the plaintiffs’ legitimate request – which amounts to a flagrant breach of the provisions of European Community law – and the refusal to comply with the judgments of the Court of Justice of the European Communities and the Supreme Administrative Court caused the plaintiffs stress over a long period. It therefore considers it appropriate to award each of them 400,000 drachmas in respect of non-pecuniary damage, to which sum is to be added interest at the statutory rate from the commencement of the action, that is from 3 December 1990, when notice of the plaintiffs’ application to the civil courts was served on the defendant… Lastly, the plaintiffs’ request for the present judgment to be made immediately enforceable must be rejected because the conditions laid down in Article 70 § 2 of Presidential Decree no. 341/1978 have not been satisfied in the present case.” 10. By an application lodged with the Court of Justice of the European Communities on 26 April 1994, the Commission of the European Communities had brought an action under Article 169 of the EC Treaty for a declaration that, by maintaining in force the provisions of Article 70 of Law no. 2545/1940 and Decree no. 46508/1976 of the Minister for Education and Religious Affairs (as subsequently amended), the State had failed to fulfil its obligations under Community law, in particular the provisions on movement of workers within the Community. In its judgment of 1 June 1995 the Court of Justice held: “The above-mentioned Greek provisions impose, in respect of recruitment of teachers in private foreign-language schools, more stringent conditions on foreigners, including nationals of other Member States, than they do on Greek nationals. Decision no. 46508 thus provides that the recruitment of foreign teachers requires authorisation by the Director of Private Education and Religious Affairs following submission of certain documents specified in the decision. Renewal of authorisation is also subject to the submission of several documents, including a medical certificate. Furthermore, paragraphs (1), (2) and (4) of Article 70 of Decree-Law no 2545/1940 provide that only persons possessing the qualifications required of teachers within public education may teach in a private school. The competent Minister may, however, decide that the qualifications of Greek nationals who do not satisfy that condition are adequate. … The Hellenic Republic does not deny that the disputed rules are incompatible with Community law. It does, however, point out that a Presidential Decree making the recruitment of nationals of other Member States subject to the same conditions as those required for employment of Greek nationals will be published shortly and that consequently the proceedings will serve no purpose. That argument cannot be accepted. It is settled case-law … that amendments of national legislation are irrelevant for the purposes of giving judgment on the subject-matter of an action for failure to fulfil obligations if they have not been implemented before the expiry of the period set by the reasoned opinion. A declaration of failure to fulfil obligations must therefore be made in the terms sought by the Commission.” 11. The European Commission has decided to refer Greece to the Court of Justice of the European Communities, requesting it to impose financial penalties for failure to apply two judgments concerning infringements of EC rules on the recognition of qualifications, namely the requirement that persons wishing to open private foreign-language schools, or to become directors of or teachers in such schools, must pass an examination in Greek language and history.

train

001-22835

ENG

CHE

ADMISSIBILITY

KAPTAN v. SWITZERLAND

Inadmissible

Christos Rozakis

The applicant, a Turkish citizen born in 1962, is an employee residing in Richterswil in Switzerland. Before the Court he is represented by Mr Nideröst, a lawyer practising in Zürich. On 11 September 1997 the Swiss customs authorities came across 88 kilos of propaganda materials addressed to the applicant, consisting of books and magazines of the Kurdish Workers’ Party PKK. The materials were transmitted to the Federal Attorney’s Office (Bundesanwaltschaft) which examined them and concluded that they propagated violence as the only alternative against the “Turkish terror State” and insulted members of the Turkish Government. The Office considered that the sale or dissemination of these publications endangered the interior and exterior security of Switzerland for which reason on 15 January 1998 it decided to seise the materials based on S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State (Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial) of 29 December 1948. The applicant’s appeal about the seisure was dismissed by the Federal Office of Justice and Police on 22 June 1998. On 26 June 1998 the Federal Council (Bundesrat) decided on the basis of its Decree of 1948 to confiscate and destroy the materials. The applicant filed administrative law appeals (Verwaltungsgerichts-beschwerden) with the Federal Court (Bundesgericht) against the decisions of 22 and 26 June 1998. On 26 July 1999 the Federal Court decided to join the appeals and to dismiss them. In its judgment (published in BGE [Entscheidungen des Bundesgerichts] 125 II 417) the court considered at the outset that the Federal Council’s decision of 26 June 1998 to confiscate and destroy the materials replaced the decision of the authorities to seise the materials for which reason the applicant had lost interest in his complaint against the customs authorities. The Federal Court then considered that in principle decisions of the Federal Council could not be contested before the Federal Court. On the other hand, the confiscation of the materials at issue related to the applicant’s “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention for which reason the applicant was entitled to have access to court. There was no other judicial body on the Federal level which could decide the applicant’s case, yet Switzerland could not invoke domestic law in order to avoid complying with obligations arising under international law. As a result, the court regarded itself competent to deal with the applicant’s complaints. The Federal Court, which noted that the applicant had not requested a public hearing, considered that the applicant had been duly informed of the reasons of the authorities for seising the materials for which reason he was in a position duly to contest the confiscation and to present his case. The Federal Court then examined the grounds for confiscating the materials at issue in light of the applicant’s freedom of information. It considered that the Decree of the Federal Council of 1948 served as a legal basis for the measure. The judgment continued: “The confiscated materials concern editions of the magazine ‘Topolumsal Alternatif’ (Alternative Society) No. 5 of September 1997 and, on the other hand, paperbacks with the title ‘Kadin ve Iktidar Olgusu’ (Woman and the ability to govern). With these two publications the Kurdish Workers’ Party intends to win as many Kurds and other like-minded people for the armed resistance against Turkish authorities. Therein violence is advocated and glorified. The militarisation and the martyrs’ death of women particularly are advocated. News about successful bomb attacks, suicidal attacks, and attacks upon institutions of the Turkish State add further weight to the exhortation to employ violence. In the Federal Council’s view, these writings served to radicalise groups tending to extremism among foreigners and the Swiss. A danger for the peaceful co-existence and therefore for the interior security of Switzerland resulted therefrom ... Translated extracts in the case-file from the confiscated material demonstrate that the materials do not at all solely promote the concerns of the Kurdish population in Turkey. Rather, it is intended to transmit the existing tensions in Turkey into Switzerland and to create pressure among the emigrants living here. Even if the exhortation to armed struggle refers mainly to the Turkish territory, there is also the intention to radicalise the Kurds living here. Pressure should be exerted on emigrants who refuse to grant the expected support. Exhorting violence in general in order to implement Kurdish concerns will enhance the tendency also to employ violence towards compatriots living here who think differently. Such exhortation generally furthers extremist acts of violence. The writings therefore serve to endanger interior security. Since they are not at all limited to a criticism of the Turkish authorities - this would be admissible - but also insult them, they also serve to jeopardise foreign relations and therefore the neutrality of Switzerland. ... In the present case, furthermore, it does not transpire that a less far reaching measure would have been possible in order to avoid endangering the interior and exterior security, all the more so as the exhortation to armed struggle can be found in all the publications and is not limited to certain parts which could, possibly, have been blacked out.” S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State (Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial) of 29 December 1948, in force until 1 July 1998, states: “The Federal Attorney’s Office is instructed, together with the Federal customs and postal authorities, to seise propaganda materials which serve to endanger the interior or exterior security of the Confederation, in particular its independence, its neutrality, its relations with foreign States, the political and namely the democratic institutions of Switzerland or the interests of the defence of the country, as well as antireligious texts objects. The Federal Council shall decide on the confiscation.”

train

001-104626

ENG

TUR

CHAMBER

CASE OF ABDULLAH YILDIZ v. TURKEY

Violation of Art. 6-1

Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

3. The applicant was born in 1981 and lives in Tokat. 4. While performing his compulsory military service, the applicant was injured. He was subsequently declared medically unfit to serve in the armed forces on account of his injury and was thus discharged. 5. The applicant subsequently applied to the Social Security Institution (“Sosyal Güvenlik Kurumu”, “SGK”), claiming a special service disability pension. Upon the SGK’s refusal of this claim, he brought an action before the Supreme Military Administrative Court for the annulment of the SGK’s decision denying him a service disability pension. 6. On 14 April 2005 the Supreme Military Administrative Court dismissed the applicant’s claim, holding that no causal link could be established between the applicant’s disability and the functions he performed in the armed forces. The written opinion of the principal public prosecutor submitted to this court prior to the delivery of the decision was not communicated to the applicant. 7. On 9 June 2005 the Supreme Military Administrative Court dismissed the applicant’s request for rectification of its previous decision as the request had been lodged outside the statutory time-limit. 8. A description of the relevant domestic law can be found in the decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23 September 2008).

train

001-57908

ENG

AUT

CHAMBER

CASE OF VEREINIGUNG DEMOKRATISCHER SOLDATEN ÖSTERREICHS AND GUBI v. AUSTRIA

Violation of Art. 10;Violation of Art. 13 (first applicant);No violation of Art. 13 (second applicant);Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

C. Russo

7. The first applicant, a Vienna-based association, published a monthly magazine aimed at the soldiers serving in the Austrian army and entitled der Igel ("The Hedgehog"). It contained information and articles - often of a critical nature - on military life. 8. On 27 July 1987 the association requested the Federal Minister for Defence (Bundesminister für Landesverteidigung) to have der Igel distributed in the barracks in the same way as the only other two military magazines published by private associations, Miliz-Impuls and Visier. The army had adopted the practice of sending these magazines out, alternately and at its own expense, with the official information bulletin distributed to all conscripts (Miliz-Information). The minister did not reply to this request. When questioned by members of parliament, he stated in a letter of 10 May 1989 that he would not authorise the distribution of der Igel in barracks. In his view, section 46 para. 3 of the Armed Forces Act (Wehrgesetz, see paragraph 18 below) conferred on all armed forces personnel the right to receive without any restriction, through sources accessible to the public, information on political events. However, on military premises the only publications that could be supplied were those which identified at least to some extent with the constitutional duties of the army, did not damage its reputation and did not lend column space to political parties. Even critical magazines such as the journal Hallo of the trade union youth organisation would not be banned if they respected these conditions. Der Igel, on the other hand, did not comply with them. The minister derived authority for his decision in this matter from Article 79 of the Constitution (Bundesverfassungsgesetz) and sections 44 para. 1 and 46 of the Armed Forces Act, Article 116 of the Criminal Code (Strafgesetzbuch) and Regulation 3 para. 1 of the General Army Regulations (Allgemeine Dienstvorschriften für das Bundesheer, see paragraphs 17-20 below). 9. The second applicant, a member of the VDSÖ, began his national service on 1 July 1987 at the Schwarzenberg barracks in Salzbourg. On 29 July, on the occasion of his taking the oath, he made a protest directed against the President of the Republic. Over the following months, he lodged several complaints, published with twenty-one of his fellow conscripts an open letter criticising the number of fatigue duties to which he was assigned and circulated a petition in support of a conscientious objector. On 1, 9 and 22 July he was personally informed of the content of the military law applicable to his situation. 10. On 29 December 1987, while distributing issue no. 3/87 of der Igel in the barracks, he was ordered by an officer to cease. In its editorial, the issue in question mentioned, as being one of the aims of the VDSÖ, co-operation between conscripts and the cadres on the basis of their joint interests and of mutual respect. Some articles adopted a critical stance; they dealt with, among other things, military training, the proceedings resulting from a complaint lodged by Mr Gubi and the principles governing national service. The other articles discussed various contributions that had appeared in the press, the congress of the trade union youth movement, the aims and the activities of the VDSÖ and the complaint of a conscript whose pay had been reduced following alleged loss of equipment. 11. On 12 January 1988 another officer informed Mr Gubi of the content of the circulars of 1975 and 1987 and of the regulations of the Schwarzenberg barracks, as amended on 4 January 1988, which prohibited any distribution or despatching within the barracks of publications without the authorisation of the commanding officer (see paragraph 20 below). 12. On 22 January 1988 Mr Gubi complained about this ban and about the order of 29 December 1987 (see paragraph 10 above) to the Military Complaints Board (Beschwerdekommission in militärischen Angelegenheiten) at the Federal Ministry of Defence. On 7 April the Complaints Division (Beschwerdeabteilung) at the ministry rejected the applicant’s complaint, in accordance with the Complaints Board’s recommendation. In its view, the contested order was validly based on a 1987 circular of the Second Army Corps (Korpskommando II), containing instructions regarding the distribution of printed matter, which were themselves based on Article 5 of the 1867 Basic Law (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger), Regulation 19 of the General Army Regulations and section 13 of the Armed Forces Act (see paragraphs 15 and 18-20 below). The first of those provisions affords the same protection to the property of public-law legal persons as that guaranteed to the property of private individuals; accordingly, the Schwarzenberg barracks were to be regarded as the property of the Federal State, whose rights were exercised by the commanding officer. The freedom of expression secured under Article 13 of the 1867 Basic Law was subject to "statutory limits" (gesetzliche Schranken) such as those which stemmed from the duty of discretion and obedience laid down in sections 17 and 44 of the Armed Forces Act and derived from the very nature of this special relationship of subordination (besonderes Gewaltverhältnis). The contested measures had therefore in no way interfered with the freedom in question. 13. Mr Gubi then applied to the Constitutional Court (Verfassungsgerichtshof). On 26 September it declined to entertain his appeal on the ground that it did not raise genuine constitutional issues and had insufficient prospects of success. 14. The same day, however, the Constitutional Court quashed the decision of 15 February 1988 whereby the commanding officer of battalion no. 3 had confirmed the three days’ custody imposed on the applicant as a disciplinary penalty for having distributed der Igel in the barracks. It found that the provisions which Mr Gubi was accused of infringing, the 1975 and 1987 circulars (see paragraph 20 below), were not binding on him but on the military authorities. This was not the case in regard to the relevant provisions of the Schwarzenberg barracks regulations, but these rules had been introduced on 4 January 1988 and were therefore not yet in force at the material time. 15. Article 5 of the Basic Law of 21 December 1867 on the general rights of citizens protects property. 16. Article 13 provides as follows: "Subject to statutory limits, everyone has the right to express freely his opinion orally, in writing, in the printed word or through graphic expression. The Press may not be censored or restricted by a system of licences ... " 17. Article 79 of the Federal Constitution describes the general duties of the Austrian armed forces. 18. At the material time the rights and obligations of military personnel were governed by sections 44 to 46 of the 1978 Armed Forces Act. According to this statute, soldiers are under a duty to support the army in the performance of its tasks and to refrain from doing anything which could damage its reputation (section 44 para. 1). They have the right to submit requests and complaints and to file appeals (section 44 para. 4). They enjoy the same political rights as civilians (section 46 para. 2). However, the army must not be involved in any political activity and may not be used for political ends (section 46 para. 1). Consequently, such activities while on duty and on military premises are prohibited, with the exception of those which consist in obtaining information as an individual on political events through sources accessible to the public (section 46 para. 3). 19. The General Army Regulations, issued by the Federal Ministry of Defence, set out the obligations attaching to national service. They provide, inter alia, that servicemen must always be ready to fulfil their duties in the best possible way and must refrain from doing anything which could damage the reputation of the army and undermine the confidence of the population in the defence of the country (Regulation 3 para. 1). Servicemen have a special relationship of subordination in regard to the Austrian Republic. That relationship requires of them, in addition to the defence of the democratic institutions, discipline, comradeship, obedience, vigilance, courage and discretion (Regulation 3 para. 2). Under Regulation 19 para. 2 barracks’ commanders are bound to take all the measures necessary to maintain order and military security in the premises in question; to this end they are under a duty to issue rules (Kasernordnung) governing inter alia access to the barracks (Regulation 19 para. 3). 20. By a circular of the Federal Ministry of Defence of 14 March 1975 the army general staff (Armeekommando) instructed commanding officers to take preventive measures in respect of publications denigrating the army (negatives wehrpolitisches Gedankengut). They were, among other things, to ban their distribution and posting up in military areas. A circular from the general staff of the Second Army Corps) of 17 December 1987 instructed the same officers to insert in the barracks rules a prohibition on the distribution or posting up without the commanding officer’s authorisation of any non-official publication. The Schwarzenberg barracks rules were amended accordingly on 4 January 1988. 21. The Constitutional Court examines, on an application (Beschwerde), whether an administrative measure (Bescheid) has infringed a right guaranteed to the applicant by the Constitution, or whether it has applied a decree (Verordnung) that is contrary to the law, an Act contrary to the Constitution or an international treaty incompatible with Austrian law (Article 144 para. 1 of the Federal Constitution).

train

001-96220

ENG

UKR

CHAMBER

CASE OF MIKHAYLYUK AND PETROV v. UKRAINE

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

Isabelle Berro-Lefèvre;Karel Jungwiert;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

4. The applicants were born in 1949 and 1951, respectively, and live in Odessa. 5. From 1976 until 1996 the second applicant worked for the Chernomorska Penitentiary Institution no. 74 (“the colony”). He was provided with a room in a hall of residence, which was situated on the site of the colony and had the same postal address. He resided there until 1991. Afterwards, the applicants lived together in the first applicant's flat. The second applicant is still entitled to reside in the colony and it remains his registered place of residence. 6. In September 1998 the applicants instituted civil proceedings in the Prymorskyy District Court of Odessa against the colony and the local post office. They alleged that letters addressed to them by domestic and international courts, which had been delivered to the address of the second applicant, had been unlawfully opened and read by the defendant institutions. The applicants sought compensation for non-pecuniary damage. 7. On 29 March 2001 the court rejected the applicants' claims. It established that the colony had opened two letters addressed to the applicants: the letter of 27 October 1998, sent by the Starokyivskyy District Court of Kyiv to the first applicant, and the letter of 24 August 1998, sent by the European Court of Human Rights to the second applicant in the context of his previous application to the Court (no. 44997/98, declared inadmissible on 26 October 1999). 8. The court held that, pursuant to Article 28 of the Correctional Labour Code of 1970 and section 7 of the Pre-Trial Detention Act of 1993, the administration of the colony had been authorised to monitor all correspondence delivered to it. Since the room of the second applicant was situated on the premises of the colony, his correspondence had been dealt with by its administration in accordance with the rules applicable to detainees' correspondence. The court also found that the administration had acted in accordance with the Instruction on the processing of documents in the organs of the Ministry of the Interior and the Instruction on the organization of the monitoring of correspondence of persons held in penitentiary institutions and pre-trial detention centres, issued by the Ministry of the Interior on 22 June 1993 and 28 May 1999, respectively. The court further stated that the letter addressed to the first applicant had been opened also due to the fact that there had been a detainee with the same name in the colony. The court concluded that the interception of the applicants' correspondence had not violated their constitutional rights. 9. On 19 July 2001 the Odessa Regional Court upheld the first-instance court's decision. On 15 May 2002 a panel of three judges of the Supreme Court rejected the applicants' request for leave to appeal in cassation. 10. The relevant provisions of the Constitution read as follows: “Everyone shall be guaranteed privacy of mail, telephone conversations, telegraph and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means.” “Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties.” 11. According to Article 2 of the Code, the correctional labour legislation regulated the procedure and conditions of serving criminal sentences and the activities of the organs enforcing criminal sentences. 12. Article 28 of the Code provided that detainees' correspondence was subject to censorship, and their parcels and packages were subject to opening and checking. 13. According to section 1 of the Act, pre-trial detention is a preventive measure in respect of an accused, a defendant or a person suspected of having committed a crime punishable with imprisonment, or a convicted person whose sentence has not yet become final. 14. Section 7 of the Act provides that detainees' personal belongings and correspondence must be checked. 15. At the material time Articles 177 and 187 of the Code empowered investigators to intercept a person's correspondence on the basis of a prosecutor's or a court's warrant if there were sufficient grounds to believe that such correspondence contained information of importance for establishing the truth in a criminal case. 16. According to section 1 of the Act, as worded at the material time, retrieval and search operations were aimed at detection and recording of information about unlawful activities by a person or groups of persons and about intelligence and subversive activities of foreign special services, and in the interests of public safety. Retrieval and search operations were to be carried out by the organs of the Interior, the Security Service, the Boarder Guard Forces, the State Guard Department, and the Tax Administration (section 5). Interception of correspondence, as one of the types of such activities, required a prosecutor's warrant (section 8). 17. Section 6 of the Act contained an exhaustive list of grounds pursuant to which retrieval and search operations might be carried out, which included the presence of sufficient information about crimes, intelligence and subversive activities against Ukraine, persons who were preparing or have committed crimes, persons hiding from the investigative bodies or evading the application of criminal sanctions, and disappeared persons; the submission of requests by the relevant authorities to check persons for the reasons of granting them access to secret information; and the need to obtain intelligence information in the interests of public and State safety.

train

001-59218

ENG

POL

CHAMBER

CASE OF KURZAC v. POLAND

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

Georg Ress

9. H.K., the applicant’s brother, had been a member of the Polish resistance troops of the underground National Armed Forces (Narodowe Siły Zbrojne), commonly referred to as the “NSZ”. The NSZ had been founded in September 1942 and, originally, formed partisan forces fighting the Germans during the Second World War. At the end of 1943 the NSZ’s command, considering that the defeat of the Germans was inevitable, decided that the main enemy was the communist Soviet Union and ordered that, from that time on, the NSZ should direct its attacks against the Red Army and the Polish communist partisan forces. After the liberation of Poland, some of the NSZ members took refuge in the West, while others, after being ordered not to attack the Red Army directly, established an underground resistance movement against the communist government. On 10 February 1948 H.K. was convicted by the Warsaw District Military Court (Wojskowy Sąd Rejonowy) in connection with, inter alia, his membership of the NSZ, which was considered an “illegal organisation established with the aim of subverting the political and legal system of the State”. He was sentenced to seven years’ imprisonment and then served his sentence. He was released on an unspecified date. On 7 August 1956 he was shot dead by a militia officer. 10. On 3 September 1993 the applicant lodged an application under section 3(1) of the Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland (Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu Państwa Polskiego) (“the 1991 Act”) with the Warsaw Regional Court (Sąd Wojewódzki), seeking to have his late brother’s conviction of 10 February 1948 declared null and void. Shortly afterwards, the court decided that the applicant’s request would be examined together with a similar application, which had been lodged by the widow of a co-defendant of his brother on 24 June 1993. 11. On 27 December 1993 the applicant’s lawyer asked the court to set a date for a hearing as soon as possible, submitting that his client was an elderly person suffering from various ailments and that the court should therefore give priority to his case. 12. On 9 November 1994 the applicant’s lawyer again asked the Warsaw Regional Court to fix a date for a hearing, maintaining that his previous application for the proceedings to be accelerated had been to no avail and that the period of total inactivity on the part of that court had, in the meantime, exceeded one year. 13. On 21 November 1994 the Deputy Chief Judge of the Criminal Division of the Warsaw Regional Court informed the applicant that 10,000 similar applications had been lodged with that court during the previous three years. This had created inevitable organisational problems because the judges of the Criminal Division were doubly overburdened: by the number of criminal cases which they had to deal with as their normal work and by the extra work arising from the significant number of cases concerning applications for wrongful convictions to be declared null and void. Moreover, as far as possible, the court was giving priority to applications lodged by living victims of repression and, therefore, it had to postpone the examination of those lodged on behalf of deceased victims. However, and in any event, there was no possibility of clearing the existing backlog within the next few years. 14. On 7 April 1998 the Warsaw Regional Court listed a hearing in the applicant’s case for 25 May 1998. On that date the court annulled the conviction of 10 February 1948 insofar as it concerned the charges relating to activities regarded as having been aimed at achieving independence for Poland. Since no party to the proceedings appealed within the statutory time-limit of seven days, the first-instance decision became final on 2 June 1998. 15. The Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland sets out rules concerning the conditions under which certain politically-motivated convictions rendered from 1 January 1944 to 31 December 1956 can be declared null and void, and provides for the State’s civil liability for such convictions. 16. At the material time the relevant part of section 1(1) of the 1991 Act provided: “Convictions or other decisions rendered by the Polish judicial, prosecuting or extra-judicial authorities during the period ... from 1 January 1944 to 31 December 1956 shall be declared null and void if the offence with or of which the person concerned was charged or convicted related to activities undertaken by him with the aim of achieving independence for Poland, or if the decision in question was taken on the ground that he had undertaken such activity. The same applies to persons convicted of resisting the collectivisation of farm land and compulsory contributions of foodstuffs.” 17. The relevant part of section 3, as applicable at the material time, read: “1. A conviction or decision [referred to in Section 1(1)] shall be declared null and void on an application lodged by [one of the following persons]: the Ombudsman, the Minister of Justice, a prosecutor, a victim of repression or any person authorised by law to lodge an appeal on his behalf; where a victim of repression has since died, or he has left the territory of Poland, or is mentally ill, such an application may be lodged by any of his close relatives: ... siblings or spouse, or by an association of persons persecuted for activities undertaken by them with the aim of achieving independence for Poland. 2. The court shall determine the case at a hearing on the basis of the case-file of the organ which made the original decision. It may, where necessary, obtain additional evidence. 3. A party entitled to file an application under paragraph 1 shall be entitled to appeal against a decision on whether or not the original decision should be declared null and void. 4. Unless otherwise provided, the provisions of the Code of Criminal Procedure shall apply by analogy to the proceedings [relating to applications under paragraph 1]; however, a prosecutor must participate in the hearing. A victim of repression [and other persons entitled under paragraph 1 to lodge an application] or, with the court’s leave, other persons may participate in the hearing. The hearing shall be recorded in minutes.” 18. On 21 May 1993 the 1991 Act was amended to the effect that its provisions from that date on became applicable to persons who had been persecuted or convicted for political reasons by the Stalinist Soviet authorities by virtue of an agreement concluded on 26 July 1944 between the Polish Committee of National Liberation (Polski Komitet Wyzwolenia Narodowego) and the government of the USSR. Under that amendment, only the Warsaw Regional Court was competent to deal with applications lodged by this group of repressed or wrongly convicted persons. Later, on 3 February 1995, the 1991 Act was again amended; this time to the effect that all regional courts could deal with applications lodged by such persons. The second amendment took effect on 1 April 1995.

train

001-104495

ENG

RUS

CHAMBER

CASE OF REPUBLICAN PARTY OF RUSSIA v. RUSSIA

Violations of Art. 11;Remainder inadmissible;Pecuniary damage - claim dismissed

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

6. The Republican Party of Russia was created in November 1990 by consolidation of the Democratic Wing of the USSR Communist Party and its subsequent secession from that party. 7. On 14 March 1991 the Ministry of Justice formally registered the public association “Republican Party of the Russian Federation”. 8. Following changes in domestic legislation, on 27 April 2002 a general conference of the public association decided on its reorganisation into a political party by the name of “Republican Party of Russia”. 9. On 12 August 2002 the applicant was registered as a party by the Ministry of Justice. 10. Its articles of association list among its aims the nomination of candidates for election to state and municipal bodies and participation in the activities of those bodies, the development of civil society in Russia and the promotion of the unity and territorial integrity of the country and of the peaceful coexistence of its multi-ethnic population. 11. On 17 December 2005 an extraordinary general conference of the applicant elected its management bodies. In particular, Mr Zubov was elected chairman of the Political Council and Mr Sheshenin chairman of the Executive Committee. In accordance with the articles of association they became ex officio representatives of the party. The general conference also decided to change the party’s address and to create several regional branches. 12. On 26 December 2005 the applicant asked the Ministry of Justice to amend the information contained in the Unified State Register of Legal Entities. In particular, it asked that its new address and the names of its ex officio representatives be entered in the Register. 13. On 16 January 2006 the Ministry of Justice refused to make the amendments because the party had not submitted documents showing that the general conference had been held in accordance with the law and with its articles of association. 14. On 2 March 2006 the applicant re-submitted its request. It produced the minutes of the conferences of its regional branches at which delegates to the general conference had been nominated, the list of the delegates and the minutes of the general conference. 15. On 4 April 2006 the Ministry of Justice refused for the second time to register the amendments. It found that the applicant had not submitted documents confirming the number of its members. Moreover, the minutes of the Irkutsk, Chelyabinsk and Sverdlovsk regional conferences did not include the lists of participants. The minutes of the Arkhangelsk and Yaroslavl regional conferences were flawed because they indicated that those conferences had been convened at the initiative of the Novosibirsk regional branch. The Vladimir regional conference had not actually been held. Some of the participants at the general conference were not members of the party or had not been elected delegates. Due to those and other omissions it was not possible to establish whether the regional conferences had been quorate and whether the general conference had been legitimate. 16. The applicant challenged the refusal before a court. It argued that it was not required to submit documents confirming the number of its members. In any event, that information was already in the Ministry’s possession because the party had submitted it in its annual activity report in 2005. The Ministry of Justice was not empowered to verify whether the general conference and the regional conferences were legitimate. Domestic law required that such verification be conducted only before the registration of a new party or of amendments to the articles of association, which was not the case of the applicant. In any event, the general conference had been convened in accordance with domestic law and the articles of association. It had brought together 94 delegates from 51 regional branches. The delegates had been nominated at regional conferences held in compliance with the party’s internal rules. The law did not require the minutes of regional conferences to contain the list of participants. The minutes had indicated the total number of the members of the regional branches and the number of participants at the conferences. That information had been sufficient to establish that the conferences had been quorate. The applicant conceded that the minutes of the Arkhangelsk and Yaroslavl regional conferences contained typing errors, which, however, did not affect the outcome of the voting. The Ministry of Justice’s finding that the Vladimir regional conference had never been held had been refuted by the documents. The finding that some of the participants at the general conference had not been members of the party or had not been elected delegates was not supported by any documentary evidence. The applicant lastly submitted that officials of the regional departments of the Ministry of Justice who had attended some of the regional conferences had not noted any breaches of the substantive or procedural rules. The applicant claimed that the refusal to amend the Register violated its freedom of association and hindered its activities. In particular, the Ministry of Justice had refused to register three regional branches precisely because the Register did not contain the names of the applicant’s ex officio representatives. 17. The Ministry of Justice maintained that the decision of 4 April 2006 had been lawful. The Ministry was not only entitled, but had a legal obligation to verify the information submitted by the applicant. The verification had revealed that the documents produced by the applicant had not met the legal requirements. In particular, the minutes of the regional conferences did not all contain the list of participants. Thirty-three regional conferences had been inquorate. The applicant had never submitted any information about its local branches and it was therefore not clear who had nominated delegates for the regional conferences and whose interests they had represented. The minutes of the Arkhangelsk and Yaroslavl regional conferences indicated that the conferences had been convened at the initiative of the Novosibirsk regional branch. Due to those omissions it had not been possible to establish whether the delegates to the general conference had been duly nominated. Moreover, the decision to convene the general conference had been taken on 1 December 2005, while some of the regional conferences had taken place in November 2005. As the general conference had been convened in breach of the procedural rules, it had been illegitimate. 18. On 12 September 2006 the Taganskiy District Court of Moscow upheld the decision of 4 April 2006. It held that, under sections 15, 16, 20 and 38 of the Political Parties Act, the Ministry of Justice had been empowered to verify the information and documents submitted by the applicant before registering any amendments to the Register. The Ministry had found that the documents submitted did not meet the requirements established by law. The court had no reason to doubt its findings because they were corroborated by the case materials and had not been refuted by the applicant. The court held that the decision of 4 April 2006 had been lawful and had not violated the applicant’s rights under Article 11 of the Convention. 19. In its appeal submissions the applicant claimed, in particular, that the Ministry of Justice’s requirement to submit the same documents as for the initial registration of a party or the registration of amendments to its articles of association had no basis in domestic law. Under the Political Parties Act amendments concerning a party’s address or the names of its ex officio representatives were to be registered on the basis of a written notification to the registration authority. The applicant also argued that the Ministry of Justice had no authority to verify the legitimacy of its general conference. It insisted that the general conference had been held in conformity with its articles of association and with domestic law. 20. On 19 December 2006 the Moscow City Court upheld the judgment on appeal. It referred to section 32 § 7 of the Non-Profit Organisations Act and held as follows: “...A political party requesting to amend the information [contained in the Register] is to produce the same documents as required for registration of a party. The list of those documents is contained in section 16 of the Political Parties Act. [The applicant’s] argument that the extraordinary general conference of the party was organised and held in accordance with the law in force and with its articles of association aims at a different assessment of documents produced [by the applicant] to [the Ministry of Justice] for registration. At the same time, [the Ministry of Justice] and the [District] Court had reasons to conclude that the submitted documents contained information which did not meet the legal requirements. The [City] Court agrees with the [District] Court’s assessment of the evidence.” 21. In 2006, in a separate set of proceedings, the Ministry of Justice conducted an inspection of the applicant’s activities. It issued thirty-six warnings to the party’s regional branches. Seven regional branches were dissolved by courts at the Ministry’s request and the activities of the Moscow regional branch were suspended. On 28 September 2006 the Ministry prepared the inspection report mentioning that the applicant had 49 regional branches, of which 32 had more than 500 members, and that the total number of party members was 39,970. 22. On 1 March 2007 the Ministry of Justice asked the Supreme Court of the Russian Federation to dissolve the applicant. It claimed that the party had fewer than 50,000 members and fewer than 45 regional branches with more than 500 members, in breach of the Political Parties Act. 23. The applicant submitted that it met the requirements of the Political Parties Act because it had 58,166 members and had 44 registered regional branches with more than 500 members. 24. On 23 March 2007 the Supreme Court of the Russian Federation ordered the dissolution of the applicant. It found that the Mari-El, Krasnoyarsk, Tyumen, Novosibirsk, Murmansk, and Vladimir regional branches had been dissolved by court decisions in 2006, therefore their members could not be taken into account. Eight regional branches had fewer than 500 members, in particular: – despite a warning issued by the Ministry, the Ingushetia regional branch did not submit documents showing the number of its members. According to the information in the Ministry of Justice’s possession, the branch had 152 members; – the applicant had submitted that the Kalmykiya regional branch had 508 members. However, an inspection had revealed that thirty-seven of them had never joined the party, four of them were simultaneously members of other regional branches, the names of three members appeared twice in the list, and eighteen members did not reside at the indicated addresses. Therefore, the branch had in fact only 468 members; – out of 516 members of the Krasnodar Regional branch eighteen had made a written declaration that they had never joined the party. Four members, while refusing to make a written statement, had made oral statements to that effect; – the Arkhangelsk regional branch had 514 members. However, seventeen of them were under eighteen years of age. Moreover, the party had not produced individual applications for membership in respect of 100 members; – 1,036 members of the Samara regional branch had been admitted to the party in breach of the articles of association. In particular, 791 members had been admitted by the branch’s political council elected at an illegitimate general conference. To support its conclusion that the general conference had been illegitimate the Supreme Court referred to the judgment of the Taganskiy District Court of Moscow of 12 September 2006 (see paragraph 18 above); – the Tambov regional branch had 541 members. However, the membership of 230 of them had not been confirmed. In particular, the party had not produced individual applications for membership in respect of 177 members, thirty-three members had no residence registration in the Tambov Region, four members had left the Tambov region, two members had been younger than eighteen at the time they had joined the party, three members had not signed their applications for membership, and thirty-three had declared that they had never joined the party; – the Tula Regional branch had 383 members; – the Komi-Permyatskiy regional branch had 154 members. 25. The court held that it had no reason to doubt the information submitted by the Ministry. The applicant had never contested before the courts the information contained in the inspection report or the warnings issued by the Ministry. The court further found that the Ministry had not submitted any evidence in support of their conclusions that the Karachaevo-Cherkesskiy, Altay and St Petersburg regional branches had fewer than 500 members, therefore the court accepted the number of members suggested by the applicant. The court also accepted that the party had several unregistered branches. However, their members could not be taken into account for establishing the total number of party members. The court concluded that on 1 January 2006 the applicant had 43,942 members, and 37 regional branches with more than 500 members. Thus, the applicant did not meet the requirements established by law and was subject to dissolution. 26. The applicant appealed. It submitted that the Ministry’s submissions had not been supported by any documents. Nor had the Ministry indicated the names of the people who, in its opinion, had been admitted to the party in breach of domestic law and the party’s articles of association. The first-instance court had refused to admit evidence submitted by the applicant, namely individual applications for membership and other documents confirming the number of party members. The court had not taken into account 8,819 members living in the regions where the branches were not registered, although they had been admitted to the party at the federal level and were members of the party itself and not members of its unregistered regional branches. The Ministry had conducted an inspection in March 2006; it had never verified the number of the applicant’s members as at 1 January 2006. Moreover, its seven regional branches had been dissolved later in 2006, therefore on 1 January 2006 they had still been functioning and the applicant had had the required number of regional branches. Lastly, as domestic law did not establish the inspection procedure, the inspections had been arbitrary. 27. On 31 May 2007 the Appellate Collegium of the Supreme Court upheld the judgment of 23 March 2007 on appeal. It found that the findings of the first-instance court had been based on sufficient evidence, namely the inspection reports compiled by the Ministry of Justice and its regional departments. The court had taken into account the number of the party’s members as at 1 January 2006. Individual applications submitted by the party after that date could not be taken into account because they could have been written after 1 January 2006 and backdated. Moreover, the applicant had not challenged the inspection report or the warnings issued by the Ministry. It was accordingly barred from contesting before the Supreme Court the facts mentioned in the report and in the warnings. In any event, even according to the party’s submissions it had only 44 regional branches with more than 500 members instead of 45, which was in itself a sufficient ground for dissolution. 28. The status and activities of political parties are governed by the Political Parties Act (Federal Law no. 95-FZ of 11 July 2001), the Non-Profit Organisations Act (Federal law No. 7-FZ of 12 January 1996) and the Registration of Legal Entities Act (Federal Law no. 129-FZ of 8 August 2001). 29. Membership of a political party shall be voluntary and individual. Citizens of the Russian Federation who have attained the age of eighteen may be members of a political party. Foreign citizens, stateless persons, and Russian nationals who have been declared incapable by a judicial decision may not be members of a political party. Admission to membership of a political party is decided upon on the basis of a written application by the Russian Federation citizen, in accordance with the procedure set out in the articles of association. A Russian Federation citizen may hold membership of only one political party at once. A member of a political party may be registered only in one regional branch in the region of his permanent or predominant residence (section 23 §§ 1, 2, 3 and 6 of the Political Parties Act). 30. The Political Parties Act, adopted on 11 July 2001, introduced the requirements of minimum membership and regional representation for political parties. Until 20 December 2004 section 3 § 2 of the Political Parties Act required that a political party should have no fewer than ten thousand members and should have regional branches with no fewer than one hundred members in more than one half of Russia’s regions. If those conditions were fulfilled, it was also allowed to have branches in the remaining regions provided that each branch had no fewer than fifty members. 31. On 30 October 2004 a group of deputies of the State Duma proposed amendments to section 3 § 2 of the Political Parties Act. In particular, they proposed increasing the minimum membership of a political party to fifty thousand members and the minimum membership of a regional branch to five hundred members. An explanatory note appended to the draft law provided the following justification for the amendments: “The proposed draft Federal law is a follow-up to the reform of the political system started in 2001 and it aims at strengthening the political parties and involving a wider range of citizens in the political life of the society and the State.” 32. The State Duma’s Committee on Public Associations and Religious Organisations recommended that the amendments be adopted. The recommendation reads as follows: “The subject of the proposed Draft law is extremely important and pertinent. The experience of [political] party development in recent years has revealed that the political system in Russia needs perfection. The state and development of the party system have a major influence on the effective functioning of the legislative and executive powers whose mission is to protect citizens’ rights and create favourable conditions for the development of the country. This is the rationale of the political reform proposed by the President of the Russian Federation, which advocates as one of its main goals the enhancement of the role and prestige of political parties in contemporary Russia. Acting as the nexus between civil society and the authorities and participating in parliamentary elections, large and authoritative political parties with firm political views, supported by a large number of voters, reinforce the structure and stability of the party system. This [Draft] law proposes increasing the minimum membership of a party from ten thousand (under the Law now in force) to fifty thousand members and, for the regional branches, from one hundred to five hundred members. This is mainly justified by the consideration that the parliamentary, and consequently democratic, system cannot function without strong parties. Many small parties, the so-called quasi parties, having virtually no political weight or influence on the voters take part in the elections and enjoy various advantages. During the election campaign they receive financing from the State budget, have access to the media and are allocated free airtime on television. And after the election they disappear from the political scene. It is enough to note that out of forty-four parties and political alliances registered at the moment only three parties and one political alliance have seats in the State Duma. Only three parties have passed the 3% threshold, while the others have obtained less than 1% of the votes. This situation places an excessive burden on the budget and is at variance with the principle of efficient and careful spending of public funds provided for in Article 34 of the Budget Code of the Russian Federation. The dispersal of voters between such [small] parties results in the instability of the political system which we are witnessing today in our country. On the whole, the Draft law aims at streamlining the existing political system and creating effective, large-scale political parties having stable branches in the regions, expressing the genuine interests of substantial groups of voters and capable of defending them in the present conditions of democratic transformations in Russia. In view of the above, the Committee considers it necessary to support the proposed Draft law.” 33. On 20 December 2004 section 3 § 2 was amended. The amended section 3 § 2 required that a political party should have no fewer than fifty thousand members and should have regional branches with no fewer than five hundred members in more than one half of Russia’s regions. It was also allowed to have branches in the remaining regions provided that each branch had no fewer than two hundred and fifty members. 34. The political parties were required to bring the number of their members into compliance with the amended section 3 § 2 by 1 January 2006. If a party had not complied with that requirement it had to reorganise itself into a public association within a year, failing which it would be dissolved (section 2 §§ 1 and 4 of the Amending Act, Federal Law no. 168-FZ of 20 December 2004). 35. On 1 January 2007 the Ministry of Justice announced that only seventeen political parties out of forty-eight registered as at February 2004 now met the requirements of minimum membership and regional representation. Twelve political parties were dissolved by the Supreme Court in 2007, three political parties reorganised themselves into public associations, while several more political parties merged with bigger parties. Fifteen political parties remained registered by the end of 2007 and were eligible to participate in the 2 December 2007 elections to the State Duma. 36. On 5 November 2008 the President, in his address to the Federation Council, called for the development of democracy, in particular, by decreasing the minimum membership requirement for political parties. 37. On 5 December 2009 the President proposed amending section 3 § 2 of the Political Parties Act by providing for a gradual decrease in the minimum membership requirement. The explanatory note contained the following justification for the proposed amendments: “The Draft law aims at giving effect to the President’s address to the Federation Council of the Federal Assembly of the Russian Federation of 5 November 2008, concerning the necessity gradually to decrease the minimum membership of political parties required for their registration and further functioning, as well as to introduce the requirement of rotation for [management bodies] of political parties.” 38. The State Duma’s Committee on Constitutional Legislation and State Development recommended that the proposed amendments be adopted. The relevant part of its recommendation reads as follows: “The Draft law proposes a gradual decrease in the [minimum] membership of political parties required for their establishment, registration and further functioning. Its aim is to give effect to the measures proposed by the President of the Russian Federation in his address to the Federation Council of the Russian Federation of 5 November 2008, with a view to increasing the level and quality of people’s representation in the government.” 39. On 28 April 2009 section 3 § 2 was amended. It now reads as follows: “2. ... a political party shall: before 1 January 2010 – have no fewer than fifty thousand members, and regional branches with no fewer than five hundred members in more than one half of Russian regions... It may also have branches in the remaining regions provided that each branch has no fewer than two hundred and fifty members... from 1 January 2010 to 1 January 2012 - have no fewer than forty-five thousand members, and regional branches with no fewer than four hundred and fifty members in more than one half of Russian regions... It may also have branches in the remaining regions provided that each branch has no fewer than two hundred members... from 1 January 2012 - have no fewer than forty thousand members, and regional branches with no fewer than four hundred members in more than one half of Russian regions... It may also have branches in the remaining regions provided that each branch has no fewer than one hundred and fifty members...” 40. In accordance with the Registration of Legal Entities Act, all legal entities, including political parties, must be registered in the Unified State Register of Legal Entities. The Unified State Register of Legal Entities must contain, inter alia, the following information about each legal entity: its address and the names of its ex officio representatives. The legal entity must notify the registration authority of any change in that information (section 5 §§ 1 and 5). 41. Section 12 of the Registration of Legal Entities Act contains a list of documents to be submitted for the initial registration of a legal entity. Its section 17 § 1 contains a list of documents to be submitted for the registration of amendments to the legal entity’s articles of association. Paragraph 2 of that section provides that to register changes in other information on the legal entity (such as a change of address or ex officio representatives), the legal entity must submit a written notification to the registration authority. The notification must contain a declaration confirming that the information submitted is authentic and satisfies the requirements established by law. For that purpose a standard notification form was to be designed by the Government. 42. The Non-Profit Organisations Act also contains a list of documents to be submitted for the initial registration of a non-profit organisation (section 13.1 § 4) and the registration of amendments to its articles of association (section 23). The Act also provides that a non-profit organisation must notify the registration authority about any change concerning its address or its ex officio representatives and submit confirming documents. The procedures and time-limits are the same as for the initial registration of a non-profit organisation. The list of documents to be submitted is determined by the competent executive authority (section 32 § 7, added on 10 January 2006 and in force from 16 April 2006). The competent executive authority may refuse registration if the documents submitted do not comply with statutory requirements (section 23.1 § 1). 43. The Political Parties Act provides that political parties must be registered in the Unified State Register of Legal Entities in accordance with the special registration procedure established by that Act (section 15 § 1). Amendments to the Register are made pursuant to the decision of a competent executive authority authorising registration of information about the establishment, reorganisation or dissolution of a political party or its regional branches or of other information specified by law (section 15 § 2). Before registering a political party, the competent registration authority must verify whether the documents submitted for registration satisfy the requirements of the Political Parties Act. The Register must be amended within five days from the date of the authorisation issued by the registration authority (section 15 § 5). 44. Section 16 § 1 of the Political Parties Act contains an exhaustive list of documents to be submitted for the registration of a political party established by the founding congress: (a) an application for registration; (b) the party’s articles of association; (c) its political programme; (d) copies of decisions taken by the founding congress, in particular those concerning the establishment of the political party and its regional branches, the adoption of its articles of association and its programme and the election of its management bodies, and containing information about the delegates present and the results of the votes; (e) a document confirming payment of the registration fee; (f) information about the party’s official address; (g) a copy of the publication announcing the time and place of the founding congress, and (h) copies of the minutes of regional conferences held in more than one half of Russia’s regions, mentioning the number of members of each regional branch. Paragraph 2 of the same section prohibits State officials from requiring the submission of any other documents. The documents listed above must be submitted to the registration authority no later than six months after the founding congress (section 15 § 3). 45. The registration authority may refuse registration if the party has not submitted all necessary documents or if the information contained in those documents does not meet the requirements established by law (section 20 § 1). 46. A political party must notify the registration authority, within three days, of any change in the information contained in the Unified State Register of Legal Entities, including any change in its address or its ex officio representatives. The registration authority amends the Register within one day of receipt of the notification (section 27 § 3) 47. A political party’s articles of association must establish, among other things, the procedure for the election of its management bodies (section 21 § 2 of the Political Parties Act). Management bodies of a political party must be re-elected at least every four years (section 24 § 3). Management bodies must be elected by a secrete vote at a general conference assembling delegates from regional branches established in more than one half of Russia’s regions. The election must be conducted in accordance with the procedure established by the party’s articles of association and the decision must be taken by a majority of those present and voting (section 25 §§ 1, 4 and 6). 48. Until 14 July 2003 candidates in elections to State bodies could be nominated by political parties, electoral blocks or by self-nomination. Since legislative amendments introduced on 11 July 2001 entered into force on 14 July 2003, candidates in elections to State bodies may be nominated by political parties only (section 36 § 1 of the Political Parties Act as in force from 14 July 2003). 49. A political party wishing to participate in elections to the State Duma must submit its list of candidates to the electoral commission. It must also submit a certain number of signatures of support. Parties who currently have seats in the State Duma are absolved from the requirement to submit signatures of support. Until 3 June 2009 a political party had to submit signatures from no fewer that 200,000 enfranchised citizens domiciled in at least twenty Russian regions. The legal provision currently in force requires a political party to submit signatures from no fewer than 150,000 enfranchised citizens domiciled in more than one half of Russian regions. The number of signatures required will be decreased to 120,000 after the parliamentary elections of December 2011 (section 39 of the State Duma Elections Act (Federal Law no. 51-FZ of 18 May 2005)). 50. Until 2005 the 450 seats in the State Duma were distributed between those political parties whose electoral lists obtained more than 5% of the votes cast. The State Duma Elections Act of 18 May 2005 increased the electoral threshold to 7% (section 82 § 7 of the State Duma Elections Act). In accordance with recent amendments to the State Duma Elections Act introduced on 12 May 2009, a political party whose electoral list wins between 6% and 7% of the votes cast receives two seats in the State Duma, while a party which wins between 5% and 6% of the votes cast receives one seat (section 82.1 of the State Duma Elections Act). 51. Political parties which take part in elections and obtain more that 3% of the votes cast are entitled to receive public financing to reimburse their electoral expenses. The amount of public financing received by each party is proportionate to the number of votes obtained by it (section 33 §§ 1, 5 and 6 of the Political Parties Act). 52. Once a year a political party must submit to the competent authorities a report on its activities, indicating, in particular, the number of members of each of its regional branches (section 27 § 1 (b)). 53. The competent authorities monitor compliance by political parties and their regional and other structural branches with Russian laws, as well as the compatibility of political parties’ activities with the regulations, aims and purposes set out in their articles of association. The authorities concerned have the right to study, on an annual basis, the documents of political parties and their regional branches confirming the existence of regional branches and the number of their members, and to issue warnings to political parties and their regional branches if they pursue activities incompatible with their articles of association. The party or regional branch may challenge such warnings before a court. The authorities have the right to apply to a court for the suspension of the activities or the dissolution of a political party or its regional branch (section 38 § 1). 54. A political party may be dissolved by the Supreme Court of the Russian Federation if it does not comply with the minimum membership requirement or the requirement to have regional branches in more than one half of Russian regions (section 41 § 3). “3. The Constitution of the Russian Federation provides for the multiparty system (Article 13 § 3) and for the right to freedom of association and freedom of activities of public associations (Article 30 § 1) ... It does not, however, specify the territorial level – all-Russian, interregional, regional or local – on which political parties may be founded. Similarly, it does not contain an explicit ban on the creation of regional parties. Accordingly, the requirement in section 3 § 2 of [the Political Parties Act] that political parties may be created and operated only on the federal (all-Russian) level is a limitation of the constitutional right to freedom of association in political parties. Such limitations are permissible only if they are necessary in order to protect constitutionally guaranteed values (Article 55 § 4 of the Constitution of the Russian Federation). 3.1. ...[The Political Parties Act] guarantees the right to freedom of association in political parties (section 2) and provides that political parties are established for the purpose of ensuring participation by Russian citizens in the political life of their society. Their mission is to form and articulate citizens’ political will, to take part in public and political actions, elections and referenda, as well as to represent citizens’ interests in State and municipal bodies (section 3 § 1). According to the substance of [the Political Parties Act], political parties are created to ensure Russian citizens’ participation in the political life of the entire Russian Federation rather than in one of its parts. Their vocation is to form the political will of the multinational Russian people as a whole and to articulate nationwide interests first and foremost. Their aims should not be associated with the interests of certain regions only. At the same time, when carrying out their activities directly in the regions, political parties must combine nationwide and regional interests... The federal legislator ... made the acquisition (and retention) of the status of a political party conditional, firstly, on a public association expressing the interests of a considerable number of citizens irrespective of their region of residence and, secondly, on its carrying out activities in the entire territory of the Russian Federation or most of it. Such structuring of the political scene is aimed at preventing the division of the political forces and the emergence of numerous artificial small parties (especially during electoral campaigns) created for a short duration and therefore incapable of fulfilling their mission ... in the country’s political system. 3.2. ... In the contemporary conditions where Russian society has not yet acquired solid experience of democratic existence and is faced with serious challenges from separatist, nationalist and terrorist forces, the creation of regional political parties – which would inevitably be interested in vindicating mainly their own purely regional or local interests – might result in a breach of the territorial integrity and unity of the political system and undermine the federative structure of the country. The legal line between regional political parties and political parties based in fact on ethnic or religious affiliation would be blurred. Such parties ... would inevitably strive to assert mainly the rights of their respective ethnic and religious communities, which at the present stage of historic development would distort the process of forming and articulating the political will of the multinational people which is the bearer of sovereignty and the only source of power in the Russian Federation. Moreover, taking into account the complex [federal] structure of the Russian Federation, the establishment of regional and local political parties in each region of the Federation might lead to the rise of numerous regional party systems. This might turn the emerging party system ... into a destabilising factor for the developing Russian democracy, popular sovereignty, federalism and the unity of the country, and weaken the constitutional protection of people’s rights and freedoms, including the right to freedom of association in political parties and the equal right of all citizens to establish a political party and participate in its activities in the entire territory of the Russian Federation. 3.3. Thus, the requirement contained in [the Political Parties Act] that the status of a political party may be acquired only by nationwide (all-Russian) public associations pursues such constitutionally protected aims as the creation of a real multiparty system, the legal institutionalisation of political parties in order to assist the development of the civil society, and ... the formation of large, nationwide political parties. This requirement is also necessary in the contemporary historical conditions of developing democracy and rule of law in the Russian Federation for the purpose of protecting constitutional values and, above all, securing the unity of the country. The above limitation is temporary in character and must be abolished as soon as the circumstances justifying it become different. 4. Although it provides for a multiparty system and guarantees the right to freedom of association in political parties and the freedom of their activities, the Constitution of the Russian Federation does not set any requirements concerning the number of parties, or any membership requirements. Nor does it prohibit establishing a minimum membership requirement for political parties. It is the role of the federal lawmaker to establish those requirements in such a way that, on the one hand, the [required minimum] membership and territorial scale of activities of political parties are not excessive and do not encroach on the very essence ... of the citizens’ right to freedom of association and, on the other hand, [the political parties] are capable of fulfilling their aims and mission as nationwide (all-Russian) political parties. In other words, the lawmaker must be guided by the criteria of reasonable sufficiency ensuing from the principle of proportionality. When deciding on the minimum membership and the territorial scale of the activities of political parties the lawmaker has a wide discretion, taking into account that this issue is to a considerable degree based on political expediency. This follows from the fact that there exist different solutions to the issue in the legislation of other countries (the minimum membership requirement for political parties is considerably higher or lower than that contained in section 3 of [the Political Parties Act])... Defining the minimum-membership requirement for political parties in [the Political Parties Act], the lawmaker apparently proceeded from the necessity for a political party to have considerable support in society. Such support is required to fulfil the main mission of a political party in a democratic society, namely forming and articulating the political will of the people. The requirements such as contained in section 3 § 2 of [the Political Parties Act] [as in force until 20 December 2004] are not in themselves incompatible with the Constitution of the Russian Federation. These quantitative requirements might become incompatible with the Constitution if their enforcement results in the practical impossibility for the citizens to exercise their constitutional right to freedom of association in political parties, for example if, in breach of the constitutional principle of the multiparty system, they permit the establishment of one party only. 5. The principle of political pluralism guaranteed by Article 13 of the Constitution of the Russian Federation may be implemented not only through a multiparty system and establishment and the activities of political parties with various ideologies. Therefore the forfeiture by interregional, regional and local public associations ... of the right to be called a political party does not mean that such associations are deprived of the right to participate in the political life of society at the regional and local levels. Nor have their members been deprived of the right to freedom of association. ... public associations have the majority of the rights guaranteed to political parties... The provision of [the Political Parties Act] that a political party is the only kind of public association that may nominate candidates in elections to State bodies (section 6 § 1) does not mean that other public associations, including regional and local ones, ... are deprived of the right to nominate candidates for elections to municipal bodies or the right to initiate regional or local referenda... 6. It follows from the above that, taking into account the historical conditions of development of the Russian Federation as a democratic and federative State governed by the rule of law, sections 3 § 2 and 47 § 6 of [the Political Parties Act] setting out the requirements for political parties and providing for the forfeiture by interregional, regional and local public associations of the status of political parties ... cannot be considered as imposing excessive limitations on the right to freedom of association. The above requirements do not prevent citizens of the Russian Federation from exercising their constitutional right to freedom of association by creating all-Russian political parties or joining them, or from defending their interests and achieving their collective goals in the political sphere at the interregional, regional and local levels by creating public associations ... and joining them...” “3.1... [The aim of the minimum membership requirement] is to promote the consolidation process, to create prerequisites for the establishment of large political parties voicing the real interests of the social strata, and to secure fair and equal competition between political parties during elections to the State Duma. The Federal Law of 18 May 2005 [the State Duma Elections Act] reformed the electoral system ... In accordance with that law all 450 members of the State Duma are to be elected from electoral lists submitted by political parties. The seats in the State Duma are distributed between the political parties which pass the threshold [of 7%] in terms of the number of votes cast for their respective electoral lists. The introduction of the threshold ... prevents excessive parliamentary fragmentation and thus ensures normal functioning of the parliament and buttresses the stability of the legislature and the constitutional foundations in general... [As a result of the reform] political parties become the only collective actors of the electoral process... The reform of the electoral system requires that the legal basis for the functioning of the multiparty system be adjusted so that the party system is capable of reconciling the interests and needs of society as a whole and of its various social and regional strata and groups, and of representing them adequately in the State Duma. The State Duma is an organised form of representation of the will and interests of the multiethnic population of the Russian Federation. That will and those interests can be expressed only by large, well-structured political parties. This is one of the reasons for changing the requirements imposed on political parties, including the minimum membership requirement for parties and their regional branches. These requirements are dictated by the characteristics proper to each stage of development of the party political system. They do not create insurmountable obstacles for the establishment and activities of political parties representing various political opinions, are not directed against any ideology and do not prevent discussion of various political programmes. The State guarantees equality of political parties before the law irrespective of the ideology, aims and purposes set out in their articles of association. 3.2. ... when setting out the minimum membership requirements for political parties the federal legislator must take care, on the one hand, that those requirements are not excessive and do not impair the very essence of the right to freedom of association, and must ensure, on the other hand, that the political parties are able to pursue the aims and purposes set out in their articles of association exclusively as national (all-Russian) political parties. The national legislature must be guided by the criteria of reasonable sufficiency and proportionality. ... the quantitative requirements will be incompatible with the Constitution only if the constitutional right to associate in political parties becomes illusory as a result of their application... ...the federal legislature is entitled to set out membership requirements for political parties in the light of current historical conditions in the Russian Federation. Those requirements can be changed in one way or the other because they are not arbitrary but objectively justified by the ... aims in the sphere of development of the political system and maintenance of its compatibility with the basic constitutional foundations of the Russian Federation. They do not abolish, diminish or disproportionately restrict the citizens’ constitutional right to associate in political parties. 3.3. ... Political parties are created to ensure the involvement of citizens of the Russian Federation in the political life of Russian society by means of forming and expressing their political will, participating in public and political activities, elections and referenda, and representing the citizens’ interests in State and municipal bodies. Therefore, the legislator rightfully determined [the minimum membership] by reference to a political party’s real ability to represent the interests of an important portion of the population and to accomplish its public functions... The [minimum membership] requirements... are not discriminatory because they do not prevent the emergence of diverse political programmes, they are applied in an equal measure to all public associations portraying themselves as political parties, irrespective of the ideology, aims and purposes set out in their articles of association, and they do not impair the very essence of the citizens’ right to freedom of association. Their application in practice shows that the constitutional right to associate in political parties remains real... (according to information from [the Ministry of Justice], on 1 January 2007 seventeen political parties out of thirty-three had confirmed their compliance with the new legal requirements, three political parties had decided on a voluntary basis to reorganise themselves into public associations...). The members of political parties which do not comply with the legal requirements established by the Political Parties Act have a choice ... between increasing the number of members of their party to reach the required minimum, reorganising their party into a public association..., founding a new party or joining another [existing] political party...” 57. The Guidelines on prohibition and dissolution of political parties and analogous measures (Doc. CDL-INF(2000)1), adopted by the European Commission for Democracy through Law (“the Venice Commission”) on 10 January 2000, read as follows: “The Venice Commission, ... Has adopted the following guidelines: 1. States should recognise that everyone has the right to associate freely in political parties. This right shall include freedom to hold political opinions and to receive and impart information without interference by a public authority and regardless of frontiers. The requirement to register political parties will not in itself be considered to be in violation of this right. ... 3. Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a party advocates a peaceful change of the Constitution should not be sufficient for its prohibition or dissolution. ... 5. The prohibition or dissolution of political parties as a particularly far-reaching measure should be used with utmost restraint. Before asking the competent judicial body to prohibit or dissolve a party, governments or other state organs should assess, having regard to the situation of the country concerned, whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other, less radical measures could prevent the said danger. 6. Legal measures directed to the prohibition or legally enforced dissolution of political parties shall be a consequence of a judicial finding of unconstitutionality and shall be deemed as of an exceptional nature and governed by the principle of proportionality. Any such measure must be based on sufficient evidence that the party itself and not only individual members pursue political objectives using or preparing to use unconstitutional means. 7. The prohibition or dissolution of a political party should be decided by the Constitutional court or other appropriate judicial body in a procedure offering all guarantees of due process, openness and a fair trial.” 58. The Venice Commission made the following recommendations in its Guidelines and explanatory report on legislation on political parties: some specific issues (Doc. CDL-AD(2004)007rev of 15 April 2004): “... B. Registration as a necessary step for recognition of an association as a political party, for a party’s participation in general elections or for public financing of a party does not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. Any requirements in relation to registration, however, must be such as are ‘necessary in a democratic society’ and proportionate to the objective sought to be achieved by the measures in question. Countries applying registration procedures to political parties should refrain from imposing excessive requirements for territorial representation of political parties as well as for minimum membership. The democratic or non-democratic character of the party organisation should not in principle be a ground for denying registration of a political party. Registration of political parties should be denied only in cases clearly indicated in the Guidelines on prohibition of political parties and analogous measures, i.e. when the use of violence is advocated or used as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a peaceful change of the Constitution is advocated should not be sufficient for denial of registration. C. Any activity requirements for political parties, as a prerequisite for maintaining the status as a political party and their control and supervision, have to be assessed by the same yardstick of what is ‘necessary in a democratic society’. Public authorities should refrain from any political or other excessive control over activities of political parties, such as membership, number and frequency of party congresses and meetings, operation of territorial branches and subdivisions. D. State authorities should remain neutral in dealing with the process of establishment, registration (where applied) and activities of political parties and refrain from any measures that could privilege some political forces and discriminate others. All political parties should be given equal opportunities to participate in elections. E. Any interference of public authorities with the activities of political parties, such as, for example, denial of registration, loss of the status of a political party if a given party has not succeeded in obtaining representation in the legislative bodies (where applied), should be motivated, and legislation should provide for an opportunity for the party to challenge such decision or action in a court of law. F. Although such concern as the unity of the country can be taken into consideration, Member States should not impose restrictions which are not “necessary in a democratic society” on the establishment and activities of political unions and associations on regional and local levels. G. When national legislation provides that parties lose their status of a political party if they do not succeed to take part in elections or to obtain representation in legislative bodies, they should be allowed to continue their existence and activities under the general law on associations. ... a. Registration of political parties 10. The already mentioned study on the establishment, organisation and activities of political parties conducted in 2003 by the Sub-Commission on Democratic Institutions has shown that many countries view registration as a necessary step for recognition of an association as a political party, for participation in general elections or for public financing. This practice – as the Venice Commission has stated before in its Guidelines on Prohibition and Dissolution of Political Parties – even if it were regarded as a restriction of the right to freedom of association and freedom of expression, would not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. The requirements for registration, however, differ from one country to another. Registration may be considered as a measure to inform the authorities about the establishment of the party as well as about its intention to participate in elections and, as a consequence, benefit from advantages given to political parties as a specific type of association. Far-reaching requirements, however, can raise the threshold for registration to an unreasonable level, which may be inconsistent with the Convention. Any provisions in relation to registration must be such as are necessary in a democratic society and proportionate to the object sought to be achieved by the measures in question. b. Activity requirements for political parties and their control and supervision 11. Similar caution must be applied when it comes to activity requirements for political parties as a prerequisite for maintaining their status as a political party and their control and supervision. Far-reaching autonomy of political parties is a cornerstone of the freedoms of assembly and association and the freedom of expression as protected by the European Convention on Human Rights. As the European Court of Human Rights has stated, the Convention requires that interference with the exercise of these rights must be assessed by the yardstick of what is ‘necessary in a democratic society’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘democratic society’. In particular, control over the statute or charter of a party should be primarily internal, i.e. should be exercised by the members of the party. As regards external control, the members of a party should have access to a court in case they consider that a decision of a party organ violates its statute. In general, judicial control over the parties should be preferred over executive control. 12. Another important aspect is that of equal treatment of parties by public authorities. In the case of registration procedure (if it is foreseen by national legislation) the State should proceed carefully in order to avoid any possible discrimination of political forces which might be considered as representing an opposition to the ruling party. In any case, clear and simple procedures should exist to challenge any decision and/or act of any registration authority in a court of law. ... d. Political parties and elections 16. The main objective of political parties is participation in the public life of their country. Elections are essential for the fulfilment of this task; therefore the principle of equality between parties is of utmost importance. In recent years some new democracies claim that the stability of government and the good functioning of parliament can be achieved through limiting the number of parties participating in elections. This suggestion seems to be in contradiction with European standards applicable to electoral process. ... 18. In recent years the role of a multitude of political parties as associations expressing the will of many different parts of society is being reconsidered in a positive way. “Preventing an excessive number of parties through the electoral system would seem to be the most effective and least objectionable method as far as political rights are concerned. The general trend is to avoid restricting the number of parties by tinkering with the terms and conditions governing registration, because refusal to register a party is often a convenient way for the authorities to get rid of a competitor who is irksome rather than insignificant”[CDL-EL(2002)1, ch. II.4.1]. 19. In some Member States parties can lose their status of “political party” if they do not have any candidates elected in national elections. If the provisions of Articles 10 and 11 are to be applied with due regard to what is ‘necessary in a democratic society’, they should be allowed to continue their activities under the general law on associations. e. Parties on local and regional levels 20. Member states should not restrict the right of association in a political party to the national level. There should be a possibility to create parties on regional and local levels since some groups of citizens might want to associate in groups limiting their action to local and regional levels and to local and regional elections. However, certain new democracies consider such extensive approach to the freedom of association premature in the light of their effort to preserve the unity of the State. Such concern can be understood, but before any restrictions are imposed, the principle of proportionality and the yardstick of what is ‘necessary in a democratic society’ should be considered thoroughly.” 59. The Report on the participation of political parties in elections (Doc. CDL-AD(2006)025, of 14 June 2006) states as follows: “15. Political parties are, as some Constitutions and the European Court of Human Rights have expressly admitted, essential instruments for democratic participation. In fact, the very concept of the political party is based on the aim of participating “in the management of public affairs by the presentation of candidates to free and democratic elections”. They are thus a specific kind of association, which in many countries is submitted to registration for participation in elections or for public financing. This requirement of registration has been accepted, considering it as not per se contrary to the freedom of association, provided that conditions for registration are not too burdensome. And requirements for registration are very different from one country to another: they may include, for instance, organisational conditions, requirement for minimum political activity, of standing for elections, of reaching a certain threshold of votes. However, some pre-conditions for registration of political parties existing in several Council of Europe Member States requiring a certain territorial representation and a minimal number of members for their registration could be problematic in the light of the principle of free association in political parties.” 60. Further, in the report entitled “Comments on the Draft law on political parties of Moldova” endorsed by the Venice Commission at its 71st plenary session (Doc. CDL-AD(2007)025, of 8 June 2007), the Venice Commission criticised the requirements contained in the Moldovan Draft Law that a political party have no fewer than five thousand members in at least half of the territorial administrative units, with no fewer than 150 members domiciled in each of the aforementioned territorial administrative units. It found those requirements to be unusually high as compared to other democracies in Western Europe and almost impossible to fulfil for any local association. In another report on Moldova the Venice Commission criticised the statutory requirement that political parties submit membership lists for review every year. The relevant part of that report, entitled Joint Recommendations on the electoral law and the electoral administration in Moldova of the European Commission for Democracy through Law and the Office for Democratic Institutions and Human Rights of the OSCE (Doc. CDL-AD(2004)027, of 12 July 2004) read as follows: “51. Moldova has gone too far in registering political opinions, in that the membership lists have to be submitted for review every year. It is difficult to find a justification for this. Once a party is registered and has run for elections, the results of the elections could be sufficient evidence of its support. Only the need for renewed registration of such parties, which never gained support during elections, is admissible. Submitting membership lists to the government if a party has won seats in Parliament in a number of municipalities or rayons, seems at best unnecessarily bureaucratic, at worst, abusive. 52. Moreover, the requirement of support across the country discriminates regionally based parties.” 61. The Venice Commission has also adopted a Code of Good Practice in Electoral Matters (Doc. CDL-AD(202)23, of 30 October 2002). The Explanatory Report to the Code of Practice reads, in so far as relevant, as follows: “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.” 62. The Court conducted a comparative study of the legislation of twenty-one Member States of the Council of Europe. Thirteen of those States impose a minimum membership requirement on political parties. In particular, in order to obtain registration political parties are required to prove that they have a certain number of founding members. The required minimum membership ranges from 30 in Turkey and 100 in Croatia to 5,000 in Moldova and 25,000 in Romania. Five countries (Austria, France, Germany, Italy and Spain) do not impose any minimum membership requirement on political parties. Three more countries, while not setting a membership requirement as such, make registration of a political party conditional on producing a certain number of signatures of support (5,000 in Finland and Norway and 10,000 in Ukraine). In only two countries is there a statutory requirement that a political party establish regional branches in a certain number of regions (in more than one half of the regions in Ukraine and in all regions in Armenia). The legislation of two more countries requires political parties to have members domiciled in a certain number of regions (no fewer than one hundred and fifty members in more than one half of the regions in Moldova and no fewer than seven hundred members in at least eighteen regions in Romania). 63. It must also be noted that out of the twenty-one countries studied by the Court the legislation of only two countries (Latvia and Ukraine) restricts the right to nominate candidates for elections to political parties or their coalitions. The legislation of all the other countries examined allows the nomination of election candidates by associations of citizens or by self-nomination. 64. The Court also studied a report adopted by the Venice Commission, on the establishment, organisation and activities of political parties on the basis of the replies to the questionnaire on the establishment, organisation and activities of political parties (Doc. CDL-AD (2004)004, of 16 February 2004), which, in so far as relevant, reads as follows: “1. This report has been prepared from the replies to the Questionnaire on Establishment, Organisation and Activities of Political Parties, which was adopted by the Sub-Commission on Democratic Institutions (Venice, 13 March 2003, CDL-DEM(2003)1rev). The questionnaire is a follow-up to a similar document, which was sent out earlier, as part of preparations for the adoption of Guidelines and Report on the Financing of Political Parties (Venice, 9-10 March 2001, CDL-INF(2001)8). 2. This time 42 countries responded. They are listed here in alphabetical order: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Japan, Republic of Korea, Kyrghyz Republic, Latvia, Liechtenstein, Lithuania, Luxembourg, “The Former Yugoslav Republic of Macedonia”, Malta, The Netherlands, Poland, Romania, The Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and The United Kingdom. ... 1.4 Does the law distinguish between political parties on the local, the regional and the national level? 14. The majority of responding countries do not distinguish between political parties on different levels of government, no matter whether the governmental system of the country is unitary, federal or other; Austria, Greece, Finland, France, Italy, Japan, Luxembourg, Malta and Spain may be mentioned as examples. There are exceptions, however. Canada distinguishes between political parties on the federal and on the provincial level. Georgia prohibits explicitly establishment of political parties on the grounds of regional or territorial basis. Germany does not include political activities on the local level as aiming at taking part in the forming of the will in the representation of the people, i.e. the whole of the people; associations which are politically active on the local level only, therefore, do not fall within the concept of political party in the sense of the Constitution and the German legislation on political parties. ... 2.2 What are the substantive and procedural requirements to establish a political party? 22. A number of countries have a specific legal framework for the activities of political parties and their establishment. – in general – concerning its political programme – concerning founding members or concerning other individuals, who in some way have to support the establishment (and their number, citizenship, geographical distribution etc.) 23. Some countries impose on political parties an obligation to go through a registration process. Almost all countries mentioned in the first group in paragraph 2.1 have to go through a registration process or at least through deposition of their articles of association with the competent authorities of their country. This process is justified by the need of formal recognition of an association as a political party. Some of these additional requirements can differ from one country to another: ... d) minimum membership (Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Czech Republic, Estonia, Georgia, Germany, Greece, Kyrgyzstan, Latvia, Lithuania, Russian Federation, Slovakia and Turkey); ... i) signatures attesting certain territorial representation (Moldova, Russian Federation, Turkey and Ukraine); ... 24. After these requirements are met, a competent body (Ministry of Justice, for example) proceeds with official registration. In the case of such countries as, for example, Austria and Spain, the Charter (articles of association) are just submitted to the competent authority in order to be added to a special State register. ... 3.6 Is a political party required to maintain national, regional or local branches or offices? 48. There are no requirements in law to maintain branches or offices in a particular way in Andorra, Austria, Belgium, Canada, Estonia, Finland, France, Georgia, Hungary, Italy, Latvia, Liechtenstein, Luxembourg, Sweden and Switzerland. Romania requires political parties to maintain a head office, Ireland requires headquarters and Turkey, a national office in Ankara. Germany requires parties to maintain regional branches, and in the United Kingdom a party must state whether it intends to operate in the United Kingdom as a whole, in part of the United Kingdom or at a local level; however, this is no more than a statement of intention, and the law does not appear to impose a legal obligation on the party to carry out this statement of intention. In Ukraine, within six months from the date of registration a political party shall secure the formation and registration of its regional, city and district organisations in most regions of Ukraine, in the cities of Kyiv and Sevastopol and in the Autonomous Republic of the Crimea. ... 4.2 Is it mandatory for political parties, e.g. as a prerequisite for maintaining registration or for access to public financing, - to present individual candidates or lists of candidates for general elections on the local, regional or national level? - to participate in local, regional or national election campaigns? - to get a minimum percentage of votes or a certain number of candidates elected in local, regional and national elections? - to conduct other political activities specified by law? 52. Regulations on the participation of political parties in the political process of the country are more diverse in the case of States where there is a requirement for party registration. However, financing from public sources is subject to detailed legislation in most countries. Such general trends can be observed in countries for party registration and party financing: (a) only parties participating in general elections, which attain a certain threshold can receive public funding (Austria, Belgium, Bosnia and Herzegovina, Canada, Czech Republic, Estonia, “the Former Yugoslav Republic of Macedonia”, France, Georgia, Germany, Greece, Japan, Liechtenstein, Lithuania, Luxembourg, the Netherlands, Poland, Russian Federation, Spain, Slovenia, Sweden); (b) registration is revoked if a party: (1) does not take part in a certain number of elections (Armenia); (2) does not receive a minimum number of votes (Armenia); or (3) fails to prove a minimum membership and/or regional representation (Estonia, Moldova, Ukraine); (c) The party is removed from the official list of parties but can continue to exist as an association if it does not take part in a certain number of elections (Finland)...”

train

001-102804

ENG

DEU

CHAMBER

CASE OF HOFFER AND ANNEN v. GERMANY

Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

Bertram Schmitt;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

6. The applicants were born in 1945 and 1951 respectively and live in Heilbronn and Weinheim. 7. On 8 October 1997 the applicants distributed four-page folded pamphlets to passers-by in front of a Nuremberg medical centre. The front page contained the following text: “'Killing specialist' for unborn children Dr. F. [is] on the premises of the Northern medical centre, Nuremberg”. 8. The middle pages contained information on the development of the human foetus and about abortion techniques. It further contained the appeals: “Please support our struggle against the unpunished killing of unborn children” and “Therefore: No to abortion” The verso read as follows: “Support our protest and our work. Help to ensure that the Fifth Commandment “Thou shall not kill” and the Basic Law of the Federal Republic of Germany are in future respected by all doctors in Nuremberg! Stop the murder of children in their mother's womb on the premises of the Northern medical centre. then: Holocaust today: Babycaust (damals: Holocaust heute: Babycaust) Whoever remains silent becomes guilty too!” 9. The pamphlet bore the name and address of the second applicant as the person legally responsible for its content. 10. On behalf of the medical centre and Dr F., the City of Nuremberg brought criminal charges against the applicants for defamation. 11. On 16 July 1998 the Nuremberg District Court (Amtsgericht) acquitted the applicants on the grounds that their action was justified under section 193 of the Criminal Code (Strafgesetzbuch, see Relevant domestic law below). According to the District Court, the dissemination of the pamphlets was covered by the right to freedom of expression as guaranteed by Article 5 of the German Basic Law, since the pamphlet, taken as a whole, was not intended to debase Dr F. or the medical centre, but to express the applicants' general rejection of the performance of abortions. The District Court noted that the applicants considered the number of abortions performed in Germany to be crimes which were as abhorrent as the Holocaust. It was not up to the court to evaluate this statement, which was covered by the right to freedom of expression. 12. Following an examination of the statements contained in the pamphlet, the District Court considered that the applicant's right to freedom of expression had to prevail over the doctor's interest in the protection of his personal honour. 13. On 26 May 1999 the Nuremberg-Fürth Regional Court (Landgericht) quashed the District Court's judgment and convicted the applicants of defamation to the detriment of the medical centre and of Dr F. The Regional Court considered that the statement “then: Holocaust / today: Babycaust”, seen in the context of the other statements made in the pamphlet, had to be interpreted as putting the lawful activity performed by Dr F. on a level with the Holocaust, a synonym for the most abhorrent and unjustifiable crimes against humanity. According to the Regional Court, this statement was not covered by the applicants' right to freedom of expression, as it debased the doctor in a way which had not been necessary in order to express the applicants' opinion. While expressions of opinion which related to questions of public interest enjoyed a higher degree of protection than those relating to purely private interests, it had to be taken into account if and to which extent the person addressed had participated in the public debate. Furthermore, it had to be considered if the person expressing his thoughts could be at least expected to replace his statement by a statement which was less detrimental to the other person's honour. Applying these principles, the Regional Court considered that the applicants had failed sufficiently to take into account the doctor's interests. It had to be conceded that the applicants, as anti-abortion activists, had a political aim which they were allowed to pursue even by use of exaggerated and polemic criticism. However, by putting the doctor's legal actions on one level with the arbitrary killings of human beings performed by a regime of injustice, the applicants literally qualified him as a mass murderer. According to the Regional Court, this statement amounted to unjustifiable abusive insult (Schmähkritik). 14. The Regional Court further considered that the other statements contained in the pamphlet were covered by the applicants' right to freedom of expression and had to be accepted. Having regard to all the factors of the case, the Regional Court considered it appropriate to impose twenty daily fines of 20 German marks (DEM) each on the first applicant and thirty daily fines of 60 DEM each on the second applicant, as the person having assumed legal responsibility for the pamphlet's content. 15. On 8 December 1999 the Bavarian Court of Appeal (Bayerisches Oberstes Landesgericht) rejected the applicants' appeal on points of law. 16. On 7 January 2000 the applicants lodged complaints with the Federal Constitutional Court. 17. On 24 May 2006 the Federal Constitutional Court, sitting as a panel of three judges, quashed the Regional Court's judgment insofar as the applicants had been convicted of defamation to the detriment of the medical centre and dismissed the remainder of the applicants' complaints. 18. The Federal Constitutional Court considered, at the outset, that the criminal courts, when interpreting and applying the criminal law, had to respect the limits imposed by the right to freedom of expression as guaranteed by Article 5 of the Basic Law. The court further considered that the Regional Court had respected these principles. 19. According to the Federal Constitutional Court, the applicants had not confined themselves generally to criticising the performance of abortions – which they remained free to do – but had directed their statements directly against Dr F. It was clear from the overall context that the incriminated statement referred to Dr F., who was expressly mentioned on the front page. The Federal Constitutional Court further noted that the lower courts had assumed that the impugned statement put the doctor's professional activities on the same level as the Holocaust. It further observed that the Federal Court of Justice, in separate proceedings referring to the same pamphlet, assumed that the statement was meant to express the opinion that the abortions performed by the doctor amounted to mass homicide. However, this interpretation of the statement, which also contained the Holocaust reference, also contained a serious interference with the doctor's personality rights. 20. The Federal Constitutional Court further considered that the statement seriously infringed the doctor's personality rights. While the applicants' statement did not qualify as abusive insult, the Regional Court's decision was not objectionable as that court had duly weighed the conflicting interests – that is, the applicants' right to freedom of expression and the doctor's personality rights. In particular, the Regional Court had taken into account that the doctor had practised within the framework of the law and had not actively participated in the public debate on abortion. Furthermore, the applicants could have been reasonably expected to express their general criticism without the serious violation of the doctor's personality rights. This decision was served on the applicants' counsel on 22 June 2006. 21. On 9 November 2006 the Nuremberg Regional Court, following remittal, re-assessed the fines imposed as a penalty for defamation to the doctor's detriment. On 26 June 2007 the Nuremberg Court of Appeal quashed this judgment and remitted the case to the Nuremberg Regional Court. 22. On 25 September 2008 the Nuremberg Regional Court re-assessed the sentences and imposed fifteen daily fines of 10 EUR each on the first applicant and ten daily fines of 10 EUR each on the second applicant, thereby taking into account the second applicant's previous convictions. 23. On 2 April 2009 the Nuremberg Court of Appeal dismissed the applicants' appeal on points of law. 24. Article 5 of the German Basic Law provides: “(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” 25. The relevant provisions of the German criminal code read: Section 185 Defamation “Defamation shall be punished with imprisonment of not more than one year or a fine and, if the defamation is committed by means of an assault, with imprisonment of not more than two years or a fine.” Section 193 Safeguarding legitimate interests “...utterances made in order to exercise or protect rights or to safeguard legitimate interests...shall only entail liability to the extent that the existence of defamation results from the form of the utterance or the circumstances under which it was made.” 26. On 30 May 2000 the Federal Court of Justice, in separate proceedings, rejected the Nuremberg clinic's civil action for an injunction against the applicants to desist from further distributing the pamphlet which forms the subject matter of the proceedings before the Court. The Federal Court of Justice interpreted the statement “then: Holocaust / today: Babycaust” as expressing the opinion that the performance of abortions constituted a reprehensible mass killing of human life. The Federal Court of Justice further considered that, in the context of the public debate on the fundamental question of the protection of unborn life, the clinic had to accept the applicants' expression of opinion. 27. On 25 October 2005 the Federal Constitutional Court, in different proceedings (no. 115/2005), confirmed its previous case-law that, in examining criminal or civil law sanctions for expressions of opinion which were made in the past, the right to freedom of expression was violated if, in case of an ambiguous statement, the courts based their considerations on the meaning leading to a conviction, without having previously ruled out other possible meanings which could not justify the sanction. However, these standards did not apply to the same degree to rights to desist from making future statements.

train

001-66817

ENG

POL

CHAMBER

CASE OF MALINOWSKA-BIEDRZYCKA v. POLAND

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

Nicolas Bratza

4. The applicant was born in 1935 and lives in Sopot, Poland 5. In October 1988 the applicant lodged with the Gdańsk District Court (Sąd Rejonowy) an application for division of the matrimonial property. Her former husband, Mr R.B., whom she divorced in 1988, was a party to those proceedings. The matrimonial property consisted, inter alia, of a house in Gdańsk. 6. The District Court held several hearings. Some of them were adjourned because of the applicant's former husband's absence. The court ordered several expert opinions. 7. The hearings scheduled for 20 September and 13 October 1993 were adjourned. The applicant failed to appear at these hearings due to the illness and subsequent death of her daughter. 8. On 22 November 1993 the court held a hearing. 9. Subsequently, hearings were held on 21 February, 31 May and 29 September 1994. The court heard witnesses and imposed a fine on a witness who failed to appear before the court. 10. In 1995 the court held six hearings at which it heard the parties and witnesses. It further decided that a new expert opinion should be obtained. 11. The inspection of the property scheduled for 5 February 1996 did not take place because the applicant's former husband had refused to let her and her lawyer enter the property in question. 12. On 4 April 1996 the court ordered another expert report and a courtexpert inspected the property. He submitted his expert opinion to the court on 23 May 1996. 13. Subsequently, both parties challenged the expert opinion. 14. The hearings scheduled for 13 August and 13 September 1996 were adjourned upon the application of the applicant's former husband. The subsequent hearings scheduled for 25 October and 29 November 1996 were also adjourned since the expert witness had failed to appear before the court. 15. The court held a hearing on 7 January 1997. It heard an expert witness and ordered that a supplementary opinion be prepared. 16. At the hearing held on 25 March 1997 the applicant's former husband requested the court to stay the proceedings. 17. On 3 June 1997 the court decided to stay the proceedings since it established that the determination of the case depended on the outcome of another set of proceedings. 18. On 9 December 1997 the applicant applied to resume the proceedings because the reason for staying had ceased to exist as the other set of proceedings had ended with the Supreme Court's judgment of 13 August 1997. 19. On 16 March 1998 the Gdańsk District Court resumed the proceedings. 20. On 19 June and 5 November 1998 the court held hearings. Subsequently, the trial court decided to hold a view of the estate and to obtain an additional expert opinion. Two views of the property scheduled for 6 and 26 January 1999 did not take place. 21. Subsequently, the court held hearings on 17 January and 3 April 2000. It heard an expert witness and ordered that two new experts' opinions be prepared. 22. It appears that the experts refused to prepare their opinions and on 24 October 2000 the court ordered another expert to prepare an additional opinion. 23. On 30 May 2001 the court held the next hearing. 24. Subsequently, hearings were held on 11 July and 17 August 2001. 25. Subsequently, hearings were held on 27 February, 26 June and 27 October 2002. The trial court decided that an expert opinion should be obtained. 26. On 15 and 29 January 2003 the court held a hearing and heard expert witnesses. 27. Subsequently, hearings were held on 12 March, 14 May, 2 July, 5 August, 18 September, 9 November and 16 December 2003. Some of the hearings were adjourned. 28. On 29 January 2004 the Gdańsk District Court held a hearing and on 1 April 2004 it gave judgment. 29. On 31 May 2004 both parties lodged appeals. 30. The proceedings are pending.

train

001-57920

ENG

TUR

GRANDCHAMBER

CASE OF LOIZIDOU v. TURKEY (PRELIMINARY OBJECTIONS)

Question of procedure rejected (locus standi of the applicant Government);Preliminary objection rejected (abuse of process);Preliminary objection rejected (ratione loci);Preliminary objection joined to merits (ratione temporis)

Claudio Zanghi;Gaukur Jörundsson;N. Valticos;R. Pekkanen

10. The applicant, a Cypriot national, grew up in Kyrenia in northern Cyprus. In 1972 she married and moved with her husband to Nicosia. 11. She claims to be the owner of plots of land nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia in northern Cyprus and she alleges that prior to the Turkish occupation of northern Cyprus on 20 July 1974, work had commenced on plot no. 5390 for the construction of flats, one of which was intended as a home for her family. She states that she has been prevented in the past, and is still prevented, by Turkish forces from returning to Kyrenia and "peacefully enjoying" her property. 12. On 19 March 1989 the applicant participated in a march organised by a women’s group ("Women Walk Home" movement) in the village of Lymbia near the Turkish village of Akincilar in the occupied area of northern Cyprus. The aim of the march was to assert the right of Greek Cypriot refugees to return to their homes. Leading a group of fifty marchers she advanced up a hill towards the Church of the Holy Cross in the Turkish-occupied part of Cyprus passing the United Nations’ guard post on the way. When they reached the churchyard they were surrounded by Turkish soldiers and prevented from moving any further. 13. She was eventually detained by members of the Turkish Cypriot police force and brought by ambulance to Nicosia. She was released around midnight, having been detained for more than ten hours. 14. In his report of 31 May 1989 (Security Council document S/20663) on the United Nations Operation in Cyprus (for the period 1 December 1988 - 31 May 1989) the Secretary-General of the United Nations described the demonstration of 19 March 1989 as follows (at paragraph 11): "In March 1989, considerable tension occurred over the well-publicized plans of a Greek Cypriot women’s group to organize a large demonstration with the announced intention of crossing the Turkish forces cease-fire line. In this connection it is relevant to recall that, following violent demonstrations in the United Nations buffer-zone in November 1988, the Government of Cyprus had given assurances that it would in future do whatever was necessary to ensure respect for the buffer-zone ... Accordingly, UNFICYP asked the Government to take effective action to prevent any demonstrators from entering the buffer-zone, bearing in mind that such entry would lead to a situation that might be difficult to control. The demonstration took place on 19 March 1989. An estimated 2,000 women crossed the buffer-zone at Lymbia and some managed to cross the Turkish forces’ line. A smaller group crossed that line at Akhna. At Lymbia, a large number of Turkish Cypriot women arrived shortly after the Greek Cypriots and mounted a counter demonstration, remaining however on their side of the line. Unarmed Turkish soldiers opposed the demonstrators and, thanks largely to the manner in which they and the Turkish Cypriot police dealt with the situation, the demonstration passed without serious incident. Altogether, 54 demonstrators were arrested by Turkish Cypriot police in the two locations; they were released to UNFICYP later the same day." 15. On 28 January 1987 the Government of Turkey deposited the following declaration with the Secretary General of the Council of Europe pursuant to Article 25 (art. 25) of the Convention (see paragraph 65 below): "The Government of Turkey, acting pursuant to Article 25 (1) (art. 25-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms hereby declares to accept the competence of the European Commission of Human Rights and to receive petitions according to Article 25 (art. 25) of the Convention subject to the following: (i) the recognition of the right of petition extends only to allegations concerning acts or omissions of public authorities in Turkey performed within the boundaries of the territory to which the Constitution of the Republic of Turkey is applicable; (ii) the circumstances and conditions under which Turkey, by virtue of Article 15 (art. 15) of the Convention, derogates from her obligations under the Convention in special circumstances must be interpreted, for the purpose of the competence attributed to the Commission under this declaration, in the light of Articles 119 to 122 of the Turkish Constitution; (iii) the competence attributed to the Commission under this declaration shall not comprise matters regarding the legal status of military personnel and in particular, the system of discipline in the armed forces; (iv) for the purpose of the competence attributed to the Commission under this declaration, the notion of a "democratic society" in paragraphs 2 of Articles 8, 9, 10 and 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2) of the Convention must be understood in conformity with the principles laid down in the Turkish Constitution and in particular its Preamble and its Article 13; (v) for the purpose of the competence attributed to the Commission under the present declaration, Articles 33, 52 and 135 of the Constitution must be understood as being in conformity with Article 10 and 11 (art. 10, art. 11) of the Convention. This declaration extends to allegations made in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present declaration. This declaration is valid for three years from the date of deposit with the Secretary General of the Council of Europe." 16. On 29 January 1987 the Secretary General of the Council of Europe transmitted the above declaration to the other High Contracting Parties to the Convention indicating that he had drawn the Turkish authorities’ attention to the fact that the notification made pursuant to Article 25 para. 3 (art. 25-3) of the Convention in no way prejudged the legal questions which might arise concerning the validity of Turkey’s declaration. 17. In a letter dated 5 February 1987 to the Secretary General, the Permanent Representative of Turkey to the Council of Europe stated that the wording of Article 25 para. 3 (art. 25-3) of the Convention offered no basis for expressing opinions or adding comments when transmitting copies of the Turkish declaration to the High Contracting Parties. He added: "International treaty practice, in particular that followed by the Secretary-General of the United Nations as depositary to similar important treaties as the Statute of the International Court of Justice or the covenants and conventions dealing with human rights and fundamental freedoms, also confirms that the depositary has to refrain from any comments on the substance of any declaration made by a Contracting Party." 18. On 6 April 1987 the Deputy Minister for Foreign Affairs of Greece wrote to the Secretary General stating inter alia that reservations to the European Convention on Human Rights may not be formulated on the basis of any provision other than Article 64 (art. 64). He added: "Furthermore, Article 25 (art. 25) provides neither directly nor implicitly the possibility of formulating reservations similar to the reservations set out in the Turkish declaration. The position cannot be otherwise, for if reservations could be made on the basis of Article 25 (art. 25), such a method of proceeding would undermine Article 64 (art. 64) and would sooner or later destroy the very foundations of the Convention. ... It follows that the Turkish reservations, as they are outside the scope of Article 64 (art. 64) must be considered as unauthorised reservations and, accordingly, as illegal reservations. Consequently, they are null and void and may not give rise to any effect in law." 19. In a letter of 21 April 1987 the Permanent Representative of Sweden wrote to the Secretary General stating inter alia that "the reservations and declarations ... raise various legal questions as to the scope of the [Turkish] recognition. The Government therefore reserves the right to return to this question in the light of such decisions by the competent bodies of the Council of Europe that may occur in connection with concrete petitions from individuals". 20. The Minister for Foreign Affairs of Luxembourg, in a letter of 21 April 1987 to the Secretary General stated inter alia that "Luxembourg reserves to itself the right to express ... its position in regard to the Turkish Government’s declaration" before the competent bodies of the Council of Europe. He indicated that "the absence of a formal and official reaction on the merits of the problem should not ... be interpreted as a tacit recognition by Luxembourg of the Turkish Government’s reservations". 21. In a letter of 30 April 1987 to the Secretary General the Permanent Representative of Denmark stated inter alia as follows: "In the view of the Danish Government, the reservations and declarations which accompany the said recognition raise various legal questions as to the scope of the recognition. The Government therefore reserves its right to return to these questions in the light of future decisions by the competent bodies of the Council of Europe in connection with concrete petitions from individuals." 22. The Permanent Representative of Norway, in his letter of 4 May 1987 to the Secretary General, stated that the wording of the declaration could give rise to difficult issues of interpretation as to the scope of the recognition of the right to petition. He considered that such issues fell to be resolved by the European Commission of Human Rights in dealing with concrete petitions. He added: "It is therefore desirable to avoid any doubt as to the scope and validity of the recognition by individual States of this right which may be raised by generalised stipulations in respect of the context in which petitions would be accepted as admissible, interpretative statements or other conditionalities." 23. In a letter dated 26 June 1987 to the Secretary General, the Permanent Representative of Turkey stated that the points contained in the Turkish declaration were not to be considered as "reservations" in the sense of international treaty law. He pointed out, inter alia, that the only competent organ to make a legally binding assessment as to the validity of the conditions attaching to the Article 25 (art. 25) declaration was "the European Commission of Human Rights, when being seized of an individual application, and eventually the Committee of Ministers, when acting pursuant to Article 32 (art. 32) of the Convention". 24. The Permanent Representative of Belgium, in a letter of 22 July 1987 to the Secretary General, stated that the conditions and qualifications set forth in the declaration raised legal questions as to the system of protection set up under the Convention. He added: "Belgium therefore reserves the right to express its position in regard to the Turkish Government’s declaration, at a later stage and before the competent bodies of the Council of Europe. Meanwhile the absence of a formal reaction on the merits of the problem should by no means be interpreted as a tacit recognition by Belgium of the Turkish Government’s conditions and qualifications." 25. Turkey subsequently renewed her declaration under Article 25 (art. 25) of the Convention for three years as from 28 January 1990. The declaration read as follows: "The Government of Turkey, acting pursuant to Article 25 (1) (art. 25-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms hereby declares to accept the competence of the European Commission of Human Rights to receive petitions according to Article 25 (art. 25) of the Convention on the basis of the following: (i) the recognition of the right of petition extends only to allegations concerning acts or omissions of public authorities in Turkey performed within the boundaries of the national territory of the Republic of Turkey; (ii) the circumstances and conditions under which Turkey, by virtue of Article 15 (art. 15) of the Convention, derogates from her obligations under the Convention in special circumstances must be interpreted, for the purpose of the competence attributed to the Commission under this declaration, in the light of Articles 119 to 122 of the Turkish Constitution; (iii) the competence attributed to the Commission under this declaration shall not comprise matters regarding the legal status of military personnel and in particular, the system of discipline in the armed forces; (iv) for the purpose of the competence attributed to the Commission under this declaration, Articles 8, 9, 10 and 11 (art. 8, art. 9, art. 10, art. 11) of the Convention shall be interpreted by giving special emphasis to `those legal and factual features which characterize the life of the society’ (European Court of Human Rights, Judgment of 23 July 1968, p. 34) in Turkey, as expressed notably by the Turkish Constitution including its Preamble. This declaration extends to allegations made in respect of facts, including judgments which are based on such facts which have occurred subsequent to 28 January 1987, date of the deposit of the previous declaration by Turkey. This declaration is valid for three years as from January 28, 1990." 26. A further renewal for a three-year period as from 28 January 1993 reads as follows: "The Government of Turkey, acting pursuant to Article 25 (1) (art. 25-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, hereby declares to accept the competence of the European Commission of Human Rights, to receive petitions which raise allegations concerning acts or omissions of public authorities in Turkey in as far as they have been performed within the boundaries of the national territory of the Republic of Turkey. This declaration extends to allegations made in respect of facts, including judgments which are based on such facts which have occurred subsequent to 28 January 1987, date of the deposit of the first declaration made by Turkey under Article 25 (art. 25) of the Convention. This declaration is valid for three years from 28 January 1993." 27. On 22 January 1990, the Turkish Minister for Foreign Affairs deposited the following declaration with the Secretary General of the Council of Europe pursuant to Article 46 (art. 46) of the Convention (see paragraph 66 below): "On behalf of the Government of the Republic of Turkey and acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, I hereby declare as follows: The Government of the Republic of Turkey acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention which relate to the exercise of jurisdiction within the meaning of Article 1 (art. 1) of the Convention, performed within the boundaries of the national territory of the Republic of Turkey, and provided further that such matters have previously been examined by the Commission within the power conferred upon it by Turkey. This Declaration is made on condition of reciprocity, including reciprocity of obligations assumed under the Convention. It is valid for a period of 3 years as from the date of its deposit and extends to matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration." This declaration was renewed for a period of three years as from 22 January 1993 in substantially the same terms. 28. The Secretary General of the Council of Europe acknowledged deposit of the Turkish declaration under Article 46 (art. 46) in a letter dated 26 January 1990 and pointed out that her acknowledgement was without prejudice to the legal questions that might arise concerning the validity of the Turkish declaration. 29. In a letter of 31 May 1990 to the Secretary General of the Council of Europe, the Permanent Representative of Greece stated inter alia as follows: "Article 46 (art. 46) of the said Convention is clear and to be strictly interpreted and applied. It provides that declarations of recognition of the Court’s jurisdiction may be subject to two conditions only: (a) on condition of reciprocity, if they are not made unconditionally, and (b) for a specified period. Consequently, the above-mentioned declaration of the Turkish Government which, in addition to these two conditions, contains further restrictions or reservations, is, where the latter are concerned, incompatible with Article 46 (art. 46) and with the European Convention on Human Rights in general, as indeed was already pointed out in the Greek Government’s letter of 6 April 1987 in connection with the Turkish Government’s declaration under Article 25 (art. 25) of the said Convention. It follows that these restrictions or reservations are null and void and may have no legal effect." 30. By letter of 9 August 1988 the Government of Cyprus deposited the following declaration under Article 25 (art. 25) of the Convention: "On behalf of the Government of the Republic of Cyprus, I declare, in accordance with Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, that the Government of the Republic of Cyprus recognizes, for the period beginning on 1 January 1989 and ending on 31 December 1991, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe subsequently to 31 December 1988, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to 31 December 1988, to be the victim of a violation of the rights set forth in that Convention. On behalf of the Government of the Republic of Cyprus, I further declare that the competence of the Commission by virtue of Article 25 (art. 25) of the Convention is not to extend to petitions concerning acts or omissions alleged to involve breaches of the Convention or its Protocols, in which the Republic of Cyprus is named as the Respondent, if the acts or omissions relate to measures taken by the Government of the Republic of Cyprus to meet the needs resulting from the situation created by the continuing invasion and military occupation of part of the territory of the Republic of Cyprus by Turkey." 31. In a letter dated 12 September 1988, the Secretary General recalled that according to the general rules, the notification made pursuant to Article 25 para. 3 (art. 25-3) in no way prejudged the legal questions that might arise concerning the validity of the Cypriot declaration. 32. The declaration was renewed in the same terms on 2 January 1992. By letter of 22 December 1994 it was renewed for a further period of three years without the restrictions ratione materiae set out above. 33. The United Kingdom’s Article 25 (art. 25) declaration of 14 January 1966, which has been renewed successively, reads as follows: "On instructions from Her Majesty’s Principal Secretary of State for Foreign Affairs, I have the honour to declare in accordance with the provisions of Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4th November, 1950, that the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland only and not, pending further notification, in respect of any other territory for the international relations of which the Government of the United Kingdom are responsible, for the period beginning on the 14th January 1966, and ending on 13th of January 1969, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe subsequently to the 13th of January 1966, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to the 13th of January 1966, to be the victim of a violation of the rights set forth in that Convention and in the Protocol thereto which was opened for signature at Paris on the 20th March 1952. This declaration does not extend to petitions in relation to anything done or occurring in any territory in respect of which the competence of the European Commission of Human Rights to receive petitions has not been recognised by the Government of the United Kingdom or to petitions in relation to anything done or occurring in the United Kingdom in respect of such a territory or of matters arising there."

train

001-57547

ENG

IRL

CHAMBER

CASE OF NORRIS v. IRELAND

Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

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

8. Mr David Norris was born in 1944. He is an Irish citizen. He is now, and has been since 1967, a lecturer in English at Trinity College, Dublin. At present he sits in the second chamber (Seanad Eireann) of the Irish Parliament, being one of the three Senators elected by the graduates of Dublin University. 9. Mr Norris is an active homosexual and has been a campaigner for homosexual rights in Ireland since 1971; in 1974 he became a founder member and chairman of the Irish Gay Rights Movement. His complaints are directed against the existence in Ireland of laws which make certain homosexual practices between consenting adult men criminal offences. 10. In November 1977 the applicant instituted proceedings in the High Court (see paragraphs 21-24 below) claiming that the impugned laws were no longer in force by reason of the effect of Article 50 of the Constitution of Ireland, which declared that laws passed before the Constitution but which were inconsistent with it did not continue to be in force. Evidence was given of the extent to which the applicant had been affected by that legislation and had suffered interference with his right to respect for private life. Salient points in this evidence were summarised as follows: (i) The applicant gave evidence of having suffered deep depression and loneliness on realising that he was irreversibly homosexual and that any overt expression of his sexuality would expose him to criminal prosecution. (ii) The applicant claimed that his health had been affected when in 1969 he fainted at a Dublin restaurant and was sent to Baggot Street Hospital for tests which resulted in his being referred to a psychiatrist. He was under the psychiatric care of Dr. McCracken for a period in excess of six months. Dr. McCracken’s advice to the applicant was that, if he wished to avoid anxiety attacks of this kind, he should leave Ireland and live in a country where the laws relating to homosexual behaviour had been reformed. Dr. McCracken stated in evidence that the applicant was in a normal condition at the time of the first consultation. He did not recall being made aware of a history of collapse. (iii) No attempt had been made to institute a prosecution against the applicant or the organisation of which the applicant was then the chairman (see paragraph 9 above). The applicant informed the police authorities of his organisation’s activities but met with a sympathetic response and was never subjected to police questioning. (iv) The applicant had participated in a television programme on RTE, the State broadcasting company, in or about July 1975. The programme consisted of an interview with him in the course of which he admitted to being a homosexual but denied that this was an illness or that it would prevent him from functioning as a normal member of society. A complaint was lodged against that programme. The Broadcasting Complaints Advisory Committee’s report referred to the existing law criminalising homosexual activity and upheld the complaint on the ground that the programme was in breach of the Current/Public Affairs Broadcasting Code in that it could be interpreted as advocacy of homosexual practices. (v) The applicant gave evidence of suffering verbal abuse and threats of violence subsequent to the interview with him on RTE, which he attributed in some degree to the criminalising of homosexual activity. He also alleged in evidence that in the past his mail was opened by the postal authorities. (vi) The applicant admitted to having a physical relationship with another man and that he feared that he or the person with whom he had the relationship, who normally lived outside Ireland, could face prosecution. (vii) The applicant also claimed to have suffered what Mr Justice Henchy in a dissenting judgment in the Supreme Court (see paragraph 22 below) alluded to as follows: "... fear of prosecution or of social obloquy has restricted him in his social and other relations with male colleagues and friends: and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in or thwarted from engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship." 11. It is common ground that at no time before or since the court proceedings brought by the applicant has he been charged with any offence in relation to his admitted homosexual activities. However, he remains legally at risk of being so prosecuted, either by the Director of Public Prosecutions or by way of a private prosecution initiated by a common informer up to the stage of return for trial (see paragraphs 15-19 below). 12. Irish law does not make homosexuality as such a crime. But certain statutory provisions in force in Ireland penalise certain homosexual activities. Some of these are penalised by the Offences against the Person Act, 1861 ("the 1861 Act") and the Criminal Law Amendment Act, 1885 ("the 1885 Act"). The provisions relevant to the present case are sections 61 and 62 of the 1861 Act. Section 61 of the 1861 Act, as amended in 1892, provides that: "Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be kept in penal servitude for life." Section 62 of the 1861 Act, as similarly amended, provides that: "Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon a male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding ten years." The offences of buggery or of an attempt to commit the same may be committed by male or female persons. Section 11 of the 1885 Act deals only with male persons. It provides that: "Any male person who, in public or in private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour." 13. Sections 61 and 62 of the 1861 Act should be read in conjunction with the provisions of the Penal Servitude Act 1891, section 1, by virtue of which the court is empowered to impose a lesser sentence of penal servitude than that mentioned in the 1861 Act or, in lieu thereof, a sentence of imprisonment for a term not exceeding two years or a fine. The provisions of the 1861 Act and of the 1885 Act are also subject to the power given to the court by section 1(2) of the Probation of Offenders Act 1907, to apply, by way of substitution, certain more lenient measures. The terms "hard labour" and "penal servitude" no longer have any practical significance, since anyone now sentenced to "hard labour" or "penal servitude" will, in practice, serve an ordinary prison sentence. 14. The 1885 Act is the only one of the legislative provisions attacked in the instant case that can be described as dealing solely with homosexual activities. What particular acts in any given case may be held to amount to gross indecency is a matter which is not statutorily defined and is therefore for the courts to decide on the particular facts of each case. 15. The right to prosecute persons before a court other than a court of summary jurisdiction is governed by Article 30, section 3 of the Constitution which is as follows: "All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose." Section 9 of the Criminal Justice (Administration) Act, 1924, as adapted by the Constitution (Consequential Provisions) Act, 1937, provides that: "All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General of Ireland." 16. The provisions of the Prosecution of Offences Act 1974 extended to the Director of Public Prosecutions most of the prosecuting functions exercised by the Attorney General. The Director of Public Prosecutions (an office created by that Act) is independent of the Government and a permanent official in the Civil Service of the State as distinct from the Civil Service of the Government. 17. Any member of the public, whether an Irish citizen or not, has the right as a "common informer" to bring a private prosecution. He need not have any direct interest in the alleged offence or be personally affected by it. A private prosecutor’s rights are limited in respect of offences which are not triable summarily. In The State (Ennis) v. Farrell [1966] Irish Reports 107, it was held by the Supreme Court that the effect of section 9 of the Criminal Justice (Administration) Act 1924 was that a private prosecutor may conduct a prosecution up to the point where the judge of the District Court decides that the evidence is sufficient to warrant a committal for trial in cases of indictable offences i.e. triable with a jury. Thereafter the Attorney General, or now also the Director of Public Prosecutions, becomes dominus litis and must then consider whether or not he should present an indictment against the accused who has been returned by the District Court for trial with a jury. 18. The offences which are at issue in the present case, namely those set out in sections 61 and 62 of the 1861 Act and in section 11 of the 1885 Act, are indictable offences. Indictable offences are only triable summarily in the District Court if the judge of the District Court is of the opinion that the facts constitute a minor offence and the accused, on being informed of his right to trial by jury, expressly waives that right. This availability of summary trial is provided for by the Criminal Justice Act 1951 and is limited to those indictable offences set out in the Schedule to that Act. This does not include the offences under sections 61 and 62 of the 1861 Act. The summary trial procedure is available in respect of an offence under section 11 of the 1885 Act where the accused is over the age of sixteen years and the person with whom the act is alleged to have been committed is legally unable to consent for being under the age of sixteen years or an idiot, an imbecile or a feeble-minded person. Thus a summary trial can never be had in cases involving consenting adults and, save where the accused pleads guilty, the case can be heard only with a jury whether the prosecution was commenced by a private prosecutor or by the Director of Public Prosecutions. Moreover, the Criminal Procedure Act 1967 permits a person charged with any indictable offence (save an offence under the Treason Act, 1939, murder, attempt to murder, conspiracy to murder, piracy or an offence under section 3 (1) (i) of the Geneva Conventions Act, 1962) to plead guilty in the District Court. If the Director of Public Prosecutions, or the Attorney General, as the case may be, consents, the case may be disposed of summarily in that Court. If sentence is imposed by the District Court, it cannot exceed twelve months’ imprisonment. If the judge of the District Court is of opinion that the offence warrants a greater penalty, he may send the accused forward to the Circuit Court for sentence. In such a case an accused may change his plea to one of "not guilty" and the case will then be tried with a jury. The Circuit Court has a discretion to impose any sentence up to the limit permitted by the relevant statutory provision. 19. Therefore, while a private prosecution may be initiated by a common informer, a prosecution brought under one of the impugned provisions cannot proceed to trial before a jury unless an indictment is laid by the Director of Public Prosecutions. According to the Office of the Director of Public Prosecutions there have not been any private prosecutions arising out of the homosexual activity in private of consenting male adults since the inception of the Office in 1974. 20. The following statement was made by the Office of the Director of Public Prosecutions in September 1984, in reply to a question asked by the Commission: "The Director has no stated prosecution policy on any branch of the criminal law. He has no unstated policy not to enforce any offence. Each case is treated on its merits." The Government’s statistics show that no public prosecutions, in respect of homosexual activities, were brought during the relevant period except where minors were involved or the acts were committed in public or without consent. 21. In November 1977 the applicant brought proceedings in the Irish High Court seeking a declaration that sections 61 and 62 of the 1861 Act and section 11 of the 1885 Act were not continued in force since the enactment of the Constitution of Ireland (see paragraph 10 above) and therefore did not form part of Irish law. Mr Justice McWilliam, in his judgment of 10 October 1980, found, among other facts, that "One of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease". However, he dismissed Mr Norris’s action on legal grounds. 22. On appeal, the Supreme Court, by a three-to-two majority decision of 22 April 1983, upheld the judgment of the High Court. The Supreme Court was satisfied that the applicant had locus standi to bring an action for a declaration even though he had not been prosecuted for any of the offences in question. The majority held that "as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened, and the plaintiff has standing to seek the protection of the court". 23. In the course of these proceedings it was contended on behalf of the applicant that the judgment of 22 October 1981 of the European Court of Human Rights in the Dudgeon case (Series A no. 45) should be followed. In support of this plea, it was argued that, since Ireland had ratified the European Convention on Human Rights, there arose a presumption that the Constitution was compatible with the Convention and that, in considering a question as to inconsistency under Article 50 of the Constitution, regard should be had to whether the laws being considered are consistent with the Convention itself. In rejecting these submissions, Chief Justice O’Higgins, in the majority judgment, stated that "the Convention is an international agreement" which "does not and cannot form part of [Ireland’s] domestic law nor affect in any way questions which arise thereunder". The Chief Justice said: "This is made quite clear by Article 29, section 6, of the Constitution which declares: - ‘No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.’" In fact, the European Court of Human Rights already noted in its judgment of 1 July 1961 in the Lawless case (Series A no. 3, pp. 40-41, para. 25) that the Oireachtas had not introduced legislation to make the Convention on Human Rights part of the municipal law of Ireland. 24. The Supreme Court considered the laws making homosexual conduct criminal to be consistent with the Constitution and that no right of privacy encompassing consensual homosexual activity could be derived from "the Christian and democratic nature of the Irish State" so as to prevail against the operation of such sanctions. In its majority decision, the Supreme Court based itself, inter alia, on the following considerations: "(1) Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime. (2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide. (3) The homosexually oriented can be importuned into a homosexual lifestyle which can become habitual. (4) Male homosexual conduct has resulted, in other countries, in the spread of all forms of venereal disease and this has now become a significant public health problem in England. (5) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution." The Supreme Court, however, awarded the applicant his costs, both of the proceedings before the High Court and of the appeal to the Supreme Court.

train

001-96201

ENG

POL

ADMISSIBILITY

ZGOLA v. POLAND

Inadmissible

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

The applicant, Mr Bronisław Zgoła, is a Polish national who was born in 1918 and lives in Kołobrzeg. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was captured by the invading German army on 1 September 1939, while returning from a scout outing. In the evening of that day he was transported to a camp in Nieborowice (Neubesdorf). He was detained there along with former Silesian insurgents. On 19 September 1939 the applicant escaped and was subsequently in hiding. In June 1940 he moved to Kraków. He was soon arrested in a round-up and deported to Germany. He worked as a forced labourer in a construction company, then in a food-processing factory and lastly for the German railways. On an unspecified date in 2001 the applicant applied to the PolishGerman Reconciliation Foundation (“the Foundation”) for compensation on account of his forced labour during the war. 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”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation (“the German Foundation”) and the Polish-German Reconciliation Foundation. On an unspecified date the Foundation’s Verification Commission found that the applicant was eligible for compensation, his persecution falling under the 3rd category which included persons who had been deported to Germany and subjected to forced labour in industry. It appears that the applicant was awarded DEM 4,400. On 15 June 2002 the applicant filed an appeal against that decision. It appears that he contested the fact that the Verification Commission had not taken into account his internment in the Nieborowice camp. On 12 July 2002 the Appeal Commission upheld the decision under appeal, holding that the applicant had not adduced any new evidence of persecution which could justify the change of his eligibility status. In the letter accompanying the decision, the Appeal Commission informed the applicant that his request to consider his internment in the Nieborowice camp as falling under the 1st category of eligibility could not be granted. It underlined that according to the applicable regulations persons falling under the 1st category of eligibility were only the detainees of those camps which had been listed in the German Indemnification Act. However, that had not been the case with the Nieborowice camp. On 21 July 2002 the applicant appealed against that decision. On 28 August 2002 the Appeal Commission upheld its previous decision. By a letter dated 17 September 2002 the German Foundation informed the applicant that the list of concentration camps as defined in the Indemnification Act could not be supplemented. All other camps with conditions similar to those prevailing in concentration camps were placed on the list of “other persecution camps” which had been accepted by the German Foundation and communicated to the Polish Foundation. The applicant was further informed that the Nieborowice camp had not been placed on that list and that the Polish Foundation could request the German Foundation to place a particular camp on the list. Subsequently, on 27 September 2002 the applicant requested the Polish Foundation to apply to the German Foundation with a view to including the Nieborowice camp on the list of “other persecution camps”. On 27 October 2002 the Appeal Commission informed the applicant that the Nieborowice camp was not listed in a specialised publication of the Chief Commission for the Examination of the Nazi Crimes in Poland (Główna Komisja Badania Zbrodni Hitlerowskich w Polsce). Accordingly, the Foundation could not request the German Foundation to place that camp on the list of “other persecution camps”. The applicant contested that finding. He submitted that the Nieborowice (Neubesdorf) camp was not listed in the Chief Commission’s publication since it had been located in Germany as its borders had stood before the outbreak of the Second World War. On 9 December 2002 the applicant received a letter from the Institute of National Remembrance (Instytut Pamięci Narodowej). He was informed that the Katowice Regional Commission for the Examination of the Nazi Crimes in Poland had carried out in 1967 an investigation concerning the Nieborowice camp. It had been established that the camp had been set up on 1 September 1939 as a transitional camp for Polish activists, in particular Silesian insurgents. It had operated until November 1939. On two occasions the German army had carried out executions in which at least 34 persons had died. The investigation concerning that crime had been finally discontinued on 24 June 2005 as its perpetrators could not be established. 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. 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. 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. 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. 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. (...)” 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 camp where the applicant was detained during the Second World War. 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. 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. 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). 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.” 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. 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). 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). 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). 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. 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.” 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.”

train

001-82485

ENG

TUR

CHAMBER

CASE OF ÇELİKER v. TURKEY

Violation of Art. 6-1

Nicolas Bratza

5. The applicant was born in 1972 and lives in Batman. 6. On 10 April 1997 the applicant was arrested and taken into police custody on suspicion of her involvement in the activities of an illegal organisation, namely the PKK (the Kurdistan Workers' Party). The police officers drew up an arrest protocol in which they noted that they had found a false identity card on the applicant and seized it for the investigation. 7. Following the Batman public prosecutor's order, the applicant's detention period was extended. 8. On 15 April 1997 police officers took statements from the applicant. She confessed to being a member of the PKK and stated that she had been involved in armed clashes with the security forces. 9. On 16 April 1997 the applicant's statements were taken by the Batman public prosecutor to whom she again confessed to being a member of the PKK and stated that she had been involved in political education and propaganda activities for the organisation. 10. On the same day she was brought before a single judge at the Batman Magistrates' Court who took her statement and ordered her detention on remand. 11. On 2 May 1997 the principal public prosecutor at the Diyarbakır State Security Court filed a bill of indictment, charging the applicant under Articles 125 and 40 of the Criminal Code with carrying out activities for the purpose of bringing about the secession of part of the national territory and aiding and abetting an illegal organisation. 12. Between 5 May 1997 and 18 April 2000, the Diyarbakır State Security Court held nineteen hearings and heard a number of witnesses. During these hearings, the applicant renounced her statements taken during her detention in police custody. Witnesses heard by the court stated that the applicant was an active member of the PKK and that she had been involved in armed clashes with the security forces. 13. On 18 April 2000 the Diyarbakır State Security Court convicted the applicant as charged and sentenced her to death under Article 125 of the Criminal Code. Taking into account her confessions before the court, the death penalty was commuted to a life sentence of imprisonment. 14. On 19 December 2000 the Court of Cassation upheld the decision of the first instance court. It reasoned that the decision was justified as the evidence in the case file was capable of proving that the applicant was an active member of the PKK, which was an armed illegal organisation and carried out activities for the purpose of bringing about the secession of part of the national territory. 15. On 24 January 2001 the Court of Cassation's decision was pronounced in the absence of the applicant's representative. 16. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Öcalan v. Turkey ([GC], (no. 46221/99, §§ 5254, ECHR 2005-IV). 17. By Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, State Security Courts were abolished.

train

001-5425

ENG

GBR

ADMISSIBILITY

ZHU v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicant is a citizen of The People’s Republic of China, born in 1970 and currently resident in Glasgow. He is represented before the Court by Mr. C. McGinley, a solicitor practising in Glasgow. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant arrived in the United Kingdom on or about 30 March 1995. He was stopped by Immigration Officers and found to be travelling on a forged Japanese passport. He was immediately detained under powers contained in paragraph 16 of Schedule 2 to the Immigration Act 1971. The applicant was detained in HM Prison, Gateside, Greenock, Scotland. The applicant immediately made an application for political asylum under the 1951 United Nations Convention Relating to the Status of Refugees. This was refused on 9 June 1995. His appeal to an Adjudicator was dismissed on 13 September 1995 and his detention continued. The applicant applied for legal aid to challenge the decision of the Adjudicator before the Immigration Appeals Tribunal. This application was refused on 4 June 1996. He sought a review of that decision. In the meantime, he commenced judicial review proceedings challenging as unreasonable his continued detention. A motion for interim liberation in the Edinburgh Court of Session was refused on 14 August 1996. Following the grant of legal aid on 13 September 1996, a further petition attacking the substantive decisions of the Adjudicator and Immigration Appeal Tribunal was presented and interim liberation was granted by the Court of Session on 24 September 1996. The applicant states that during the 18 months he was detained in prison, he was locked in his cell for 18 to 19 hours a day, with only one hour of exercise. On four or five occasions the prison officers forgot to let the applicant out of his cell for meals. He states that on a number of occasions he was assaulted by other inmates. Whilst eating he had to sit apart from the other prisoners in order to prevent them throwing food at him. The applicant states that he would suffer verbal racial abuse from other prisoners on a daily basis. For the majority of the period the applicant was isolated, in that there were no Mandarin speakers in the prison, save for a six month period when there was another Mandarin Chinese speaker in detention. The applicant had significant communication problems. For example, he alleges that it was six months before he realised that he had the right to 10 minutes of free telephone calls a month. Further, he was unable to read correspondence from the immigration authorities and he states that no interpreters were available to assist him. The applicant, who had a history of mental health problems, states that his health deteriorated in prison and he became depressed to the point of suicide. He states that after a suicide attempt he was put into a ground floor cell without blankets for a week. The Government dispute various aspects of the applicant’s account. They submit that the applicant would not have been locked up for more than 15¾ hours a day. The Government also note that there is no record of the applicant missing meals and that the officer in charge of prisoners awaiting deportation, Mr D. McGill, has only one recollection of food being thrown at the applicant. The Government also submit that if the applicant ate alone at mealtimes this was by choice and that save for the first 6 months, when it is accepted there was no access to an interpreter, the applicant thereafter had access to an interpreter who visited him “most weeks” on a Friday. They also contend that whilst in the ligature free “suicide watch” cell, he would have been provided with a sleeping bag, but not blankets. Mr McGill made a statement concerning the applicant on 19 September 1996. In this statement he commented that he was concerned for the applicant, who was depressed and isolated in the prison. Mr McGill confirmed that there had been no translation facilities for the first six months of the applicant’s detention and that the prison authorities had been unable to explain to the applicant the correspondence he received concerning his judicial review proceedings. HM Inspectorate of Prisons for Scotland produced a report dated 1995 on Greenock prison. This report deals, inter alia, with the specific case of persons awaiting deportation (PADs). The report comments as follows: "... despite the best efforts of staff, the PADs were nevertheless subject to verbal abuse and intimidation. The latter was of particular concern to the PADs when they had to leave their flat (and therefore the comparative safety of the group) to collect their meals in the dining room. At those times they tended to keep together and in our view presented a sad and dejected sight." The report describes how PADs were frequently not provided with the food appropriate to their religion and comments on the difficulties they experienced in communicating with the Medical Officer. The authors of the report also express their concern at the length of periods for which PADs were being detained. The report goes on to conclude: "In our view, PADs are inappropriately located in a complex Hall housing a difficult and disparate population within an already overcrowded local prison. ... these men, who are a generally conforming group, are subjected to a criminal subculture in which violence and drug abuse are common and from whom they can expect racial taunts and intimidation." B. Relevant domestic law and practice Under paragraph 16 of Schedule 2 of the Immigration Act 1971, a person may be detained under the authority of an immigration officer pending a decision to give or refuse him leave to enter. Persons awaiting deportation are accommodated in Scotland within local prisons. They are not housed in separate secure accommodation.

train

001-81488

ENG

SVK

ADMISSIBILITY

PALISKO AND PALISKOVA v. SLOVAKIA

Inadmissible

Nicolas Bratza

The first applicant, Mr Ján Palisko, and the second applicant, Mrs Mária Palisková, are a married couple. They are Slovakian nationals who were born in 1954 and 1958 respectively and live in Kapušany pri Prešove. The respondent Government were represented by Ms A. Poláčková, their Agent, who was subsequently succeeded in that function by Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. In 1989 the applicants were granted the “right of personal use” (právo osobného užívania) of a plot of land. Following changes in property law, this right was later transformed into the right of ownership. The plot is located in the municipality of Drieňov and registered as no. 871/2. The nearest public road is Mlynská Street. Another nearby public road is Okružná Street. The municipality is connected to the electricity and gas networks but has no access either to a public water supply or to sewage and water cleansing systems. The area where the plot is located was subject to a development plan (zoznam pozemkov na výstavbu) issued in 1985 under the 1976 Decree on territorial-planning documentation (Decree no. 84/1976 Coll.). This plan was later transformed into a zoning plan (územný plán) under the Construction Code (Law no. 50/1976 Coll., as amended). It designated the relevant area for systematic individual construction of residential houses. The construction of a public road to connect Mlyská Street and Okružná Street and a connection to the public utility system were envisaged on land that had previously been expropriated and purchased for that purpose. If constructed, the road would provide access to the applicants’ house and the electricity and gas networks would run as close as 6 metres from the house. Later in 1989 the applicants were granted a permit to construct (stavebné povolenie) a family house on the assigned plot and commenced the construction work. On 13 February 1992 the Drieňov Municipal Office (Obecný úrad) held a public meeting to debate the issue of the construction of the new road. The owners of all the plots concerned were invited to attend and the majority of them stated that they were not interested in having the road constructed. The applicants were advised to seek access to their house by way of an easement through the neighbouring property of the first applicant’s family which they were using de facto for the construction work. On 2 April 1992 the Drieňov Municipal Council (Obecné zastupiteľstvo) passed a resolution instructing the mayor to reconsider the existing zoning plan in the light of the changing circumstances and approving the sale of the land adjacent to the applicants’ plot to several individuals. The land included the plots on which the new road and the public utility connection were to be located. The sale deprived the applicants’ plot of direct access to Mlynská Street. The road and utility connections envisaged in the original plan have never been constructed. Alternative solutions were explored instead (see below). The applicants requested to be granted, by way of an administrative decision, a right of access to their plot via the plots separating their house from Mlynská Street. In a letter of 1 June 1992 the Prešov County Environmental Office (Obvodný úrad životného prostredia) informed the applicants that in the circumstances no such right could be granted in administrative proceedings and that they should assert it in the ordinary courts. There is no indication that the applicants have done so. They received a similar response from the Prešov District Office in a letter of 17 December 2002. In the meantime the applicants finished the construction of their house and requested that the construction be approved (kolaudačné rozhodnutie). In a letter of 23 October 1992 the County Environmental Office “returned” the request to the applicants and informed them that the construction could not be approved as, contrary to sections 6 and 7 of the 1976 Decree on general technical requirements for constructions (Decree no. 83/1976 Coll.), the house was not connected to the land communications or public utilities networks. There is no indication that the applicants formally pursued the request after receiving this letter. Since then the applicants have been unable to use the house. In order to minimise its dilapidation they have had to carry out maintenance work. They had to stay in another flat which they eventually had to sell to be able to pay the costs of maintenance of the house. At the same time, the applicants have been liable to pay real-estate ownership tax in respect of the plot of land, but not in respect of the house. On 8 November 1994 the Municipal Council passed a resolution approving a new zoning plan for the period until 2010. It does not envisage the construction of any land communications or utilities connections in the area and is still in place. The applicants eventually acquired title to the property of the first applicant’s family and acquired consent from the owner of another neighbouring plot which allows their plot to be connected to the gas and electricity networks from another street a distance of more than 100 metres away. They had the gas and electricity connection installed at their own expense, the cost being substantially higher than it would have been under the old zoning plan. Between May 1992 and April 2002 the applicants on numerous occasions raised the issue of the construction of the access road and the connection to the public utility system with the Ministry of Audit (Ministerstvo kontroly), the County Environmental Office, the Prešov District Environmental Office (Okresný úrad životného prostredia), the Prešov District Office (Okresný úrad) and the Ministry of the Environment (Ministerstvo životného prostredia). In response, they were informed that the matter primarily fell within the responsibility of the Drieňov municipal authorities and that they were free to bring their claims before a court. On 16 July 1992 a commission convened under the auspices of the Prešov Land Office (Pozemkový úrad) observed that it was the duty of the Drieňov municipal authorities to construct an access road to the applicants’ plot of land and called on the Municipal Council to reconsider its above resolution of 2 April 1992. On 23 September 1993, at the applicants’ request, the Prešov District Prosecutor lodged a complaint against the resolution of 2 April 1992. He considered that the municipality was under an obligation to construct an access road to the applicants’ plot and to secure a connection to the public utility system for them. The 1992 sale was arbitrary and had prevented the construction of the applicants’ house from being approved. Further to the complaint, on 6 December 1993 the Prešov District Office quashed the resolution of 2 April 1992 but its decision was later overturned by the Ministry of the Interior on appeal. On 16 December 1993 the applicants brought a civil action challenging the 1992 sale of the land adjacent to the applicants’ plot to third parteis. On 23 May 1994 and 18 December 1995 respectively the Prešov District Court and, on appeal, the Košice Regional Court dismissed the action. They concluded that the applicants did not have a “pressing legal interest” in accordance with Article 80 (c) of the Code of Civil Procedure in having the action determined because it did not directly concern their legal position. On 14 October 1996 the applicants submitted a request to the municipal authorities for the construction of an access road and a connection to the utilities network. The Municipal Council took notice of the request and advised the applicants to seek access to their plot by way of an agreement with the owners of the land concerned. In response the applicants applied to the Constitutional Court (Ústavný súd), challenging the way in which the municipal authorities had handled their request and claiming a violation of their property rights as protected under the Constitution. On 8 October 1997 the Constitutional Court declared the complaint inadmissible. It held that the Municipal Council’s reaction to the applicants’ request did not take the form of a decision and, as such, could not constitute a violation of individual rights. The Constitutional Court nevertheless observed that “the obligation on the [Drieňov] municipal authorities to secure an access road [for the applicants] remained undisputed” (nie je dotknutá). The applicants also lodged a petition under Article 130 of the Constitution with the Constitutional Court, alleging that the municipal authorities’ inactivity in respect of the construction of the road amounted to a violation of their property rights under the Constitution. On 22 July 1999 the Constitutional Court declared the petition inadmissible, observing that the applicants had asserted their property rights in court proceedings and that their action was still pending (see below). In view of the subsidiary role of the Constitutional Court, a simultaneous assertion of the applicants’ rights before the Constitutional Court was not appropriate. On 5 May 1993 the applicants brought an action against the municipality. They supplemented the action several times, ultimately seeking a judicial order for the municipal authorities to plan and construct an access road to their plot of land. They relied on Article 417 § 2 of the Civil Code, section 4(1) and (3)(e) of the Municipalities Act (Law no. 369/1990 Coll., as amended) and sections 2(3), 3(6), 3d and 4b of the Land Communications Act (Law no. 135/1961 Coll., as amended). The applicants also sought a ruling establishing an easement in their favour against the owners of the neighbouring plots. However, they later withdrew this claim. The Prešov District Court determined the action for the first time on 29 May 1996 but the judgment was quashed on appeal. On 12 December 1996 the District Court granted the action and ordered the municipal authorities to plan and construct an access road for the applicants within 60 days from the date on which the judgment became final. It was observed that the applicants had lawfully constructed a house. The municipal authorities had an obligation to provide an access road. Their failure to do so prejudiced the applicants’ rights and exposed them to an imminent risk of substantial damage. In these circumstances the applicants were entitled to have their interests safeguarded under Article 417 § 2 of the Civil Code. The municipal authorities were to choose the means of complying with the ruling, for example by buying out or expropriating the land concerned or establishing an easement in the applicants’ favour. The municipal authorities appealed (odvolanie). On 26 January 2000 the Prešov Regional Court (Krajský súd) overturned the judgment of 12 December 1996 and dismissed the action. The Regional Court held that there was no legislation providing a basis for a privatelaw obligation to construct a road. The construction of roads fell within the field of construction law and, as such, could not be ordered under the general civil law. The applicants challenged the judgment of 26 January 2000 by means of an appeal on points of law (dovolanie). They argued that the municipality was the sole entity responsible for the construction of local communications facilities on its territory. The applicants relied on Article 108 of the Constructions Code and maintained that the municipal authorities had the power to initiate expropriation proceedings in respect of the land for the access road and proceedings for establishing an easement in their favour. The applicants also relied on the protection of their property rights under the Constitution. On 27 March 2002 the Supreme Court (Najvyšší súd) dismissed the appeal on points of law. It held that the ordinary courts could not issue enforceable orders in matters within the field of construction law. Article 417 § 2 of the Civil Code did not support the applicants’ request for a construction order, which could only be carried out in accordance with construction law. The applicants challenged the judgments of 26 January 2000 and 27 March 2002 by lodging a complaint under Article 127 of the Constitution alleging a violation of their property rights and discrimination. On 1 October 2002 the Constitutional Court declared the complaint inadmissible, having found no constitutionally relevant illegality, arbitrariness or unfairness. The Act regulates the legal and economic status of municipalities and their self-governance and cooperation (section 1). General rules concerning municipal self-governance are laid down in section 4. Unless provided otherwise by statute, municipalities are independent in taking decisions and actions in respect of the administration of their property and all affairs falling within their competence (subsection 1). In particular, municipalities are self-governed in respect of the construction, maintenance and administration of local communications (miestne komunikácie) (subsection 3 (e)). The Code lays down general rules concerning territorial planning, construction activities and expropriation in the context of construction activities and defines the status of construction authorities. Under Article 29 § 3, as applicable at the relevant time, approved territorial-planning documentation (územno-plánovacia dokumentácia) provides a binding basis for the preparation of other categories and levels of territorial-planning documentation, for decisions concerning the use of areas and for documentation concerning specific constructions. Expropriation is dealt with in Part 4. Land and buildings which are necessary for construction purposes may be expropriated and rights in respect of them may be restricted (“expropriation”) (Article 108 § 1). Expropriation may take place only in the public interest in specified circumstances, for example where it is necessary for creating conditions for ensuring access to a plot of land or a construction (Article 108 § 2 (d)). The aim of expropriation is to transfer or restrict the right of ownership or to establish, cancel or restrict easements (Articles 109 § 1). Expropriation can take place only if its aim cannot be attained by consent or by other means (Articles 109 § 2). Expropriation is subject to a procedure before the construction authority. The procedure commences on an application by, inter alia, the individual who is to benefit from the expropriation (Article 112 §§ 1 and 2). The expropriation procedure is concluded by means of an administrative decision on expropriation (Article 114 § 1) and, unless provided otherwise, is governed by the general rules on administrative proceedings (Article 140). The Act regulates the construction, use and protection of land communications, the rights and duties of owners, administrators and users of land communications, and State administration and supervision of land communications (section 1(1)). Land communications are divided according to their importance, purpose and technical nature into: (a) highways (dialnice); (b) roads (cesty); (c) local communications; and (d) utility connections (účelové komunikácie) (section 1(2)). Local communications include streets that are generally accessible to and used by local transport and belong to the local communications network (section 4b(1)). They are the property of municipalities (section 3d(3)) and their planning, preparation and construction is the responsibility of the municipal authorities (section 2(3)). Utility connections serve, inter alia, to connect production facilities or constructions and real estate with other land communications. They are divided into public and private (section 22(1) and (3)), may be owned by the State or other legal entities or individuals (section 3d(4)) and their planning, preparation and construction is in general the responsibility of the owners (section 2(3)). In the event of a serious threat, the person threatened may seek a judicial order for appropriate and adequate measures to be taken in order to avert any impending damage (Article 417 § 2). The Decree was issued by the Ministry for Technical and Investment Development and published in the Collection of Laws as no. 83/1976. Pursuant to section 6(1), all constructions must be accessible from public land communication facilities by means of a communication node or a utility connection which must be completed before the construction is approved. Constructions must have adequate access to the water, energy and sewage systems prior to their approval (section 7(1)).

train

001-72578

ENG

UKR

CHAMBER

CASE OF BERESTOVYY v. UKRAINE

Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Damage - claim dismissed

4. The applicant was born in 1942 and lives in the town of Chervonograd, Lviv region, Ukraine. 5. On 8 February 2001 the Chervonogradskyy Town Court of the Lviv Region awarded the applicant UAH 23,351, UAH 4,553.56 and UAH 50 in compensation for pecuniary and non-pecuniary damage, and for legal aid respectively, against the State Mining Enterprise No. 7 “Velykomostivska”. 6. In 2001 – 2003 the judgment was enforced by instalments, the final amount being paid on 14 February 2003. 7. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).

train

001-69568

ENG

DEU

ADMISSIBILITY

H.M. v. GERMANY

Inadmissible

The applicant, Ms H.M., is a German national who was born in 1938 and lived in Stuttgart before moving abroad. Her present place of residence is unknown to the Court. She was represented before the Court by Mr G. Dannemann, a lawyer practising in London and Berlin. The respondent Government were represented by Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialrätin. The facts of the case, as submitted by the parties, may be summarised as follows. Following a tax audit the Tax Frauds Office (Steuerfahndung) came to the conclusion that the applicant, a self-employed dentist, had transferred 2,808,407 Deutschmarks (DEM) to Luxembourg without having declared this income in her tax returns. The tax authorities subsequently instituted proceedings with a view to changing the applicant's income tax assessment. On 15 March 1996 criminal proceedings were instituted against the applicant on suspicion of tax evasion. By the end of 1996 the applicant moved abroad. On 19 December 1996 the Stuttgart District Court issued a national warrant of arrest against the applicant. On 27 January 1997 the Stuttgart District Court quashed the national arrest warrant and issued an international arrest warrant. To date, it has not been possible to execute this warrant. On 4 October 1996 the Stuttgart Tax Office ordered the provisional attachment of the applicant's goods (dinglicher Arrest) in order to secure expected claims for supplementary tax payments for the years 1987 to 1994 of 1,190,485 DEM. On 21 October 1996 the applicant brought an action with the Baden-Wurttemberg Tax Court against the Stuttgart Tax Office to set aside the order of the provisional attachment of her goods. The provisional attachment of the applicant's goods was subsequently executed by the registration of mortgages on the applicant's real property. The applicant, on dates unknown to the Court, lodged several constitutional complaints with the Federal Constitutional Court, claiming that these enforcement measures prior to a court's decision on her liability to pay the taxes claimed violated the presumption of innocence. On 21 March 1997 the applicant changed her action to set aside the order of the provisional attachment of her goods into an action for a declaration that this order had been unlawful (Fortsetzungsfeststellungsklage). The applicant argued that she had a legitimate interest to obtain this declaration as she wanted to rely on it in official liability proceedings (Amtshaftungsverfahren) before the civil courts pursuant to Section 839 of the Civil Code. On 8 October 1997 the Baden-Wurttemberg Tax Court held a preliminary hearing (Erörterungstermin) in the applicant's case. On 26 January 1999 the Baden-Wurttemberg Tax Court, following a hearing, decided that the financial courts had jurisdiction over the subject-matter. On 7 December 1999 the Federal Tax Court dismissed the applicant's appeal against this decision as inadmissible. On 2 March 2000 the Baden-Wurttemberg Tax Court decided that the applicant's action was admissible. In particular, the fact that the applicant could constantly be reached via her counsel, but did not disclose her actual place of residence because of the arrest warrant against her, did not render her actions inadmissible. On 24 March 2000 the Federal Constitutional Court refused to admit the applicant's constitutional complaint concerning violations of the presumption of innocence by several enforcement measures. It appears that the Federal Constitutional Court, on dates unknown to the Court, refused to entertain further constitutional complaints lodged by the applicant concerning the same subject-matter. On 19 October 2000 the Federal Tax Court dismissed the Stuttgart Tax Office's appeal on points of law against the decision of the Baden-Wurttemberg Tax Court of 2 March 2000 as ill-founded and the applicant's counter-appeal on points of law as inadmissible. On 20 February 2001 the Baden-Wurttemberg Tax Court dismissed the applicant's action concerning the lawfulness of the provisional attachment of her goods as ill-founded and refused to grant the applicant leave to appeal on points of law. In its judgment, the Tax Court stated that it was sufficiently likely, on the balance of probabilities, that the applicant intentionally evaded taxes. Consequently, the amount of taxes due could be estimated also for the years 1987 to 1989. The applicant appealed against the Baden-Wurttemberg Tax Court's decision not to grant leave to appeal on points of law. On 13 September 2001 (decision served on 10 November 2001) the Federal Tax Court dismissed the applicant's appeal as inadmissible, because no appeal on points of law lay against the judgment of the Baden-Wurttemberg Tax Court. On 1 December 2001 the applicant lodged a constitutional complaint against the decision of the Federal Tax Court of 13 September 2001, claiming, inter alia, that the proceedings lasted unreasonably long and that the decision violated the presumption of innocence. On 6 June 2003 the Federal Constitutional Court, without giving reasons for its decision, refused to admit the applicant's constitutional complaint. On 3 December 1996 the Stuttgart Tax Office changed the applicant's notices of assessment for the years 1987 to 1993, increasing the applicant's liability to pay income tax. It also issued a tax assessment notice for the year 1994. The applicant lodged an objection (Einspruch) against these notices with the Tax Office. On 23 October 1997 the Stuttgart Tax Office issued a tax assessment notice for the applicant for the year 1995. The applicant lodged an objection (Einspruch) also against this notice with the Tax Office. On 28 February 1998 the applicant brought an action with the Baden-Wurttemberg Tax Court against the Stuttgart Tax Office to declare void the tax assessment notices for the years 1987 to 1995. On 20 May 1998 the Baden-Wurttemberg Tax Court held a preliminary hearing (Erörterungstermin) in the applicant's case concerning the lawfulness of the changed tax assessment notices. On 26 January 1999 the Baden-Wurttemberg Tax Court, following a hearing (in which the actions concerning the lawfulness of the changed tax assessment notices and the provisional attachment of the applicant's goods were treated together), decided that the financial courts also had jurisdiction over this subject-matter. On 7 December 1999 the Federal Tax Court dismissed the applicant's appeal as inadmissible. On 2 March 2000 the Baden-Wurttemberg Tax Court decided that the applicant's action, for the same reasons as the joined action concerning the provisional attachment of her goods, was admissible. On 19 October 2000 the Federal Tax Court dismissed the Stuttgart Tax Office's appeal on points of law against the decision of the Baden-Wurttemberg Tax Court of 2 March 2000 as ill-founded and the applicant's counter appeal on points of law as inadmissible. On 22 May 2003 the Baden-Wurttemberg Tax Court dismissed the applicant's action to declare the tax assessment notices for the years 1987 to 1995 to be void as ill-founded. The applicant subsequently appealed against the decision of the Baden-Wurttemberg Tax Court not to grant her leave to appeal on points of law. The case is currently still pending before the Federal Tax Court. On 24 January 2000 the Baden-Wurttemberg Tax Court rejected the applicant's motion for a stay of execution in respect of the payment of supplementary income tax for the years 1987 to 1995. In its reasoning, the Baden-Wurttemberg Tax Court stated that there was no reasonable doubt that the applicant intentionally understated her income in all the years in dispute. It considered it to be “impossible that the criminal court later could merely assume a grossly negligent tax evasion (...), as the manipulations of her receipts and expenditure by the applicant, by their very nature, could only have been carried out intentionally.” Consequently, the tax authorities were entitled to estimate her income in the relevant years. On 12 February 2000 the applicant lodged a complaint with the Federal Constitutional Court. She claimed inter alia that the decision of the Baden-Wurttemberg Tax Court of 24 January 2000, by stating that she was guilty of tax evasion, violated the presumption of innocence. On 24 March 2000 the Federal Constitutional Court refused to admit the applicant's constitutional complaint. On 22 December 1999 the Stuttgart Public Prosecutor's Office decided to discontinue the criminal proceedings against the applicant during the time the arrest warrant against her could not be executed. On 17 October 2001 the Stuttgart Court of Appeal decided that the applicant's rights under Article 6 § 3 of the Convention had not been violated by this decision, no indictment having been issued against her as yet. On 5 December 2001 the Federal Court of Justice dismissed the applicant's appeal against this decision as inadmissible. On 5 January 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court. She claimed that the decision of the Public Prosecutor's Office to discontinue the criminal proceedings against her, without the arrest warrant being quashed, violated her rights under the German Basic Law. On 20 February 2002 the Federal Constitutional Court refused to admit the applicant's constitutional complaint, as the latter, not giving sufficient reasons for a possible human rights violation, was inadmissible. The applicant instituted numerous further proceedings in the German tax courts, applying to set aside further notices of tax assessment for the years 1996 to 1999 issued by the Stuttgart Tax Office and to stay the execution of various enforcement measures. Between 21 January 1999 and 3 November 2000 the applicant lodged eleven constitutional complaints concerning these proceedings. The Federal Constitutional Court did not admit any of these complaints, without giving reasons for its decisions. On 3 November 2000 the applicant therefore challenged three judges of the Federal Constitutional Court on grounds of bias. She was subsequently informed by a letter of that court that a challenge of the judges was only possible before the beginning of the hearing of a case. Furthermore, on 21 October 2002, in one of these sets of proceedings, the Stuttgart Tax Office attached the applicant's claims against three banks in Germany. On 26 December 2002 the applicant applied to the Federal Constitutional Court for an interim order, claiming that these attachments, not leaving to her a minimum living wage any longer, violated her rights to life and physical integrity. On 9 January 2003 the Federal Constitutional Court refused to admit the applicant's constitutional complaint. In its decision of 6 June 2003 the Federal Constitutional Court refused to admit another constitutional complaint concerning the applicant's tax litigation and cautioned her that she might be fined for having misused the right of petition (Mißbrauchsgebühr) if she lodged further similar complaints. Under the Taxation Code (Abgabenordnung), the period of limitation during which the tax authorities are entitled to change a tax assessment depends inter alia on the question whether the taxpayer intentionally or negligently evaded taxes. Under the heading “statute of limitation for tax assessment” (Festsetzungsverjährung), Section 169 of the Taxation Code, as far as relevant, provides as follows: “Time limit for tax assessment. The assessment of taxes as well as its revocation or change shall be excluded on expiry of the time limit for tax assessment. (...) The time limit for tax assessment shall be one year for customs and excise (...). four years for all taxes (...) not mentioned in no. 1. The time limit for tax assessment shall be ten years insofar as a tax has been evaded and five years as far as a tax has been understated with gross negligence. (...)” Tax evasion, when committed intentionally, is a criminal offence which is punishable with up to five years' imprisonment or a fine pursuant to Section 370 of the Taxation Code. Understating taxes with gross negligence (leichtfertige Steuerverkürzung) is punishable as a regulatory offence (Ordnungswidrigkeit) pursuant to Section 378 of the Taxation Code. Section 393 of the Taxation Code, on the relationship between criminal proceedings and tax assessment proceedings, provides that the rights and duties of the person liable to pay taxes and of the tax authorities are determined by the provisions applicable in the respective proceedings. In proceedings before the tax courts, an action to set aside a decision of the tax authorities (Anfechtungsklage) can be changed into an action for a declaration that the relevant decision was unlawful (Fortsetzungsfeststellungsklage) as soon as the decision has been executed. The latter action is admissible if the plaintiff can prove to have a legitimate interest in this declaration. It is accepted that the plaintiff has such a legitimate interest if he states that he wants to rely on the declaration by the tax courts that the authority's decision was unlawful in subsequent official liability proceedings. The conditions of liability of an official (Amtshaftung) are laid down in Section 839 of the Civil Code. Pursuant to this Section, a person can claim compensation for breaches of duty committed by an official. It is the civil courts which have jurisdiction in these liability proceedings. Pursuant to Section 230 of the Code of Criminal Procedure, German law, in principle, does not allow for an in-absentia-trial. A limited number of exceptions to this rule are notably laid down in Sections 231 et seq. A hearing may, in particular, be held in the defendant's absence in cases in which he has been summoned correctly and only a fine of up to 180 daily rates (Tagessätze) is to be expected (Section 232 of the Code of Criminal Procedure). According to Section 205 of the Code of Criminal Procedure, applied by analogy, the competent public prosecutor is entitled to temporarily discontinue the preliminary criminal proceedings, if the absence of the defendant prevents the holding of a main hearing for a considerable period of time.

train

001-58075

ENG

GRC

CHAMBER

CASE OF BIZZOTTO v. GREECE

Preliminary objection rejected (six month period);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 5-1

C. Russo;N. Valticos

6. On 4 March 1990 Mr Bizzotto was arrested in transit at Athens Airport while in possession of 3.5kg of cannabis which he had purchased in Islamabad (Pakistan) for 1,000 US dollars. He was detained pending trial in Korydallos Prison, Athens. 7. On 6 May 1991 the Athens Court of Appeal, sitting as a first-instance criminal court with three judges (Trimeles efetio kakourgimaton), held as follows (in judgment no. 986/1991): "The Court finds the defendant guilty of having deliberately and as a drug addict (a) purchased in Islamabad, Pakistan, on 1 March 1990 approximately 3.5kg of Indian hemp from persons unknown for the sum of 1,000 US dollars (b) brought the said cannabis from Karachi (Pakistan) to Athens by plane on 4 March 1990, (c) imported it into Greece on 4 March 1990 and (d) had it in his possession, wrapped in the lining of an anorak, at Athens Airport on 4 March 1990. The stratagems the defendant used to hide and transport this cannabis, the ease with which he travelled on several occasions to Pakistan, Thailand and other eastern countries and obtained cannabis in Pakistan, the connections which he has in that country, his knowledge of how strict customs security measures are in different countries, his previous convictions for drug-related offences, and the large quantity of cannabis he purchased for resale, show him to be particularly dangerous." It sentenced him to eight years’ imprisonment and a fine of two million drachmas. In addition, it suspended his civic rights for five years and ordered that he be permanently prohibited from re-entering the territory after his release. Lastly, it ordered his placement in an appropriate centre to receive treatment for his drug addiction (under section 14 of Law no. 1729/1987 - see paragraph 15 below). 8. On 22 October 1992, on an appeal by the applicant, the Athens Court of Appeal sitting with five judges (Pentameles efetio) upheld the judgment of the court of first instance (see paragraph 7 above) but reduced the sentence to six years’ imprisonment and a fine of one million drachmas (judgment no. 1003/1992). It also ordered "the defendant’s placement in an appropriate prison or in a State hospital where he can receive treatment for drug addiction". However, Mr Bizzotto was never admitted to any such institution; he served his sentence in Patras Prison. In a letter of 26 November 1992 the public prosecutor notified the governor of Patras Prison of the Court of Appeal’s decision and indicated that the part of the judgment dealing with the applicant’s placement in a prison with medical facilities did not apply as no such institutions existed. However, he added that he would contact the governor if such an institution opened before Mr Bizzotto finished serving his sentence. 9. While detained at Patras Prison the applicant made four applications to the Patras Criminal Court (Trimeles plimmeliodikio) to be released on licence; three of them were made before the Athens Court of Appeal sitting with five judges had delivered its judgment (see paragraph 8 above). 10. In his first application, made on 4 December 1991, Mr Bizzotto maintained that he had been cured and had ceased to be at all dependent on drugs during his long stay in prison and after medical treatment. He also stated that he had a wife and family, that he owned a profitable farm in Italy and that he was determined not to reoffend in future. He requested his release on licence under section 23 of Law no. 1729/1987 (see paragraph 15 below). In a decision (no. 595/1992) of 3 February 1992 the Patras Criminal Court dismissed the application. It began by noting that it was objectively impossible to admit drug addicts to treatment centres as no such centres existed. It added: "It is apparent from sections 14 and 23 of Law no. 1729/1987 ... that a person who has been convicted under that Law and has been found to be a drug addict must be placed in an appropriate prison or in a State hospital for special treatment. The placement cannot last for less than a year. During the period of treatment, the convicted person is examined periodically in order to establish whether he has been cured or whether the placement must continue. Periodic reviews begin after one year and are carried out by the court either of its own motion or on an application by the prosecution. If the court ... considers - after studying the relevant expert’s report - that the accused has been cured, it orders his discharge from the centre; if the term of imprisonment to which he has been sentenced is longer than the period of treatment, the prisoner is returned to prison to serve the remainder of his sentence. In that case, if the court considers that there is no serious reason why the prisoner should serve the remainder of his sentence, it orders his release on licence. ... Persons who have become habitual users of drugs and are unable to give up the use of them voluntarily - in other words `drug addicts’ - are patients and are treated as such under section 23. It is to be noted that the Greek legislation in force ... does not use the scientifically accepted term of `drug addict’ but the expression `user of narcotic substances subject to special treatment’ (section 13 (1) of Law no. 1729/1987) ... The release on licence of persons convicted under Article 105 of the Criminal Code should not be confused with the discharge of convicted drug addicts under the provisions of section 23 of Law no. 1729/1987. In the first case the aim pursued is solely that of rehabilitation, whereas in the second case it is also therapeutic ... For an application to this end by a convicted person to be admissible it is a prerequisite that (a) he has been placed in a centre to receive treatment for drug addiction and (b) he has spent at least one year in such a centre and is considered cured ... A problem arises where a convicted person has never been admitted to such a centre. In that case, section 23 does not apply, because the procedural requirement will not have been satisfied. Such a person is deprived of his right to make such an application, which will accordingly be inadmissible. This is not affected by his alleged recovery in prison while serving his sentence. The fact that the prison psychiatrist has certified that he has been cured is of no avail. On the other hand, it raises serious questions and doubts as to the objectiveness of the findings in the psychiatric reports made during the investigation and taken into account by the relevant courts. Although these persons are described as ‘drug addicts’ ... in these reports, within a few months they are regarded as ‘completely cured’ after non-existent treatment and merely taking aspirin or Hypnostedon. ... Besides, the essential requirements for an application to be admissible are that the convicted person has made a full recovery and that there is no serious reason why he should serve the remainder of his sentence. ... In order to make a finding that there is a ‘serious reason’, it is necessary to have regard to the criteria laid down in Article 106 para. 1 of the Criminal Code. It appears from the case file that the applicant does not satisfy the essential conditions laid down by law, in particular as regards his complete cure. In view of his antecedents ... and character, it is unlikely that the applicant will lead an honest life on leaving prison as he shows a marked tendency to commit drug-related offences." 11. On 5 February 1992 the applicant made a second application for release on licence, in which he essentially repeated the same arguments as he had put forward in the first (see paragraph 10 above). On 27 February 1992 the Patras Criminal Court dismissed the application (in decision no. 1119/1992) in the following terms: "The court is not convinced either from the documentary evidence or from the applicant prisoner’s personal attendance before it that he is totally cured of his dependence on drugs. He has not been admitted to an appropriate treatment centre and the treatment in Patras Prison is insufficient to cure him of an addiction acquired over a very long period of drug use. In addition, no prison psychiatrist’s certificate as to the progress of his treatment has been produced ..." 12. On 4 March 1992 the applicant made a third application, supported by psychiatric certificates of his recovery. He sought to benefit from the provisions of section 23 of Law no. 1729/1987 (see paragraph 15 below). At the hearing he admitted that he had "been taking drugs" since the age of 19 and had even taken heroin in the past. However, he said that he had managed to cure himself of his drug addiction whilst in prison, where conditions were not conducive, and added that, if his imprisonment were to continue, his condition would get worse. In a decision (no. 2694/1992) of 27 May 1992 the Patras Criminal Court reached the following conclusions: "The prison doctor’s diagnosis is not sufficient to prove that the applicant has recovered. The latter’s application is inadmissible since he has not been admitted to an appropriate prison similar to the psychiatric clinic at Korydallos Prison. Furthermore, at the time of the application the applicant had served two years, one month and twenty-six days of his sentence and there is a serious reason for his serving the remainder, especially as his criminal record shows that in 1974 he was sentenced by the Athens Assize Court to three years’ imprisonment for a drug-related offence." 13. In a letter of 9 June 1993 the Minister of Justice, replying to an application by Mr Bizzotto to be placed in a treatment centre for drug addicts, informed him that there was no such centre inside the prison. 14. On 15 December 1993 the applicant made a fourth application for his release on licence, relying on Articles 105 and 106 of the Criminal Code (see paragraph 16 below). He said that he had served three-fifths of his sentence and had been of exemplary conduct throughout his time in prison. He was no longer addicted to drugs and was therefore no longer a danger to society; his continued detention would be harmful to him and could no longer be justified. On 11 February 1994 the Indictments Division (Symvoulio plimmeliodikon) of the Patras Criminal Court granted his application. It found that he had already served four years and fourteen days of his sentence - that is to say more than half of the sentence imposed and more than the one-year minimum (Article 105 of the Criminal Code) - and that during his time in prison he had been of good conduct, had shown repentance, had complied with prison regulations and had not incurred any disciplinary penalties. 15. The relevant provisions of Law no. 1729/1987 are as follows: "(1) The prevention of pharmaceutical dependence on narcotic substances within the meaning of section 4 of this Law shall be organised at three levels: (a) preventive information; (b) treatment; (c) reintegration into society. (2) For the purposes of implementing this programme, there shall be set up by joint decisions, published in the Official Gazette, of the Minister of Health, Welfare and Social Security and the Minister competent in each given case: (a) ... (b) special drug-addiction units and prisons with medical facilities; (c) ..." "(1) A term of imprisonment of at least ten years and a fine of between 100,000 and 100,000,000 drachmas shall be imposed on anyone who: (a) imports or exports drugs or causes them to transit through Greece; (b) sells or buys drugs or makes them available in any way whatsoever to third parties or acts as an intermediary or stores drugs or puts drugs into storage; ... (g) possesses or transports drugs in any manner and by any means whatsoever, either on Greek territory or alongside or across territorial waters or in Greek airspace; ..." "Anyone who commits any of the offences referred to in sections 5, 6 and 7 shall be liable to life imprisonment if he is a reoffender or if he acts by way of occupation or habitually or if he has acted with a view to causing minors to use drugs or if the circumstances in which the offences were committed show him to be particularly dangerous." "(1) Anyone who solely for their own use obtains or possesses by any means whatsoever a small quantity of drugs or uses drugs shall be liable to imprisonment. The sentence shall be served in a special prison with medical facilities. "(1) Persons who have become habitual users of drugs and cannot give up the use of them voluntarily shall receive special treatment in accordance with the provisions of this Law. (2) The court shall determine whether the conditions referred to in the preceding subsection are met in the case of the accused or convicted person after an examination at a specialist treatment centre for drug addicts ... (3) An offender to whom all the conditions set out in subsection (1) apply shall, if found guilty of (a) the offence under section 12 (1), not be punished, but will be subject to the application mutatis mutandis of the provisions of the second paragraph of section 14 (1) of this Law; (b) the offences referred to in sections 5, 6 or 7, be liable to at least three months’ imprisonment and a fine of between 50,000 and 10,000,000 drachmas; ... (c) the acts referred to in section 8, be liable to a maximum of ten years’ imprisonment and a fine of between 1,000,000 and 200,000,000 drachmas." "(1) Any offender in respect of whom the conditions set out in section 13 (1) and (2) of this Law are met and who has been detained pending trial in accordance with the Code of Criminal Procedure or who has been convicted of any offence whatsoever shall be placed in an appropriate prison with medical facilities. If he is held not to be criminally responsible under Article 34 of the Criminal Code, he shall be placed in a State hospital. In both cases he shall be subject to a special treatment programme determined by the Minister of Health, Welfare and Social Security. (2) Where a person is sentenced to a term of imprisonment, any time spent in hospital shall be reckoned as time served in prison." "(1) If an offender’s period of hospitalisation under section 14 exceeds one year, which is the minimum period of treatment, the head of the institution in which he has been placed shall at the end of each year make a report on the progress of his treatment to the public prosecutor at the Criminal Court for the place where the sentence or preventive measure is to be carried out and shall indicate whether the convicted person should remain in the institution. On the basis of this report the Criminal Court, sitting with three judges, shall decide whether detention should continue. The court, which may also order an expert’s report under section 13 (2), shall make a final decision whether detention in hospital should continue. (2) If a person detained in a hospital has recovered and was found not to be criminally responsible under Article 34 of the Criminal Code, the court shall order his release on an application by the public prosecutor. If part of his sentence remains to be served, the court shall decide whether there is a serious reason why he should serve the remainder, but otherwise shall order his release on licence. The conditions attached to his release may concern his way of life, and in particular his place of residence, and include an obligation to attend the clinic, special drug-addiction centre or general hospital nearest to his place of residence whenever requested to do so for the purposes of checking that the conditions are being complied with ... (3) If the person detained is not released under the preceding subsection, the court shall decide at the end of each year, on application by the detained person himself, the director of the institution in which he is detained or the public prosecutor, whether he should be released. ..." 16. Articles 105 para. 1 and 106 of the Criminal Code provide: "Anyone who has been sentenced to a term of imprisonment may, after serving two-thirds of his sentence and in any event at least one year or, in the case of a life sentence, twenty years, be released on licence in accordance with the following provisions." "(1) A prisoner shall only be released on licence if he has been of good conduct while serving his sentence, has performed as far as possible his obligations towards the victim ... and if his antecedents, his personal and social circumstances in general and his character ... give cause for hope that he will lead an honest life in the future. (2) The prisoner may be required to comply with certain obligations relating to his way of life and in particular his place of residence. These obligations may at any time be withdrawn or varied on application by the prisoner. ..." 17. Article 565 of the Code of Criminal Procedure provides: "Doubts as to the nature or length of the sentence Any doubt or objection as to the execution of the judgment or as to the nature or length of the sentence shall be decided by the Criminal Court for the district where the sentence is to be served. The public prosecutor or the convicted person may appeal to the Court of Cassation on points of law against such a decision." 18. In a circular of 23 September 1992 the Minister of Justice informed the public prosecutors at the courts of appeal and the courts of first instance and prison governors that there were no prisons with medical facilities in Greece as mentioned in section 14 of Law no. 1729/1987. Consequently, it was not possible to implement court orders directing that drug addicts be placed in such prisons under that section.

train

001-84729

ENG

CZE

ADMISSIBILITY

BUSKOVA v. THE CZECH REPUBLIC

Inadmissible

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

The applicant, Ms Hana Bušková, is a Czech national who was born in 1955 and lives in Jindřichův Hradec. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 March 1992 V. and T. brought restitution proceedings against the applicant. The case was dealt with fourth times by the Jindřichův Hradec District Court (okresní soud), five times by the České Budějovice Regional Court (krajský soud) and once by the Supreme Court (Nejvyšší soud). The Regional Court’s last judgment of 21 October 2004 became final on 16 November 2004. The applicant was ordered to surrender three eights of the property to V. On 12 January 2005 she filed an appeal on points of law (dovolání) which seems to be still pending before the Supreme Court. On 22 March 2004 the applicant filed an action for termination and distribution of the joint ownership of the property. In a judgment of 25 March 2005 the District Court assigned the whole property to the applicant who was ordered to pay CZK 1,687,500 (EUR 63,212) to V. in compensation for the latter’s share. Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages. On 27 April 2007 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention. Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time.

train

001-82852

ENG

RUS

ADMISSIBILITY

SOLOVYEV v. RUSSIA

Inadmissible

Christos Rozakis

The applicant, Mr Vladislav Borisovich Solovyev, is a Russian national who was born in 1975 and lives in Kostroma. He was represented before the Court by Mr A. Belyakov, a lawyer practising in Kostroma. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 August 2000 the applicant found a burglar in his flat and caused him fatal injuries. On the same day he was arrested and remanded in custody, and on 1 September 2000 he was charged with manslaughter. On 11 September 2000 the applicant requested that Mr Belyakov, a privately retained lawyer, be admitted as a defence counsel. On 2 October 2000 the applicant challenged his detention before the Sverdlovsk District Court of Kostroma. He also requested that Mr Belyakov be admitted to the proceedings as defence counsel. On an unidentified date Mr Belyakov was refused admission as defence counsel, apparently on the grounds that he had failed to submit proof that he was a member of a bar association. On 2 November 2000 the court examined the applicant’s request for release, in proceedings at which the applicant was present in person and was assisted by Ms S., a legal aid counsel. The court upheld the applicant’s pre-trial detention, having found that it was justified in view of the seriousness of the charge and the applicant’s character. This decision could be appealed to the Kostroma Regional Court within seven days, but no cassation appeal was lodged. On 16 January 2001 the Sverdlovsk District Court of Kostroma examined the charges against the applicant. The applicant was represented in the proceedings by Mr Belyakov. He was found guilty of causing grievous bodily harm and sentenced to two years’ imprisonment. On 26 January 2001 Mr Belyakov requested on the applicant’s behalf an extension of the ten-day time-limit for lodging an appeal against the judgment of 16 January 2001. On the same day the request was refused. No appeal was lodged against the refusal. Between 16 January 2001 and 29 August 2002 the applicant was serving his sentence in Correctional Colony OT-15/1, a penitentiary facility in Kostroma. The parties submitted the following accounts of conditions in OT-15/1, including health care and the prevention of tuberculosis. The unit where the applicant was housed was shared by 100 inmates. The diet was poor because the vegetable supply was limited to potatoes and beetroot. No medicines were available in the facility. During the applicant’s imprisonment in OT15/1 there was an outbreak of tuberculosis, and the applicant had fears of contracting tuberculosis himself. He claimed to have developed chronic bronchitis, but he submitted no medical evidence of it. On the applicant’s arrival in OT-15/1 he underwent a medical examination including an x-ray and clinical tests. He was found to be in good health. He was placed in unit no. 14, a dormitory which measured 365.1 sq. m, including a sleeping area of 238 sq. m, a storage room, canteen, common room, washroom and toilet. At the material time the dormitory housed 110 inmates, which afforded them 2.17 sq. m of personal space in the sleeping area, or 3.32 sq. m in the whole unit including common areas. The catering in OT-15/1 conformed to the standard requirements. Inmates were provided with three meals a day. Persons infected with tuberculosis were placed separately from the rest and treated in a specialised section of the local hospital. At the material period no outbreak of tuberculosis was registered in OT15/1. Sanitary and epidemiological checks were conducted in the facility on a monthly basis. The reports for 2001-2002 indicated that there had been no infectious diseases registered in OT15/1 in that period. There have always been sufficient supplies of medicines in the medical unit of OT-15/1. During his imprisonment the applicant consulted a doctor on a number of occasions, which were recorded as follows. On 27 March 2001 he had a tooth removed by a dentist. On 26 July 2001 he was diagnosed with acute bronchitis. He was given leave from work and underwent medical treatment. The applicant did not turn up for the second appointment with the doctor. On 31 July 2001 he was diagnosed with furunculosis (boils), for which he received treatment. On 10 September 2001 and on 23 November 2001 he was diagnosed with a common cold; on both occasions he was given leave from work and underwent medical treatment. The applicant underwent regular mandatory Xray examinations which took place on 25 January 2001, on 10 September 2001 and on 19 April 2002 and did not reveal any disease. The Government submits that the applicant did not lodge any complaints concerning the conditions in OT15/1 during his term of imprisonment or after release. Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space for male convicts in correctional colonies.

train

001-105575

ENG

AUT

GRANDCHAMBER

CASE OF STUMMER v. AUSTRIA

No violation of Art. 14+P1-1;No violation of Art. 4

Alvina Gyulumyan;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens;Vincent A. De Gaetano

8. The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1 January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison. 9. On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office (Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”). 10. By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods. 11. Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court (Arbeits- und Sozialgericht). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights. 12. On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination. 13. The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system. 14. On 24 October 2001 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme. 15. On 12 February 2002 the Supreme Court (Oberster Gerichtshof) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002. 16. On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments (Notstandshilfe). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR 15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses). 17. The basis of the Austrian social security system is laid down in two laws: the General Social Security Act (Allgemeines Sozialversicherungsgesetz) and the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz). Austrian social security law is based on the contributory principle. 18. The General Social Security Act encompasses health and accident insurance and old-age pension. 19. Section 4 of the General Social Security Act regulates compulsory affiliation to the social security system. Pursuant to section 4(1)(1), employees are affiliated to the health and accident insurance scheme and to the old-age pension scheme. Section 4(2) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency. A further condition for compulsory affiliation is that the salary exceeds the marginal earnings threshold (Geringfügigkeits-grenze). At current levels, this amount is set at EUR 366.33 per month (section 5(2)). 20. For an employee affiliated to the social security system, compulsory contributions have to be paid in part by the employer and in part by the employee. 21. Section 17(1) provides that persons who are no longer covered by compulsory affiliation to the social security system may continue to pay voluntary contributions (freiwillige Weiterversicherung) if they have accumulated at least twelve insurance months out of the previous twentyfour months within the system or at least three insurance months during each of the previous five years. Contributions can be reduced within certain limits if the economic circumstances of the person concerned justify such a reduction. 22. Entitlement to an old-age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance months, namely a minimum of 180 months or, in the case of an early retirement pension, 240 months. When calculating the number of insurance months, certain periods during which no gainful activity has been pursued, and thus no contributions were made, are nevertheless taken into account as substitute periods (Ersatzzeiten), for instance periods of child-rearing, military service or unemployment. 23. The amount of an old-age pension depends mainly on the number of insurance months and the level of contributions paid. If the pension thus calculated does not reach a certain minimum level, which at current rates is EUR 783.99 per month for a single person and EUR 1,175.45 for a couple, a supplementary payment (Ausgleichszulage) is added in order to reach the minimum level. 24. During a prison term exceeding one month, entitlements to health, accident and pension insurance are suspended (section 78 of the General Social Security Act). The livelihood of prisoners is to be provided by the prison authorities. Likewise, their health care and care in case of an accident have to be provided for by the State in accordance with the Execution of Sentences Act (see paragraphs 41 and 44 below). 25. As a matter of principle, working prisoners are not affiliated to the general social insurance system. According to the Supreme Court’s case-law, prisoners performing work are not treated as employees within the meaning of section 4(2) of the General Social Security Act. 26. In a judgment of 27 February 1990 (no. 10 ObS 66/90), the Supreme Court examined an appeal by a former prisoner against a decision refusing him an invalidity pension on the ground that he had not accumulated the requisite number of insurance months. The Supreme Court ruled as follows: “According to the unanimous legal opinion of the competent Federal Ministry (Collection of Publications in Social Insurance Matters, SVSlg 19.570), the Administrative Court (2 February 1972, 782/71 and 62/72, VwSlgNF 8162 = SVSlg 21.171) and the Vienna Court of Appeal (SVSlg 8.868, 21.172, 26.918, 30.930 and 32.418), this work, which is performed on the basis of a statutory rather than a voluntarily accepted duty to work, does not fall within the scope of the compulsory insurance scheme. Legal commentators also favour the interpretation that social insurance law, like labour law, requires that employment contracts be established voluntarily. Services rendered compulsorily under public law are not based on any service contract. Accordingly, work performed in the context of execution of a sentence cannot be subsumed within section 4(2) of the General Social Security Act (see Krejci-Marhold in Tomandl, SV-System 3. ErgLfg 46; MGA ASVG 49, ErgLfg 125; Krejci in Rummel, ABGB § 1151 Rz 16). In its judgment of 26 November 1971 (B 128/71, VfSlg 6582 = SVSlg 21.170), the Constitutional Court held that the decision of the legislature that work performed in the context of execution of a prison sentence did not fall within the social insurance scheme – because the requisite voluntary acceptance of a specific duty to work required in order to make out a contract of employment necessitating the payment of social insurance contributions was absent – did not infringe the principle of equal treatment. ... The medical care due to prisoners in accordance with sections 66 et seq. of the Execution of Sentences Act and the benefits due to them, in accordance with sections 76 et seq. of that Act, after work-related accidents or illnesses within the meaning of section 76(2-4) of that Act, provide to this category of persons a statutory health and accident insurance scheme adapted to the prison context. The fact that prisoners also, in the context of their duty to work – other than, for example, in the context of an employer-employee relationship – are not covered by compulsory insurance under the statutory pension scheme is justifiable on grounds of the above-mentioned substantive differences in relationship and accordingly – as held by the Constitutional Court in its judgment – does not infringe the principle of equal treatment. Periods spent in pre-trial detention or serving a prison sentence or in preventive detention will, in accordance with the General Social Security Act, only be regarded as compulsory contributory periods if the custodial measures have been imposed either on political grounds – other than national socialist activity – or on religious grounds or on grounds of descent (section 500 and section 502(1)) or if an Austrian court (in accordance with the Compensation (Criminal Proceedings) Act) has given a binding decision in respect of the periods of detention recognising a claim for damages for the detention or conviction (section 506a). Such periods of time, regarded as valid compulsory contributory periods, are to be regarded in the first-mentioned case as not requiring the payment of contributions (section 502(1), third sentence); in the second-mentioned case, the Federal State shall pay the corresponding contributions to the relevant insurance institution (section 506a, second sentence). The purpose in both cases is to compensate for the disadvantages incurred under social insurance law that have arisen on socially acceptable grounds rather than deprivation of liberty on grounds of guilty conduct. An extension of these exceptional provisions to time served in detention on grounds of culpable conduct would be contrary to the principle of equal treatment. Recognition of such periods of time as substitute periods would also be contrary to the principle of equal treatment, for similar reasons. ... Prisoners to whom the above-mentioned exceptions under section 502(1) and section 506a do not apply shall not thereby accumulate, in the context of their duty to work, either contributory periods under the compulsory insurance scheme or substitute periods. They are not, however, prevented by the execution of the sentence from continuing to make contributions to the old-age pension insurance scheme under section 17 and accumulating contributory periods through the payment of voluntary contributions, whereby continued insurance, at the request of the contributor, as far as this appears justified on the basis of his or her economic situation, shall be permitted, in accordance with section 76a(4), at a lower contribution level than the one provided for in subsections (1-3) of that provision. In accordance with section 75(3) of the Execution of Sentences Act, prisoners are to be informed of the possibilities and advantages of, inter alia, optional continued insurance, and they are also permitted to use funds for the payment of contributions to the social insurance scheme which are not otherwise available to them during execution of their sentence. By virtue of the very flexible continued insurance (see section 17(7-8)) – particularly in respect of the beginning, end and determination of the contributory months – a prisoner can also accumulate further contributory months in order to make up the qualifying period and/or obtain a higher pensions increment. In this connection, the fact should not be overlooked that if one were to proceed on the basis that a prisoner is covered under the invalidity and old-age pension insurance scheme in respect of work done during the execution of the sentence, contributions would accordingly have to be made for the relevant periods. Other than under section 506a, according to which the Federal State has to pay the contributions corresponding to these contributory periods (as part of the criminal compensation scheme) to the relevant insurance institution, a State contribution would not be reasonable here. ... It would not be reasonable in such cases to expect the community of insured persons to accept that periods for which no contributions have been made should give rise to pension entitlements; prisoners would have to make such contributions, so the position would not be essentially different from optional insurance. Accordingly, if the legislature has decided that work done in the context of a prisoner’s duty to work cannot fundamentally give rise to compulsory contributory periods or substitute periods and, in the light of that, has made provision only for the above-mentioned exceptions, that decision is based on objective considerations. Accordingly, the Supreme Court has no doubts regarding the constitutionality of the statutory provisions applicable to the present case.” 27. In a judgment of 16 March 1999 (no. 10 ObS 52/99s) the Supreme Court confirmed its previous judgment. 28. For the purpose of calculating entitlement to an old-age pension, periods spent in prison are only taken into consideration in specific circumstances defined in the General Social Security Act. For instance, periods spent in prison for which compensation has been granted under the Compensation (Criminal Proceedings) Act (Strafrechtliches Entschädigungsgesetz) are counted as substitute periods. 29. Employees are also affiliated to the unemployment insurance scheme. Compulsory contributions have to be paid in part by the employer and in part by the employee. 30. Since the 1993 amendment to the Unemployment Insurance Act, prisoners who perform work in accordance with section 44(1) of the Execution of Sentences Act are affiliated to the unemployment insurance scheme pursuant to section 66a of the Unemployment Insurance Act. The employee’s part of the contributions is to be paid from the prisoner’s remuneration, if the remuneration exceeds the marginal earnings threshold, while the employer’s part is to be paid by the State, through the Ministry of Justice. The amendment came into force on 1 January 1994. 31. As regards the amendment to the law, which formed part of a broader reform of the system of execution of sentences, the Parliamentary Judicial Committee (Justizausschuß) considered the affiliation of working prisoners to the unemployment insurance scheme to constitute a first step towards their full integration into the social security system. The Judicial Committee underlined that affiliating working prisoners to the unemployment insurance scheme was an important step towards increasing their chances of reintegration into society and limiting the prospect of recidivism (see p. 1253 of the annex to the minutes of the National Council (Beilagen zu den Stenographischen Protokollen des Nationalrates, XVIII.GP). 32. Entitlements under the Unemployment Insurance Act include access to training courses, job-search facilities, and payment of unemployment benefits (which, to a certain extent, are related to previous salary) for a certain period. Upon the expiry of unemployment benefits, the insured person is entitled to payment of emergency relief, which is designed to provide a minimum amount of subsistence. Emergency relief will continue to be paid after a person has reached pensionable age if no entitlement to a pension is granted. 33. At the hearing, the Government provided the following information on the percentage of working prisoners and prisoners receiving unemployment benefits following their release. (a) In 2009, 12,460 persons were detained, of whom 8,903 (approximately 71%) were working and thus covered by unemployment insurance. Only 2,490 of these working prisoners actually paid contributions as they earned more than the required minimum level, and the others did not have to pay contributions. (b) Between 1 January and 30 June 2010, 9,477 persons were detained, of whom 6,791 (approximately 71%) were working and thus covered by unemployment insurance. Only 1,879 of these working prisoners actually paid contributions as they earned more than the required minimum level per month, and the others did not have to pay contributions. (c) Between 1 January 2009 and 30 June 2010, 2,086 persons qualified to receive unemployment benefits on account of the fact that they were included in the unemployment insurance scheme during their prison term; 1,898 of them applied for unemployment benefits upon their release, receiving an average benefit of EUR 21.09 per day (the general average being EUR 26.90 per day). 34. Social security is complemented by means-tested social assistance. The latter is designed to provide persons who do not have the necessary means (personal means or entitlements from old-age pension insurance or unemployment insurance) with a minimum income in order to meet their basic needs. 35. On 1 September 2010 a new system, namely the means-tested minimum income scheme (bedarfsorientierte Mindestsicherung), came into force, replacing social assistance. It guarantees a minimum income to all persons who are willing and able to work or who are over 65 years old and do not have other means of subsistence. The amount is aligned with the minimum pension. 36. Pursuant to section 44(1) of the Execution of Sentences Act (Strafvollzugsgesetz), any prisoners who are fit to work are obliged to perform work assigned to them. 37. Section 45(1) of the Act obliges the prison authorities to provide each prisoner with useful work. Section 45(2) specifies the different kinds of work which may be assigned to prisoners. They include, inter alia, tasks to be carried out within the prison, work for public authorities, work for charities, and work for private employers. 38. Under section 46(3), the prison authorities may conclude contracts with private enterprises as regards prisoners’ work. 39. Pursuant to section 51, the Federal State (der Bund) receives the proceeds of prisoners’ work. 40. Prisoners who perform their work satisfactorily have a right to remuneration. The amounts of remuneration – per hour and type of work – are fixed in section 52(1). At current rates, they are as follows: (a) for light unskilled work EUR 5.00 (b) for heavy unskilled work EUR 5.63 (c) for manual work EUR 6.26 (d) for skilled work EUR 6.88 (e) for work performed by a skilled worker EUR 7.50 41. The prison authorities have to provide for the livelihood of prisoners (section 31). 42. Pursuant to section 32 of the Act, all prisoners have to contribute to the costs of the execution of their sentence unless they fall within the scope of certain exceptions. If the prisoner works, the contribution amounts to 75% of his or her remuneration. It is deducted automatically from the remuneration. 43. Moreover, the employee’s part of the contribution to the unemployment insurance scheme is deducted from the prisoner’s remuneration. The remainder of the prisoner’s remuneration is used as follows: half of it is given to the prisoner as “pocket money” and the other half is kept as savings which the prisoner receives upon release (section 54). 44. Health and accident care for prisoners is to be provided by the prison authorities pursuant to sections 66 et seq. and 76 et seq. of the Execution of Sentences Act. In essence, the entitlement to health and accident care corresponds to the entitlement under the General Social Security Act. 45. If prisoners refuse the work assigned to them, this constitutes an offence under section 107(1)(7) of the Execution of Sentences Act. The penalties set out in section 109 range from a reprimand, or a reduction or withdrawal of certain rights (for instance, the right to use “pocket money”, to watch television, to send and receive correspondence or telephone calls), to a fine or house arrest (solitary confinement). 46. According to the information provided by the Government, more than 70% of prisoners in Austria are currently working. Owing to the requirements of prison routine, the average working day is approximately six hours. However, time spent by a prisoner undergoing therapeutic or social treatment is regarded and remunerated as working time up to a maximum of five hours per week. 47. The Forced Labour Convention (No. 29) (“ILO Convention No. 29”) was adopted on 28 June 1930 by the General Conference of the International Labour Organization (ILO) and came into force on 1 May 1932. The relevant parts of Article 2 provide as follows: “1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include: ... (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; ...” The International Labour Conference (the annual meeting of member States of the ILO) at its ninety-sixth session in 2007, carried out a general survey concerning ILO Convention No. 29 based on a report of the Committee of Experts on the Application of Conventions and Recommendations (“the Committee”). The report dealt, inter alia, with the question of prison work for private enterprises. Noting that prison work for private employers was prohibited by Article 2 § 2 (c) of ILO Convention No. 29, the Committee found that there might be conditions in which, notwithstanding their captive circumstances, prisoners could be considered to have offered themselves voluntarily and without the menace of any penalty for work with a private employer. In this connection, apart from the formal written consent of the prisoner, conditions approximating a free labour relationship (in terms of wage levels, social security and occupational safety and health) were regarded to be the most reliable indicator of the voluntariness of labour. If such conditions were met, prison work for private enterprises was considered not to come under the definition of forced labour provided in Article 2 § 1 and, consequently, was considered to fall outside the scope of ILO Convention No. 29 (paragraphs 59-60 and 114-16 of the Committee’s report). 48. The International Covenant on Civil and Political Rights was adopted on 16 December 1966 by United Nations General Assembly Resolution 2200A (XXI) and came into force on 23 March 1976. The relevant parts of Article 8 read as follows: “3. (a) No one shall be required to perform forced or compulsory labour; (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include: (i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; ...” 49. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by the Rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. 50. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987. 51. In Part I, the 1987 Rules contained a number of basic principles, including the following: “1. The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules. ... 3. The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release. ...” 52. In Part IV, under the heading “Treatment objectives and regimes”, they contained the following rules: “64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this. 65. Every effort shall be made to ensure that the regimes of the institutions are designed and managed so as: (a) to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community; (b) to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners; ...” 53. Also in Part IV, under the heading “Work”, they contained the following rules: “71.1. Prison work should be seen as a positive element in treatment, training and institutional management. 71.2. Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer. 71.3. Sufficient work of a useful nature, or if appropriate other purposeful activities, shall be provided to keep prisoners actively employed for a normal working day. 71.4. So far as possible the work provided shall be such as will maintain or increase the prisoner’s ability to earn a normal living after release. ... 72.1 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of normal occupational life. ... ... 74.1. Safety and health precautions for prisoners shall be similar to those that apply to workers outside. 74.2. Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to workers outside. ... 76.1. There shall be a system of equitable remuneration of the work of prisoners.” 54. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”. 55. Part I of the 2006 Rules contains the following basic principles, inter alia: “2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. ... 5. Life in prison shall approximate as closely as possible the positive aspects of life in the community. 6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.” The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems ) notes that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights, so that restrictions should be as few as possible. The commentary observes that Rule 5 underlines the positive aspects of normalisation, recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”. 56. In Part II (“Conditions of imprisonment”), Rule 26 of the 2006 Rules deals with the various aspects of prison work. The relevant parts thereof read as follows: “26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment. 26.2 Prison authorities shall strive to provide sufficient work of a useful nature. 26.3 As far as possible, the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release. ... 26.7 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life. ... 26.9 Work for prisoners shall be provided by the prison authorities, either on their own or in cooperation with private contractors, inside or outside prison. 26.10 In all instances there shall be equitable remuneration of the work of prisoners. ... 26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside. 26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside. ... 26.17 As far as possible, prisoners who work shall be included in national social security systems.” The commentary on Rule 26 underlines the principle of normalisation of prison work in that provisions for health, safety, working hours and “even involvement in national social security systems” should reflect those for workers on the outside. In contrast, the 1987 Rules, although they contain the notion of normalisation of prison work, are silent on the question of prisoners’ inclusion in national social security systems. 57. Part VIII of the 2006 Rules, entitled “Sentenced prisoners”, contains further rules regarding the objective of the regime for sentenced prisoners: “102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. 102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” 58. It also deals with work as one aspect of the regime for sentenced prisoners. The relevant parts of Rule 105 provide as follows: “105.2 Sentenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner. 105.3 If sentenced prisoners are required to work, the conditions of such work shall conform to the standards and controls which apply in the outside community.” 59. The European Social Charter, a Council of Europe treaty which was adopted in 1961 and revised in 1996, is also of some relevance in the present context. Article 1, dealing with the right to work, provides: “With a view to ensuring the effective exercise of the right to work, the Parties undertake: 1. to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment; 2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon; ...” The European Committee of Social Rights, the body responsible for monitoring States Parties’ compliance with the European Social Charter, has interpreted Article 1 § 2 to mean that prison work must be strictly regulated, in terms of pay, working hours and social security, particularly if prisoners are working for private firms. Prisoners may only be employed by private enterprises with their consent and in conditions as similar as possible to those normally associated with a private employment relationship (see Digest of the Case Law of the European Committee of Social Rights, 1 September 2008, p. 23). 60. From the information available to the Court, including a survey on comparative law taking into account the national laws of forty out of the forty-seven member States of the Council of Europe, it would appear that (a) in twenty-five member States, prisoners are, at least in some circumstances, required to work, namely Azerbaijan, the Czech Republic, Estonia, Finland, Georgia, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Montenegro, Russia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom; (b) twenty-two member States give prisoners access to the old-age pension system, namely Albania, Andorra, Azerbaijan, Croatia, Cyprus, the Czech Republic, Finland, France, Ireland, Italy, Latvia, Lithuania, Norway, Portugal, Russia, Slovakia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom. In some of these States, prisoners are not automatically covered by the insurance scheme (by way of compulsory contributions or tax deduction) but only have the possibility of paying voluntary contributions; (c) in twelve member States, prisoners are not covered by an old-age pension scheme, namely Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Greece, Hungary, Malta, Montenegro, the Netherlands, Romania and Serbia; (d) in a third group of member States, affiliation to the social security system (including old-age pension) depends on the type of work performed, mainly on whether it is work for outside employers/remunerated work or not. This is the case in Germany, Luxembourg, Poland, Spain and Sweden. In Denmark, entitlement to an old-age pension is not related to work and payment of contributions. All persons of pensionable age are entitled to receive a basic pension; and (e) thirty-seven member States, that is, an absolute majority, provide prisoners, or at least certain categories of prisoners, with some access to social security protection, either by affiliating them to the general social security system or parts of it, or by providing them with a specific type of insurance or other protection.

train

001-22978

ENG

SWE

ADMISSIBILITY

S.G. v. SWEDEN

Inadmissible

Nicolas Bratza

The applicant, Ms S.G., is a Swedish national, born in 1962 and living outside Stockholm. She is represented before the Court by Mr Carl Gustaf Elwe, a lawyer practising in Karlskoga. The facts of the case, as described by the parties, may be summarised as follows. The applicant lives under orderly social conditions. She is the mother of four children, her son P., born in 1990, and three daughters, born respectively in 1988, 1998 and 1999. After separating from their father Mr B. in 1993, she has been the sole holder of the custody and has assumed the daily care of all four children. However, the applicant has had several problems with her son P., who since an early age has been hyperactive and unable to concentrate, combined with aggressive behaviour. Her application under the Convention concerns certain public care measures taken with respect to him by the Swedish social authorities. According to the applicant, her ex-husband had alcohol problems and physically abused both herself and P. In March 1996 he was convicted of having assaulted her in 1995. For the same reason he was banned from visiting the family for a period of one year – from January 1996 to January 1997. In connection with her separation from Mr B. in 1993, the applicant contacted the mental welfare services for children and young people (the so-called “PBU”), as she had difficulties in managing P. and wished assistance in dealing with the impending separation. P. was examined by a psychologist, who observed, inter alia, that the boy was unsure of his identity and scared by his own aggressiveness and that disaster and chaos were dominant features of his world. No indication of neurological disabilities was detected then. Since P. was found to need to be in a small group of children, he was placed in a special pre-school, named Kritasken, in January 1995. In November 1995, the Social Welfare Committee received a report from Kritasken, stating that P. was not feeling well. The applicant was described as having great difficulty in setting limits for him. P. was said to function relatively well at pre-school, where activities were structured and the staffing ratio was relatively high. The report also said that P. constantly hit his mother. As the staff understood the situation, P. and his mother were engaged in a power struggle. They had also noticed that the conflicts between the parents had an adverse effect on P. On two recent occasions, P. had had bloody scratch-marks in his face, which his mother had stated that she had caused. She had informed the staff that P. had told her that he wanted to die in order to make her sad. She had seen him sitting with the point of a sheath knife turned towards him. In the light of this report, the social welfare office made an investigation, which resulted in the applicant and her (then) two children being admitted in April 1996 to the child psychiatry clinic at Danderyd Hospital, where they stayed for three weeks. There she received assistance in setting limits and improving routines. The staff had no impression that P. might be suffering from any neurological disabilities. To begin with, the family’s situation had slightly improved after the stay at the clinic. The social welfare office was in regular contact with the applicant. During the summer, the situation began to deteriorate again. The applicant was offered assistance in the form of a stay at a treatment centre. She, however, declined this offer. She told the social welfare officers that at present she was in no need of having contact with the social services other than in connection with the follow-up meetings at P.’s pre-school. In August 1996 she concluded her after-care contact with the clinic at Danderyd Hospital and shortly afterwards she also discontinued her dialogue contact with “PBU”. At or around the same time, in accordance with the applicant’s wishes, the social services appointed the children’s paternal aunt and uncle as contact family in order to provide some relief to the applicant. In November 1996 Kritasken submitted a second report to the Social Welfare Committee stating that P. had recently had great problems at the pre-school and, as they understood it, at home as well. The mother was unable to calm him down, they quarrelled and she slapped him. He had a very negative self-image and often spoke of himself in disparaging terms. On 14 November 1996, a serious incident had occurred. Together with a younger child P. had run away from the pre-school across the road in the direction of the railway track. Two teachers had run after them and had shouted to them to stop. While the other child obeyed, P. jumped down onto the track. After being dragged away from the track by one of the teachers, he was brought back to the pre-school. Later the same day, when the teachers tried to explain the danger of the trains to P., he had replied that he wished to die. On learning about the above incident, the applicant sought assistance at the child psychiatry clinic at St. Göran’s Hospital, where she and the children were kept for observation from 15 November to 18 November 1996. According to relevant medical records, P. was particularly sad, had several times expressed that he wished to die and had stated that he wished to hurt his mother and sister. His mother was very tired and lacked the necessary strength to support him during these periods of melancholy. Conflicts often blow up between them. The mother was not only worried about P. but also about his sister. Following a meeting involving the applicant, a social welfare officer and doctors, it was found necessary to investigate her ability to assume the care of the children and what kind of support and assistance they needed. On 19 November 1996, with the applicant’s approval, she and the children were placed at Triaden, an emergency care and investigation centre. According to the relevant report, P. had recurrent outbreaks of aggression and staff had to mediate between him and his mother and also to physically protect her. In these situations, P. was in a state of great anxiety and the mother expressed that she was afraid of him. On some occasions she escaped by shutting herself up in her room. There were few occasions when she listened to P. and comforted him in order to make him feel safe. She often raised matters in his presence that made him feel anxious and often pushed him away when he sought physical contact with her. When she allowed him to get close to her, he would variably hug her, pull her hair or scratch her face. P. sometimes hit his sister hard and she hit him back. The mother was not capable of separating them and preventing them from hurting each other. P. had said to his mother that she could kill him if she wished and had also threatened to kill his sister, who became so scared that she could not sleep. A psychologist found, inter alia, that P’s feelings towards his mother were characterised by great ambivalence, combining a yearning for closeness, a need for control and fierce aggressiveness. It was probably necessary that other adults create structure and set limits in order for him and his mother to have a good time with each other. It was evident that he needed considerable adult support, to be in a well-defined and structured environment with clear requirements and limits being set, where he could feel that he had a certain degree of control. He also needed assistance in his relationship with his mother, both as regards closeness and emancipation. It was also recommended that P. undergo neuropsychiatric examination and suggested that care at a treatment centre could provide him with both structure, limits and emotional understanding and at the same time assist his mother in establishing a good relationship with him. After two weeks at Triaden, the competent staff of the centre found that, because of the destructive conflicts between the applicant and P. and her inability to see to his needs, it had become untenable to keep them both there. They suggested that he receive care outside his home, preferably at a residential treatment centre. The applicant expressed a wish that he receive independent assistance outside the family as she too realised that she was unable to provide him with appropriate care. She was advised that placement at a centre would normally last two or three years. On 2 December 1996, with the applicant’s consent and in consultation with the social services, the boy was placed in an emergency family home (jourhem) not far from the applicant’s home. In January 1997 access arrangements were agreed on, according to which P. was to spend every other week-end in the applicant’s home, in addition to visits by the applicant in the emergency family home every week. Since the applicant appeared to have a preference for placement of P. in a foster home rather than in an institution and since the foster home placement seemed to function well, the authorities agreed that this was the best alternative. As there were long waiting lists for a neuropsychiatric examination, the social services engaged a psychologist who, at the end of February 1997, performed a neuropsychological examination, a so-called Nepsy-test, on P. In a report of 1 March 1997 the psychologist concluded that the test profile revealed characteristics of so-called Deficits in Attention, Motor control and Perception (“DAMP”) and that immediate assistance to address P.’s special needs was called for. In March 1997, after an unsuccessful attempt by the applicant to have Mr B.’s prohibition on visits extended, the contact between P. and his father was resumed. In accordance with the applicant’s wishes, they were to see each other in the presence of P.’s aunt and uncle. In April 1997, she stated that she no longer wished to keep them as contact family as they were not impartial. Instead, P.’s father was to see P. in the emergency family home. Around the same time she told Ms E. (the “emergency family home mother”) that, contrary to her agreement with the social services, she would bring P. home every weekend instead of every second weekend. On 17 March 1997, the applicant told the social services that she wanted P. to return home. This was followed by discussion in the course of the spring, at meeting organised by the social welfare office and involving the persons implicated. In April 1997, the applicant appointed a personal representative to handle her contacts with the social services, since she no longer wished to meet the social welfare officers. On 4 June 1997 the applicant declared that she no longer consented to her son’s emergency home placement. On 5 June 1997 the Social Council of Österåker decided, under section 6 of the Act with Special Provisions on the Care of Young Persons (lag (1990:52) med särskilda bestämmelser om vård av unga; hereinafter ”the 1990 Act”), immediately to take P. into public care on a provisional basis. The Stockholm County Administrative Court confirmed the decision on 18 June 1997. The Social Welfare Office then carried out an investigation. In its report of 19 June 1997 it observed that P. needed to be in an environment that was clearly structured, with well-defined requirements and limits and with adults who could give him support. P. had become calmer during his stay in the emergency family home, where he was functioning well with more clearly defined limits, greater security and support. The applicant had tried to the best of her ability to cope with her role as a parent and had endeavoured to find ways of meeting P.’s needs. Unfortunately, her efforts had not sufficed to provide P. with an environment in which he could grow up and develop positively. The problems inherent in the relationship between them manifested themselves clearly during P.’s stay in the emergency family home. There was a palpable risk that his health and development would be impaired as a result of deficiencies in the care in his home environment. Irrespective of the cause or causes of P.’s problems – a neurological disability, abuse on the part of his father or the applicant’s lack of capacity to take care of him – it was clear that there were very substantial problems in the mother-child relationship. Both reports from Kritasken concerned the applicant’s problems in dealing with P., as did the investigation by Triaden. The support and assistance the applicant had received in her role as parent had not brought any lasting improvement. There was no time to spare for meeting P.’s care needs. Those needs would best be satisfied by placing him in a family home after his stay in the emergency family home. On 1 July 1997 the Social Council applied to the County Administrative Court for the taking into care of P. on a permanent basis in accordance with sections 1 and 2 of the 1990 Act. On 9 July 1997 the County Administrative Court held an oral hearing during which the applicant, P.’s counsel, representatives of the Social Council as well as witnesses for each party were heard. The applicant opposed the Social Council’s application, disputing that there were deficiencies in her care and that any of the other conditions in section 2 of the 1990 Act had been fulfilled. In her submission, the problem in issue was of medical and psychiatric character and she would consent to appropriate treatment of these problems. Moreover, the court’s case file included certain reports from the Social Council, the emergency foster home and from an investigation concerning P. conducted on 21 January 1997 by a child emergency care home. The latter stated, inter alia, that P. had difficulties in controlling his aggressiveness and in showing his feelings. By a judgment of 11 July 1997, the County Administrative Court granted the application and issued a care order concerning P. The court found that the applicant and her son had a destructive emotional relationship to one another and that she had difficulties in setting limits to her son’s behaviour. In the court’s opinion there was nothing that proved the applicant’s allegation that P. suffered from DAMP. The court held that, whatever the possible causes to the problems between mother and son, those problems had lasted for a very long period. Already when P. was a baby, the applicant had had contacts with the child welfare services and, in 1993, with a psychology centre for children and young persons. In spite of substantial assistance provided by the Social Council under a voluntary care arrangement, there had been no improvement in the relationship between mother and son. It is therefore obvious that the mother was unable to provide him with the secure and stable environment he needed. She still was unable to see to his needs for care. Accordingly, there had been a serious deficiency in the mother’s care for her son. The court concluded that the shortcoming in the applicant’s care constituted a clear risk of impairment to her son’s health and development. On 16 October 1997 a paediatrician diagnosed P. as suffering, to a moderate degree, from the Attention Deficit Hyperactivity Disorder (“ADHD”) resulting in hyperactivity and inability to concentrate. In her report the paediatrician stated, inter alia, that P. was in need of a structured and calm environment and of assistance in solving conflicts caused by his hyperactivity and concentration disorder. The paediatrician further pointed out that it was important that P.’s carer receive psychological support. The above decision did not alter the access arrangements agreed on in January 1997, which apparently continued to apply. The applicant appealed against the County Administrative Court’s judgment to the Administrative Court of Appeal, which on 6 November 1997 held a further hearing in the case. The applicant adduced the paediatrician report and the court heard, at the applicant’s request, oral evidence from the applicant’s father. According to the social welfare officer, it had not yet been possible to find a foster family for P. other than the emergency family home. He therefore remained in the latter home, where Ms E. received assistance from the social services and from a family inspector. On 27 November 1997 the Administrative Court of Appeal upheld, by three votes to two, the lower court’s judgment. In its reasoning the majority stated as follows: “The circumstances adduced by the applicant and what has further emerged in the case do not give reasons to modify the County Administrative Court’s judgment.” The minority stated: “The applicant has several times both initiated and contributed to the taking of voluntary care measures with respect to P. In our opinion P.’s need for care can be provided for on a voluntary basis. The application for taking P. into public care should therefore be dismissed. ...” On 28 January 1998 the Supreme Administrative Court refused the applicant leave to appeal. Following the above proceedings, the emergency family home became P.’s foster home. On 6 March 1998, the applicant again turned to the Social Welfare Committee requesting, firstly, to be reunited with P. or, in the alternative, that he be placed at Heimdalsgården, a special home for care and residence. The Committee rejected her first claim but agreed to prepare for his placement at the said institution, which took place on 18 May 1998. After carrying out an investigation in February 1999, the social welfare office found that the applicant’s relationship with P. had improved. It was observed that he spent every other week-and with his mother, every other week-end with his father, and that the applicant participated actively in the treatment of P. at Heimdalsgården. She came one evening per week to put him to bed. Every other week she consulted a family therapist. In the light of the improvements noted, the office recommended that the care order be lifted and that care be provided at Heimdalsgården on a voluntary basis under a care plan. On 9 March 1999 the applicant agreed. On 22 March 1999 the Social Council decided that the care order should be terminated, on the ground that there was no longer any need for maintaining the public care order with respect to P. The Council, moreover, decided to place P. in voluntary care in a specialised children’s home where he could receive treatment of his ADHD problems. In the light of the above, the County Administrative Court decided on 6 May 1999 to remove the case from its list of cases. During the autumn year 2000, a plan for returning P. to the applicant’s home was initiated, but was suspended after he had confessed to the police that he committed arson on a sports centre during the Christmas holidays. During the summer holidays in 2001 he had a violent outbreak of aggression, whereupon he was returned to Heimdalsgården for treatment. On 19 December 2001 P. returned to live in the applicant’s home and has been reunited with her since. Care pursuant to the 1990 Act shall be provided for a young person under 18 years of age if one of the conditions referred to in sections 2 or 3 of the Act is satisfied and if it appears that the necessary care cannot be given to the young person with the consent of the person having custody of him and, if the young person himself has reached the age of 15 years, with his own consent. Under section 2 of the Act care shall be provided if there is a “palpable risk” (påtaglig risk) of impairment of the health or development of the young person due to ill-treatment, exploitation, lack of care or any other condition in the home. According to the preparatory works to the 1990 Act, the expression “palpable risk” was intended to indicate the degree of risk which would justify a compulsory care order. A subjective assumption that a young person is in danger was not enough and irrelevant circumstances such as public order could not be the basis of a care order. There had to be concrete or apparent circumstances supporting the fact that there was a risk for the young person’s physical or mental health (cf. Government Bill 1989/90:28, pp. 63 and 107). According to section 6 of the 1990 Act the Social Welfare Committee may order the immediate taking into care of a young person (“provisional care order”) if it is probable that he or she needs to be provided with care under this Act and a court decision on the matter cannot be awaited owing to the risk to the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. Such a decision by the Social Welfare Committee is subject to confirmation by the County Administrative Court.

train

001-122243

ENG

TUR

ADMISSIBILITY

BAYKAL AND OTHERS v. TURKEY

Inadmissible

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

A list of the applicants is set out in the appendix. Additionally, the case and decision numbers of the impugned proceedings appear in the appendix. The facts of the case, as submitted by the applicants, may be summarised as follows. On various dates, the applicants initiated actions before various civil courts or civil proceedings were brought against them before the civil courts. The procedures lasted several years. A description of the relevant domestic law may be found in Müdür Turgut and Others ((dec.), no 4860/09, §§ 19-26, 26 March 2013).

train

001-60021

ENG

AUT

CHAMBER

CASE OF LANZ v. AUSTRIA

Violation of Art. 5-4;Violation of Art. 6-3-b and 6-3-c;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

Christos Rozakis

10. On 25 October 1991 the Investigating Judge at the Graz Regional Court (Landesgericht) issued a warrant of arrest against the applicant on suspicion of having committed fraud and falsification of documents. The suspicion related to the applicant’s business activities, and in particular two real estate investment projects. The Investigating Judge issued a search warrant ordering a house search at the premises of the SDBV company, a private company (Gesellschaft mit beschränkter Haftung) for which the applicant acted as general manager. The seizure of documents relating to the real estate investment projects was also ordered. That same day the warrant, search and seizure were executed, the latter in the presence of the Investigating Judge. Later in the day the Investigating Judge questioned the applicant and ordered his detention on remand as he found that there existed a danger of the applicant absconding and collusion. As regards the risk of collusion, the Investigating Judge found that there was the danger that the applicant would attempt to influence the employees of the SDBV company and to remove documents which had not been found at the house search. 11. On 27 October 1991 the applicant requested his release from detention on remand. 12. On 6 November 1991 the Review Chamber (Ratskammer) of the Graz Regional Court, after an oral hearing in the presence of the applicant, his defence counsel and the Public Prosecutor, dismissed his request. The Review Chamber found that no danger of absconding existed. However, the danger of collusion continued to exist as the applicant might try to influence witnesses not yet heard and to remove any traces of the offence. There was also a danger of his committing further offences. On 20 November 1991 the applicant appealed. At an unspecified date also the Public Prosecutor appealed, arguing that detention on remand should also be based on the risk of the applicant absconding. 13. Meanwhile, on 11 November 1991, the Investigating Judge ordered that the applicant’s contacts with his defence counsel should take place under the surveillance of the court because of the existence of a danger of collusion. The Investigating Judge found that this measure was necessary because co-suspects were still at large, several witnesses had not yet been heard and there was a risk that the applicant could influence them. The Investigating Judge stated that the validity of this order would expire at the latest when the two-month statutory time-limit for detention on remand based on the risk of collusion would end. The applicant appealed against this decision. He submitted that he did not oppose this measure in principle, however, the measure constituted an unnecessary limitation on his defence rights and the Investigating Judge had failed to order this measure within 14 days as prescribed by law. 14. On 21 November 1991 the Review Chamber dismissed the applicant’s appeal against the Investigating Judge’s search warrant and the order for surveillance of the applicant’s contacts with his defence counsel. As regards the complaint about the surveillance of the applicant’s contacts with counsel, the Review Chamber found the Investigating Judge’s decision to be correct. This order did not involve any criticism of counsel or any reproach of conduct contrary to law or the disciplinary rules of the members of the bar, but merely had the purpose of preventing any contact whatsoever with third persons in order not to endanger the success of the criminal investigation. The present case concerned the complicated business relations of the SDBV and several other companies managed by the applicant, and the flow of money between them. Further witnesses could only be identified after all the documents seized had been examined and the applicant was to be prevented from influencing them. Furthermore, the decision had been taken within the time limit prescribed by S. 193 § 3 of the Code of Criminal Procedure. The Review Chamber also found the applicant’s complaint that he did not have sufficient access to his case-file unfounded. The Investigating Judge had granted access to the file to the official receiver of the SDBV company and the applicant’s defence counsel, the latter also being given the possibility to make copies of the documents in the file. The applicant’s counsel visited him repeatedly and could have given him copies if he so wished. Moreover, when questioned by the Investigating Judge, the applicant was informed of the contents of the file and about the statements of witnesses already heard. 15. On 28 November 1991 the Graz Senior Public Prosecutor commented on the applicant’s appeal of 20 November 1991. These comments were not served on the applicant. 16. On 12 December 1991 the Graz Court of Appeal (Oberlandesgericht) dismissed the appeal lodged by the applicant but granted the Public Prosecutor’s appeal. It found that a serious suspicion existed against the applicant and referred to the details of the criminal investigation. There also existed a danger that the applicant would abscond. 17. On 15 January 1992 the Review Chamber, after having held an oral hearing, dismissed a further request of the applicant for release. On 13 February 1992 the Court of Appeal dismissed the applicant’s appeal. On 11 March 1992 the Review Chamber dismissed a further request for release by the applicant. 18. After his conviction on 21 June 1992, the applicant filed further requests for release from detention on remand. Such requests were refused by the Review Chamber on 3 February 1993 and 6 April 1993. Appeals were dismissed by the Court of Appeal on 18 February 1993 and 29 April 1993 respectively. 19. On 14 February 1992 the Graz Public Prosecutor filed a bill of indictment against the applicant charging him with aggravated fraud. 20. On 21 April 1992 the trial against the applicant started before the Graz Regional Court. It lasted until 21 June 1992. In the course of the trial the Regional Court heard 52 witnesses, some of them repeatedly on the applicant’s request. Furthermore 5 experts on book-keeping, building and construction matters, real estate assessment, medicine and psychiatry were heard. The applicant frequently requested that the trial be adjourned for lengthy periods and, towards the end of the trial, requested that the trial be repeated or that the case be remitted to the Investigating Judge. On 21 June 1992 the court convicted the applicant of aggravated fraud and sentenced him to four and a half years’ imprisonment. It also acquitted the applicant of an additional charge of fraud raised by the Public Prosecutor at the trial. 21. On 9 September 1992 the judgment of some 150 pages and the transcript of the trial of some 1400 pages were served on the parties. 22. On 1 October 1992 the Public Prosecutor filed a plea of nullity and appeal against that part of the sentence concerning the applicant’s acquittal. On 5 October 1992 the applicant filed a plea of nullity and appeal. 23. On 22 October 1992 the applicant commented on the plea of nullity lodged by the Public Prosecutor. Since he claimed that until the expiration of the time-limit for filing his plea of nullity the defence had had insufficient possibilities to inspect the file, the Supreme Court, on 24 December 1992, decided that the applicant should be granted a new time- limit for filing his plea of nullity and appeal. 24. On 19 February 1993 the applicant again filed a plea of nullity and an appeal against sentence. The writ repeated in substance the arguments raised earlier. 25. On 30 March 1993 the Graz Public Prosecutor withdrew the plea of nullity. 26. On 27 April 1993 the Procurator General (Generalprokurator) submitted the following comments on the applicant’s plea of nullity: "In the view of the Procurator General the plea of nullity of the accused Bernhard Lanz can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested. The plea of nullity lodged by the Public Prosecutor’s Office has been withdrawn by the attached declaration of 30 March 1993." 27. On 9 June 1993 the Supreme Court, sitting in camera, rejected as inadmissible the applicant’s plea of nullity. 28. On an unspecified date, the Senior Public Prosecutor submitted written comments on the applicant’s appeal. 29. On 30 August 1993 the Graz Court of Appeal, after an oral hearing in which the applicant and his defence counsel participated, granted the Public Prosecutor’s appeal against the applicant’s sentence and increased it to five and a half years’ imprisonment. In weighing the mitigating and aggravating circumstances, the court found that a higher sentence was called for. 30. The following account of the relevant provisions of the Code of Criminal Procedure (Strafprozeßordnung) is based on the law in force until 1 January 1994. 31. According to S. 12 § 1 of the Code of Criminal Procedure, the Review Chamber at the First Instance Court supervises all measures taken by the Investigating Judge in the course of preliminary investigations. 32. According to S. 45 § 3 a person remanded in custody may meet his defence counsel in the absence of the Investigating Judge. However, if detention on remand has been ordered on the ground of a danger of collusion, the Investigating Judge may, during the first 14 days of the detention, be present when the remand prisoner meets his defence counsel. If due to specific circumstances a danger exists that contact with defence counsel may interfere with evidence, the Investigating Judge may order the extension of such surveillance until the bill of indictment is served. Surveillance of contact with defence counsel may only be exercised as long as the detention on remand is based on a danger of collusion (SS. 180 and 193 § 3). 33. Under S. 180 §§ 1 and 2, a person may be held in detention on remand if he is seriously suspected of having committed a criminal offence and if there is a risk of his absconding, of collusion, or that the person might commit further offences. According to S. 193, detention may not last more than two months where its sole justification is the risk of collusion; it may not last more than six months where one of the other grounds is relied upon. The Court of Appeal may, however, extend detention if so requested by the Investigating Judge or the Public Prosecutor, and if the difficulty or the scope of the investigation makes it necessary. In such cases the maximum duration of detention is three months where the measure is based on a risk of collusion alone, and one to two years if the term of imprisonment which the suspect risks is ten years or more, for the other grounds. 34. By virtue of SS. 194 and 195, it is open to the suspect to apply for release at any time. Such an application and any appeal against a decision ordering detention on remand must be examined by the Review Chamber at a private hearing in the presence of the accused or his defence counsel. According to S. 114, there is a further appeal against decisions of the Review Chamber to the Court of Appeal. 35. Under S. 285 (d) § 1 a plea of nullity may be rejected by the Supreme Court after deliberations in private if the court unanimously finds that the complaint should be dismissed as being manifestly ill-founded without any need for further deliberations.

train

001-58498

ENG

DEU

CHAMBER

CASE OF GAST AND POPP v. GERMANY

No violation of Art. 6-1

Elisabeth Palm;Gaukur Jörundsson

6. The facts of the case, as found by the Commission and not contested before the Court, are as follows. 7. The first applicant, Mrs Gabriele Gast, is a German national, born in 1943. She is a political scientist by profession and lives in Neuried. 8. The second applicant, Mr Dieter Popp, is also a German national, born in 1939. He is an insurance agent by profession and lives in Bonn. 9. In 1990 criminal proceedings were initiated against the first applicant on suspicion of having committed espionage (geheimdienstliche Agententätigkeit). She was arrested on 30 September 1990 and taken into detention on remand on 1 October 1990. 10. The trial of the first applicant and three co-accused was held before the Bavarian Court of Appeal (Oberlandesgericht) sitting as a court of first instance over several days in November and December 1991. In these and the following proceedings, the first applicant was assisted by counsel. 11. On 19 December 1991 the Court of Appeal convicted the first applicant and the co-accused of espionage on behalf of the German Democratic Republic (GDR), pursuant to Article 99 § 1 (1) of the German Criminal Code (Strafgesetzbuch). The first applicant was sentenced to six years and nine months’ imprisonment. The first applicant was also deprived for a period of four years of the rights to hold public office, to vote and to be elected. The co-accused were sentenced to two years, one year and six months, and one year’s imprisonment on probation respectively. 12. The court found that in 1968, in the course of her studies and research for her thesis in political science, the first applicant had been contacted by agents of the Ministry for State Security (Ministerium für Staatssicherheit), the secret service of the GDR. On the occasion of a meeting in the east sector of Berlin at the end of 1968 or the beginning of 1969, she had agreed to work for the Ministry concerned. She had kept the Ministry informed about her work at a research institute between July 1972 and June 1973. Subsequently, upon her employment by the Federal Intelligence Service (Bundesnachrichtendienst), she had forwarded secret information such as reports prepared by German embassies, and in particular reports prepared by the Intelligence Service itself, to the secret service of the GDR. The first co-accused, living in Munich, had operated as courier; the two other co-accused had been agents of the secret service of the GDR and had also been living there. 13. The Court of Appeal found that the first applicant and the co-accused had thereby committed espionage. As regards the co-accused, the court, referring to a decision of the Federal Court of Justice (Bundesgerichtshof) of 29 May 1991, observed that there was no legal impediment to punishing them; however, the fact that their prosecution had only been possible following the German reunification had to be regarded as a mitigating circumstance. 14. In fixing the first applicant’s sentence, the Court of Appeal regarded as mitigating circumstances in particular that she had no criminal record, had a regular life and had also shown helpfulness in taking care of a handicapped child. She had got involved in her criminal conduct due to her relationship with one of the co-accused and she had not managed to discontinue her contacts with the secret service of the GDR. Moreover, due to a lack of adequate controls, she had had no particular difficulties in obtaining and forwarding the information concerned. Moreover, she had not obtained any financial advantage, but she would suffer serious professional disadvantage as a consequence of her conviction. Finally, the Court of Appeal took into account that the first applicant had largely admitted her guilt. However, in view of the aggravating circumstances, in particular the lengthy period of the first applicant’s involvement in espionage as well as the volume of secret information forwarded, the Court of Appeal regarded a prison sentence of six years and nine months appropriate. 15. On 24 June 1992 the Third Division of the Federal Court of Justice, sitting with five judges, dismissed the first applicant’s appeal on points of law (Revision). 16. On 12 February 1994 the first applicant was released, having served half of her sentence. 17. In April 1990 criminal proceedings were initiated against the second applicant on suspicion of having committed espionage. On 14 May 1990 the second applicant was arrested and taken into detention on remand. 18. The trial of the second applicant and one co-accused was held before the Düsseldorf Court of Appeal sitting as a court of first instance over several days in December 1991. In these and the following proceedings the second applicant was assisted by counsel. 19. On 23 December 1991 the Court of Appeal convicted the second applicant and the co-accused of espionage on behalf of the GDR, pursuant to Article 99 §§ 1 (1) and 2, first sentence, of the Criminal Code. The second applicant was sentenced to six years’ imprisonment. The second applicant was also deprived for a period of four years of the rights to hold public office, to vote and to be elected. The forfeiture of a sum of money amounting to 70,000 German marks was ordered. The co-accused was sentenced to two years’ imprisonment on probation, and he was deprived for a period of two years of the rights to hold public office, to vote and to be elected. 20. The Court of Appeal found that in the second half of the 1960s the second applicant had been contacted by agents of the Ministry for State Security. At the latest in 1969, he had agreed to work for the Ministry in question. The co-accused had acted as contact agent (Führungsoffizier). The second applicant had incited his friend to commit espionage on behalf of the GDR. His friend, who had died in 1989, had worked for the Federal Ministry of Defence and had had access to secret, and partly top secret, information. The applicant’s friend had taken copies of secret documents, or originals thereof, to his home where the originals had been photographed; copies and films had subsequently been forwarded by the second applicant to the co-accused. 21. The Court of Appeal observed that the second applicant and the co-accused had thereby committed espionage, within the meaning of Article 99 of the Criminal Code, which had been punishable at the time of their offences and had remained punishable following the accession of the GDR to the Federal Republic of Germany (FRG), as regulated in the German Unification Act (Gesetz zu dem Vertrag vom 31. August 1990 zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands) of 23 September 1990. As regards the second applicant, the court noted that he had acted as a citizen of the FRG against his own country. There was no appearance of a violation of his right to equal treatment. In particular, the German legislator was not obliged to enact legislation granting an amnesty or to limit the application of the provisions on espionage and treason. Finally, he could not be compared to secret agents of the Federal Intelligence Service who, irrespective of the different goals of the secret services concerned, acted on behalf of their own country and not against it. As regards the co-accused, the court, referring to a decision of the Federal Court of Justice of 29 May 1991, observed that there were no rules of public international law prohibiting a State from punishing foreigners having committed espionage abroad. Moreover, taking into account the different goals of the Federal Intelligence Service and the secret service of the GDR, his prosecution for espionage did not amount to discrimination against him, and the secret agents of the GDR could not have any legitimate expectation that they would not be punished for their conduct following the accession of the GDR to the FRG. 22. In fixing the second applicant’s sentence, the Court of Appeal regarded as mitigating circumstances in particular that he had no criminal record, had a regular life and had not committed espionage primarily for financial purposes, but had pursued political ideas. However, in view of the aggravating circumstances, in particular the lengthy period of the second applicant’s involvement in espionage, the involvement of his late friend, the kind of secret information forwarded as well as reasons of general crime prevention, the Court of Appeal regarded a prison sentence of six years appropriate. As regards the co-accused, the Court of Appeal took into account the fact that he was a citizen of the GDR and a secret agent acting from within that territory. 23. On 22 July 1992 the Third Division of the Federal Court of Justice, sitting with five judges, dismissed the second applicant’s appeal on points of law. 24. On 11 May 1994 the second applicant was released, having served two-thirds of his sentence. 25. The first applicant appealed to the Federal Constitutional Court on 18 July 1992. Following indications as to certain formal shortcomings in her constitutional complaint, she filed supplementary submissions on 18 August 1992. Her case was registered on 27 August 1992. The second applicant’s constitutional complaint of 13 August 1992 was received by the Federal Constitutional Court on 14 August 1992. 26. The processing of the applicants’ and other similar cases was postponed as the Second Division of the Federal Constitutional Court envisaged rendering a leading decision in some test cases, that is, the application for a ruling submitted by the Berlin Court of Appeal in July 1991 as well as two constitutional complaints. In 1993 a third constitutional complaint, covering general aspects, was added to the test cases. On 23 March 1994 the Second Division, having considered the further action to be taken in these cases, ordered the preparation of an expert opinion on questions of international public law. The expert opinion, which should initially have been ready by mid-August 1994, was received by the Second Division on 11 July 1994. The parties in the test cases were given an opportunity to submit comments before the end of August 1994. Deliberations were taken up again in November 1994, but again suspended between December 1994 and March 1995. However, during that period, a first draft of the decision was prepared. 27. On 15 May 1995 the Second Division of the Federal Constitutional Court rendered the said leading decision (2 BvL 19/91 and others – see paragraphs 43 et seq. below). 28. On 23 May 1995 the Second Section of the Second Division of the Federal Constitutional Court, in separate decisions, refused to admit the first and second applicants’ constitutional complaints. The Constitutional Court referred to sections 93a and 93b of the Federal Constitutional Court Act and to the decision of the Second Division of 15 May 1995, which was attached to the decisions in the applicants’ cases. The first applicant received the decision on 9 June 1995. The second applicant’s counsel received the decision on 3 June 1995, and the second applicant himself on 21 June 1995. 29. Under the criminal law of the FRG, treason (Landesverrat) is punishable under Article 94 and espionage (geheimdienstliche Agententätigkeit) under Article 99 of the Criminal Code (Strafgesetzbuch). The provisions of the Criminal Code are applicable to offences committed within the territory of the FRG (Inlandstaten), pursuant to Article 3 of the Criminal Code. According to Article 5 § 4, Articles 94 and 99 are also applicable to offences committed abroad (Auslandstaten). 30. The Criminal Code of the GDR also contained provisions regarding the punishment of espionage and treason to the disadvantage of the GDR or one of its allies. These provisions extended to espionage on behalf of the FRG. 31. The Treaty between the Federal Republic of Germany and the German Democratic Republic on German Unification (Einigungsvertrag) of 31 August 1990 abolished, with effect from 3 October 1990, the Criminal Code of the GDR and extended the applicability of the criminal law of the FRG to the territory of the GDR (with some exceptions irrelevant in the present context). 32. In the course of the negotiations on the above Treaty, an amnesty for persons having committed espionage on behalf of the GDR was considered; however, this matter was not pursued on account of reservations among members of the general public and of envisaged difficulties in the Federal Diet (Bundestag). Further attempts to introduce such an amnesty in 1990 and 1993 remained unsuccessful. 33. Under the terms of Article 93 § 1 of the Basic Law (Grundgesetz), the Federal Constitutional Court shall rule, inter alia, on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights as guaranteed under Articles 20 § 4, 33, 38, 101, 103 and 104 of the Basic Law. 34. Article 100 § 1 of the Basic Law provides, inter alia, that, where a court considers unconstitutional a law whose validity is relevant to its decision, the proceedings shall be stayed and the question submitted to the Federal Constitutional Court if the Basic Law is considered to have been breached. According to paragraph 2 of this provision, where a court has doubts whether a rule of public international law is an integral part of federal law and whether such a rule directly creates rights and duties for the individual, the question shall be submitted to the Federal Constitutional Court. 35. The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht). The 1985 version of the Federal Constitutional Court Act (applicable with effect from 1 January 1986) was subsequently amended with a view to reducing the court’s workload. The amendments adopted in 1993 (which came into force on 11 August 1993), among other things, reorganised the procedure for individual complaints (sections 93a-93d of the 1993 Federal Constitutional Court Act). 36. According to section 2 of the Act, the Federal Constitutional Court is made up of two divisions, each composed of eight judges. 37. Sections 90 to 96 of that Act concern constitutional complaints lodged by individuals. “(1) Any person who claims that one of his basic rights or one of his rights under Articles 20 § 4, 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court. (2) If legal action against the violation is admissible, the complaint of unconstitutionality may not be lodged until all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant. ...” “The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.” 38. Sections 93a to 93c of the 1985 Act provided as follows: “A complaint of unconstitutionality shall require acceptance prior to a decision.” “(1) A Section may refuse acceptance of a complaint of unconstitutionality by a unanimous order if - 1. the complainant has not paid the required advance at all (section 34(6)) or has not paid it on time, 2. the complaint of unconstitutionality is inadmissible or does not offer sufficient prospects of success for other reasons, or 3. the Division is not likely to accept the complaint of unconstitutionality in accordance with the second sentence of section 93c below. The order shall be final. (2) The Section may uphold the complaint of unconstitutionality by a unanimous order if it is clearly justified because the Federal Constitutional Court has already decided on the relevant question of constitutional law... (3) The decisions of the Section shall be taken without oral pleadings. In stating the reasons for an order by which acceptance of a complaint of unconstitutionality is refused, it is sufficient to refer to the legal aspect determining the refusal.” “If the Section neither refuses acceptance of a complaint of unconstitutionality nor upholds it, the Division shall then decide on acceptance. It shall accept the complaint of unconstitutionality if at least two judges hold the view that a question of constitutional law is likely to be clarified by a decision or that the denial of a decision on the matter will entail a serious and unavoidable disadvantage for the complainant. Section 93b(3) above shall apply mutatis mutandis.” Sections 93a to 93d of the 1993 Act read: “(1) A complaint of unconstitutionality shall require acceptance prior to a decision. (2) It is to be accepted, a. if it raises a constitutional issue of general interest, b. if this is advisable for securing the rights mentioned in section 90(1); or also in the event that the denial of a decision on the matter would entail a particularly serious disadvantage for the complainant.” “The Section may refuse acceptance of a complaint of unconstitutionality or accept it in the event of section 93c. In other cases, the Division shall decide on acceptance.” “(1) If the conditions of section 93a(2)(b) are met and the Federal Constitutional Court has already decided on the relevant question of constitutional law, the Section may uphold the complaint of unconstitutionality if it is clearly justified...” “(1) The decision pursuant to sections 93b and 93c shall be taken without oral pleadings. It is unappealable. The order by which acceptance of a complaint of unconstitutionality is refused does not require any reasoning. ...” 39. Section 94 provides for the right of third parties to be heard in complaint proceedings in the Federal Constitutional Court. 40. Section 95 concerns the ruling of the Federal Constitutional Court if the complaint is upheld and reads: “(1) If the complaint of unconstitutionality is upheld, the decision shall state which provision of the Basic Law has been infringed and by which act or omission. The Federal Constitutional Court may at the same time declare that any repetition of the act or omission complained of will infringe the Basic Law. (2) If a complaint of unconstitutionality against a decision is upheld, the Federal Constitutional Court shall quash the decision and in cases pursuant to the first sentence of section 90(2) above it shall refer the matter back to a competent court. (3) If a complaint of unconstitutionality against a law is upheld, the law shall be declared null and void. The same shall apply if a complaint of unconstitutionality pursuant to paragraph 2 above is upheld because the quashed decision is based on an unconstitutional law. Section 79 shall apply mutatis mutandis.” 41. Section 79, to which section 95(3) refers, provides: “(1) In the event that a final conviction is based on a legal provision, which has been declared incompatible with the Basic Law or has been declared null and void pursuant to section 78, or based on the interpretation of a legal provision, which has been declared incompatible with the Basic Law by the Federal Constitutional Court, a reopening of the criminal proceedings is admissible, in accordance with the provisions of the Code of Criminal Procedure. (2) In all other respects, subject to the provisions of section 95(2) or a specific statutory provision, final decisions based on a rule declared null and void pursuant to section 78 shall remain unaffected. Such decisions shall not be enforceable...” 42. The Federal Constitutional Court may issue an interim injunction (einstweilige Anordnung) in order to avoid serious disadvantages (zur Abwehr schwerer Nachteile), to prevent imminent violence (zur Verhinderung drohender Gewalt) or for another important reason in the general interest (aus einem anderen wichtigen Grund zum gemeinen Wohl), pursuant to section 32 of the Constitutional Court Act. 43. On 22 July 1991 the Berlin Court of Appeal (Kammergericht) suspended criminal proceedings relating to charges of espionage, treason and corruption in order to obtain a decision by the Federal Constitutional Court on the question whether persons who had been living in the GDR and had committed the above offences from the territory of the GDR could be prosecuted. Furthermore, in 1991 and later, numerous persons convicted of such offences lodged constitutional complaints with the Federal Constitutional Court, claiming that their respective convictions violated in particular their rights of liberty, as guaranteed under Article 2 § 2 of the Basic Law, as well as their right to equality, as guaranteed under Article 3. 44. On 15 May 1995 the Second Division of the Federal Constitutional Court rendered a leading decision on the request submitted by the Berlin Court of Appeal and three of the constitutional complaints. 45. The request submitted by the Berlin Court of Appeal was declared partly inadmissible; as regards the remainder, the Federal Constitutional Court held that there was no rule of public international law, forming an integral part of federal law, prohibiting criminal prosecution of espionage committed on behalf and within the territory of a State which had later peacefully become part of the State spied upon. Furthermore, as regards the first of the three constitutional complaints, it found that the complainant’s conviction violated his constitutional rights; the first- and second-instance judgments were set aside and the case was referred back to the first-instance court. With regard to the second individual case, the sentencing was found to have violated constitutional rights, the judgments of the lower courts were, to that extent, set aside and the matter was referred back to the first-instance court. The third constitutional complaint was dismissed. 46. In its decision, the Federal Constitutional Court recalled its case-law according to which the prosecution for treason and espionage as provided for under Articles 94 and 99 of the Criminal Code amounted to an interference with the rights of liberty under Article 2 of the Basic Law which was justified from a constitutional point of view. This finding also applied to the extent that secret agents of the GDR were liable to punishment even if they had only acted within the territory of the GDR or abroad. In this respect, the Constitutional Court considered that the relevant provisions of the Criminal Code aimed at protecting the external security of the FRG, and took into account that the offences in question had been committed at a time when the FRG was particularly exposed to secret service operations of its enemies. 47. However, according to the Constitutional Court, the question arose whether or not the accession of the GDR to the FRG required a new appraisal of the constitutional issues, in particular with regard to espionage committed from the territory of the GDR by persons who were citizens of the GDR and living there. 48. The Constitutional Court found that the fact that espionage on behalf of the GDR was prosecuted as a criminal offence whereas the criminal provisions of the GDR regarding espionage committed by agents of the Federal Intelligence Service had been repealed in the context of the Unification Treaty did not amount to discrimination. Rather, such difference in treatment resulted from the particularities of national security rules (Staatsschutzrecht), which protected the State against espionage by foreign powers. Thus, espionage against the FRG on behalf of the GDR remained a punishable act even after the accession of that State. 49. Moreover, the punishment for espionage on behalf of the GDR following the reunification of Germany did not breach any general rules of public international law, contrary to Article 25 of the Basic Law. The Constitutional Court, having regard to a legal opinion of the Heidelberg Max Planck Institute for foreign public law and public international law of 1 July 1994, observed that, under public international law, a State was entitled to enact legislation relating to criminal offences committed within its territory as well as to offences committed by foreigners abroad to the extent that its existence or important interests were at risk. There was no justification for espionage under public international law and there were no rules on the criminal liability for espionage following the accession of another State. 50. Furthermore, the prosecution of espionage on behalf of the GDR on the basis of the criminal laws in force in the FRG at the time of the offences concerned did not amount to a violation of the rule that no act could be prosecuted unless it was not a criminal offence under the relevant law at the time when it was committed. The Constitutional Court noted that the scope of the provisions on treason and espionage was determined by Articles 3, 5 and 9 of the Criminal Code, which had been in force before the time of the offences in question. The extension of the jurisdiction of the FRG regarding such offences was a consequence of the accession of the GDR and the Unification Treaty. 51. The Constitutional Court next examined whether or not the results of this extension of the jurisdiction of the FRG amounted to a breach of the rule of law (Rechtsstaatsprinzip) and, in particular, the principle of proportionality. 52. The Constitutional Court found that, in the unique situation of the German reunification, the prosecution of citizens of the GDR, who had been living in the GDR and had acted solely within the territory of the GDR or of other States where they were safe from extradition or punishment, violated the principle of proportionality. Consequently, there was a technical bar to prosecution (Verfolgungshindernis) regarding this group of persons. Criminal prosecution and punishment as a means of protecting legal interests should not result in a disproportionate interference with the rights of the persons concerned. 53. In this context, the Constitutional Court considered the difference between the punishment for espionage and for other criminal offences. Public international law did not prohibit espionage, but it also allowed the State spied upon to punish spies even if they had only acted abroad. There was no differentiation between espionage on behalf of a totalitarian State and espionage on behalf of a State with a free democratic basic order. Thus, espionage had an ambivalent nature: it served the interests of the observing State, where it was accordingly regarded as lawful, and prejudiced the interests of the State being spied upon, where it was therefore regarded as a punishable offence. Punishment of foreign spies was not, therefore, justified on account of a general moral value judgment of reproach (Unwerturteil) regarding the espionage act, but only for the purpose of protecting the State spied upon. 54. According to the Federal Constitutional Court, the fall of the GDR, and the consequent termination of any protection for its spies, together with the replacement of its legal order by that of the FRG, which rendered prosecution possible, resulted in a disproportionate prejudice towards the group of offenders who had committed espionage on behalf of the GDR solely within the latter’s territory and had not left the sphere of its protection, or had only been within the territory of other States where they had not risked extradition or punishment in respect of such acts. The reunification had at the same time repealed the punishment of espionage activities on behalf of the FRG. The court further found that any punishment of this group of persons would jeopardise the process of creating German unity. 55. With regard to other citizens of the GDR who had committed espionage within the territory of the FRG or one of its allies, or in a third State where they had risked extradition or punishment, there was no general bar to prosecution as the above conditions were not necessarily all met. However, those persons had, as a consequence of the fall of the GDR, also lost the protection of that State, if only the expectation of being exchanged in case of arrest. Moreover, even confronted with the legal order of the FRG, these persons’ sense of wrongdoing (Unrechtsbewußtsein) was attuned to the legal order of the GDR. Above all, they were meanwhile prosecuted by their own State in respect of espionage activities committed at a time when they regarded that State as a foreign State. In such cases all relevant circumstances had to be weighed in the light of the above considerations with a view to determining whether or not prosecution should be continued, or in fixing the sentence. 56. In their separate opinion to the Federal Constitutional Court’s judgment, three judges of the Second Division explained that they disagreed with the judgment as far as the finding of a technical bar to the prosecution of a group of persons having committed espionage was concerned. 57. Mrs Gabriele Gast and Mr Dieter Popp applied to the Commission on 1 May 1995. They alleged, inter alia, a violation of Article 6 § 1 of the Convention as regards the length of the proceedings before the Federal Constitutional Court. 58. The Commission declared the application (no. 29357/95) partly admissible on 20 October 1997. In its report of 28 May 1998 (former Article 31 of the Convention) , it expressed the opinion, by twenty votes to eleven, that there had been no violation of Article 6 § 1.

train

001-57789

ENG

IRL

CHAMBER

CASE OF OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND

Preliminary objections dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Six month period);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information);Pecuniary damage - award

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

9. The applicants in this case are (a) Open Door Counselling Ltd (hereinafter referred to as Open Door), a company incorporated under Irish law, which was engaged, inter alia, in counselling pregnant women in Dublin and in other parts of Ireland; and (b) Dublin Well Woman Centre Ltd (hereinafter referred to as Dublin Well Woman), a company also incorporated under Irish law which provided similar services at two clinics in Dublin; (c) Bonnie Maher and Ann Downes, who worked as trained counsellors for Dublin Well Woman; (d) Mrs X, born in 1950 and Ms Maeve Geraghty, born in 1970, who join in the Dublin Well Woman application as women of child-bearing age. The applicants complained of an injunction imposed by the Irish courts on Open Door and Dublin Well Woman to restrain them from providing certain information to pregnant women concerning abortion facilities outside the jurisdiction of Ireland by way of non-directive counselling (see paragraphs 13 and 20 below). Open Door and Dublin Well Woman are both non-profit- making organisations. Open Door ceased to operate in 1988 (see paragraph 21 below). Dublin Well Woman was established in 1977 and provides a broad range of services relating to counselling and marriage, family planning, procreation and health matters. The services offered by Dublin Well Woman relate to every aspect of women’s health, ranging from smear tests to breast examinations, infertility, artificial insemination and the counselling of pregnant women. 10. In 1983, at the time of the referendum leading to the Eighth Amendment of the Constitution (see paragraph 28 below), Dublin Well Woman issued a pamphlet stating inter alia that legal advice on the implications of the wording of the provision had been obtained and that "with this wording anybody could seek a court injunction to prevent us offering" the non-directive counselling service. The pamphlet also warned that "it would also be possible for an individual to seek a court injunction to prevent a woman travelling abroad if they believe she intends to have an abortion". 11. The applicant companies were the defendants in proceedings before the High Court which were commenced on 28 June 1985 as a private action brought by the Society for the Protection of Unborn Children (Ireland) Ltd (hereinafter referred to as S.P.U.C.), which was converted into a relator action brought at the suit of the Attorney General by order of the High Court of 24 September 1986 (the Attorney General at the relation of the Society for the Protection of Unborn Children (Ireland) Ltd v. Open Door Counselling Ltd and Dublin Well Woman Centre Ltd [1988] Irish Reports, pp. 593-627). 12. S.P.U.C. sought a declaration that the activities of the applicant companies in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion were unlawful having regard to Article 40.3.3o of the Constitution which protects the right to life of the unborn (see paragraph 28 below) and an order restraining the defendants from such counselling or assistance. 13. No evidence was adduced at the hearing of the action which proceeded on the basis of certain agreed facts. The facts as agreed at that time by Dublin Well Woman may be summarised as follows: (a) It counsels in a non-directive manner pregnant women resident in Ireland; (b) Abortion or termination of pregnancy may be one of the options discussed within the said counselling; (c) If a pregnant woman wants to consider the abortion option further, arrangements will be made by the applicant to refer her to a medical clinic in Great Britain; (d) In certain circumstances, the applicant may arrange for the travel of such pregnant women; (e) The applicant will inspect the medical clinic in Great Britain to ensure that it operates at the highest standards; (f) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by the applicant; (g) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years including 1984. The facts agreed by Open Door were the same as above with the exception of point (d). 14. The meaning of the concept of non-directive counselling was described in the following terms by Mr Justice Finlay CJ in the judgment of the Supreme Court in the case (judgment of 16 March 1988, [1988] Irish Reports 618 at p. 621): "It was submitted on behalf of each of the Defendants that the meaning of non-directive counselling in these agreed sets of facts was that it was counselling which neither included advice nor was judgmental but that it was a service essentially directed to eliciting from the client her own appreciation of her problem and her own considered choice for its solution. This interpretation of the phrase ‘non-directive counselling’ in the context of the activities of the Defendants was not disputed on behalf of the Respondent. It follows from this, of course, that non- directive counselling to pregnant women would never involve the actual advising of an abortion as the preferred option but neither, of course, could it permit the giving of advice for any reason to the pregnant women receiving such counselling against choosing to have an abortion." 15. On 19 December 1986 Mr Justice Hamilton, President of the High Court, found that the activities of Open Door and Dublin Well Woman in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice on abortion within a foreign jurisdiction were unlawful having regard to the provisions of Article 40.3.3o of the Constitution of Ireland. He confirmed that Irish criminal law made it an offence to procure or attempt to procure an abortion, to administer an abortion or to assist in an abortion by supplying any noxious thing or instrument (sections 58 and 59 of the Offences against the Person Act 1861 - see paragraph 29 below). Furthermore, Irish constitutional law also protected the right to life of the unborn from the moment of conception onwards. An injunction was accordingly granted "... that the Defendants [Open Door and Dublin Well Woman] and each of them, their servants or agents, be perpetually restrained from counselling or assisting pregnant women within the jurisdiction of this Court to obtain further advice on abortion or to obtain an abortion". The High Court made no order relating to the costs of the proceedings, leaving each side to bear its own legal costs. 16. Open Door and Dublin Well Woman appealed against this decision to the Supreme Court which in a unanimous judgment delivered on 16 March 1988 by Mr Justice Finlay CJ rejected the appeal. The Supreme Court noted that the appellants did not consider it essential to the service which they provided for pregnant women in Ireland that they should take any part in arranging the travel of women who wished to go abroad for the purpose of having an abortion or that they arranged bookings in clinics for such women. However, they did consider it essential to inform women who wished to have an abortion outside the jurisdiction of the court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard. 17. On the question of whether the above activity should be restrained as being contrary to the Constitution, Mr Justice Finlay CJ stated: "... the essential issues in this case do not in any way depend upon the Plaintiff establishing that the Defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s.3, sub-s.3 of the Constitution, is the issue as to whether the Defendants’ admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn? I am satisfied beyond doubt that having regard to the admitted facts the Defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the Defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective. I am, therefore, satisfied that the finding made by the learned trial Judge that the Defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence ..." The Court further noted that the phrase in Article 40.3.3o "with due regard to the equal right to life of the mother" did not arise for interpretation in the case since the applicants were not claiming that the service they were providing for pregnant women was "in any way confined to or especially directed towards the due regard to the equal right to life of the mother ...". 18. Open Door and Dublin Well Woman had submitted that if they did not provide this counselling service it was likely that pregnant women would succeed nevertheless in obtaining an abortion in circumstances less advantageous to their health. The Court rejected this argument in the following terms: "Even if it could be established, however, it would not be a valid reason why the Court should not restrain the activities in which the defendants were engaged. The function of the courts, which is not dependent on the existence of legislation, when their jurisdiction to defend and vindicate a constitutionally guaranteed right has been invoked, must be confined to the issues and to the parties before them. If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case. The courts cannot take that wide approach. They are confined to dealing with the parties and issues before them. I am satisfied, therefore, that it is no answer to the making of an order restraining these defendants’ activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these defendants’ activities." 19. As to whether there was a constitutional right to information about the availability of abortion outside the State, the court stated as follows: "The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40.3.3o it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s.6, sub-s.1 (i) of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child." 20. The court upheld the decision of the High Court to grant an injunction but varied the terms of the order as follows: "... that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise." The costs of the Supreme Court appeal were awarded against the applicant companies on 3 May 1988. 21. Following the judgment of the Supreme Court, Open Door, having no assets, ceased its activities. 22. On 25 September 1989 S.P.U.C. applied to the High Court for a declaration that the dissemination in certain student publications of information concerning the identity and location of abortion clinics outside the jurisdiction was unlawful and for an injunction restraining its distribution. Their standing to apply to the courts for measures to protect the right to life of the unborn had previously been recognised by the Supreme Court following a similar action in the case of Society for the Protection of Unborn Children (Ireland) Ltd v. Coogan and Others ([1989] Irish Reports, pp. 734-751). By a judgment of 11 October 1989 the High Court decided to refer certain questions to the European Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty concerning, inter alia, the question whether the right to information concerning abortion services outside Ireland was protected by Community law. 23. An appeal was brought against this decision and, on 19 December 1989, the Supreme Court granted an interlocutory injunction restraining the students from "publishing or distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed" (Society for the Protection of Unborn Children (Ireland) Ltd v. Stephen Grogan and Others, [1989] Irish Reports, pp. 753-771). Mr Justice Finlay CJ (with whom Mr Justice Walsh, Mr Justice Griffin and Mr Justice Hederman concurred) considered that the reasoning of the court in the case brought against the applicant companies applied to the activities of the students: "I reject as unsound the contention that the activity involved in this case of publishing in the students’ manuals the name, address and telephone number, when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in [the Open Door Counselling case] on the grounds that the facts of that case were that the information was conveyed during periods of one to one non-directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation." Mr Justice McCarthy also considered that an injunction should be issued and commented as follows: "In the light of the availability of such information from a variety of sources, such as imported magazines, etc., I am far from satisfied that the granting of an injunction to restrain these defendants from publishing the material impugned would save the life of a single unborn child, but I am more than satisfied that if the courts fail to enforce, and enforce forthwith, that guarantee as construed in A.G. (S.P.U.C.) v. Open Door Counselling Ltd ([1988] Irish Reports 593), then the rule of law will be set at nought." 24. In a judgment of 4 October 1991 on the questions referred under Article 177 of the EEC Treaty, following the Supreme Court’s judgment, the Court of Justice of the European Communities ruled that the medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty. However it found that the link between the activity of the student associations and medical terminations of pregnancy carried out in clinics in another member State was too tenuous for the prohibition on the distribution of information to be capable of being regarded as a restriction on the freedom to supply services within the meaning of Article 59 of the Treaty. The Court did not examine whether the prohibition was in breach of Article 10 (art. 10) of the Convention. In the light of its conclusions concerning the restriction on services it considered that it had no jurisdiction with regard to national legislation "lying outside the scope of Community law". Accordingly, the restrictions on the publication of information by student associations were not considered to be contrary to Community law (see paragraphs 22-23 above, the Society for the Protection of Unborn Children (Ireland) Ltd v. Stephen Grogan and Others [1991] European Court Reports I, pp. 4733-4742). 25. The interpretation to be given to Article 40.3.3o of the Constitution also arose before the Supreme Court in the case of The Attorney General v. X and Others which concerned an application to the courts by the Attorney General for an injunction to prevent a 14-year-old girl who was pregnant from leaving the jurisdiction to have an abortion abroad. The girl alleged that she had been raped and had expressed the desire to commit suicide. The Supreme Court, in its judgment of 5 March 1992, found that termination of pregnancy was permissible under Article 40.3.3o where it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination was not effected. Finding that this test was satisfied on the facts of the case the Supreme Court discharged the injunction which had been granted by the High Court at first instance. A majority of three judges of the Supreme Court (Finlay CJ, Hederman and Egan JJ.) expressed the view that Article 40.3.3o empowered the courts in proper cases to restrain by injunction a pregnant woman from leaving the jurisdiction to have an abortion so that the right to life of the unborn might be defended and vindicated. During the oral hearing before the European Court of Human Rights, the Government made the following statement in the light of the Supreme Court’s judgment in this case: "... persons who are deemed to be entitled under Irish law to avail themselves of termination of pregnancy in these circumstances must be regarded as being entitled to have appropriate access to information in relation to the facilities for such operations, either in Ireland or abroad." 26. The applicants presented evidence to the Court that there had been no significant drop in the number of Irish women having abortions in Great Britain since the granting of the injunction, that number being well over 3,500 women per year. They also submitted an opinion from an expert in public health (Dr J.R. Ashton) which concludes that there are five possible adverse implications for the health of Irish women arising from the injunction in the present case: 1. An increase in the birth of unwanted and rejected children; 2. An increase in illegal and unsafe abortions; 3. A lack of adequate preparation of Irish women obtaining abortions; 4. Increases in delay in obtaining abortions with ensuing increased complication rates; 5. Poor aftercare with a failure to deal adequately with medical complications and a failure to provide adequate contraceptive advice. In their written comments to the Court, S.P.U.C. claimed that the number of abortions obtained by Irish women in England, which had been rising rapidly prior to the enactment of Article 40.3.3o, had increased at a much reduced pace. They further submitted that the number of births to married women had increased at a "very substantial rate". 27. The applicants claimed that the impugned information was available in British newspapers and magazines which were imported into Ireland as well as in the yellow pages of the London telephone directory which could be purchased from the Irish telephone service. It was also available in publications such as the British Medical Journal which was obtainable in Ireland. While not challenging the accuracy of the above information the Government observed that no newspaper or magazine had been produced in evidence to the Court. 28. Article 40.3.3o of the Irish Constitution (the Eighth Amendment), which came into force in 1983 following a referendum, reads: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." This provision has been interpreted by the Supreme Court in the present case, in the Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan and Others ([1989] Irish Reports, p. 753) and in The Attorney General v. X and Others (see paragraphs 22-25 above). 29. The statutory prohibition of abortion is contained in sections 58 and 59 of the Offences Against the Person Act 1861. Section 58 provides that: "Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to betaken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable, [to imprisonment for life] ..." Section 59 states that: "Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof, ..." 30. Section 16 of the Censorship of Publications Act 1929 as amended by section 12 of the Health (Family Planning) Act 1979 provides that: "It shall not be lawful for any person, otherwise than under and in accordance with a permit in writing granted to him under this section (a) to print or publish or cause or procure to be printed or published, or (b) to sell or expose, offer or keep for sale or (c) to distribute, offer or keep for distribution, any book or periodical publication (whether appearing on the register of prohibited publications or not) which advocates or which might reasonably be supposed to advocate the procurement of abortion or miscarriage or any method, treatment or appliance to be used for the purpose of such procurement." 31. Section 58 of the Civil Liability Act 1961 provides that "the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive". 32. Section 10 of the Health (Family Planning) Act 1979 re-affirms the statutory prohibition of abortion and states as follows: "Nothing in this Act shall be construed as authorising - (a) the procuring of abortion, (b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of any instruments to procure abortion) or, (c) the sale, importation into the State, manufacture, advertising or display of abortifacients." 33. Apart from the present case and subsequent developments (see paragraphs 11-25 above), reference has been made to the right to life of the unborn in various decisions of the Supreme Court (see, for example, McGee v. Attorney General [1974] Irish Reports, p. 264, G. v. An Bord Uchtala [1980] Irish Reports, p. 32, Norris v. Attorney General [1984] Irish Reports, p. 36). 34. In the case of G. v. An Bord Uchtala (loc. cit.) Mr Justice Walsh stated as follows: "[A child] has the right to life itself and the right to be guarded against all threats directed to its existence, whether before or after birth ... The right to life necessarily implies the right to be born, the right to preserve and defend and to have preserved and defended that life ..." 35. The Supreme Court has also stated that the courts are the custodians of the fundamental rights set out in the Constitution and that their powers in this regard are as ample as the defence of the Constitution requires (The State (Quinn) v. Ryan [1965] Irish Reports 70). Moreover, an infringement of a constitutional right by an individual may be actionable in damages as a constitutional tort (Meskell v. C.I.E. [1973] Irish Reports, p. 121). In his judgment in The People v. Shaw ([1982] Irish Reports, p. 1), Mr Justice Kenny observed: "When the People enacted the Constitution of 1937, they provided (Article 40,s.3) that the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen and that the State should, in particular, by its laws protect as best it might from unjust attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. I draw attention to the use of the words ‘the State’. The obligation to implement this guarantee is imposed not on the Oireachtas only, but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws: Article 6. The word ‘laws’ in Article 40,s.3 is not confined to laws which have been enacted by the Oireachtas, but comprehends the laws made by judges and by ministers of State when they make statutory instruments or regulations."

train

001-112444

ENG

POL

CHAMBER

CASE OF TOZICZKA v. POLAND

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

5. The applicant was born in 1943 and lives in Opole. 6. “Zgoda” Housing Cooperative in Brzeg brought a civil case against the applicant before the Opole Regional Court. It sought a judgment obliging her to sell to the co-operative a number of plots of land which had been de facto occupied by the co-operative for a long period of time. 7. By a judgment of 16 June 2003 the Opole Regional Court dismissed the claim. It held that the applicable provisions of the Housing Cooperatives Act provided for an obligatory sale of land occupied de facto by housing co-operatives only where a co-operative had erected buildings thereon. In the present case, the plaintiff co-operative had built roads and parking areas on the land concerned. 8. The plaintiff cooperative appealed. 9. By a judgment of 26 November 2003 the Wrocław Court of Appeal allowed the appeal, quashed the first-instance judgment and remitted the case. It was of the view that the first-instance court had erred in the application of section 35 of the Co-operatives Act. It had wrongly held that an obligatory sale could be ordered to the benefit of a housing co-operative only with respect to land owned by third parties on which a co-operative had had houses built. The court was of the opinion that such a sale could also be ordered when a co-operative had built infrastructures other than houses. 10. Judge D.Z. sat on the bench of the Supreme Court as judge rapporteur. 11. The applicant’s case was subsequently examined again. The Opole Regional Court allowed the plaintiff’s claim and ordered the applicant to sell 2,000 sq. metres of land to the co-operative. It found that the plaintiff co-operative had built a housing estate in the vicinity of the applicant’s land and also partly on her land. Parking areas and roads had been built on the land belonging to the applicant. Section 35 of the Housing Co-operatives Act provided for the compulsory sale of privately owned land occupied de facto by co-operatives. 12. The applicant appealed. She argued that the court had erred in applying the substantive law in her case. Section 35 of the Housing Cooperatives Act provided for a claim for compulsory sale only where cooperatives had built houses on privately owned land. The legal interpretation of this provision by the court breached the principle that exceptions had to be interpreted narrowly. She further argued that the judgment ordering her to sell her land was in breach of Article 1 of Protocol No. 1 to the Convention. 13. On 14 March 2007 the Wrocław Court of Appeal dismissed the appeal, endorsing the legal view expressed in the judgment of 26 November 2003. 14. The applicant lodged a cassation appeal against this judgment with the Supreme Court. She reiterated the same argument which she had already raised in her appeal and emphasised that the courts had erroneously interpreted substantive law in her case. She submitted that section 35 of the Housing Co-operatives Act allowed for a compulsory sale of privately owned land only where a co-operative had built houses on it. The court had erred in that it held that this provision should, by analogy, also be applied to roads, parking areas and similar infrastructure. This interpretation resulted from the functional interpretation of this provision according to which its purpose was to make it possible for housing co-operatives to acquire ownership of land owned by third parties. Thus, the courts had held that it would be inconsistent with that object and purpose to allow a claim for a compulsory sale order against the owner only with respect to the land on which houses had been built. The applicant argued that this approach, which disregarded the literal and clear text of the provision concerned and resorted instead to a functional interpretation, was unlawful. 15. She also invoked Article 1 of Protocol No. 1 to the Convention and submitted that her property rights had been excessively and unlawfully restricted by the compulsory sale order. 16. The cassation appeal was examined by the Supreme Court sitting in camera on 18 January 2008. Judge D.Z. (see paragraph 10 above), who had in the meantime been promoted to the Supreme Court, sat on the bench. The court was of the view that the gist of the cassation appeal concerned the interpretation of section 35 of the Housing Co-operatives Act and that the case turned on the interpretation to be given to this provision. It agreed with the legal view expressed on both occasions by the Wrocław Court of Appeal and dismissed the applicant’s cassation appeal. 17. By a judgment of 1 February 2007 the Opole Regional Court awarded the applicant compensation in the amount of PLN 388,000 for the use of her land by the local energy company which had in the past built installations (a pipeline) on her land. The company appealed. 18. By a judgment of 25 April 2007 the Wrocław Court of Appeal quashed the first-instance judgment and dismissed the applicant’s claim. 19. The applicant lodged a cassation appeal with the Supreme Court, complaining that the electricity company had been using her property for years without paying any compensation. 20. By a decision of 14 December 2007, served on the applicant’s lawyer on 14 March 2008, the Supreme Court refused to accept her cassation appeal for examination. 21. Article 3983 of the Code of Civil Procedure lists the grounds on which a cassation appeal (skarga kasacyjna) can be lodged. It reads, in so far as relevant, as follows: “1. The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 22. Article 401 of the Code of Civil Procedure provides that a request for re-opening of civil proceedings can be based on invalidity of proceedings caused, inter alia, by an improper composition of the court or on the participation of a judge who was disqualified by law from sitting on the bench.

train

001-90466

ENG

GRC

CHAMBER

CASE OF LEONIDIS v. GREECE

Violation of Art. 2 (substantive aspect);No violation of Art. 2 (procedural aspect);Non-pecuniary damage - finding of violation sufficient

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

5. The applicant, Mr Grigorios Leonidis, is a Greek national of Russian-Pontic origin who was born in 1952 and lives in Thessaloniki. 6. In the early hours of 25 March 2000 the applicant’s 18 year-old son, Nikolaos Leonidis, and two of his friends were in a district of the old town of Thessaloniki. 7. Plainclothes police officers G.A. and C.T., serving in the Ano Poli police station, were out on patrol duty in an unmarked police vehicle when they noticed the three young men on the street. The three men were not committing any offence, but G.A. noticed in his car mirror that one of them turned to look at the police car as it passed. Since several burglaries had been recently reported in that area, he decided to carry out an identity check. However, as he drove back towards them, the three men ran away. 8. The two police officers got out of the car and ran after them. The chase apparently continued for a minute. The three young men split up and ran off in different directions. 9. G.A. ran after Nikolaos Leonidis. As he approached him, Nikolaos Leonidis put his hand inside his jacket. Suspecting that the latter might take out a weapon, G.A pulled out his own service revolver, a 357 magnum Smith and Wesson, which had no safety catch and was loaded. Holding the revolver in his right hand, with his finger on the trigger, he ordered Nikolaos Leonidis to stop. After running a few metres, Nikolaos Leonidis tired of the chase, lost his balance and tripped. That allowed G.A. to catch hold of him with his left hand. G.A. then pushed him against a car and immobilised him by forcing him to raise his hands and place them on the car roof while he was pointing his gun towards the sky. 10. Then, with his left hand G.A. twisted the young man’s left wrist behind his back in order to handcuff him. At that point Nikolaos Leonidis jabbed him with his right elbow in the right side, causing him sharp pain. Reacting to the pain, G.A. bent forward, and while he was drawing himself back up, his revolver went off, firing a single shot in the lower part of Nikolaos Leonidis’ right ear, instantly killing him. 11. C.T., who had in the meantime arrived close to the two men, was five metres away from the scene and partially witnessed the incident. From where he was standing, he was not able to see the shooting. 12. A few hours after the fatal shot police officers from the Ano Poli police station conducted a preliminary inquiry (προανάκριση) into the event. The police officers inspected the area and drafted an inspection report as well as a sketch plan. In addition, they took a statement from C.T. A few hours later, a crime scene reconstruction was conducted in the presence of the Public Prosecutor and a report was drawn up in this respect. 13. On the same day a forensic post-mortem examination was performed by a forensic medicine expert from the University of Thessaloniki. The doctor indicated that the cause of death was a fracture of the cranium due to a gunshot wound and that the shot had been fired either at point-blank range or from a few centimetres distance. According to the report, the exact range was to be established after further examination in the criminal police laboratory. 14. The forensic medicine expert also examined G.A. According to the report, G.A. was diagnosed with “a contusion in the right hemithorax”. 15. On the same day, at around 1 p.m., the applicant was informed of the incident. 16. The following day, the Public Prosecutor of Thessaloniki instituted criminal proceedings against G.A. for wilful homicide, exceeding the limits of self-defence and unauthorised use of weapons. The applicant joined the proceedings as a civil party, claiming a specific amount by way of damages. 17. On the same day G.A. gave his statement before the investigating judge and he was set free after he had given a bank guarantee of EUR 1,467. 18. On 5 April 2000 the applicant gave a statement and asked the investigating judge to examine in detail the amount of pressure that needs to be put on the trigger in order to release the hammer and fire the gun as well as whether the use of the gun had been absolutely necessary after the victim’s arrest. 19. On 24 May 2000 the criminal police laboratory published the report on the range at which the bullet had been fired. According to the two experts, the sample of skin taken from the victim was too small to establish the exact range. 20. On 19 June 2000 the ballistic examination of the weapon was conducted. The report indicated that only one cartridge had been fired from G.A.’s weapon. 21. Following the preliminary inquiry the case was referred to the Indictment Division of the Thessaloniki Criminal Court of First Instance, which on 29 March 2001 decided not to press charges against G.A., considering that Nikolaos Leonidis’ death had resulted from his sudden and violent assault on G.A. and the accidental discharge of the latter’s revolver that was its consequence (decision no. 513/2001). 22. On 3 April 2001 the applicant lodged an appeal. On 18 June 2001 the Indictment Division of the Thessaloniki Court of Appeal confirmed the dismissal of charges against G.A. (decision no. 895/2001). It stated, inter alia, that: “The blow surprised the defendant, his body first bent forward and then backwards to the left, because of the pain and the surprise he felt, and his weapon, which was a revolver and did not have a safety catch, went off. (...) [Nikolaos Leonidis’s death] was not the result of the defendant’s reckless behaviour, but of the victim’s violent and sudden assault and the discharge of the latter’s revolver that was its consequence. There is nothing to show that [G.A.], given the circumstances and his knowledge and abilities, could have foreseen and avoided the death of the victim.” 23. On 9 July 2001 the applicant appealed to the Court of Cassation. 24. On 11 April 2003 the Court of Cassation overturned the decision appealed against and remitted the case to the Indictment Division of the Thessaloniki Court of Appeal for reconsideration (decision no. 1013/2003). It held that the reasoning given in the decision appealed against was ambiguous, contradictory and insufficient. In particular, it did not indicate how the trigger had been squeezed, although it implied that the discharge was connected to the victim’s violent movement. Furthermore, it did not make references to the forensic ballistics report. 25. On 20 June 2003 the Indictment Division of the Thessaloniki Court of Appeal overturned the dismissal of charges and committed the defendant for trial before the Katerini Assize Court. It stated, inter alia, that the victim had already been immobilised at the time he was shot and did not pose a threat to the defendant (decision no. 872/2003). 26. On 28 August 2003 the defendant appealed to the Court of Cassation. 27. On 23 December 2004 the Court of Cassation dismissed the defendant’s appeal (decision no. 2396/2004). 28. On 21 June 2005 the hearing before the Katerini Assize Court took place. The Katerini Assize Court heard evidence from the applicant, two other relatives of the victim, police officer C.T. and two other police officers, as well as from the defendant. 29. The Katerini Assize Court also heard statements from two experts the defendant had asked to be called. The first expert, a forensic medicine expert, who had read the post mortem examination, reached a conclusion supporting the defendant’s view. The second expert was a mathematician who put forward a theory on the trajectory of the bullet in support of the defendant’s view. The court also read out various documents, such as the results of the post mortem examination of the deceased, forensic medical reports, autopsy reports, photos and the crime scene reconstruction report. 30. On the same day the Katerini Assize Court published its judgment acquitting the defendant by four votes to three (judgment no. 47/2005). On the basis of the case-file and the evidence submitted the majority held in particular that: “... the violent blow surprised the defendant, who felt pain and bent forward and then backwards to the left and his muscles were “contracted” because of the pain that the violent and unexpected hit had caused him (...), ... because of his reflex action the defendant involuntarily squeezed the trigger of his revolver, which was not equipped with a safety catch, and a bullet was fired (...) ... It is apparent that the defendant had not intended to kill the victim, as charged, since: 1) the gun went off against his will and it was the result of the involuntary reflex action of the muscles of his right arm as a response to the sudden and intense blow that he had received from the victim; 2) he did not know the victim and he had no reason to hurt him, let alone to kill him; 3) if he had really wanted to kill Nikolaos Leonidis ..., he would have shot him during the chase and before his arrest; in any event there was no longer any reason to shoot him since he had already immobilised and arrested him ...; 4) only one bullet was fired from the gun ...; 5) from the trajectory of the bullet [according to the report of the mathematical expert], it appears that the hand that had fired the gun had not been steady ...; furthermore, it does not appear from the evidence that the defendant shot the victim in cold blood ... or that he acted in self-defence, since no attack was launched by the victim, who had already been immobilised ...” 31. Furthermore, the Katerini Assize Court examined the facts complained of under the provisions concerning reckless homicide. It concluded that: “... on the night of 25 March 2000 [G.A.] carried out his duties in the most impeccable way possible. He pursued the deceased with professional consciousness, he did not fire his gun during the pursuit, although another in his place might have done so, and, most importantly, he arrested and immobilised the deceased holding his revolver in his right arm and pointing it to the sky, in order to avoid accidents... What followed, i.e. the death of Nikolaos Leonidis, was not the result of an intentional act of the defendant or the latter’s reckless behaviour, but of the victim’s violent and sudden assault that caused the reflex action of the defendant ... and the discharge of the revolver that the latter was holding in his right hand. The reflex action of the defendant was an instantaneous reaction of the nervous system, an automatic contraction of the body muscles (including those of the right arm) out of the defendant’s control, as a response to the pain suffered from the violent and sudden blow; since this contraction was not a voluntary action, it cannot be considered an actus reus and hence he [the defendant] cannot be considered criminally liable... 32. The Katerini Assize Court reached the same conclusion as far as the charge of unauthorised use of weapons was concerned. In particular, it held: “Consequently, since neither the death of the victim nor the use of the defendant’s gun can be considered as “acts” in the legal sense of the term, the objective element of the crimes that the defendant is being accused of has not been established and he should be declared innocent.” 33. Two of the minority judges, including the President of the Katerini Assize Court, considered that the defendant should have been declared guilty of reckless homicide and unauthorised use of weapons. They based their reasoning on the way revolvers function: “... There is a slight time delay of 1 to 1.5 seconds between the moment the trigger is pulled and the moment the gun fires. This is the time the hammer needs to be cocked and released; the time the hammer needs to be cocked corresponds to the time the cylinder needs to rotate clockwise. When the hammer has already been cocked, it needs less pressure on the trigger to release the hammer and fire the gun. On the contrary, when the gun is in a hammer-down position, it needs more pressure on the trigger and more time to fire the gun, since in this case, the trigger first cocks the hammer (thus advancing the cylinder) and then releases the hammer at the rear of its travel, firing the round in the chamber. In the present case, it appears from the testimonies ... that ... with his left hand [G.A.] twisted the young man’s left wrist behind his back in order to handcuff him, while with his right hand he was holding the revolver, obviously with the hammer cocked, pressing against the victim’s right scapula. ... [Leonidis’s death] resulted from the defendant’s negligent conduct, since: 1) he should not have cocked the hammer of his gun, since in that case the trigger needs less pressure to fire the gun; 2) he should not have had his finger on the trigger but on its protective frame; 3) he should not have been pressing the gun against the victim’s scapula while he had his finger on the trigger and the hammer cocked. If the gun had been in a hammer-down position, even if the defendant had had his finger on the trigger, it would have been more difficult for the gun to go off, since it required more pressure on the trigger. ... the defendant had no intention to kill the victim ... he should have been declared guilty of reckless homicide and unauthorised use of weapons.” 34. On 7 November 2005 the applicant, who did not have the right to appeal in cassation under domestic law, asked the Public Prosecutor to bring the case before the Court of Cassation. On 14 November 2005 the Prosecutor dismissed his request. 35. Shortly after the shooting, G.A. was declared free of duty for two days and he was later granted sick leave for a total period of 52 days. On 17 May 2000 he resumed his duties in Ano Poli. On 3 July 2000 he was transferred to an administrative post in the Thessaloniki General Police Directorate. 36. In the meantime, on 27 March 2000, two days after the fatal incident, the Thessaloniki police headquarters launched a Sworn Administrative Inquiry (Ενορκη Διοικητική Εξέταση, – SAI) in order to ascertain the exact circumstances in which Nikolaos Leonidis’s death had occurred and whether police officer G.A was guilty of any disciplinary offence. That investigation was assigned to an officer of the police department dealing with administrative investigations. 37. On 3 April 2001 the report on the findings of the SAI was issued. According to the report, the death of Nikolaos Leonidis was not the result of the police officer’s reckless behaviour, but of the victim’s violent and sudden assault and the discharge of the latter’ 38. In the meantime, while the case was pending before the penal courts, on 29 November 2002 the applicant brought an action against the State under section 105 of the Law introducing the Civil Code seeking compensation for damage sustained as a result of an unlawful act by a public authority, namely, his son’s killing by police officer G.A. 39. On 31 January 2005, approximately five months prior to G.A.’s acquittal by the Katerini Assize Court, the Thessaloniki Administrative Court of First Instance allowed the applicant’s claims in part (judgment no. 148/2005). It held inter alia: “... The grounds set forth in Article 133 of Presidential Decree no. 141/1991, which authorises the use of firearms, do not apply under the circumstances of the present case, since [G.A.] had not been attacked by the victim ... nor was he acting in self-defence... The use of the firearm by the police officer in order to arrest the deceased was unlawful and resulted in the young man’s death. ... The police officer’s outline of events, according to which the firing was provoked by a ‘reflex action’ following the blow he had received from the victim – in the sense that he involuntarily pulled the trigger – cannot be accepted, because it is in contradiction with his own statement concerning an ‘unconscious instinctive reaction caused by the violent blow he had received’. In fact, that means that pulling the trigger was an instinctive reaction to the victim’s behaviour, which implies that [G.A.] acted without using his reason and without showing the prudence and discipline expected from a police officer with ten years of experience. ... thus, police officer G.A is 70 % responsible for Nikolaos Leonidis’s death since he used his firearm in violation of the applicable law...” 40. On 15 April 2005 the State appealed to the Thessaloniki Administrative Court of Appeal challenging the implementation of the substantive law and the assessment of the evidence. It referred subsequently, in a separate memorandum, that G.A. had been acquitted by the Katerini Assize Court on 21 June 2005. 41. On 19 May 2007 the Thessaloniki Administrative Court of Appeal rejected the appeal and awarded the applicant EUR 80,000 EUR for non-pecuniary damage (judgment no. 432/2007), considering inter alia: “Even supposing that the use of the firearm by the police officer in order to arrest the deceased was not in breach of a specific provision, nevertheless it constituted unlawful conduct, since he failed to take those steps that are appropriate to his duties, that result from the relevant legislation, from common sense, from his scientific and professional education and experience and from the notion of good faith and aim at the protection of individual freedoms, namely the right to life and limb. Consequently, the appellant is responsible...” 42. At the material time, the use of firearms by law-enforcement officials was regulated by Law no. 29/1943, which was enacted on 30 April 1943 when Greece was under German occupation. Section 1 of that statute listed a wide range of situations in which a police officer could use firearms (for example in order “to enforce the laws, decrees and decisions of the relevant authorities or to disperse public gatherings or suppress mutinies”), without being liable for the consequences. These provisions were modified by Article 133 of Presidential Decree no. 141/1991, which authorises the use of firearms in the situations set forth in Law no. 29/1943 “only when absolutely necessary and when all less extreme methods have been exhausted”. Law no. 29/1943 was criticised as “defective” and “vague” by the Public Prosecutor of the Supreme Court (see Opinion no. 12/1992). Senior Greek police officers and trade unions have called for this legislation to be updated. In a letter to the Minister of Public Order dated April 2001, the National Commission for Human Rights (NCHR), an advisory body to the government, expressed the view that new legislation which would incorporate relevant international human rights law and guidelines was imperative (NCHR, 2001 Report, pp. 107-15). In February 2002 the Minister of Public Order announced that a new law would shortly be enacted, which would “safeguard citizens against the reckless use of police weapons, but also safeguard police officers who will be better informed as to when they can use them”. 43. On 24 July 2003 Law no. 3169/2003, which is entitled “Carrying and use of firearms by police officers, training of police officers in the use of firearms and other provisions”, came into force. Law no. 29/1943 was repealed (section 8). Further, in April 2004, the “Pocket Book on Human Rights for the Police”, which was prepared by the United Nations Centre for Human Rights, was translated into Greek with a view to its being distributed to Greek policemen.

train

001-4925

ENG

ITA

ADMISSIBILITY

VARUZZA v. ITALY

Inadmissible

Christos Rozakis

The applicant is an Italian national, born in 1961 and residing in Milan. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 24 December 1992 the applicant had a car accident at a junction. The traffic police fined him for the decriminalised offence of "not slowing down while approaching the junction and thus causing danger" (per non aver moderato la velocità all'intersezione costituendo pericolo). The fine amounted to 62,000 Italian lire. On 13 February 1993 the applicant filed an objection with the Prefect of Milan through the Milan Police Station. He contested that he had partly caused the accident and also requested that he himself and an eye-witness be heard. The applicant's objection was received by the Judicial Police on 17 February 1993 and sent back to the Municipal Police with a view to obtaining information on 8 April 1993. On 4 May 1993 the file was forwarded to another section of the Municipal Police. On 21 May and 11 November 1994 the applicant asked the Prefect to issue a decision. He received no reply. The applicant's file was never forwarded to the Prefect's Office, which learned about its existence only in the context of the application to the Court. The road traffic offence is nowadays time-barred. In the meantime, the applicant claimed compensation for the damage occurred to his car, but the insurance company only paid half of the amount claimed, on the ground that the applicant was partly responsible for the accident. B. Relevant domestic law and practice According to Sections 203-205 of the Road Traffic Code (Codice della Strada), a person who has been fined for a road traffic offence can file an objection with the competent Prefect. The lodging of the objection suspends the effects of the fine. The Prefect, within sixty days, can either confirm the fine and issue an order for its payment or issue a reasoned order withdrawing the fine (ordinanza motivata di archiviazione degli atti). The party can file an application with the civil Magistrate against a negative decision of the Prefect. The Constitutional Court, by judgments Nos. 255/94, 311/94 and 437/95, has interpreted Section 203 of the Road Traffic Code as allowing to apply to the Magistrate without previously applying to the Prefect. In several decisions (Nos. 12777/95, 5897/97, 12628/98) the Court of Cassation has applied the principle stated by the Constitutional Court and ruled that the application to the Prefect is merely optional, i.e. it is possible to apply directly to the Magistrate. The Court of Cassation has also made it clear, by its decision No. 6895/97, that the above sixty-day time-limit is peremptory and that, therefore, a decision delivered after the expiry of the sixty days is to be considered invalid. According to Section 209 of the Road Traffic Code, road traffic offences become time-barred after five years. According to Section 221 of the Code of Civil Procedure, the content of a public document (atto pubblico) - such as a traffic police fine - can be challenged in the course of civil proceedings through a written application (querela di falso) to the judge. In its judgment no. 6139 of 2 June 1993, the Court of Cassation has made clear that a possible withdrawal of the fine by the Prefect, being no judicial decision, cannot prevent the civil courts from establishing the possible responsibility of the relevant person in relation to the facts which are the object of the fine.

train

001-4630

ENG

POL

ADMISSIBILITY

SKORKIEWICZ v. POLAND

Inadmissible

Nicolas Bratza

The applicant, a Polish citizen born in 1928, is retired and resides in Sosnowiec. The facts of the case as submitted by the applicant may be summarised as follows: In May 1993 the Veterans and Persecuted Persons Office (Urząd do Spraw Kombatantów i Osób Represjonowanych) informed the applicant that the Office had instituted ex officio proceedings pursuant to the February 1991 Act on Veterans and Persecuted Persons (“the 1991 Act”) during the post-war period in order to verify whether under this legislation the applicant was entitled to retain his veteran status. The applicant was requested to furnish information relating to the grounds on which he had acquired this status in accordance with the provisions of the 1982 Veterans Act (“the 1982 Act”). By a letter of 7 June 1993 the applicant informed the Office that during the Second World War he had participated in the activities of the Polish underground Home Army (Armia Krajowa), that during his service in the Civil Militia (Milicja Obywatelska) in Sosnowiec in 1945 he had been carrying out normal police duties such as maintaining public order, and that he had participated in combating the Werwolf, the post-war Nazi underground paramilitary organisation. By a decision of 2 July 1993 the Director of the Veterans and Persecuted Persons Office divested the applicant of his veteran status. It was established that the applicant had served from 1 February to 30 March 1945 in the former Civil Militia. In his application for admission to the Union of Fighters for Freedom and Democracy, which the applicant had submitted in 1979, he had stated that during his service he had actively participated in the armed struggle by the reactionary underground resistance. In his curriculum vitae which had been attached to this application, the applicant had stated that “immediately after the liberation of Sosnowiec ... I had started my service in the Station III of the Civil Militia in Sosnowiec from where I had been sent to participate in the armed struggle with bands and with the reactionary underground resistance (“natychmiast po wyzwoleniu Sosnowca ... rozpocząłem pracę w III Komisariacie w Sosnowcu, skąd byłem włączony do walk z bandami i reakcyjnym podziemiem”). The applicant had subsequently acquired his veteran status by virtue of a decision of the Union of 7 May 1979, made on the basis of a certificate issued by the Katowice Regional Headquarters of the Civil Militia. This certificate had confirmed that he had been serving therein from 1 February to 30 March 1945 and that throughout this period he had participated in the armed struggle by the reactionary underground resistance forces. The Director considered that the applicant fell within the scope of Article 25 read together with Article 21 of the 1991 Act which provided, inter alia, that persons who had served in the former internal security services were to be divested of their veteran status. As the applicant belonged to the category of persons who, under the applicable legal provisions, were to be deprived of veteran status, the decision was justified and in accordance with the law. The applicant lodged an appeal against this decision. He argued that the decision was unlawful. He emphasised that he had been serving in the Civil Militia for two months and that his participation in fighting armed Nazi groups during the war could not be regarded as a struggle to consolidate people’s power. On 22 April 1994 the Supreme Administrative Court quashed the decision under appeal. The Court considered that the administrative authority had failed to establish all facts relevant for the legal assessment of the applicant’s case in that it had entirely disregarded the contents of the applicant’s letter of 7 June 1993 in which he had stated that he had been involved in the clandestine fight of the Home Army against the German troops occupying Poland and that his service in the Civil Militia had consisted of fighting the Werwolf and of ordinary police functions such as maintaining public order. The Court observed that, under Article 1 item 2 of the 1991 Act, combating the Werwolf was to be regarded as giving rise to veteran status. Thus, the administrative authority had to establish what armed forces had been active near Sosnowiec during the applicant’s service and what had been the armed formations in which the applicant had fought. On 31 May 1995 the Director of the Veterans and Persecuted Persons Office divested the applicant of his veteran status. The administrative authority took into consideration a reply of the Katowice Regional Police Headquarters to its request of 12 April 1995 for detailed information concerning the applicant’s service in the Civil Militia. It had been stated in this reply of 4 May 1995 that it had not transpired from the applicant’s personal file that during his service he had participated in the armed combat of any organisation’s fight for the independence of Poland. Therefore, as the applicant’s veteran status had been awarded to him on the basis of his participation in the struggle to consolidate people’s power (“utrwalanie władzy ludowej”), he had to be divested of this status pursuant to Article 25 item 2 (2) of the 1991 Act. On the same day, 31 May 1995, the Director of the Veterans and Persecuted Persons Office refused to grant the applicant veteran status on the basis of his service in the Home Army (Armia Krajowa) during the Second World War, considering that the documents submitted in support of his claim were wholly inadequate to establish the relevant facts and, consequently, to grant such status (“nie dają absolutnie podstaw do przyznania uprawnień kombatanckich”). The applicant again appealed to the Supreme Administrative Court against both decisions. He submitted that both decisions were unlawful. He argued that he could not reasonably be expected to submit any new evidence relating to his service in the Home Army, and in particular any testimony of living witnesses, given the lapse of time since the relevant events. On 2 December 1996 the Supreme Administrative Court dismissed the applicant’s appeal against the withdrawal of his veteran status on the basis of his service in the Civil Militia. The Court had regard to the fact that the administrative authority, following the Court’s judgment of 22 April 1994, had held an enquiry as to the nature of the applicant’s activities during his service in the Militia in 1945. In the light of the letter of the Katowice Regional Headquarters of 4 May 1994, it could not be established that the applicant had in fact participated in “consolidating the people’s power”. Therefore, the original decision of 1979 bestowing veteran status on the applicant had lacked any sound factual basis. Consequently, the Court concluded that the contested decision divesting the applicant of this status was in conformity with the law. The Court further set aside the decision concerning the refusal to grant veteran status to the applicant in respect of his service in the Home Army and remitted the case for reconsideration by the first-instance authority. The Court considered that the administrative authority, when considering that the evidence submitted by the applicant was “wholly inadequate” for a finding that he had in fact served therein, had significantly overstepped the margin of appreciation applicable in the assessment of evidence, as set out in the relevant provisions of the Code of Administrative Procedure. These proceedings are apparently still pending. Relevant domestic law 1. Veteran status The Law of 24 January 1991 on Veterans and Other Victims of War and Post-War Repression repealed the Law of 26 May 1982 on the Special Status of Veterans. Under the 1982 Act, participation in the armed struggle against the reactionary underground resistance (“walka o utrwalenie władzy ludowej”) gave rise to the entitlement to veteran status. The 1991 Act enacted new criteria on which veteran status can be granted. Pursuant to Article 1 of the 1991 Act, the following persons, inter alia, are entitled to acquire veteran status: a) those having served in the Polish Army (Wojsko Polskie) and in the Polish military formations organised during the Second World War within the Allied armies; b) those having served in the Polish underground resistance organisations, including military formations organised in the framework of these organisations from 1939 to 1945; c) those having served in the Allied armies and in the underground resistance organisations operating in the territories of the Allies in 1939-1945, with the exception of the NKVD and other special organisations acting to the detriment of the Polish nation; d) those having served in the Polish underground military formations and organisations fighting for the independence of Poland within the borders of Poland before 1 September 1939 and within the Polish post-war borders, in the period from the arrival of the Army of the Union of the Socialist Soviet Republics (USSR) on Polish territory until 1956; e) those having served in the armed struggle against the formations of the Ukrainian Uprising Army (UPA) and against the Werwolf. The 1991 Act took away the entitlement to veteran status accorded by virtue of the 1982 Act from certain categories of persons who had served in the 1940s and 1950s in various organisations and State organs whose purpose was to combat the political opponents of the communist regime. In particular, Article 25 of the Act provides, inter alia, that a person who had served in the Internal Public Security Service ("aparat bezpieczeństwa publicznego") was not entitled to acquire veteran status, and those persons who had acquired it, were to be divested of it. The Internal Public Security Service is defined as being the State organs, partly comprising special armed forces and political police, modelled on the NKVD and the KGB, established on 21 July 1944 with a view to combating, suppressing and eliminating groups of political opposition, including the post-war underground resistance against Communism. These organs were also competent to conduct criminal investigations under the rules of criminal procedure. They were, depending on political circumstances, called variously: the "Department of Public Security" (Resort Bezpieczeństwa Publicznego) (July 1944 - January 1945), the "Ministry of Public Security" (Ministerstwo Bezpieczeństwa Publicznego) (January 1945 - December 1954), the "Committee for Public Security" (Komitet do Spraw Bezpieczeństwa Publicznego) (1954-1956) and the "Security Service" (Służba Bezpieczeństwa), i.e. a special department of the Ministry of the Interior (1956-1990). Under the 1982 Act, which was subsequently replaced by the 1991 Act, veteran status gives rise to various special employment and social insurance entitlements. The periods of veteran service are taken into account in calculating the periods giving rise to seniority. The same periods are multiplied by two in calculating periods giving rise to a retirement pension. Veterans who remain in employment are entitled to ten days' additional paid leave per year. They are entitled to retire earlier than other employees: women at the age of 55, and men at the age of 60, if they have satisfied another requirement for the acquisition of a retirement pension, i.e. if they have worked for periods set out in the Retirement Pensions Act. The retired veterans are further entitled to the special veterans' benefit, paid together with their retirement pension as a certain fixed sum. Article 26 of the 1991 Act provides that persons who have lost their veteran status which was granted to them on the basis of the 1982 Act, retain the social insurance benefits to which they are entitled pursuant to the generally applicable social insurance laws, in particular the laws governing retirement pensions. Pursuant to Article 25 § 4 of the 1991 Act, if a decision is appealed to the Supreme Administrative Court, the rights stemming from the veteran status are suspended until a final judgment is given. 2. The appeal procedure against administrative decisions Article 196 § 1 of the Code of Administrative Procedure, as applicable at the material time, provided that an appeal could be lodged against an administrative decision with the Supreme Administrative Court on the ground that it was not in conformity with the law. Article 207 § 2 stated that the Court could set the decision aside wholly or in part if it established that the decision had been in breach of substantive law, that the proceedings leading to the decision had been flawed with such procedural errors that the decision should be null and void, or if such procedural shortcomings had occurred which would justify a reopening of the proceedings.

train

001-104461

ENG

FIN

ADMISSIBILITY

HEIKKINEN v. FINLAND

Inadmissible

Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant, Mr Mika Antero Heikkinen, is a Finnish national who was born in 1972 and lives in Helsinki. He was represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. On 17 December 2005, in the middle of the night, the applicant and his friend stole a car and used it in a burglary. During their escape from the crime scene at high speed the applicant, who was under the influence of alcohol and drugs, shunted the car of the security guard who was trying to stop them. Some time later the police arrived with two vehicles and tried to stop the applicant by shunting his car off the road, one vehicle hitting the car sideways and one at the rear. The applicant tried to escape by driving at the police cars from the front and behind. When the applicant’s car became stuck in bushes, police officer J.H. stepped out of his car, which was in front of the applicant’s car, and started to approach him on foot, moving towards the front of the car. When he was some three metres from the applicant’s car, the applicant managed to free his car from the bushes and drove suddenly towards J.H. J.H. quickly side-stepped in order not to be run over and fired a total of six shots at the car in an attempt to stop the applicant. Three of the shots hit the upper edge of the front wheel on the driver’s side, and the last three shots were fired at the side of the vehicle as it passed. One of these shots hit the applicant in the back of the shoulder, making him lose control of the car. The car hit first the police car, then a nearby building. Initially, the applicant suffered from varying degrees of muscular weakness on his left side but he quickly regained mobility and later made a full recovery. His most recent medical check-up was in August 2006. During the investigation of the shooting, a reconstruction of the events was organised, based on sound recordings. In the context of the investigation, all the persons involved in the incident as well as some tactical and operational experts were questioned. On 5 June 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) found J.H. guilty of negligent breach of official duty and of causing bodily harm. He was sentenced to 40 day-fines, totalling EUR 1,160. The applicant was convicted of violent resistance to a civil servant and a person upholding order, stealing a vehicle, driving under the influence of alcohol and without a valid licence, theft and aggravated endangering of road safety. He was sentenced to imprisonment of one year and one month and ordered to pay substantial to several parties. The court noted that J.H. had been in a situation which he could have perceived as dangerous for himself and for others and that he had only had approximately one second in which to react. He had known that the applicant had earlier driven at 180 km/h and he had seen the applicant shunt the police vehicles violently with his car when trying to escape. J.H.’s intention, after the applicant’s car had become stuck in the bushes, had been to force the applicant out of the car but as the events developed very suddenly, he had acted instinctively and in self-defence. The court found that as J.H. had perceived the situation as being one of self-defence, the use of firearms had been justified. However, as the applicant had been injured, J.H. was convicted of negligent breach of official duty and of causing bodily harm. On 19 December 2007 the Helsinki Court of Appeal (hovioikeus, hovrätten), after having held an oral hearing, acquitted J.H. of all charges. The court found that even though, according to the internal rules, the stopping of a vehicle should be carried out by methods other than by using firearms, that rule did not cover situations qualifying as self-defence. Although in theory the policemen may have had other less drastic means available to them to stop the applicant’ On 27 October 2008 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. Chapter 4, section 4, of the Penal Code (rikoslaki, strafflagen, Act no. 515/2003) provides about self-defence the following: “An act that is necessary to defend against an ongoing or imminent unlawful attack is lawful as self-defence, unless the act manifestly exceeds what in an overall assessment is to be deemed justifiable, taking into account the nature and strength of the attack, the identity of the defender and the attacker and the other circumstances. However, if the defence exceeds the limits of self-defence (excessive self-defence), the perpetrator is exempt from criminal liability if the circumstances were such that the perpetrator could not reasonably have been expected to have acted otherwise, taking into account the dangerousness and sudden nature of the attack and the situation also otherwise.” Chapter 4, section 6, of the same Code provides the following: “Separate provisions in an Act apply to the right to use forcible measures in the performance of official functions or for another comparable reason and to the right to assist persons appointed to maintain order. In the use of forcible measures, recourse may be had only to such measures necessary to perform the function and that can be deemed justifiable when assessed as a whole, taking into account the importance and urgent nature of the task, the dangerousness of the resistance and the situation also otherwise. If the limits provided in subsection 2 have been exceeded in the use of forcible measures, the perpetrator is nonetheless free of criminal liability if there are very weighty grounds to deem that the perpetrator could not reasonably have been expected to have acted otherwise, taking into account his or her position and training, the importance of the function and the unexpected nature of the situation.”

train

001-23913

ENG

UKR

ADMISSIBILITY

ARKHIPOV v. UKRAINE

Inadmissible

The applicant, Mr Yuriy Vyeniaminovych Arkhipov, is a Ukrainian national, who was born in 1976. He is currently serving a prison sentence. He is represented before the Court by his mother, Ms Tamara Sukmanyuk, and Mr Sergiy Stetsko, a human rights activist. The facts of the case, as submitted by the applicant, may be summarised as follows. On 1 October 1999 the Starokonstiantynivsky District Court sentenced the applicant to ten days' administrative arrest following his conviction for failure to comply with the lawful demands of police officers (Article 185 of the Code of Administrative Offences). Between 10 and 24 December 1999 the applicant took revenge on the judge of the Starokonstiantynivsky District Court by setting fire to his house. However, only minor damage was caused. On 2 February 2000 the applicant was detained on suspicion of having been involved in an arson attack on the night of 31 January and 1 February 2000. The applicant was held in the Starokonstiantynivsky Local Police Department. On 6 February 2000 the applicant was released. On 19 February 2000 the applicant was again detained by the police on suspicion of having been involved in an arson attack on 5 February 2000. On 22 February 2000 he was released. Before being released the applicant, in the presence of his lawyer, pleaded guilty to the offence. On 25 February 2000 the police decided to conduct a joint investigation into the arson offences committed on 1 and 5 February 2000. On 28 February 2000 the police reclassified the applicant's acts as an attempt to destroy the property of the judge in revenge for his conviction. On 5 May 2000 the applicant was detained for a third time in view of the criminal proceedings pending against him. On 25 May 2000 the applicant told the investigators that he was not guilty. On 29 May 2000 the prosecution service completed its investigation into the facts of the case. On 30 May 2000 the case file was remitted to the Polonne City Court for consideration on the merits. The applicant remained in detention. In October 2000 the Polonne City Court commenced its consideration of the merits of the case. On 22 January 2001 the Polonne City Court remitted the case for an additional investigation and ordered that the applicant was to remain in custody. On 29 January 2001 the Khmelnytsk Regional Court upheld the decision to remit the case for additional investigation. On 20 February 2001 the Slavutsky prosecution service undertook the additional investigation into the case. On 5 October 2001 the Slavutsky City Court sentenced the applicant to four years' imprisonment following his conviction for the destruction of the judge's property in revenge for his conviction. The court examined the applicant's complaints that he had been ill-treated by police officers, but found no evidence of this. It stated that the applicant had not been held in custody between 22 February and 5 May 2000 and thus had had an opportunity to complain of the alleged his ill-treatment, either to the court or to the prosecution. However, he had failed to avail himself of these possibilities. Furthermore, the applicant had not submitted any medical evidence in support of his allegations and had failed, moreover, to prove that he had sustained injuries at the hands of the police. On 12 October 2001 the applicant lodged an appeal against the judgment of 5 October 2001. On 22 October 2001 the Slavutsky City Court refused the applicant leave to appeal on account of his failure to comply with the rules governing the form and content of an appeal. The applicant was allowed time to rectify the shortcomings. On 1 November 2001 the applicant's appeal was left without consideration because of his failure to comply with the ruling of 22 October 2001 and to provide the relevant number of copies of his appeal to the parties. On 5 November 2001 the applicant complained about the ruling of 1 November 2001 to the Khmelnytsk Regional Court of Appeal. On 4 December 2001 that court quashed the ruling on the ground that it was unlawful. It also decided that it had jurisdiction to hear the applicant's appeal. The applicant remained in detention. On 22 January 2002 the Khmelnytsk Regional Court of Appeal upheld the judgment of the Slavutsky City Court of 5 October 2001 and dismissed the applicant's appeal as being unsubstantiated. It confirmed the decision of the first-instance court rejecting the applicant's allegations of ill-treatment. “... The Supreme Court of Ukraine is highest judicial body in the system of courts of general jurisdiction... Courts of appeal and local courts operate in accordance with the law.” “The following decisions may be reviewed in cassation proceedings: 1) judgments, rulings and resolutions of an appellate court rendered by it as a court of first instance; and 2) judgments and resolutions of an appellate court rendered by it in appeal proceedings. Judgments and resolutions of district (city) courts, inter-district (circuit) courts and garrison military courts may be also reviewed in cassation proceedings, as well as rulings of appellate courts rendered with regard to those judgments and resolutions.” “Cassation appeals against the court decisions referred to in part one of Article 383 of this Code may be lodged by the persons defined by Article 348 of this Code. Cassation appeals against the court decisions referred to in part two of Article 383 of this Code may be lodged by: 1) a convicted person, or his/her legal representative or defence counsel in respect of provisions which concern the interests of the convicted person; 2) an acquitted person or his/her legal representative or defence counsel in respect of the operative provisions of the acquittal; 3) a plaintiff, respondent or their representatives in respect of the provisions which concern a settlement of the claim; 4) a victim or his/her representative in respect of the provisions which concern the victim's interests. ... Persons who are entitled to lodge a cassation appeal or a cassation petition may be apprised of the materials of the court case-file in order to decide whether or not to lodge a cassation complaint or petition.” (As amended according to Law No. 2670-III of 12 July 2001) “Cassation complaints and petitions are examined by: 1) a panel of judges of the Criminal Chamber of the Supreme Court of Ukraine in respect of court decisions rendered by the Supreme Court of the Crimean Autonomous Republic, the regions and the Kyiv and Sevastopol city courts, and in respect of judgments of district (city) courts and inter-district (circuit) courts; ...” “Cassation appeals and petitions against the court decisions referred to in part one of Article 383 of this Code may be lodged within one month from the date of delivery of the judgment, ruling or resolution complained of, and where lodged by a convicted person who is held in custody within the same period from the date on which he has been served with a copy of the judgment or resolution. Cassation appeals against the court decisions referred to in paragraph two of Article 383 of this Code may be lodged within six months from the date of their entry into force. During the period specified for lodging a cassation complaint, no one, save the court of cassation, shall request or obtain the case file from the court executing the court decision. In the event that the period prescribed by parts one and two of this Article for lodging a complaint or filing a petition has been missed and there is no application for it to be extended, the complaint or petition shall be held by a judge's resolution not to be subject to examination. This period may be extended in the instances and in accordance with the procedure provided for by Article 353 of this Code.” “The case file together with the cassation appeal and/or petition against a judicial decision mentioned in Article 383 § 1 of the Code shall be remitted for consideration to the court of cassation once the case file has been deposited with the court. A cassation appeal or petition lodged by the prosecutor against a judicial decision mentioned in Article 383 § 2 of this Code shall be referred to a judge of the court of cassation, who shall decide, within 15 days from the date of receipt, on the initiation of the proceedings upon the cassation appeal. The cassation proceedings shall be initiated unless the cassation appeal does not comply with the requirements of Article 350, 383 § 2, 384, 386 § 2, 396 § 1 of this Code, for which reasons the appeal in cassation shall not be considered by the court of cassation. The judge shall adopt a resolution with regard to the cassation appeal, a copy of which shall be sent to the prosecutor or the person lodging a cassation appeal. The resolution is not subject to appeal. A refusal to initiate cassation proceedings is not an obstacle to review of the case once the person who lodged a cassation appeal has rectified any mistake in it and has complied with the time-limits envisaged by Article 386 of this Code, or if it is lodged not later than one month from the date of receipt of the copy of the resolution on refusal to initiate cassation proceedings. The judge who decided on the initiation of the criminal proceedings may also decide to suspend the enforcement of the judgment in the case until the cassation appeal has been considered; this procedure does not concern decisions mentioned in Article 383 § 1 of this Code.” “The lodging of cassation appeals or petitions against a judicial decision mentioned in Article 383 of the Code suspends its entry into force. The lodging of cassation appeals or petitions against a judicial decision mentioned in Article 383 of the Code does not suspend its entry into force.” “Cassation appeals and petitions against court decisions referred to in part one of Article 383 of this Code shall be examined and notice of that examination served on the prosecutor and the persons referred to in Article 384 of this Code. Cassation appeals and petitions against court decisions referred to in part two of Article 383 of this Code shall be examined within thirty days of receipt by the cassation court composed of three judges with the participation of a prosecutor. The court shall either assign the case for examination and must notify the persons referred to in Article 384 of this Code accordingly or dismiss it. The case assigned for examination, with notice served on the prosecutor and the persons referred to in Article 384 of this Code, shall be examined by the cassation court composed of three judges with the participation of a prosecutor in accordance with the procedure provided for by parts one, two and three of Article 362 of this Code. The deliberations of the cassation court's judges shall be conducted in accordance with the requirements provided for by Articles 322 and 325 of this Code.” “As a result of the examination of a case in accordance with the cassation procedure, the court shall take one of the following decisions: 1) uphold the judgment, ruling or resolution and dismiss the cassation complaint or petition; 2) reverse the judgment, ruling and resolution refer the case for a fresh investigation or trial or appeal hearing; 3) reverse the judgment, ruling or resolution and terminate the proceedings in a case; 4) modify the judgment, ruling or resolution. In the event of withdrawal of a cassation complaint or petition, the cassation court shall issue a ruling terminating the cassation proceedings unless the decision has been appealed against by other participants in the trial in accordance with the cassation procedure.” “Grounds for reversal or modification of a judgment, ruling or resolution shall be: 1) substantial violation of the law of criminal procedure; 2) incorrect application of the criminal law; 3) disproportionate punishment imposed on the convicted person in conjunction with the gravity of the crime. In resolving the issue of availability of the grounds referred to in part 1 of this Article, a court of cassation shall be guided by Articles 368-372 of this Code. A court of cassation shall have no powers to reverse a judgment of acquittal, a ruling or resolution terminating proceedings in the case merely on the grounds of a substantial violation of the rights of the accused.”

train

001-84776

ENG

RUS

ADMISSIBILITY

FEDOROV AND OTHERS v. RUSSIA

Inadmissible

Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides

The applicants, Mr Rudolf Viktorovich Fedorov, Mrs Sofiya Mikhaylovna Fedorova, Mrs Lyudmila Dmitriyevna Fedorova and Mr Andrey Rudolfovich Fedorov, are Russian nationals who were born in 1947, 1949, 1927 and 1983 respectively and live in Izhevsk, the Republic of Udmurtia. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 9 October 1986 one of the applicants, Mr R. Fedorov, was called up by the military authorities to take part in the emergency operations at the site of the Chernobyl nuclear plant disaster. The applicant was engaged in the operations until 30 December 1986 and, as a result, suffered from extensive exposure to radioactive emissions. In 1997, after an expert opinion established a causal link between the applicant’s disability and his involvement in the Chernobyl events, Mr R. Fedorov was put on a waiting list for additional housing. As he was not offered any, in 2004 he brought court proceedings against the Ministry of Finance, Russian Government and the Ministry of Construction and Architecture. On 5 April 2004 the Oktyabrskiy District Court of Izhevsk partly found in the applicant’s favour and ordered the Ministry of Construction and Architecture to grant the applicant additional housing in a form of a separate room. Both parties appealed against the judgment (the applicant requested to be provided with a separate flat instead of a room). On 8 June 2004 the Supreme Court of the Republic of Udmurtia upheld the judgment and on the same day it became enforceable. On 28 June 2004 the Bailiff’s Service instituted enforcement proceedings. On 5 August 2004 Mr R. Fedorov’s representative in the domestic proceedings, Mr G., applied to the Bailiff’s Service in order to withdraw the writ of execution. On 6 August 2004 the writ of execution was returned to the applicant’s representative and the enforcement proceedings were terminated due to the applicant’s withdrawal of the writ. Subsequently, the applicant applied to the court requesting it to amend the way of the execution of the judgment of the Oktyabrskiy District Court of Izhevsk of 5 April 2004. On 22 September 2004 the Oktyabrskiy District Court of Izhevsk changed the way of execution of the judgment of 5 April 2004 and ordered the defendant to pay the applicant 281 099, 70 Russian roubles (RUB) for the purchase of additional housing in a form of a separate room with a living surface of 18 m². On 21 October 2004 the applicant sent the new writ of execution to the Bailiff’s Service. On 20 April 2005 the applicant’s wife, on his behalf, concluded a sale-purchase agreement of a separate room with a living surface of 18m². On 26 April 2005 the agreement was registered by the Property Department of the Federal Registration Service of the Republic of Udmurtia in accordance with the official procedure and the applicant received an ownership certificate for the room. On 27 April 2005 the sum awarded to the applicant for the purchase of the housing was transferred to the seller’s account.

train

001-58035

ENG

GBR

CHAMBER

CASE OF D. v. THE UNITED KINGDOM

Violation of Art. 3;Not necessary to examine Art. 2;Not necessary to examine Art. 8;No violation of Art. 13;Costs and expenses partial award - Convention proceedings

C. Russo;John Freeland

6. The applicant was born in St Kitts and appears to have lived there most of his life. He is one of seven children. One sister and one brother moved to the United States in the 1970s and the rest of the family appears to have followed at unspecified dates. The applicant visited the United States in 1989 to try to join his family. During his stay there he was arrested on 5 September 1991 for possession of cocaine and subsequently sentenced to a three-year term of imprisonment. After one year, he was paroled for good behaviour and deported on 8 January 1993 to St Kitts. 7. The applicant arrived at Gatwick Airport, London, on 21 January 1993 and sought leave to enter the United Kingdom for two weeks as a visitor. He was found at the airport terminal to be in possession of a substantial quantity of cocaine with a street value of about 120,000 pounds sterling (GBP). The immigration officer refused him leave to enter on the ground that his exclusion was conducive to the public good and gave him notice that he would be removed to St Kitts within a matter of days. However, after being arrested and charged, the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years’ imprisonment. He apparently behaved well while in H.M. Prison Wayland and was released on licence on 24 January 1996. He was placed in immigration detention pending his removal to St Kitts. Bail was granted by an adjudicator on 31 October 1996 after the Commission’s report had been made public. 8. In August 1994, while serving his prison sentence, the applicant suffered an attack of pneumocystis carinii pneumonia ("PCP") and was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS). The infection appears to have occurred some time before his arrival in the United Kingdom. 9. On 3 March 1995, the applicant was granted a period of compassionate leave to be with his mother whose air fare to the United Kingdom to visit him had been covered by charitable donations. 10. On 20 January 1996, immediately prior to his release on licence, the immigration authorities gave directions for the applicant’s removal to St Kitts. 11. By letter dated 23 January 1996, the applicant’s solicitors requested that the Secretary of State grant the applicant leave to remain on compassionate grounds since his removal to St Kitts would entail the loss of the medical treatment which he was currently receiving, thereby shortening his life expectancy (see paragraphs 13 and 14 below). This request was refused on 25 January 1996 by the Chief Immigration Officer. In his letter of refusal addressed to the applicant’s solicitors the Chief Immigration Officer stated: "In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV-positive cases. You will be aware that paragraph 4 of this instruction which relates to persons whose applications are for leave to enter the United Kingdom states [see paragraph 27 of the judgment below]... While we are saddened to learn of Mr D[...]’s medical circumstances we do not accept, in line with Departmental Policy, that it is right generally or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions ..." 12. On 2 February 1996, the applicant applied unsuccessfully to the High Court for leave to apply for judicial review of the decision to refuse him leave to enter. On 15 February 1996, the Court of Appeal dismissed his renewed application. It found that section 3 of the Immigration Act 1971 drew a distinction between leave to enter and leave to remain. It held that the Chief Immigration Officer had correctly treated Mr D.’s application as an application for leave to enter and was not required to take into account paragraph 5 of the Home Office guidelines which applied to applications for leave to remain (see paragraphs 27 and 28 below). As to the applicant’s argument that the Home Office acted unreasonably or irrationally in not acceding to the compassionate circumstances of his plea, Sir Iain Glidewell stated in his judgment: "Nobody can but have great sympathy for this applicant in the plight in which he finds himself. If he is to return to St Kitts it seems that he will be unable to work because of his illness. His expectation of life, if the medical evidence is correct, may well be shorter than it would be if he remained under the treatment that he is receiving in the United Kingdom, and in many ways his plight will be great. On the other hand he would not be here if he had not come on a cocaine smuggling expedition in 1993; and if he had not been imprisoned he would have gone back to St Kitts, if he had ever come here at all, long before his AIDS was diagnosed. Taking account of the fact that the Court must give most anxious scrutiny to a decision which involves questions particularly of life expectancy, as this one apparently does, nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all. Putting it the opposite way, it seems to me to be one which was well within the bounds of his discretion, and thus is not one with which the Court can properly interfere." 13. Since August 1995, the applicant’s "CD4" cell count has been below 10. He has been in the advanced stages of the illness, suffering from recurrent anaemia, bacterial chest infections, malaise, skin rashes, weight loss and periods of extreme fatigue. 14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated: "His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, he occasionally takes mystatin pastilles and skin emollients. In view of the fact that [the applicant] has now had AIDS for over 18 months and because this is a relentlessly progressive disease his prognosis is extremely poor. In my professional opinion [the applicant’s] life expectancy would be substantially shortened if he were to return to St Kitts where there is no medication; it is important that he receives pentamidine treatment against PCP and that he receives prompt anti-microbial therapy for any further infections which he is likely to develop ..." 15. In a medical report provided on 13 June 1996, Professor Pinching, a professor of immunology at a London hospital, stated that the applicant had suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of specific infections and to the development of tumours. The applicant was reaching the end of the average durability of effectiveness of the drug therapy which he was receiving. It was stated that the applicant’s prognosis was very poor and limited to eight to twelve months on present therapy. It was estimated that withdrawal of the proven effective therapies and of proper medical care would reduce that prognosis to less than half of what would be otherwise expected. 16. By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States informed the doctor treating the applicant in prison that the medical facilities in St Kitts did not have the capacity to provide the medical treatment that he would require. This was in response to a faxed enquiry of the same date by Dr Hewitt, the managing medical officer at H.M. Prison Wayland. By letter of 24 October 1995, Dr Hewitt informed the Home Office of the contents of the letter from the High Commission, which had also been sent to the Parole Unit on 1 May 1995. He stated that the necessary treatment was not available in St Kitts but was widely and freely available in the United Kingdom and requested that due consideration be given to lifting the deportation order in respect of the applicant. By letter dated 1 August 1996, the High Commission for the Eastern Caribbean States confirmed that the position in St Kitts had not changed. 17. By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed the applicant’s representatives that they had consulted their officer on St Kitts who stated that there was no health care providing for drugs treatment of AIDS. Results of enquiries made by the Government of the authorities in St Kitts suggest that there are two hospitals in St Kitts which care for AIDS patients by treating them for opportunistic infections until they are well enough to be discharged, and that an increasing number of AIDS sufferers there live with relatives. 18. The applicant has no family home or close family in St Kitts other than, according to information provided by the Government, a cousin. His mother, who currently lives in the United States, has declared that her age, bad health and lack of resources prevent her from returning to St Kitts to look after her son if he were to be returned there. She has also stated that she knew of no relatives who would be able to care for him in St Kitts. 19. When granted bail on 31 October 1996 (see paragraph 7 above) the applicant was released to reside in special sheltered accommodation for AIDS patients provided by a charitable organisation working with homeless persons. Accommodation, food and services are provided free of charge to the applicant. He also has the emotional support and assistance of a trained volunteer provided by the Terrence Higgins Trust, the leading charity in the United Kingdom providing practical support, help, counselling and legal and other advice for persons concerned about or having AIDS or HIV infection. 20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a consultant in clinical immunology treating the applicant at a London hospital, noted that he was at an advanced stage of HIV infection and was severely immunosuppressed. His prognosis was poor. The applicant was being given antiretroviral therapy with "D4T" and "3TC" to reduce the risk of opportunistic infection and was continuing to be prescribed pentamidine nebulisers to prevent a recurrence of PCP. Preventative treatment for other opportunistic infections was also foreseen. Dr Parkin noted that the lack of treatment with anti-HIV therapy and preventative measures for opportunistic disease would hasten his death if he were to be returned to St Kitts. 21. The applicant was transferred to an AIDS hospice around the middle of January 1997 for a period of respite care. At the beginning of February there was a sudden deterioration in his condition and he had to be admitted to a hospital on 7 February for examination. At the hearing before the Court on 20 February 1997, it was stated that the applicant’s condition was causing concern and that the prognosis was uncertain. According to his counsel, it would appear that the applicant’s life was drawing to a close much as the experts had predicted (see paragraph 15 above). 22. The regulation of entry into and stay in the United Kingdom is governed by Part 1 of the Immigration Act 1971. The practice to be followed in the administration of the Act for regulating entry and stay is contained in statements of the rules laid by the Secretary of State before Parliament ("the Immigration Rules"). 23. Section 3 (1) provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of the Act. Leave to enter may be granted for a limited or for an indefinite period. 24. Under section 4 (1) of the Act the power to grant or refuse leave to enter is exercised by immigration officers whereas the power to grant leave to remain in the United Kingdom is exercised by the Secretary of State. These powers are exercisable by notice in writing given to the person affected. 25. A person, such as the applicant, who has been refused leave to enter but is physically in the United Kingdom pending his removal and seeks to be allowed to stay there does not fall to be treated as applying for leave to remain. Since no leave to enter had been granted to the applicant, it was right according to the judgment of Sir Iain Glidewell in R. v. Secretary of State for the Home Department, ex parte D. (Court of Appeal, 15 February 1996) for the immigration officer to treat his application as an application for leave to enter rather than for leave to remain. 26. The Immigration and Nationality Department of the Home Office issued a policy document (BDI 3/95) on this subject in August 1995. Paragraph 2 of the guidelines specifies that the fact that a person is suffering from AIDS or is HIV-positive is not a ground for refusing leave to enter or leave to remain if the person concerned otherwise qualifies under the Immigration Rules. Equally, this fact is not in itself a sufficient ground to justify the exercise of discretion where the person concerned has not met the requirements of the Rules. The policy guidelines distinguish between applications for leave to enter and applications for leave to remain. 27. On applications for leave to enter (paragraph 4 of the guidelines), where the person is suffering from AIDS, the policy and practice is to adhere to the provisions of the Immigration Rules in the normal way. Where such a person does not qualify under the Rules, entry is refused. 28. On applications for leave to remain (paragraph 5 of the guidelines), the application should be dealt with normally on its merits under the applicable Rules. However, there is a discretion outside the Rules which can be exercised in strong compassionate circumstances. Paragraph 5.4 states that: "... there may be cases where it is apparent that there are no facilities for treatment available in the applicant’s own country. Where evidence suggests that this absence of treatment significantly shortens the life expectancy of the applicant it will normally be appropriate to grant leave to remain." 29. Among the documentary materials submitted by the applicant, are the following. 30. International concern about AIDS has resulted in the adoption of several international texts which have addressed, inter alia, the protection of the human rights of the victims of the disease. Thus, the United Nations Commission on Human Rights adopted a resolution on 9 March 1993 on the protection of human rights in the context of human immunodeficiency virus or acquired immunodeficiency syndrome in which it called upon "all States to ensure that their laws, policies and practices introduced in the context of AIDS respect human rights standards". 31. At a Summit of Heads of Government or Representatives of forty-two States meeting in Paris on 1 December 1994, a declaration was adopted in which the participating States solemnly declared their obligation "to act with compassion for and in solidarity with those with HIV or at risk of becoming infected, both within [their] societies and internationally". 32. "Health and living conditions ... there are a number of serious environmental problems, such as inadequate disposal of solid and liquid waste - especially untreated sewage - into coastal lands and waters, resulting in coastal zone degradation, fish depletion and health problems (gastroenteritis) ..." 33. According to this publication, there are two general hospitals in St Kitts, one with 174 beds and the other with 38. There is also a "cottage" hospital with 10 beds. There are two homes providing geriatric care. 34. This guide describes the three medical strategies available for treating HIV infection and AIDS: using anti-HIV drugs which attack HIV itself to delay or prevent damage to the immune system, treating or preventing opportunistic infections which take advantage of damage to the immune system and strengthening and restoring the immune system. Amongst the first category, several drugs can be used, including AZT (also known as Zidovudine or its tradename Retrovir). This belongs to a family of drugs called nucleoside analogues which inhibit an enzyme produced by HIV called reverse transcriptase (RT). If RT is inhibited, HIV cannot infect new cells and the build-up of virus in the body is slowed down. However, the existing drugs are only partially effective and at best can only delay the worsening of HIV-related disease rather than prevent it. 35. As regards the second category, persons whose immune systems have been significantly damaged are vulnerable to a range of infections and tumours known as opportunistic infections. These commonly include cytomegalovirus (herpes virus), Kaposi’s sarcoma, anaemia, tuberculosis, toxoplasmosis and PCP. PCP is a form of pneumonia which in people infected with HIV may affect the lymph nodes, bone marrow, spleen and liver as well as the lungs. Steps to avoid such infections include taking care with food and drink and prophylactic treatment by drugs. In the case of PCP, which was a common cause of death during the first years of the epidemic and is still one of the commonest AIDS illnesses, options include the long-term taking of antibiotics such as cotrimoxazole and the use of nebulised pentamidine which is intended to protect the lungs. 36. In relation to the third category, treatment which strengthens or restores the immune system, research has yet to produce any clear results.

train

001-60542

ENG

HRV

CHAMBER

CASE OF DELIC v. CROATIA

Violation of Art. 6-1 in respect of nine sets of proceedings;No violation of Art. 6-1 in respect of one set of proceedings;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

Christos Rozakis

8. During 1992 the applicant lent various sums of money to a number of companies in Zagreb for periods ranging from three to twelve months at a rate of interest ranging from 5 to 31% (so-called financial engineering). As these companies failed to repay the loans, the applicant instituted ten different sets of proceedings for re-payment of his loans. 9. On 29 June 1993 the applicant filed an action with the Zagreb Municipal Court against A.K.M and its owner, A.K for re-payment of his loan in the amount of 70,000 Austrian schillings (ATS). 10. At the preliminary hearing on 22 November 1993 the applicant's counsel withdrew the claim in respect of A.K.M. He also requested leave to file additional submissions within eight days. 11. On 1 December 1993 the applicant's counsel filed additional submissions specifying the claim. 12. According to the Government, following the resignation of the judge in charge of the case a certain period of time elapsed before the case was assigned to another judge. 13. The next hearing, scheduled for 15 September 2000, was adjourned due to maintenance work on the court building's electrical circuit. 14. At the next hearing, on 14 December 2000, the court exempted the applicant from paying the court fees. The documents showed that A.K. was unknown at the address indicated. 15. The hearing scheduled for 23 March 2001 was adjourned because A.K. did not appear. The court invited the applicant to adjust his claim to the monetary system in Croatia and to specify his interest claim, which the applicant did on 10 October 2001. The case is presently pending before the court of first instance. 16. On 12 October 1993 the applicant, together with four other plaintiffs, filed an action with the Zagreb Municipal Court against T.I.A. and its owner, I.A for re-payment of their loans. The applicant claimed the sum of ATS 70,000. 17. On 14 December 1993 the court refused to allow the plaintiffs' representative to represent him as he had, in other proceedings, been charged with providing unlicensed legal services. The plaintiffs appealed against that decision. On 24 May 1994 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the plaintiffs' appeal. 18. According to the Government, the judge in this case resigned from her duties. The judge to whom the case was transferred was on maternity leave. The case was therefore re-transferred to another judge. 19. At the next hearing, on 28 June 2000, the defendants' counsel replied to the applicant's claim stating that the same claim had already been decided by the Zabok Municipal Court (Općinski sud u Zaboku). 20. At the hearing on 10 December 2001 the court exempted the applicant from paying the court fees. It appears that the proceedings are still pending before the Zagreb Municipal Court. 21. On 15 October 1993 the applicant, together with two other plaintiffs, filed an action with the Zagreb Municipal Court against T.T.B. and its owner, T.B for re-payment of their loans. The applicant claimed the sum of 6,000 German Marks (DEM). 22. A preliminary hearing scheduled for 13 January 1994 was adjourned because T.B. did not appear. The documents showed that the address indicated on the notice of the hearing date did not exist. On 17 January 1994 the plaintiffs submitted T.B.'s correct address. 23. A hearing scheduled for 8 April 1994 was adjourned because T.B. again did not appear. The documents showed that she had failed to collect the notice of the hearing date. 24. A hearing scheduled for 10 June 1994 was also adjourned due to T.B.'s absence. The documents showed that she had changed her address. On 15 June 1994 the plaintiffs submitted T.B.'s new address. 25. At a hearing on 10 October 1994 the court stayed the proceedings because the plaintiffs failed to appear. On 19 January 1995 the plaintiffs requested the court to resume the proceedings. 26. Hearings scheduled for 18 September 1995 and 18 January 1996 were adjourned due to T.B.'s absence. The court requested the Ministry of the Interior to submit T.B.'s address. 27. A hearing scheduled for 20 May 1996 was adjourned because T.B.'s counsel did not submit a letter of authorisation. 28. At a hearing on 7 September 2000 the plaintiffs stated that they wished to produce additional evidence. 29. On 10 January 2001 T.B. filed her reply to the plaintiffs' claim. 30. At the hearing on 19 January 2001 the court exempted the applicant and one other plaintiff from paying the court fees and the remaining plaintiff did not appear. The court served T.B.'s reply on the plaintiffs and invited them to submit their comments within thirty days. 31. The next hearing, scheduled for 12 June 2001, was adjourned due to the illness of the presiding judge. It appears that the proceedings are presently pending before the court of first instance. 32. On 15 October 1993 the applicant, together with fifteen other plaintiffs, filed an action with the Zagreb Municipal Court against M.B.B. and its owner, B.B for re-payment of their loans. The applicant claimed the sum of 5,000 DEM. According to the Government, the applicant failed to submit any evidence concerning the relationship between the company M.B.B. and its alleged owner, B. B. 33. At a hearing on 8 September 2000 a number of plaintiffs and B.B. did not appear. The court severed the proceedings in respect of the plaintiffs who did appear at the hearing, including the applicant, and invited them to specify their claims. 34. At a hearing on 14 September 2001 the court exempted the applicant from paying the court fees. 35. The next hearing was held on 18 October 2001. It appears that the proceedings are presently pending before the court of first instance. 36. On 15 October 1993 the applicant, together with three other plaintiffs, filed an action with the Zagreb Municipal Court against company A.Š.M. and its owner, A.Š for re-payment of their loans. The applicant claimed the sum of DEM 12,000. 37. A preliminary hearing scheduled for 16 June 1994 was adjourned because A.Š. did not appear. The documents showed that she had changed her address. The court invited the plaintiffs to submit her new address within thirty days. 38. A hearing scheduled for 5 April 1995 was adjourned because A.Š. again failed to appear. The documents showed that the address indicated on the notice of the hearing date did not exist. 39. At the hearing on 9 May 1995 the court pronounced judgment by default. 40. On 20 September 1996 a lawyer, M.P., informed the court that he was the legal representative of A.Š. and requested the court to re-open the proceedings. Following the hearing on whether A.Š. had received the judgment, the court annulled its judgment by default on 24 March 1998 and resumed the proceedings. 41. At a hearing on 15 September 1998 the court requested the plaintiffs to submit evidence in support of their claim. 42. At a hearing on 11 December 1998 the court heard three plaintiffs. 43. At a hearing on 12 February 1999 the court heard the remaining plaintiff. 44. A hearing scheduled for 15 April 1999 was adjourned due to A.Š.'s absence. Her counsel informed the court that she had given birth. The court requested the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of A.Š.M. On 23 April 1999 the court repeated that request. On 17 May 1999 the requested certificate was submitted. 45. A hearing scheduled for 24 June 1999 was adjourned because A.Š. did not appear. Her counsel informed the court that she was ill. 46. A hearing on 2 November 1999 was adjourned because A.Š. was absent again. She telegraphed the court to inform it that her child was ill. 47. At a hearing on 1 February 2000 the court heard A.Š. The plaintiffs asked the court to hear several witnesses but failed to provide their names. On 8 February 2000 the plaintiffs submitted the names of the witnesses. 48. At the next hearing, on 11 October 2000, the proceedings were concluded and the court gave judgment awarding the applicant's claim in part and rejecting it in part. On 11 June 2001 A.Š. appealed against the judgment. On 14 June 2001 the court attempted to serve the appeal on the applicant in order for him to submit his reply, but he did not collect it. On 10 October 2001 the applicant informed the court that he had received a copy of A.Š.'s appeal. On 23 October 2001 the case-file was sent to the Zagreb County Court as the appellate court, where it is presently pending. 49. On 3 June 1993 the applicant filed an action with the Zagreb Municipal Court against T.M.T. and its owner, M.T for re-payment of his loan in the amount of DEM 10,000. 50. The preliminary hearing was held on 21 October 1993. 51. On 4 July 1994 the court refused the applicant's counsel the right to represent the applicant. 52. The judge in that case subsequently resigned from her office and the case was transferred to another judge. 53. A hearing scheduled for 12 November 1997 was adjourned because of M.T.'s absence. 54. At a hearing scheduled for 18 February 1998, the court stayed the proceedings because the applicant failed to appear. On 22 May 1998 the applicant requested the court to resume the proceedings. 55. A hearing scheduled for 10 March 1999 was adjourned. 56. At a hearing on 4 June 1999 the applicant gave testimony. 57. Due to the applicant's absence from the hearing on 15 October 1999, the court struck the case out. According to the Government, the court had attempted to deliver that decision to the applicant fifteen times since then but he did not collect it. Finally, on 6 September 2000 the decision was served on the applicant by the court's process server. 58. On 20 September 2000 the applicant filed a motion to resume the proceedings (prijedlog za povrat u prijašnje stanje) and also appealed against the above decision. 59. At a hearing on 12 March 2001 the court dismissed the applicant's motion. 60. On 8 June 1993 the applicant filed an action with the Zagreb Municipal Court against D. and its owner, D.T for re-payment of his loan in the amount of DEM 10,000. 61. At a hearing scheduled for 21 October 1993 the court decided to stay the proceedings because the applicant did not apear. On 7 February 1994 the applicant requested the court to resume the proceedings. 62. The judge in that case subsequently resigned from her duties and the case was transferred to another judge. 63. On 18 May 1999 the court invited the applicant to adjust his claim and to submit further evidence. The letter was sent by registered mail but the applicant did not collect it. 64. On 24 September 1999 the court invited the applicant to submit the defendants' addresses. 65. On 6 November 1999 the court requested the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of D. 66. A hearing scheduled for 3 February 2000 was adjourned since neither party appeared. The documents showed that the applicant had not collected the notice of the hearing date. 67. The next hearing, scheduled for 13 June 2000, was adjourned due to D.T.'s absence. The documents showed that D. had ceased to exist while D.T. had received the notice of the hearing date. The applicant's counsel asked the court to allow him to submit the defendants' addresses within sixty days. On 11 July 2000 the applicant's counsel informed the court that he had not been able to verify the required addresses. 68. On 22 November 2000 the court stayed the proceedings in respect of D. The proceedings concerning D.T. are still pending. 69. On 12 October 1993 the applicant filed an action with the Zagreb Municipal Court against E. and its owner, F.Š for re-payment of his loan in the amount of ATS 70,000. 70. A preliminary hearing scheduled for 2 April 1996 was adjourned because the defendants did not appear. 71. A hearing scheduled for 5 July 1996 was adjourned because the applicant had informed the court that he was ill. 72. The next hearing, scheduled for 24 September 1996, was adjourned because the judge was appointed to another court. 73. On 15 April 1999 the court invited the applicant to inform it whether he wanted to proceed with his claim. The letter was sent three times by registered mail but the applicant did not collect it. The court then attempted to serve the letter on the applicant through its process server, but the applicant was absent. The process stuck a notice to the applicant's door informing him that the letter would be served on him on 6 July 1999. As the applicant was absent again the letter was left at his door. 74. The next hearing, scheduled for 9 February 2000, was adjourned because neither party appeared. The documents showed that the applicant had not collected the notice of the hearing date. 75. Due to the applicant's absence at a hearing on 17 September 2001 the court terminated the proceedings. 76. On 22 April 1993 the applicant filed an action with the Zagreb Municipal Court against L.K.M. and its owner, K.L for re-payment of his loan in the amount of DEM 10,000. 77. As the defendants did not appear at the hearing on 18 October 1993 the court pronounced judgment by default. Subsequently, the defendants filed a motion to resume the proceedings. 78. At a hearing on 1 February 1994 the court annulled its judgment by default. It also stayed the proceedings because the applicant did not appear. As the applicant did not file a request to the court to resume the proceedings within four months, on 14 June 1994 the court struck the case out. The applicant appealed against the above decision and also filed a motion to resume the proceedings. 79. On 15 July 1994 the Zagreb Municipal Court sent the case-file to the Zagreb County Court. That court remitted the case to the Zagreb Municipal Court in order to determine the applicant's motion. 80. At a hearing on 12 June 1995 the Zagreb Municipal Court annulled its decision of 14 June 1994. 81. Hearings scheduled for 21 November 1995 and 14 March 1996 were adjourned because K.L. did not appear. 82. A hearing scheduled for 16 September 1996 was adjourned because the judge in the case had not been re-appointed. 83. The next hearing, scheduled for 10 September 1998, was adjourned because K.L. did not appear. 84. At a hearing on 19 March 1999 the applicant gave testimony. The court invited the Zagreb Commercial Court to submit a certificate from its registry concerning the legal status of L.K.M.. On 29 September 1999 the Zagreb Commercial Court submitted the requested certificate. 85. Subsequently, the presiding judge died and the case-file lay dormant for a certain period before it was assigned to another judge. 86. At a hearing on 28 June 2000 the applicant's counsel withdrew the claim in respect of L.K.M. As K.L. did not appear the hearing was adjourned. 87. A hearing scheduled for 26 September 2000 was adjourned because K.L. again failed to appear. 88. The next hearing was scheduled for 5 April 2001 but the applicant asked the court to re-schedule it because he was unable to attend. It appears that the proceedings are pending before the court of first instance. 89. On 28 October 1993 the applicant filed an action with the Zagreb Municipal Court against F.C.F. and its owner, K.F. for re-payment of his loan in the amount of DEM 14,500 and ATS 5,000. 90. The preliminary hearing, scheduled for 8 March 1994, was adjourned because neither party appeared. The documents showed that the applicant had received the notice of the hearing date, but K.F.'s address was incorrect. On 13 March 1995 the court invited the applicant to submit K.F.'s correct address. On 28 March 1995 the applicant submitted the requested address. 91. A hearing scheduled for 15 June 1995 was adjourned since K.F. did not appear. The documents showed that his address had been incorrect again. The court again invited the applicant to submit K.F.'s correct address. The court repeated that request on 9 December 1996. 92. The next hearing, scheduled for 5 June 1997, was adjourned as neither party appeared. On 6 June 1997 the court again invited the applicant to submit K.F.'s correct address. The applicant did not collect the letter, sent by registered mail on three occasions. On 25 June 1999 the applicant submitted K.F.'s address in the United States. 93. The hearing scheduled for 2 March 2000 was adjourned as neither party appeared. 94. The hearing scheduled for 14 December 2000 was adjourned because K.F. was absent. The proceedings are presently pending before the court of first instance. 95. Section 59 (4) of the Constitutional Act on the Constitutional Court (which entered into force on 24 September 1999 - hereinafter “the Constitutional Court Act” - Ustavni zakon o Ustavnom sudu) reads as follows: “The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party's constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.”

train

001-97201

ENG

TUR

CHAMBER

CASE OF EVRİM İNŞAAT A.Ş. v. TURKEY

Violation of Art. 6-1

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

4. The applicant company, Evrim İnşaat A.Ş., is a construction firm operating in Istanbul. 5. On 10 June 1987 the applicant company signed a contract with a cooperative called Ülkü Kent Yapı Kooperatifi (“the cooperative”) for the construction of dwellings on land belonging to the latter. 6. In November 1991 the applicant company completed the construction of 65% of the project. However, following the election of a new board of directors by the general assembly of the cooperative, the applicant company’s contract was terminated by the cooperative. 7. On 22 July 1992 the cooperative brought an action in the 5th Chamber of the Istanbul Commercial Court (“the first case”) claiming damages from the applicant company on the ground that it had failed to fulfil the terms of the contract. The cooperative argued that the construction of the dwellings should have been completed by 31 August 1991, whereas the applicant company had only done 65% of the work by November 1991. 8. On the same date the applicant company brought a counter action in the 7th Chamber of the Istanbul Commercial Court (“the second case”) claiming damages from the cooperative. The applicant company argued that the cooperative had terminated the contract without giving any reasons. 9. On an unspecified date the two cases were joined by the 5th Chamber of the Istanbul Commercial Court. In the course of the proceedings the court sought expert opinions five times, which caused substantial delays. For example, on 23 June 1993 the court decided to obtain an expert opinion on the dispute. The case file was transmitted to the experts on 10 September 1993 but their report was not submitted to the court until 13 December 1995. 10. On 12 May 1999, in the first case, the Istanbul Commercial Court ruled in favour of the cooperative and allowed part of its claim for damages. The parties appealed. 11. On 22 December 1999, in the second case, the Istanbul Commercial Court dismissed the applicant company’s claim for damages, holding that it had failed to prove the damage caused by the termination of the contract by the cooperative. 12. On 15 June 2000 the Court of Cassation upheld the lower court’s judgment in the first case. The applicant company requested rectification of that decision. 13. On 8 December 2000 the Court of Cassation ruled in favour of the applicant company and quashed its decision of 15 June 2000. The case was remitted to the lower court. 14. On 19 March 2001 the Istanbul Commercial Court decided to obtain a new expert opinion on the matter. This opinion was submitted to the court on 3 May 2001. 15. On 12 December 2001 the Istanbul Commercial Court ruled in favour of the applicant company and ordered the cooperative to pay 1,806,424,884 Turkish liras. The cooperative appealed. 16. On 30 September 2002 the Court of Cassation upheld the above judgment. That decision was sent to the Istanbul Commercial Court on 30 October 2002 and was served on the applicant on 14 March 2003. 17. On 4 June 2003 the applicant company brought an action in the Istanbul Commercial Court (Istanbul Asliye Ticaret Mahkemesi) against the cooperative requesting additional compensation (munzam zarar), under Article 105 of the Code of Obligations, for the damage it had sustained as a result of the low interest rate applied to the debt. 18. On 30 December 2005 the Istanbul Commercial Court dismissed the action, holding that the applicant company had failed to prove the alleged damage. The applicant company appealed. On 20 June 2007 the Court of Cassation upheld the judgment. On 17 March 2008 the Court of Cassation dismissed a request by the applicant company for rectification.

train

001-85811

ENG

GBR

ADMISSIBILITY

PIGGOTT v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr David Piggott, is a British national who was born in 1950 and lives in Sussex. The applicant was unrepresented before this Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 13 July 1998, leaving two children born in 1980 and 1983. Six weeks after the death of his wife the applicant made an oral inquiry and was told he was not entitled to widows’ benefits. His second claim for widows’ benefits was made in November 2002 and was rejected on 28 November 2002 and again on 23 January 2003 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant appealed this decision. On 21 March 2003 the applicant was informed that his appeal had been dismissed. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits or tax allowances were payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.

train

001-79375

ENG

SVN

CHAMBER

CASE OF ŠVARC AND KAVNIK v. SLOVENIA

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

John Hedigan

5. Mrs Anita Švarc was born in 1968 and lives in Vuzenica. Ivan Kavnik was born in 1956 and lives in Topolščica. 6. On 30 October 1989 the applicants were injured in a car accident in Austria. The accident resulted in the premature birth of their son, who sustained in utero injuries in the accident. The son died in hospital in Slovenj Gradec (Slovenia) on 28 December 1989. The perpetrator of the accident had taken out insurance with the insurance company Wiener Allianz Versicherungs Aktiengesellschaft (“WA”). 7. On 27 October 1992 the applicants instituted civil proceedings against WA in the then Celje Basic Court, Velenje Branch (Temeljno sodišče v Celju, Enota v Velenju), seeking damages of 3,237,900 Slovenian tolars for the injuries sustained in the car accident and the non-pecuniary damage sustained following the death of their son. On 4 January 1993 Mr Lojze Ude, a professor at the Faculty of Law in Ljubljana, delivered an expert opinion in the case at the request of WA. He stated that the Slovenian courts had no jurisdiction to examine the applicants' claims. At the time, Mrs Dragica Wedam-Lukić was a work colleague of Mr Ude. On 6 January 1993 WA lodged preliminary written submissions arguing that the case was not within the court's jurisdiction. They attached the opinion prepared by Mr Ude to the submissions, which were included in the file and served on the applicants. On 25 May 1993 Mr Ude was appointed as a justice at the Constitutional Court (Ustavno sodišče). On 22 February 1994 the Celje Basic Court, Velenje Branch, held a hearing. On 18 and 25 February 1994 the applicants lodged preliminary written submissions contesting Mr Ude's opinion and WA's arguments. On 22 April 1994 a decision dated 22 February 1994, the date on which the hearing was held, was served on the applicants. The court decided that the case was not within its jurisdiction, but made no explicit reference to Mr Ude's opinion. 8. On 4 May 1994 the applicants lodged an appeal with the Celje Higher Court (Višje sodišče v Celju). On 28 June 1994 the Convention took effect with respect to Slovenia. On 23 August 1994, on a request by the Celje Higher Court, the first-instance court delivered a supplementary decision concerning the costs of the proceedings. On 1 September 1994 the applicants appealed against the decision concerning costs. On 14 December 1994 the Celje Higher Court dismissed both applicants' appeals. 9. On 14 February 1995 the applicants lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) against the decision of 14 December 1994. On 27 February 1997 the Supreme Court dismissed the appeal on points of law against the judgment of 22 February 1994 and rejected the appeal against the decision of 23 August 1994 as inadmissible. 10. On 22 May 1997 the applicants lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče). In their appeal, they made no reference to Mr Ude's opinion. On 1 April 1998 Mrs Wedam-Lukić was appointed as a justice at the Constitutional Court. On 24 March 2000 the Constitutional Court declared the appeal inadmissible as manifestly ill-founded. Mr Ude was the president of the three-judge bench which examined the admissibility of the case and Mrs Wedam-Lukić was also a member of that bench. The applicants learned of the composition of the panel on 20 April 2000, the date on which the decision was served on them. 11. The relevant provision of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows: “Everyone has the right to have any decision regarding his or her rights, obligations and any charges brought against him or her made without undue delay by an independent, impartial court constituted by law. Only a judge appointed pursuant to rules pre-established by law and in accordance with normal judicial practices shall try such a person.” 12. The relevant provisions of the Constitutional Court Act (Zakon o ustavnem sodišču) read as follows: “In deciding on a particular case, the Constitutional Court may disqualify a judge of the Constitutional Court by applying, mutatis mutandis, the applicable reasons for disqualification in court proceedings. The following shall not serve as reasons for disqualification from the proceedings: - participation in legislative procedures or in adoption of other general acts (including those issued for exercise of public powers) that have been challenged prior to election as a judge of the Constitutional Court, - expressing a scientific opinion on a legal matter which may be relevant for the proceedings.” “Immediately after a judge of the Constitutional Court learns of any reasons for his or her disqualification in accordance with the preceding section, he or she must cease ... work on the case and notify the president of the Constitutional Court.” “A request for disqualification may be submitted by the parties to the proceedings up until the start of a public hearing, if such hearing is due to be held, or until the beginning of the in camera session of the Constitutional Court at which the matter is to be decided. The request must be substantiated. The judge of the Constitutional Court whose disqualification is sought shall have the right to comment on the statements in the request, but may not participate in the decision on his or her disqualification. The Constitutional Court shall decide in camera upon the disqualification of a judge. If the number of votes for and against is equal, the president shall have the casting vote.” “Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a state body, local body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...” “A constitutional appeal may be lodged only after all legal remedies have been exhausted. Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act.” “A decision on whether to accept a constitutional complaint and begin proceedings shall be taken by the Constitutional Court, sitting in a three-judge bench, at an in camera session...” 13. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku) read as follows: “A judge or a lay judge shall be prohibited from exercising judicial functions: (1) if he or she is a party to the civil proceedings, is a representative or an advocate of a party... or was heard as a witness or an expert in the same proceedings... (5) if he or she participated in the same proceedings before a lower court... (6) if other circumstances raise doubt about his or her impartiality.” “The parties to the proceedings may also seek the disqualification of a judge. A party must seek the disqualification of a judge or a lay judge as soon as he or she learns of the reason for disqualification, but no later than by the end of the hearing in the competent court or, when no hearing was held, by the time the decision is rendered. In the disqualification request, the party must state the circumstances on which his or her request for disqualification is based.” “As soon as a judge or a lay judge learns of the request for his or her disqualification, he or she must cease any activity in the proceedings concerned; if the challenged is lodged under point 6 of section 70, he or she may continue examination of the case. If a judge is disqualified in accordance with point 6 of section 70 of this Act, the procedural activities he or she performed after the request for disqualification was lodged shall have no legal effect. ”

train

001-78023

ENG

BIH

ADMISSIBILITY

VISNJEVAC v. BOSNIA AND HERZEGOVINA

Inadmissible

Nicolas Bratza

The applicant, Mr Milenko Višnjevac, is a citizen of Bosnia and Herzegovina who was born in 1938 and lives in Sarajevo. Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicant deposited foreign currency in his bank account at the then office of a Slovenian bank in Sarajevo (Ljubljanska banka Glavna filijala Sarajevo). In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...). Following several unsuccessful attempts to withdraw his funds, the applicant initiated court proceedings against the Ljubljanska banka Sarajevo (at the relevant time, the legal successor of the Ljubljanska banka Glavna filijala Sarajevo). On 22 November 1993 the Sarajevo Court of First Instance ordered the Ljubljanska banka Sarajevo to pay to the applicant, within 8 days, the full sum in his account (2,000 German marks), which amount included accrued interest. Default interest and legal costs were not awarded. The judgment entered into force on 19 January 1994. After the Ljubljanska banka Sarajevo had failed to execute the judgment voluntarily, on 27 April 1999 the competent court issued an execution writ. It entered into force on 20 December 2001. Meanwhile, the applicant filed an application with the Human Rights Chamber (the human-rights body set up by Annex 6 to the 1995 General Framework Agreement for Peace). On 7 October 2002 the Human Rights Chamber found a violation of Article 6 of the European Convention on Human Rights and of Article 1 of Protocol No. 1 to that Convention arising from a failure to enforce the judgment of 22 November 1993. The Human Rights Chamber held the Federation of Bosnia and Herzegovina responsible and ordered it to ensure full enforcement by 11 January 2003. The applicant was also awarded 1,000 Bosnian markas (BAM) for non-pecuniary damage and BAM 200 for legal costs. On 30 June 2003 the Human Rights Chamber, in a further decision, decided that the Federation of Bosnia and Herzegovina should pay the judgment debt instead of the Ljubljanska banka Sarajevo. The applicant was also awarded an additional amount of BAM 2,000. The judgment debt (approximately 1,020 euros) and damages and legal costs awarded by the Human Rights Chamber (in total approximately 1,640 euros) have subsequently been paid to the applicant. The applicant has thus received approximately 2,660 euros in all. He has not indicated the date of the payment. For the relevant domestic law and practice see the Jeličić decision cited above.

train

001-89410

ENG

CHE

CHAMBER

CASE OF CARLSON v. SWITZERLAND

Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

6. The applicant, Mr Scott Norman Carlson, is a United States national who was born in 1962 and lives in Washington. 7. On 4 August 2001 the applicant married D., a Swiss national who was born in 1969. They decided to live in the United States of America (District of Columbia). 8. On 3 July 2004 their son, C., was born there. He is a national of the United States and of Switzerland. Parental responsibility was exercised jointly by both parents. 9. Between February and July 2005 D. made several trips to Switzerland, sometimes accompanied by C. She decided to settle there with the child, in the municipality of Stansstad (Canton of Nidwalden), from 1 August 2005 onwards. 10. On 16 September 2005, D. and C. moved to Obersiggenthal (Canton of Aargau). 11. On 28 September 2005 D. petitioned for divorce before Baden District Court (Canton of Aargau) and at the same time requested interim measures for the duration of the divorce proceedings, particularly with a view to obtaining custody of the child. 12. On 29 September 2005 the applicant petitioned for separation before a US court. 13. In a decision of 30 September 2005, the President of the appropriate division of Baden District Court provisionally granted D. custody of C. 14. On 31 October 2005 the applicant started proceedings in Baden District Court. Relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”, see paragraph 38 below), he sought an order that his son be returned promptly to the United States. In support of his request he stated that his wife had gone to Switzerland in July 2005, accompanied by the child, for a holiday and also for health reasons. The applicant had joined her for a two-week holiday in September 2005 and had agreed with his wife that he would return alone to the USA on 28 September 2005. Just before his departure D. had, however, presented him with a divorce agreement. He had found it unacceptable and had thus refused to sign it. He then returned to the USA without his child. 15. In a decision of 14 November 2005 the President of the appropriate division of Baden District Court ordered D. to surrender C.'s passport and prohibited her from leaving Switzerland. At the same time, he decided to join the proceedings concerning the child's return to the divorce proceedings, including the determination of rights of custody and access. 16. On 21 November 2005 D. deposited the child's Swiss passport. 17. On 3 December 2005 D. submitted her observations on the request for the child's return to the USA, arguing that the parties had decided to move to Switzerland at the start of 2005. Thus, she alleged, the provisions of the Hague Convention were not applicable to the present case. 18. On 17 February 2006 the President of Baden District Court dismissed the applicant's request for the child's return to the USA. He found that the situation admittedly appeared to be one of wrongful removal or retention within the meaning of Article 3, sub-paragraph (a), of the Hague Convention, given that parental responsibility for C. had been exercised jointly by both parents under the applicable laws of the District of Columbia where the child had habitually resided before his removal. The President further acknowledged that the decision of 14 November 2005 to join the proceedings concerning the child's return and the divorce proceedings had not complied with Article 16 of the Hague Convention, which precluded any decision on the merits of rights of custody before the ruling on the child's return. 19. The court nevertheless refused to grant the request for the child's return to the USA, finding that the applicant had consented to the removal and retention of the child, thus removing any wrongfulness from D.'s conduct for the purposes of Article 3, sub-paragraph (a), of the Hague Convention. 20. In the absence of witnesses, the President of the appropriate division of the court examined whether the applicant's allegations could be regarded as sufficiently credible (hinreichend glaubhaft). He found that the applicant had been unable to submit evidence in support of his allegation that, whilst he had agreed to the mother's temporary stay in Switzerland, this had only been on the condition that she return the child to the United States once her visit to Switzerland for medical treatment had ended. Moreover, the judge took the view that the applicant had failed to show that the mother's health problems had been resolved in September 2005 and that D.'s residence in Switzerland was thus no longer justified from that time. On the contrary, the applicant could not reasonably have believed that his wife and child were only going to remain in Switzerland for a short time, as the mother had had herself registered in two Swiss municipalities in succession and had taken steps to find work there. The applicant had been kept informed of all these developments by his wife, whom he had in fact visited on several occasions. 21. In view of the above, the judge of Baden District Court found, first, that the child's removal to Switzerland had not been unlawful under Article 3, sub-paragraph (a), of the Hague Convention, since the applicant had given his express consent, and, secondly, that there was insufficient evidence to substantiate the allegation of the child's wrongful retention. 22. In parallel the applicant brought an action for unjustified delay before the Court of Appeal (Obergericht) of the Canton of Aargau. He requested, firstly, an immediate decision on his application of 31 October 2005 for the child's return to the United States, and, secondly, the opening of a disciplinary procedure and the taking of appropriate measures against the President of Baden District Court. 23. In a decision of 27 February 2006 the Court of Appeal's supervisory panel (Inspektionskommission des Obergerichts) observed that the impugned decision, concerning the child's return to the USA, had been given in the meantime, on 17 February 2006. It noted that the District Court had exceeded the six-week time-limit provided for in Article 11 of the Hague Convention for a decision on the child's return. It further found that there had been an unjustified delay in the proceedings brought by the applicant. As regards the requested disciplinary measures against the President of Baden District Court, the panel found that such measures were not appropriate having regard to the circumstances that had led to the delay. It pointed out that the President of the District Court was required to adhere to a calendar that the panel itself had imposed, requiring disposal of older cases and the holding of hearings that could not be adjourned. Other factors came into play, such as the absence of a greffière and the busy end-of-year period. The panel also found that there were no indications to suggest that the delay could be attributed to other grounds, of a political nature, as the applicant had claimed. 24. On 7 March 2006 the applicant lodged a second appeal before the Canton of Aargau Court of Appeal against the District Court's decision of 17 February 2006, arguing among other things that the latter had reversed the burden of proof, in patent disregard of Article 13 of the Hague Convention. 25{0>. Par une décision du 10 avril 2006, la cour d’appel rejeta ce recours.<}79{>. In a decision of 10 April 2006 the Court of Appeal dismissed the applicant's appeal.<0} Whilst it acknowledged that the President of Baden District Court had wrongly reversed the burden of proof against the applicantapplicant had, in a sufficiently unequivocal manner, consented to the child's retention for an indefinite period. 26. On 11 May 2006 the applicant lodged a public-law appeal with the Federal Court, seeking the prompt return of his child to the United States. He alleged that there had been numerous violations of the right to be heard, in particular because the District Court had not duly taken into account or had misconstrued his offers to adduce proof to show that he had not consented to his child's retention. Moreover, he criticised the fact that the District Court had merged the proceedings concerning the child's return with the divorce proceedings and that its decision on the child's return had by far exceeded the time-limit provided for under Article 11 of the Hague Convention. Lastly, he argued that the reversal of the burden of proof clearly constituted a violation of Article 13 of the Hague Convention. 27. {0>. Par un arrêt du 13 juillet 2006, le Tribunal fédéral rejeta le recours de droit public du requérant.<}74{>InIn a judgment of 13 July 2006, the Federal Court dismissed the public-law appeal.<0} It did not call into question the fact that the District Court had wrongly merged the two sets of proceedings. However, it failed to address the question of the time taken by the court below to reach its decision. 28. The Federal Court shared the District Court's view that the child's removal and retention had a priori been capable of breaching the applicant's right of custody within the meaning of Article 3 of the Hague Convention. 29. However, the Federal Court rejected the allegations concerning the right to be heard, indicating in detail the reasons why it considered unfounded the arguments put forward by the applicant to prove that he had not consented to his child's retention in Switzerland. By contrast, the Federal Court regarded it as established that the parties had decided, in the summer of 2005, that the mother and her child would settle in Switzerland on a long-term basis. It was proven, according to the Federal Court, that the applicant had agreed that the mother would find employment and buy a car there. Moreover, it could not be argued that the Court of Appeal had reached its conclusions only by reversing the burden of proof against the applicant. Thus, the Federal Court found that the Court of Appeal had properly applied Article 13, sub-paragraph (a), of the Hague Convention. Accordingly, it refused to order the child's return to the United States. 30. On 12 and 18 December 2006 the applicant lodged a request with the Federal Court for the revision of the judgment of 13 July 2006. He alleged in particular that he had suffered discrimination as the child's father. 31. In a judgment of 6 February 2007 the Federal Court declared the request for revision inadmissible, because the allegation about discriminatory treatment did not constitute a valid ground for revision under the applicable law. 32. On 13 September 2007 the supervisory panel of the Aargau Canton Court of Appeal found that there had been no unjustified delay in the revision proceedings. 33. On 18 September 2007 the District Court of Baden declared inadmissible a request for the revision of the 10 April 2006 judgment of the Aargau Canton Court of Appeal. 34. According to a letter from the United States Embassy in Berne, dated 20 November 2007, its staff had attempted in vain to make contact with the child's mother. 35. On 26 November 2007 the applicant lodged a request for a right of access. 36. On 29 November 2007 Baden District Court ordered that the applicant be granted a right of access. 37. On 4 December 2007 the Aargau Canton Court of Appeal declared inadmissible another request for the revision of the judgment that it had given on 10 April 2006. That decision was served on the applicant, according to him, on 15 December 2007. 38. The relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which entered into force in respect of Switzerland on 1 January 1984, read as follows: “Preamble The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions: Article 1 The objects of the present Convention are – a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ... Article 3 The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Article 5 For the purposes of this Convention – a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. Article 6 A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. Federal States, States with more than one system of law or States having autonomous territorial organizations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State. Article 7 Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures – a) to discover the whereabouts of a child who has been wrongfully removed or retained; b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; d) to exchange, where desirable, information relating to the social background of the child; e) to provide information of a general character as to the law of their State in connection with the application of the Convention; f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application. Article 8 Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. The application shall contain – a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child; b) where available, the date of birth of the child; c) the grounds on which the applicant's claim for return of the child is based; d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by – e) an authenticated copy of any relevant decision or agreement; f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State; g) any other relevant document. ... Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be. ... Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence. ... Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. ... Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” 39. In a recent case that is largely comparable to the present one, the Federal Court upheld the appeal of a mother, a Swiss national, who opposed a request for the return of her child made by the child's father, a French national living in France. The court took the view that the father had “subsequently acquiesced”, within the meaning of Article 13, sub-paragraph (a), of the Hague Convention, in the child's retention, especially because he had taken to Switzerland items belonging to the mother that were to be used by her in her professional activities in Switzerland (see Federal Court judgment of 17 November 2006, 5P.380/2006 ). Generally speaking, the Federal Court finds it easier to accept the existence of a tacit agreement as to the removal or retention of a child where the party requesting the child's return has actively contributed to the settlement of the child and the accompanying parent in the destination country (ibid., see also the Federal Court judgment of 15 November 2005, 5P.367/2005).

train

001-78211

ENG

RUS

CHAMBER

CASE OF SEREGINA v. RUSSIA

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

David Thór Björgvinsson

5. The applicant was born in 1936 and lives in the town of Kholmsk of the Sakhalin Region. 6. In 1987 the applicant and her sister V. decided jointly to build a residence in the town of Azov on two adjacent land plots allocated to them by a local council. The plots were registered respectively in the applicant's name and in the name of V.'s son Z. 7. The construction works started in 1989 and in 1990 the title over the second land plot was transferred to V. 8. According to the applicant, in 1992 V. died leaving a will by which she bequeathed her part of the house to the applicant. 9. By 1995 the construction works had been nearly completed. 10. On 11 October 1995 Z. obtained a decision of the local administration transferring to him the title to the second land plot and moved into the house. 11. In response to the applicant's complaints that Z. had forged an official document concerning his share in V.'s inheritance, the local police refused to institute criminal proceedings for the lack of evidence of a crime. 12. The local prosecutor also advised the applicant that it would be possible to evict Z. from the house only on the basis of a court decision. It does not appear that the applicant brought proceedings for his eviction. 13. In October 1996 the applicant lodged with the Azov Town Court (“the Town Court”) a complaint concerning the decision of the local administration transferring the land title to Z. 14. On 23 October 1996 the complaint was registered and accepted for examination. 15. By decision of 20 January 1997 the court decided to suspend the proceedings with reference to the need to request the evidence. 16. On 31 July 1997 the applicant lodged a separate civil action against Z., requesting the court to confirm her property rights in relation to the part of the house formerly owned by V. with reference to her sister's will, the fact that it was her and her sister's joint possession and that the applicant had borne a major part of the construction expenses. She also asked the court to restore the time limits for acceptance of her share in V.'s inheritance and establish that she had in fact accepted it. 17. In response, Z. filed a counterclaim requesting the court to invalidate V.'s will. 18. The proceedings concerning the decision of the local administration resumed on 25 August 1997. By decision of 17 November 1997 the court joined the applicant's claims against the local council and Z. in one set of proceedings. 19. By the same decision the court also accepted Z.'s waiver of claims against the applicant. The waiver was subsequently declared unlawful and quashed by the Rostov Regional Court (“the Regional Court”) on 14 January 1999. 20. On 22 December 1997 the court decided to request the Kholmsk Town Court to question a number of witnesses. The request was executed and on 9 April 1998 the court received the necessary evidence. 21. On 5 May 1998 the Convention entered into force in respect of Russia. 22. The hearing of 3 June 1998 did not take place because of Z.'s failure to appear. 23. On 29 July 1998 the Town Court dismissed the applicant's claims as unfounded. 24. The Rostov Regional Court quashed this judgment on appeal and remitted the case at first instance on 26 August 1998. 25. The case was returned to the Town Court and accepted for examination on 8 September 1998. 26. The court decided to start the hearings in the case on 20 November 1998. On that date the parties failed to appear and the hearing was postponed. 27. On 27 January 1999 the applicant successfully challenged the judge and the case was transferred to a different court composition. 28. The hearing of 1 April 1999 did not take place as the defendant's counsel failed to appear. The hearing was postponed until 19 May 1999. On that date a counsel for the local administration failed to appear and the court again rescheduled the hearing. 29. On 24 June 1999 the applicant's lawyer dropped the claims for the restoration of time limits and the establishment of the fact of acceptance of inheritance. She also retracted the submission that the applicant's ownership to her sister's part of the house should be declared in accordance with the will, claiming ownership only on the ground that the house had been a joint possession and that the applicant had borne the major construction expenses. 30. By decision of the same date the Azov Town Court granted this motion and discontinued the proceedings in respect of these claims accordingly. The applicant submitted that she had not authorised her lawyer to do so and that she had not been aware of this decision. 31. On 27 August 1999 the court decided to split the proceedings into two parts and examine the defendant's counterclaim separately. The parties filed an interlocutory appeal against this decision and on 1 September 1999 the proceedings were suspended awaiting the examination of the appeal. 32. The Rostov Regional Court refused to examine the appeal on 4 October 1999 on the ground that the decision of 27 August 1999 had been final and not subject to appeal. 33. Thereafter the proceedings resumed, but on 9 December 1999 the Town Court ordered an expert examination and again suspended the examination of the case. 34. On 28 April 2000 the completed expert examination reached the court and the proceedings resumed. 35. The hearing of 11 July 2000 did not take place because of the absence of the applicant's counsel. 36. The expert who was summoned to the hearings of 3 August and 14 September 2000 failed to appear and the hearings were adjourned. 37. On 26 October 2000 for an unspecified reason the case was transferred to a different court composition. 38. The hearing scheduled for 8 December 2000 did not take place for the failure of the parties to appear. 39. On 25 January and 12 March 2001 the court decided to adjourn the hearing with reference to the applicant's failure to attend. 40. By decision of 27 April 2001 the court ordered an additional expert examination and suspended the proceedings. 41. On 24 May 2001 the examination was completed and on 30 May 2001 the proceedings resumed. 42. By judgment of 5 June 2001 the Azov Town Court held in the applicant's favour. It declared her the owner of the house at issue and voided the decision of the local administration for transfer of land title to Z. as breaching the applicant's rights 43. Z. appealed against this judgment. 44. On 11 July 2001 the Rostov Regional Court rejected his appeal and upheld the first instance judgment in full. The judgment became final on the same day. 45. On an unspecified date the acting President of the Rostov Regional Court lodged with the Presidium an application for supervisory review of the judgment of 5 June 2001 and the appeal decision of 11 July 2001. 46. On 13 September 2001 the Presidium of the Rostov Regional Court examined the case. It appears that the applicant stated her case at the hearing in person. 47. By decision of the same date the Presidium quashed the impugned decisions. It found that the trial and appeal courts had erroneously applied the provisions of the Civil Code of 1996 to the events which had taken place before its entry into force. The Presidium also referred to discrepancies between the facts established by the lower courts and the courts' conclusions and remitted the case for a fresh examination at first instance. 48. On 26 August 2002 the Supreme Court dismissed the applicant's complaint about the decision of 13 September 2001 and noted that she was free to advance her arguments during the fresh examination of her case at first instance. 49. The proceedings in the case resumed on an unspecified date. 50. On 11 October 2001 a presiding judge withdrew from the case and on 25 December 2001 it was transferred to a different court composition. 51. By decision of 30 January 2002 the court scheduled the hearing for 20 February 2002. On the latter date the presiding judge was sick and the hearing was postponed. 52. On 21 March 2002 the court suspended the proceedings with reference to the applicant's illness. 53. The proceedings resumed on 8 October 2002 and the next hearing was scheduled for 11 November 2002. 54. On that date the court decided to request further evidence and adjourned the hearing again. 55. On 29 November 2002 the defendant failed to appear and the hearing was adjourned. 56. By judgment of 15 December 2002 the Azov Town Court rejected the applicant's claim of ownership of the disputed part of the house. The court held that there was insufficient evidence to conclude that the house was a joint possession and that the applicant had assumed the major construction expenses. It further established that the applicant's ownership could not be based on the will either since the will was invalid. As to the land plot, the court granted the applicant's claim and voided the decision transferring title over land to Z. 57. On 26 February 2003 the Rostov Regional Court upheld the first instance judgment on appeal and it became final. 58. The applicant filed several applications for supervisory review of the judgment of 15 December 2002 and the decision of 26 February 2003. She also sought to set aside the decision of 24 June 1999 alleging that she had not authorised her lawyer to drop the claims. 59. In response to these applications, by decision of 7 May 2004 the President of the Regional Court ordered that the applicant's case be examined on the merits by the Presidium of the Regional Court. 60. On 10 June 2004 the Presidium of the Regional Court examined the case. 61. It quashed the decision of 24 June 1999 on the ground that the applicant's counsel had gone beyond her authority when he had dropped a part of the claims and that the applicant had been unaware of the decision in question. The Presidium ordered a fresh examination of this part of the claim. It also ordered re-examination of the issue as to whether the applicant could claim ownership to V.'s part of the house as V.'s heir. 62. As to the judgment of 15 December 2002 and the appeal decision, the court ordered the exclusion from the courts' reasoning of the references to the validity of V.'s will and upheld them as to the rest. 63. On 7 July 2004 the case was accepted for examination by the Town Court. 64. On 16 July 2004 the court scheduled the hearing for 7 September 2004. On that date the applicant dropped her claims against the local administration and the court adjourned the hearing with reference to the need to request the evidence. 65. The hearings of 29 September and 19 October 2004 did not take place for the same reason. 66. On 22 November 2004 the court ordered an additional expert examination and suspended the proceedings. 67. By decision of 2 December 2004 the court admitted the new evidence in the case and forwarded it for examination to the expert institution. 68. The proceedings resumed on 21 March 2005. The next hearing was scheduled for 12 April 2005. 69. By judgment of 12 April 2005 the Town Court dismissed the applicant's claims and granted Z.'s counter-claim in full. 70. The judgment was upheld by the Regional Court on appeal on 18 May 2005. 71. On 11 November 2005 the applicant's application for supervisory review of the case was dismissed. 72. Section 11 of the Code of Civil Procedure of 1964 (Гражданский процессуальный кодекс РСФСР), as in force at the relevant time, provided that regional and higher courts could conduct supervisory review of the activities of the lower courts. 73. According to Sections 319, 320 and 327 of the Code, certain senior judicial officers could, at any time, on the request by the person concerned or on their own motion, lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure.

train

001-72150

ENG

TUR

CHAMBER

CASE OF DELİGÖZ v. TURKEY

Violation of P1-1;Not necessary to examine under Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

4. The applicant was born in 1944 and lives in Mersin. 5. On 2 November 1993 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Mersin in order to build a motorway. A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place. 6. Following the applicant’s request for increased compensation, on 25 April 1997 the Mersin Civil Court of First-instance awarded him additional compensation of 305,201,400 Turkish liras (TRL), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 2 November 1993, the date of transfer of the title-deeds. 7. On 23 March 1998 the Court of Cassation upheld the judgment of the Mersin Civil Court of First-instance. 8. On 17 May 2000 the General Directorate of National Roads and Highways paid the applicant TRL 1,167,070,000, interest included. 9. The relevant domestic law and practice are set out in the Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV).

train

001-94985

ENG

SRB

CHAMBER

CASE OF SALONTAJI-DROBNJAK v. SERBIA

Violations of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky

6. The applicant was born in 1949 and lives in Vrbas, Serbia. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. Since 1973 the applicant has brought, mostly before the Municipal Court (Opštinski sud) in Vrbas, some two hundred lawsuits against his employer and its management, as well as various private parties and Government officials, alleging irregularities, harassment and/or malfeasance. He has also lodged numerous criminal complaints on the same grounds. 9. In 2003 insolvency proceedings were instituted in respect of the applicant's employer and the applicant was laid off. 10. The said lawsuits, however, continued, some of which were subsequently concluded in favour of the applicant. 11. In June 1996 the applicant threatened his employer's general manager with a hunting knife and a fake hand grenade. Ultimately, however, he voluntarily surrendered both, leaving the manager with a cut on his right hand. 12. The applicant was subsequently charged with the crime of intimidation (ugrožavanje sigurnosti). 13. In the course of these proceedings the applicant was examined by two teams of medical experts. 14. On 30 August 1996 the first team of experts (Medicinski centar Novi Sad - Institut za psihijatriju) stated that he was mentally ill, suffering from paranoid psychosis, and could not therefore be held criminally liable. Further, since there was a real danger that the applicant could reoffend, the team recommended mandatory psychiatric treatment on an in-patient basis. 15. On 6 November 1996 the second team of experts (KPD bolnica u Beogradu) found that the applicant had a borderline personality disorder, but deemed him not seriously aggressive and recommended no in-house psychiatric treatment. 16. On 22 November 1996 the Municipal Court in Vrbas found that the applicant was not criminally liable given that he could not control his actions nor properly comprehend their meaning (see paragraph 84 below). It ordered, however, the applicant's mandatory psychiatric treatment on an out-patient basis. 17. Between 22 November 1996 and 15 November 1998 the applicant regularly reported for treatment. On 16 November 1998 he was discharged from this obligation. 18. On 5 September 2003 the applicant was summoned by the Vrbas police in order to give a statement concerning his repeated threats allegedly made to the same general manager. 19. Following receipt of requests to this effect from the District Court (Okružni sud) in Novi Sad and the Supreme Court of Serbia (Vrhovni sud Srbije) of 26 October 2001 and 31 October 2001 respectively, which courts had themselves already been dealing with the applicant's claims in a number of separate, pending civil suits (see paragraph 106 below, Articles 82 and 79, in that order), in March 2002 the Municipal Court in Vrbas recommended to the local Social Care Centre (Centar za socijalni rad, “the SCC”) to formally request the institution of proceedings for the assessment of the applicant's legal capacity. 20. On 18 March 2002 the SCC agreed with this proposal. 21. On 21 March 2002 the Municipal Court noted that the said proceeding had thus been instituted ex officio and ordered that the applicant be subjected to a psychiatric examination by the Forensic Medical Board of the Novi Sad Medical Faculty (Sudsko-medicinski odbor medicinskog fakulteta u Novom Sadu). In so doing, it reasoned as follows: “Considering the fact that [the applicant] is involved in many legal cases and that the number of these cases ... is sharply on the increase, it is in the court's interest that his decision-making ability be examined ... [as already] ... pointed out by the District Court in Novi Sad and the Supreme Court of Serbia ...” 22. On the same day the applicant was served with this decision. 23. The Forensic Medical Board thereafter scheduled examinations for 8 April 2002 and 15 April 2002, but the applicant refused to be examined unless certain conditions were met. In particular, the applicant requested that: (i) he be informed in advance of the identity of the experts who would examine him; (ii) he, ultimately, be given an opportunity to accept or reject the experts selected; (iii) his examination be carried out in a courtroom in the presence of the judge as well as the public; and (iv) the entire examination be recorded audio-visually. 24. On 26 April 2002 and again on 14 March 2003 the Forensic Medical Board informed the Municipal Court that these conditions were unacceptable. 25. Two other experts, appointed by the Municipal Court subsequently, shared this view and declined the assignment, while another two were unavailable or unwilling to personally examine the applicant. 26. In the meantime, on 20 March 2003, the SCC appointed Lj.Z. to act as the applicant's temporary guardian and represent him in the proceedings. 27. On 29 May 2003 the applicant was informed that the President of the Municipal Court had agreed to allow him to make an audio recording of his psychiatric examination. 28. On 8 November 2003 the SCC appointed Z.P. to act as the applicant's new temporary guardian. 29. On 17 February 2004 the applicant requested a loan from one of the experts, given his “difficult financial situation”. 30. On 19 February 2004 the applicant informed the Municipal Court about his family's grave financial difficulties, citing his inability to obtain compensation in various civil suits as the main reason therefor. 31. Following several hearings, held by June 2004, attended by the experts and/or the applicant, on 28 June 2004 the Municipal Court ordered that the latter be subjected to a compulsory examination and placed in a psychiatric institution for a period of no longer than three months. In so doing, the court relied on the opinions of the experts heard to date and the applicant's own unwillingness to be subjected to a psychiatric examination. 32. The applicant and Z.P. each filed an appeal against this decision. 33. On 12 July 2004 the District Court confirmed the decision rendered at first instance. 34. On 5 August 2004 the District Public Prosecutor (Okružni javni tužilac) in Novi Sad urged the Municipal Court to expedite the proceedings, alleging that the applicant had recently threatened his staff in a telephone conversation. 35. The Municipal Court subsequently, on two separate occasions, invited the applicant to willingly undergo a psychiatric examination. 36. On 13 September 2004, 17 September 2004 and 8 October 2004 Z.P. complained to the President of the Municipal Court, the President of the Supreme Court and the SCC, respectively, stating that the proceedings were initiated in violation of the law, that they were excessively long and had a negative impact on the applicant and his family. 37. On 20 October 2004 Z.P. informed the SCC and the Municipal Court that he had decided to cease being the applicant's temporary guardian. 38. On 25 November 2004 the SCC informed the Municipal Court that the applicant could represent himself in the proceedings. 39. On an unspecified date the Municipal Court ordered the police to arrest the applicant and place him in a psychiatric institution for examination. 40. On 7 December 2004 the applicant accepted to be examined in the premises of the Novi Sad Psychiatric Institute (Institut za psihijatriju kliničkog centra u Novom Sadu). Upon his request, the judge in charge of his case was present during the examination. 41. On 24 December 2004 the Novi Sad Psychiatric Institute concluded that the applicant suffered from litigious paranoia (paranoia querulans), and recommended that his legal capacity be restricted. The experts recalled, inter alia, numerous lawsuits brought and submissions lodged by the applicant, the criminal proceedings instituted against him in 1996, the threats allegedly made in August 2004, and his debt incurred on account of legal costs. 42. On 16 December 2004 the presiding judge, V.J., requested to be removed from the case, noting that he had been subjected to continued harassment by the applicant. On 27 December 2004, however, the acting President of the Municipal Court rejected this request. 43. In response to the Municipal Court's prior motion, on 12 February 2005 the SCC appointed M.G. to act as the applicant's temporary guardian and represent him in the proceedings. 44. On 20 January 2005 the applicant informed the Municipal Court about his family situation. He described the ongoing conflict with his wife concerning his alleged failure to contribute to the family budget, the mutual threats made, and her opinion that all problems stemmed from his “status”. 45. The applicant subsequently gave a written authorization to his neighbour S.N. to represent him before the Municipal Court. S.N. duly submitted his power of attorney and was accordingly summoned to appear at the next hearing. 46. The hearing scheduled for 7 February 2005 was adjourned, at the applicant's request, and the next hearing was scheduled for 22 February 2005. 47. On 22 February 2005 the hearing was held and presided over by another judge. The applicant was not present because he had already been placed in pre-trial detention within a separate criminal case brought against him (see paragraph 53 below). The applicant's representative, S.N., appeared at the hearing, but was not allowed inside the courtroom. The applicant was instead represented by M.G., the lawyer employed at the SCC who had been appointed to represent him. It would seem that the applicant had never met M.G. and was not aware of her appointment. 48. After the hearing, on the same day, the Municipal Court ruled that the applicant was to be partially deprived of his legal capacity. It further specified that his capacity for taking part in legal actions, deciding about his own medical treatment, and dealing with large amounts of money, was to be restricted (“ograničava se poslovna sposobnost za učestvovanje u pravnim radnjama, odlučivanje o sopstvenom lečenju i raspologanje većim novčanim sredstvima”). The Municipal Court relied on the report produced by the Novi Sad Psychiatric Institute, and recalled the expert reports produced in 1996. Lastly, it stated that there was no need to hear the applicant in person since, based on the available psychiatric evidence, this would serve no useful purpose (nije celishodno) within the meaning of Article 36 § 2 of the Non-contentious Proceedings Act (“the NCPA”; see paragraph 101 below). There is no evidence in the case file indicating that M.G. had challenged this decision or the report issued by the Novi Sad Psychiatric Institute. 49. On 24 March 2005 the applicant filed an appeal, arguing that: (i) the proceedings had been instituted unlawfully; (ii) the SCC had appointed a person to represent him without his knowledge; (iii) the person whom he had authorised to represent him was not allowed to do so; and (iv) he had personally been excluded from the hearing when his legal capacity was being considered. 50. On 12 May 2005 the District Court in Novi Sad upheld the decision rendered at first instance. 51. On 31 May 2005 the applicant filed an appeal on points of law (revizija) with the Supreme Court, relying on the same arguments. He further complained about the methods of his examination and its conclusions. 52. On 28 February 2006 the Supreme Court ruled against the applicant. 53. On 9 February 2005 the applicant was arrested by the police and charged with the crime of intimidation. These charges were based on complaints filed by V.J., the judge who had been dealing with the applicant's civil case, the President of the Municipal Court in Vrbas, and several other individuals. 54. On the same day the applicant was questioned by the investigating judge of the Municipal Court in Vrbas who ordered his detention. 55. On 14 February 2005 the investigating judge opened a formal judicial investigation against the applicant, and on 23 March 2005 he ordered that the applicant be subjected to a psychiatric examination. 56. On 26 April 2005 a team of medical experts from the Belgrade Prison Hospital (KPD bolnica u Beogradu) issued a report. The report, inter alia, concluded as follows: “It is evident that at the time when ... [the criminal act in question was allegedly committed by the applicant] ... he had had distorted ideas ... [about] ... the court ... [as well as] ... the judges and other ... [persons] ... involved in the proceedings ... Taking into account ... [the applicant's] ... personality and his ... disorder ... we consider that his capacity to comprehend the meaning of his actions, as well as to control them, was significantly reduced ... [but not excluded] ...” 57. On 9 May 2005 the applicant was released from detention. 58. On 25 May 2005 the investigating judge questioned one of the members of the said team of medical experts in order to clarify their current conclusions in the light of any inconsistencies with their report of 1996. The expert explained, inter alia, that the applicant suffered from a borderline personality disorder, that this disorder was not, as such, a mental illness, but that it was also characterised by occasional psychotic episodes when the applicant' state could be considered as a temporary mental illness. The decisive factor was the specific situation faced by the applicant and his reaction thereto. In 1996, in view of the relevant circumstances, the applicant was therefore rightly considered as not being criminally responsible, whilst in 2004 his criminal responsibility could not be excluded altogether. 59. On 12 September 2005 the District Court in Novi Sad decided that the proceedings should be continued before the Municipal Court in Bačka Palanka. It reasoned that this was necessary because the alleged victims in the case were all employed with the Municipal Court in Vrbas. 60. On 16 May 2006 the Municipal Court in Bačka Palanka found the applicant guilty and sentenced him to six months in prison, suspended for a period of three years. The court noted that the applicant had already been deprived of his legal capacity, but relied on the opinion of the Belgrade Prison Hospital as regards his criminal responsibility. 61. On 30 May 2006 and 31 May 2006, respectively, the applicant's lawyer and the applicant personally each filed an appeal with the District Court in Novi Sad. Both appeals, however, were ultimately rejected. 62. On 7 June 2005 the applicant filed a request with the Municipal Court in Vrbas, seeking restoration of his full legal capacity. The clerk, however, refused to accept it, referring to an internal order issued by the court's vice-president on 31 May 2005, whereby no submission lodged by the applicant was to be accepted until he was provided with a guardian. 63. On 13 June 2005 the SCC appointed I.S., the applicant's son, as his guardian. The SCC specified that, in order to undertake the “restricted actions” on the applicant's behalf, I.S. would have to obtain its consent. 64. On 23 June 2005 I.S lodged a request with the Municipal Court, seeking restoration of the applicant's full legal capacity (2P 6/05). 65. On 25 August 2005 I.S. filed another submission with the Municipal Court to the same effect (2P 8/05). 66. On 12 September 2005 the SCC informed the Municipal Court that it would not support the request. 67. On 23 September 2005 the court rejected the request of 23 June 2005, explaining that, in the absence of the SCC's consent, I.S. had no standing to initiate the proceedings at issue. On the same date the Municipal Court also rejected the request of 25 August 2005, stating that a motion of this sort had already been filed. 68. I.S appealed both decisions, but on 25 January 2006 the District Court in Novi Sad confirmed the decision adopted in case no. 2P6/05. On the same date, however, it quashed the decision adopted in case no. 2P 8/05, stating that the submission filed on 25 August 2005 was not a separate matter, but merely additional written pleadings to the first request. 69. On 30 March 2006 the applicant filed a request with the SCC, seeking institution of judicial proceedings for the restoration of his full legal capacity. 70. On 20 April 2006 the SCC rejected this request, stating that the applicant's legal capacity was restricted which is why he could not file any requests personally. 71. On 28 April 2006 the applicant filed an appeal, via the SCC, against this decision. The appeal was addressed to the Regional Secretariat for Health and Social Policy (Pokrajinski sekretarijat za zdravstvo i socijalnu politiku). 72. On 5 June 2006 the SCC rejected the appeal, stating that the applicant was not authorised to file it. 73. On 8 June 2006 I.S. filed a new request for the restoration of the applicant's legal capacity with the Municipal Court (2P 4/06). On the same day he filed an identical request with the SCC. 74. On 10 June 2006, as part of the process of reviewing the applicant's status, the SCC stated, inter alia, that he had remained litigious, the only difference being that his submissions were now being signed by I.S. The SCC's team comprised of a psychologist, a lawyer, and a social worker. 75. On 14 June 2006 the applicant again filed an appeal against the SCC's decision of 20 April 2006, this time directly with the Regional Secretariat. 76. On 19 July 2006 I.S received a letter from the Regional Secretariat informing him that he should address his requests to the SCC. 77. On 3 October 2007 the SCC lodged a disability pension request on behalf of the applicant. 78. On 21 November 2007 the SCC, inter alia, reaffirmed its views of 10 June 2006. 79. On 19 December 2007 the Municipal Court decided to join the proceedings in case files nos. 2P 8/05 and 2P 4/06, and on 20 December 2007 it invited the SCC to express its opinion as to whether proceedings for the restoration of the applicant's full legal capacity should be instituted. 80. On 25 December 2007 the SCC stated that there were no reasons for so doing, and on 26 December 2007 the Municipal Court rejected the request in question. 81. On 18 March 2008 the SCC appointed T.M. as the applicant's new guardian. 82. The applicant subsequently wanted to take out a loan in order to purchase a new car, but T.M. refused to act on his behalf. The SCC thereafter appointed I.S. as the applicant's temporary guardian in this respect only. 83. On 11 August 2008 the SCC discharged T.M. from being the applicant's guardian and re-appointed I.S. to this position. 84. The relevant provisions of Article 12 read as follows: “1. A perpetrator [was] mentally incompetent if, at the time of commission of the offence in question, he was unable to understand the significance of his own actions or control his behaviour due to a permanent or temporary mental illness, a temporary mental disorder or mental retardation ... 2. A perpetrator ... whose ability to understand the significance of his own actions or control his behaviour was substantially diminished due to any of the conditions referred in paragraph 1 of this Article ... may be punished with more leniency ...” 85. Article 15 provided that at the age of 18 all persons shall gain full legal capacity. 86. Article 274 § 2 provided that persons of age who, due to mental illness or “retardation”, substance abuse or “old age feebleness”, or another similar reason, put in jeopardy their own rights and interests, or those of others, shall be partially deprived of their legal capacity. 87. Article 12 § 1 provides, inter alia, that family support and guardianship shall be provided by the guardianship authority (organ starateljstva), i.e. the competent SCC. 88. Article 64 §§ 1, 2 and 3 provides that a child below the age of 14 shall only be able to independently engage in legal actions of minor significance or those which do not entail the undertaking of any obligations. A child aged between 14 and 18, however, shall be able to undertake all legal actions, albeit with the prior or subsequent consent of his or her parents, or the consent of the guardianship authority concerning particularly valuable properties. A child aged 15 shall be able to independently undertake legal actions as regards the management and disposal of his or her earnings or of other property acquired through employment. 89. Articles 124, 125 § 3 and 137 state that a child without parental care, as well as a person of age who has been deprived of his or her legal capacity, shall be provided with a guardian. The guardian shall be appointed by the guardianship authority, and shall represent his or her ward in the same way in which a parent represents a child. With the prior consent of the guardianship authority, the guardian shall, inter alia, be able to decide about any medical procedures needed by the ward, give consent to any legal actions undertaken by a ward aged 14 or more, and undertake all legal actions necessary for the management and disposal of the income acquired by a ward below the age of 15. 90. Article 139 provides that the ward's property not acquired through his or her own work shall be managed by the guardian. The guardian shall be independent as regards the “regular management” of this property, but may undertake additional actions only with the prior consent of the guardianship authority. 91. Article 140 §§ 1 and 2 provides that the guardian shall, with the prior consent of the guardianship authority, be able to dispose of the ward's property not acquired through his or her own work. 92. Article 147 provides that a person of age may be fully or partially deprived of legal capacity if, due to an illness or developmental problems, he or she endangers his or her own rights or interests or the rights and interests of others. The legal capacity of the person partially deprived thereof shall be equal to the legal capacity of a minor between the age of 14 and 18. A court decision shall determine the legal actions which the person concerned may or may not undertake independently. 93. Article 132 § 1 provides that the guardianship authority may also, if needed, appoint a temporary guardian to safeguard the rights and interests of the ward. 94. Article 148 provides that a ward's legal capacity may be restored by the competent court once the reasons for its deprivation have ceased to exist. 95. The Family Act entered into force on 1 July 2005, thereby repealing the Marriage and Family Relations Act. 96. Articles 31-44 provide details as regards the procedure for the full or partial deprivation of legal capacity, as well as its possible subsequent restoration. 97. Article 31 § 1, in particular, states that a person of age shall be fully or partially deprived of legal capacity depending on the degree of ability to independently take care of his or her rights and interests, and providing there are legal grounds for so doing. 98. Article 32 provides that the proceedings can be instituted by the competent court ex officio, by the guardianship authority, by a spouse, a child or a parent of the person concerned, or by his grandparents, brothers, sisters, or grandchildren, if they live together. The procedure may also be initiated by the person concerned if he or she is capable of understanding the significance of such a motion. 99. Article 33 § 2 provides that if the proceedings have not been instituted by the guardianship authority, the request must be submitted with the necessary authorisation. 100. Article 35 provides that the court shall decide after having held a hearing. The court shall summon to this hearing the person concerned, a representative of the guardianship authority, the concerned person's guardian or temporary representative, as well as the person who had proposed the institution of the proceedings. At the hearing the person concerned shall be heard by the judge. Should he or she happen to be placed in a medical institution, the hearing shall be held in that institution. 101. Article 36 § 1 provides that the court shall “personally hear” the individual concerned. Under Article 36 § 2, however, the court may dispense with a hearing if it would be harmful to his or her health or if no hearing is possible due to his or her mental or physical condition. 102. Article 37, inter alia, provides that the court shall also hear all other persons capable of providing relevant information. 103. Article 38, inter alia, provides that the person concerned shall be examined by at least two medical specialists who shall give their opinion as regards his or her mental condition. If needed in this respect and if this would not be harmful to his or her health, the competent court shall have the right to order the placement of the person concerned in a psychiatric institution for a period no longer than three months. 104. Article 42 provides that full legal capacity shall be restored by the court, either upon a motion filed by the guardianship authority or ex officio, when the reasons for the deprivation have ceased to exist. All those entitled to file a motion for the deprivation of legal capacity may also file a motion for its restoration. 105. Finally, Article 43 states that the provisions concerning the deprivation of legal capacity shall, mutatis mutandis, be applied in the proceedings concerning its restoration. 106. The relevant provisions of this Act provide as follows: “A party with full legal capacity may personally undertake all acts in the proceedings (litigation capacity). A person of legal age whose legal capacity has been partially restricted ... [shall be able to litigate] ... within the limits of his or her [existing] legal capacity. ...” “Throughout the proceedings the [civil] court shall ex officio monitor whether the person appearing as a party may [indeed] be a party to the proceedings, as well as whether he or she has the [necessary] litigation capacity ...” 107. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles 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 responses 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 proportionate 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.”

train

001-4791

ENG

FIN

ADMISSIBILITY

HILTUNEN v. FINLAND

Inadmissible

Georg Ress

The applicants, Finnish nationals, are born in 1948 and 1949, respectively, and live in Helsinki. They are represented before the Court by Ms Christine Hiltunen, Master of Law in Helsinki. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants own jointly the real property Hälleberget 1:181 on the island of Svartholmen. The island is part of the Suvisaaristo archipelago in the Gulf of Finland and it belongs to the city of Espoo in the vicinity of Helsinki. The first applicant acquired the property in 1978 together with the second applicant’s mother. The latter donated her part to the second applicant in 1987. The real property consists of 7,800 m2 and its value is estimated at about FIM 1,500,000 (about the same in FF). In the 1920s, a two-storey house with a surface of 103 m2 was erected. It has been used exclusively as a summer cottage and has been registered as such. On the land there are also accessory buildings with a surface totalling 56 m2. At the beginning of the 1960s, the City Assembly of Espoo decided to start drawing up a master plan (yleiskaava, generalplan) for the area. On 28 July 1961, following the city’s proposal, the Ministry of the Interior prohibited construction in the area by virtue of the Building Act. This building prohibition was prolonged repeatedly by three-year-long or five-year-long temporary orders. It remained in force until the end of 1980. In 1978 and 1980 the inspection authorities of the city of Espoo certified that the property in question had been equipped with the required water and waste management systems, if necessary also for permanent habitation. On 3 November 1994, the applicant’s cottage was inspected by the relevant authorities but was found not to meet the requirements of a dwelling for all-year-round use due to insufficient insulation There are apparently three dwellings for all-year-round use on Svartholmen, these having been constructed in 1939, 1962 and 1965. On 28 January 1981, the City Assembly of Espoo decided to start drawing up a more detailed town plan (asemakaava, stadsplan) for the area. As a result the area was placed under a building prohibition in accordance with section 42, subsection 2(3), of the Building Act (rakennuslaki, byggnadslag, 370/1958). By virtue of the same provision the building prohibition has been prolonged every other year. In addition to the building prohibition under section 42, subsection 2(3), of the Building Act, a building prohibition under section 5, subsection 1, of the Building Act is also in force (prohibition on urban development). Exemptions may be granted from both prohibitions. On 4 September 1985, the City Assembly of Espoo adopted a partial master plan (osayleiskaava, delgeneralplan) for, inter alia, the Suvisaaristo area. On 6 April 1988, the Ministry of Environment refused to confirm the plan, inter alia, in so far as it concerned the island of Svartholmen and another island. The Ministry noted that the plan was largely based on the existence of independent drinking-water and waste-water management systems on each individual property designated for permanent habitation. So far there had existed only one dwelling for all-year-round use on Svartholmen, whereas the master plan had envisaged 21 new ones. Given the topography of the island and the significantly increased permanent habitation, the Ministry considered that the ground water conditions had not been sufficiently investigated. On 13 June 1989, the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) upheld the Ministry’s decision. In 1990, the first applicant applied for an exemption from the building prohibition in force pursuant to section 5 of the Building Act. His request concerned the construction of a house with a surface of 280 m2 and intended for all-year-round use. On 16 January 1991, the Ministry of the Environment refused to grant the exemption. On 3 March 1992, the Supreme Administrative Court upheld the Ministry’s decision. In 1994 the first applicant applied anew for an exemption from the building prohibition in force by virtue of section 5 of the Building Act. His request now concerned the construction of a permanent dwelling with a surface of 190 m2. At the same time, the existing house would be demolished. The City Planning Director of Espoo favoured the request in his advisory opinion of 28 March 1994 to the Ministry of the Environment. The city found that the applicants’ intention to replace the existing building, which was in poor condition, with a new dwelling would be in line with the objectives outlined for the use of the relevant area. Therefore, an exemption from the building prohibition would not create any significant obstacle to the implementation of the planning or other forms of organising the settlement in the area. On 26 October 1994, the Ministry of Environment refused to grant the exemption. It noted that in 1988 part of the master plan had not been confirmed due to insufficient investigations concerning the groundwater conditions, bearing in mind the topography on the island of Svartholmen and the important growth of its permanent settlement which had been foreseen in the plan. These matters were to be clarified during the process of drawing up the town plan. The Ministry furthermore stressed the need to guarantee the equal treatment of the property owners affected by the building prohibition. On 8 September 1995, the Supreme Administrative Court upheld the Ministry’s decision. On 8 July 1997, a regional plan (seutukaava, regionplan) for the Helsinki area, including the island of Svartholmen, gained legal force. In the regional plan the area in question was designated for urban development. This plan did not abolish the prohibition on urban development in force by virtue of section 5 of the Building Act. Between 1986 and 1997, 18 exemptions from the building prohibition were granted by the Ministry for the Environment on the island of Sommarö in the immediate vicinity of Svartholmen. The permitted construction included, inter alia, changing summer cottages into all-year-round residences. The area comprising the applicants’ property has not been included in the programme for town planning to be completed during the years 1997-2001. B. Relevant domestic law According to section 5 of the Building Act, only an area for which there is a confirmed town plan, building plan or shore plan may be used for urban development (taaja-asutus, tätbebyggelse). For special reasons, exemptions may nonetheless be granted by the competent county administrative board or, in respect of larger cities, the Ministry of the Environment. The relevant local authority shall be consulted regarding any application for an exemption. According to section 7 of the Building Act, a building permit is required for all new construction. Subject to the municipality’s discretion this requirement may be waived in respect of construction of accessory buildings belonging to an existing dwelling or farm in an area outside a town plan or building plan. Building permits are issued by the local building committees (rakennuslautakunta, byggnadsnämnd). In considering an application for a building permit the authority shall satisfy itself that the proposed building is in accordance with any confirmed plan and does not contravene any building prohibition or related regulations. In the absence of any obstacles, a permit shall be granted.

train

001-108787

ENG

MDA

CHAMBER

CASE OF BREGA AND OTHERS v. MOLDOVA

Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

5. The applicants were born in 1975, 1953, 1969 and 1981 respectively, live in Pepeni, Chişinău, Ungheni and Chişinău respectively and are all members of Hyde Park, a Chişinău-based non-governmental organisation. 6. On 27 March 2008 the first and the fourth applicants participated in a public gathering in the Stefan cel Mare park in Chişinău on the occasion of the anniversary of the 1918 reunification of Bessarabia with Romania. The demonstration had been authorised by the Chişinău Municipality. At approximately 11.30 a.m. the applicants were arrested and taken to the police station, where they were charged with resisting arrest and insulting police officers. 7. In a video filmed by the applicants, one of the police officers can be seen requesting identity papers from one of the participants in the demonstration. After the identity card is presented to the police officer, one of the police officers orders the applicants to follow him to the police station and the applicants comply without any resistance. The applicants were released several hours later. 8. On 26 May 2008 the Buiucani District Court finally acquitted the applicants of all charges in view of a lack of evidence against them. The court found that the accusations made against the applicants were groundless as they were not confirmed by any of the witnesses. 9. On an unspecified date one of the applicants lodged a criminal complaint against the police officers who had arrested them. However, on 30 May 2008 the complaint was dismissed as manifestly ill-founded. 10. On 22 April 2008 a new Assemblies Act entered into force under which no authorisation was needed for spontaneous gatherings and for gatherings with a limited number of participants. On the same date, at approximately 10.40 a.m., the first, second and fourth applicants organised a demonstration in front of the residence of the President of Moldova. According to them, they intended to express their joy at the entering into force of the new Assemblies Act and to encourage the people to assemble freely. After a short time the applicants were approached by several police officers who ordered them to leave. The applicants refused and argued that according to the new law they had a right to protest peacefully without any authorisation. Later the applicants were arrested and taken to the police station. They were held for several hours and charged with the offences of holding an unauthorised demonstration, resisting arrest and insulting police officers. 11. On 8 May 2008 the Buiucani District Court acquitted the applicants of all charges in view of a lack of incriminating evidence against them. The court found that the applicants had a legal right to protest in front of the residence of the President of Moldova without any authorisation and that the charges concerning resisting and insulting police officers were groundless. 12. On an unspecified date the applicants lodged a criminal complaint against the police officers who had arrested them. However, it was dismissed as manifestly ill-founded. 13. On 30 April 2008 the National Television company organised a celebration on the occasion of its fiftieth anniversary. A member of Hyde Park, O.B., who is not an applicant in this case, attempted to protest against censorship at National Television in front of the concert hall in which the celebration was taking place. He was draped in a banner bearing the inscription “50 years of lies” and was accompanied by the first, second and third applicants, one of whom was filming the event. 14. After approaching the concert hall, O.B. was approached by a group of police officers who surrounded him and ordered him to vacate the premises of the concert hall. O.B. and the three applicants entered into a verbal clash with the police officers and refused to leave. They argued that they had the right to protest and that the actions of the police were unlawful. After several minutes of dispute O.B. was physically attacked by a person in plain clothes. O.B. and the applicants requested the assistance of the police and shouted that the attack had been provoked by the police. They were immediately arrested and taken to the police station, where they were charged with the offences of holding an unauthorised demonstration, resisting arrest and insulting police officers. They were released several hours later. 15. On 18 June 2008 all the applicants and O.B. were finally acquitted by the Chişinău Court of Appeal of all charges in view of a lack of incriminating evidence against them. The court reached this conclusion after viewing the video of the event and concluding that the applicants’ demonstration had been peaceful and that they had been attacked by a another individual. 16. On an unspecified date the applicants lodged a criminal complaint against the police officers who had arrested them. However, it was dismissed as manifestly ill-founded. 17. In December 2008 the Government decided to celebrate Christmas exclusively on 7 January, according to the old religious calendar, and to have a Christmas tree installed in the central square of Chişinău only in the last few days of December so as to bypass the celebration of Christmas on 25 December by the adherents of the new religious calendar. 18. In spite of that decision the Chişinău local government, which was represented by a political majority different from that of the central Government, decided to install a Christmas tree in the middle of December and to organise celebrations on the occasion of the new religious calendar Christmas. On 16 December 2008 a truck transporting the municipality’s Christmas tree was stopped by the police and the tree was confiscated. 19. In the morning of 18 December 2008 a group of Hyde Park members, including the first and second applicants, attempted to organise a protest demonstration in front of the Ministry of Internal Affairs in order to express their concern about the actions of the police. The first applicant was arrested on the street while walking towards the building of the Ministry of Internal Affairs carrying a small Christmas tree. He was taken to the police station and charged with the offence of organising an unauthorised demonstration. He was released several hours later. The second applicant was near a trolleybus stop when a group of six plain-clothes police officers forced him into a trolleybus. They cornered him and, in spite of his protests, released him only approximately eight minutes and several stops later. The applicants submitted a video of this. 20. On 18 December 2008 the first applicant was acquitted in view of a lack of incriminating evidence against him. 21. On an unspecified date the first and second applicants lodged a criminal complaint against the police officers. However, on 2 February 2009 the complaint was dismissed as manifestly ill-founded. 22. On 3 February 2009 the first applicant organised a protest demonstration in front of the Prosecutor General’s Office together with approximately twenty participants who are not applicants in this case. The aim of the demonstration was to denounce the inaction of the Prosecutor General’s Office in connection with abuses by the police. Several minutes after the beginning of the demonstration the protesters were attacked by seven men wearing masks, who started to beat them up and spray them with tear gas. The protesters defended themselves and managed to immobilise two attackers. One of the attackers admitted to having been paid 1,000 Moldovan lei (MDL) by an unknown person to participate in the attack. A police unit patrolling nearby did not intervene to put an end to the clash between the protesters and the attackers. The protesters called the police and requested the assistance of the police officers who were guarding the Prosecutor General’s Office, but to no avail. 23. According to the applicants, the organisers of the demonstration lodged a criminal complaint with the Prosecutor General’s Office; however, no action was taken. The applicants were unable to present proof that they had lodged the complaint and argued that the relevant documents had been seized by the police on the occasion of an unlawful search of Hyde Park’s premises. 24. The Government disputed that the applicants had complained to the Prosecutor’s Office in respect of the events of 3 February 2009. 25. Article 32 of the Constitution of the Republic of Moldova (on freedom of opinion and of expression) reads as follows: “(1) Each citizen is guaranteed freedom of thought and of opinion, as well as freedom of expression in public through words, images or other available means. (2) Freedom of expression shall not be prejudicial to the honour or dignity of others or the right of others to have their own opinion. (3) The law prohibits and punishes the calling into question and defamation of the State and the nation, calls to war and aggression, national, racial or religious hatred, and incitement to discrimination, territorial separatism, or public violence, as well as any other expression which endangers the constitutional order.” Article 40 (on freedom of assembly) provides: “All meetings, demonstrations, rallies, processions or any other assemblies are free, but they may be organised and take place only peacefully and without the use of weapons.” 26. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows: (1) Assemblies shall be conducted peacefully, without any sort of weapons, and the protection of participants and the environment must be ensured, without impeding the normal use of public highways, road traffic or the operation of businesses, and without degenerating into acts of violence capable of endangering public order or the physical integrity or life of persons or their property. Assemblies shall be suspended in the following circumstances: (a) denial and defamation of the State and of the people; (b) incitement to war or aggression and incitement to hatred on ethnic, racial or religious grounds; c) incitement to discrimination, territorial separatism or public violence; d) acts that undermine the constitutional order. (1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings. (2) It shall be forbidden to conduct an assembly in the buildings of public authorities, local authorities, prosecutors’ offices, courts or companies with armed security. (3) It shall be forbidden to conduct assemblies: (a) within fifty metres of the Parliament building, the residence of the President of Moldova, the seat of the Government, the Constitutional Court and the Supreme Court of Justice; (b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors’ offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions. (4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed. (5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies. (1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act. (2) The prior notification shall indicate: (a) the name of the organiser of the assembly and the aim of the assembly; (b) the date, starting time and finishing time of the assembly; (c) the location of the assembly and the access and return routes; (d) the manner in which the assembly is to take place; (e) the approximate number of participants; (f) the persons who are to be responsible for the proper conduct of the assembly; (g) the services the organiser of the assembly asks the Municipal Council to provide. (3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly. (1) The prior notification shall be examined by the local government of the town or village at the latest five days before the date of the assembly. (2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly, and the decision taken shall take account of the specific situation. (6) The local authorities may reject an application to hold an assembly only if, after consulting the police, they have obtained convincing evidence that the provisions of sections 6 and 7 will be breached with serious consequences for society. (1) A decision rejecting an application to hold an assembly shall be reasoned and presented in writing. It shall contain reasons for the refusal to issue the authorisation... (1) The organiser of the assembly may challenge the refusal in the administrative courts. Section 19 Participants in the assembly are required: (a) to respect the present Act and other laws referred to herein; (b) to respect the instructions of the organiser of the assembly, and decisions of the municipality or police; ... (e) to leave the assembly if asked by the organiser, the municipality or the police.” 27. On 22 February 2008 Parliament adopted a new Assemblies Act under which no authorisation was needed for the holding of demonstrations with less than fifty participants. 28. The relevant provisions of the Criminal Code read as follows: (1) Illegal deprivation of liberty, other than kidnapping, shall be punishable by 120-240 hours of community work or imprisonment for up to two years. (2) The same offence committed b) against two or more persons; d) by two or more persons; shall be punishable by imprisonment for three to eight years. (1) Violation of the right to freedom of assembly by way of the illegal hindering of a demonstration, rally or act of protest, or the preventing of persons from taking part in them ... : a) committed by an official; b) committed by two or more persons; c) accompanied by acts of violence which do not pose a danger to life or health, shall be punishable by a fine of four to eight thousand Moldovan lei or by community work of 180-240 hours, or by imprisonment for up to two years.” 29. The relevant provisions of the Code of Administrative Offences (“the CAO”), in force at the material time, read: 2. The organisation and holding of an assembly without prior notification of the Municipal Council or without authorisation from the Council, or in breach of the conditions (manner, place, time) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between MDL 500 and 1,000. ... 4. Active participation in an assembly referred to in paragraph 2 of the present Article shall be punishable by a fine in an amount between MDL 200 and 300. Resisting a police officer ... in the exercise of his or her duties of ensuring public order and the fight against crime shall be punishable by a fine of up to MDL 300 or detention for up to thirty days. Insulting police officers ... in the exercise of their duties ... shall be punishable by a fine of up to MDL 200 or imprisonment for up to fifteen days.” According to Article 249 of the CAO, persons who disobey in bad faith the lawful orders of police officers, or resist or insult police officers, may be detained until their case is examined by a court. 30. The relevant provisions of Law no. 1545 (1998) on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts have been set out in this Court’s judgment in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005. In the case of Belicevecen v. the Ministry of Finance (no. 2ra-1171/07, 4 July 2007) the Supreme Court of Justice found that a person could claim damages on the basis of Law no. 1545 (1998) only if he or she had been fully acquitted of all the charges against him or her. Since Mr Belicevecen had been found guilty in respect of one of the charges brought against him, he could not claim any damages.

train

001-58241

ENG

GBR

CHAMBER

CASE OF McLEOD v. THE UNITED KINGDOM

Violation of Art. 8;Not necessary to examine P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Simon Brown

6. The applicant, Ms Sally McLeod, was born in 1952 and lives in Middlesex. 7. In April 1986 the applicant and her husband separated and in July 1988 they were divorced. At about that time, the applicant’s elderly mother went to live with her in the former matrimonial home, which Ms McLeod had bought with her ex-husband in 1984. 8. Following the couple’s separation, proceedings were instigated before the Uxbridge County Court concerning the former matrimonial home and its contents. These proceedings were described by Mr Justice Tuckey in the High Court’s judgment of 12 November 1992 as substantial and acrimonious (see paragraph 18 below). 9. On 1 July 1988 the Uxbridge County Court ordered that the former matrimonial home be transferred to the applicant on payment of 30,000 pounds sterling (GBP). Although this amount was paid by the applicant on or about 26 July 1989, the house was not transferred into her sole ownership until after the events in question. Nevertheless, in its judgment of 27 November 1992, the Brentford County Court found that on payment of the GBP 30,000 “the beneficial ownership of the property vested in her as sole owner” (see paragraph 19 below). 10. On 30 June 1989 the Uxbridge County Court ordered the division of the furniture and other moveable property to be found in the former matrimonial home in accordance with a list identified in the order. However, delivery was not effected and on 23 August 1989 the County Court ordered Ms McLeod to make arrangements for the delivery of her ex-husband’s property within fourteen days. The order was backed by a penal notice. 11. On 8 September 1989 the applicant delivered property to her ex-husband which, save for one or two items, was not that described in the order. As a result, on 28 September 1989 the Uxbridge County Court made an order committing her to prison for twenty-one days. However, this order was suspended for seven days to allow her to deliver the property identified on the list to Mr McLeod on or before 6 October 1989. Immediately after the hearing the latter, through his counsel, offered to collect the property to save the applicant the trouble of delivering it. He suggested 4 p.m. on 3 October 1989. 12. Believing that the applicant had agreed to his suggestion, at 4 p.m. on 3 October 1989 Mr McLeod, accompanied by his brother and sister and a solicitor’s clerk, went to the former matrimonial home to collect his property. Fearing that there would be a breach of the peace (see paragraphs 24 to 27 below) because of Ms McLeod’s previous unwillingness to comply with orders of the court, Mr McLeod’s solicitors made arrangements for two police officers to be present while the property was being removed. When the police officers arrived, they were informed that Mr McLeod was there to collect his property pursuant to an agreement concluded between him and the applicant, and were given a copy of the list but not of the court order. According to one of the police officers, the solicitor’s clerk offered to return to his office to get a copy of the order, but the police officer did not require that this be done. 13. One of the police officers knocked at the door of the house. It was answered by the applicant’s mother who told him that her daughter was not at home, and that she was unaware of any arrangement concluded between the latter and Mr McLeod. In an affidavit sworn on 21 November 1990, the applicant’s mother claimed that the police officer had told her to open the door because they were from the court and had a court order to execute. The applicant’s mother opened the door and stepped aside, allowing Mr McLeod and his party access to the property. Subsequent court proceedings held that the entry of Mr McLeod, his siblings, and the solicitor’s clerk amounted to a trespass (see paragraph 19 below). 14. Upon entering the house, Mr McLeod and his siblings began removing his property. Although the police officers accompanied them into the house, according to the applicant’s mother’s affidavit the officers spent most of the time on the front driveway. They did not participate in the removal or disturbance of the property, although one of them checked that only the items on the list were removed. 15. When the applicant returned home at 5.30 p.m., she became angry and objected to the removal of the property. At that stage, one load had been driven away and a second load was in the van, which had been rented by her ex-husband. One of the police officers intervened and insisted that she allow Mr McLeod to leave with the property. She was permitted to inspect the contents of the van but the officer insisted that she should not unload items from it because he feared that, if she did so, there was likely to be a breach of the peace. He explained to Ms McLeod that any continuing dispute concerning the property should be resolved later by her and her ex-husband’s respective solicitors. Just after midnight the applicant’s mother, who had recently suffered a stroke, was taken to hospital suffering from high blood pressure. 16. The applicant instituted criminal proceedings against those involved in the incident, which were unsuccessful. Together with her mother, she then instituted three sets of civil proceedings for trespass, one against her ex-husband and his siblings, one against the solicitor’s clerk and a third against the two police officers. 17. On 26 January 1992 the applicant’s mother died. 18. On 12 November 1992 Mr Justice Tuckey in the High Court dismissed the action against the police officers on the grounds that they had not trespassed on the applicant’s land or goods. Although the judge considered that the applicant had not agreed to her ex-husband removing his property from the former matrimonial home on 3 October 1989, he found that the latter genuinely believed that an agreement had been concluded. Furthermore, he considered that the officers had had reasonable grounds for apprehending that a breach of the peace might take place and were therefore entitled, pursuant to the common law as preserved by statute, to enter on and remain at the property without the consent of the owner: “The [applicant] contends that the police did not have reasonable grounds for apprehending that there might be a breach of the peace and therefore they were trespassers on the property. I reject this contention. They had been told to go to the house on the information of a solicitor that there might be trouble. The history of the matter makes it clear in my judgment that the solicitor’s fears were well-founded. If [the applicant] had been there when her ex-husband’s party arrived, I have no doubt that the police constables’ role as peace-keepers would have been required.” Regarding the applicant’s claims for trespass to goods, the judge found that the police officers had not actively participated in the removal or the disturbance of the applicant’s property. Although one of the police officers had checked that only the items on the list figuring in the court’s order were removed, “he did not encourage or participate in the removal of those things that apparently were on the list or in the way in which things in or on those items were to be dealt with”. 19. On 27 November 1992 the Brentford County Court pronounced on the applicant’s two remaining civil actions against her ex-husband, his brother and sister and his solicitors. It considered that there had not been any agreement between Ms and Mr McLeod for him to collect his property on 3 October 1989 and that the applicant’s mother had not given permission to Mr McLeod and his party to enter the house. The court concluded that, as a result, they had trespassed on Ms McLeod’s land and property. She and her mother’s estate were awarded GBP 1,950 with interest by way of compensation. 20. On 1 December 1992 the applicant appealed against the decision of Mr Justice Tuckey on the ground that the police officers should have made enquiries before entering her house, that there had been no breach of the peace or threat of a breach of the peace and that the police had been negligent in failing to give adequate protection to her mother. 21. The Court of Appeal dismissed the appeal on 3 February 1994 (McLeod v. Commissioner of Police of the Metropolis [1994] 4 All England Law Reports 553). In his judgment Lord Justice Neill held: “The real issue in the case, as I see it, is whether the officers had any excuse in law for entering [the former matrimonial home]. It is common ground that some excuse is required because it does not appear that there was any consent to the entry by [the applicant] or her mother. The judge found that they took no active part in removing any property and, as I have said, all [one of the police officers] did was to check a list of what was being taken. But it is clear that they both entered the property and it may be that one of them knocked on the door. There are two questions which need to be decided. First, in what circumstances, if any, can police officers enter into a private house to prevent a breach of the peace? Secondly, if a right to enter a private house does exist in certain circumstances, did those circumstances exist here?” Noting that the common-law powers of the police to enter private premises were preserved by section 17(6) of the Police and Criminal Evidence Act 1984 (“the 1984 Act”), the judge considered that the principal authority under common law was the decision of the Divisional Court in Thomas v. Sawkins ([1935] King’s Bench Reports 249). Lord Justice Neill continued: “That was a case where police officers went to a hall where a public meeting which had been extensively advertised was about to take place; the police sergeant in charge of the party was refused admission to the hall but insisted on entering and remaining there during the meeting. The question arose as to whether the police were entitled to take that course. Lord Hewart, who delivered the first judgment in the case, said this at page 254: ‘I think that there is quite sufficient ground for the proposition that it is part of the preventive power, and, therefore, part of the preventive duty, of the police, in cases where there are such reasonable grounds of apprehension as the justices have found here, to enter and remain on private premises.’ At page 255 Avory J said, in relation to entering premises in connection with an affray: ‘... I cannot doubt that he has a right to break in to prevent an affray which he has reasonable cause to suspect may take place on private premises.’ He considered, therefore, that the police officers were justified in what they were doing. Lawrence J at page 257 put the matter as follows: ‘If a constable in the execution of his duty to preserve the peace is entitled to commit an assault, it appears to me that he is equally entitled to commit a trespass.’” Lord Justice Neill further considered that another precedent of relevance for the applicant’s case was McGowan v. Chief Police Constable of Kingston Upon Hull (reported in The Times on 21 October 1967): “In that case police officers had gone into a house where a child was being held in a man’s arms. The police officers said that they had reason to think that a breach of the peace might occur between the man and his mistress. But a question arose as to whether the mistress had authority to give an invitation to the police officers to come in. The Lord Chief Justice when giving his judgment said: ‘Regardless of the invitation, there was sufficient [ground] to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring.’” Lord Justice Neill then recalled that the judgment in Thomas v. Sawkins had been subjected to criticism in that it had appeared to infringe the basic principle that the law would not intervene until an offence had actually been committed. He also noted that it had been suggested that the precedent established in Thomas v. Sawkins should be limited to public meetings, and continued: “Having the benefit of argument, I am satisfied that Parliament in section 17(6) [of the 1984 Act] has now recognised that there is a power to enter premises to prevent a breach of the peace as a form of preventive justice. I can see no satisfactory basis for restricting that power to particular classes of premises such as those where public meetings are held. If the police reasonably believe that a breach of the peace is likely to take place on private premises, they have power to enter those premises to prevent it. The apprehension must of course be genuine and it must relate to the near future.” Mindful of the practical difficulties of using the power correctly and sensibly in domestic situations, Lord Justice Neill commented that: “… when exercising his power to prevent a breach of the peace a police officer should act with great care and discretion; this will be particularly important where the exercise of his power involves entering on private property contrary to the wishes of the owners or occupiers. The officer must satisfy himself that there is a real and imminent risk of a breach of the peace, because if the matter has to be tested in court thereafter there may be scrutiny not only of his belief at the time but also of the grounds for his belief.” Relying on the facts as established by the High Court, Lord Justice Neill considered that the police officers entered the applicant’s house to prevent a breach of the peace and were reasonable in concluding that there was a danger of such a breach. The other judges, Lords Justices Hoffman and Waite agreed. Leave to appeal to the House of Lords was refused. 22. On 1 March 1994 the applicant applied to the House of Lords for leave to appeal against the Court of Appeal’s decision of 3 February 1994. On 18 May 1994 the House of Lords refused the application. 23. Section 17 of the 1984 Act sets out the primary circumstances in which a police constable may enter and search premises. According to section 17(1)(e), a police officer may enter any premises for the purposes of saving life or limb or preventing serious damage to property. Whilst section 17(5) abolishes all common-law rules under which a police officer previously had power to enter premises without warrant, section 17(6) provides: “Nothing in subsection (5) affects any power of entry to deal with or prevent a breach of the peace.” 24. Breach of the peace – which does not constitute a criminal offence (R. v. County Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 260) – is a common-law concept dating back to the tenth century. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416) remarked in January 1981: “A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated…” (p. 426) He continued: “We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427) 25. In October 1981, in a differently constituted Court of Appeal giving judgment in R. v. Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board ([1982] Queen’s Bench Reports 458), which concerned a protest against the construction of a nuclear power station, Lord Denning, Master of the Rolls, defined “breach of the peace” more broadly, as follows: “There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker – by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace.” (p. 471) 26. In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell, rather than ex parte Central Electricity Generating Board, in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others: “The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392) 27. In another case before the Divisional Court, Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] Justice of the Peace Reports 155) Lord Justice Simon Brown stated: “… the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.” (p. 163) 28. The common-law power of the police to enter private property to prevent a breach of the peace, as preserved by section 17(6) of the 1984 Act, was defined by Lord Chief Justice Hewart in Thomas v. Sawkins cited above: “I think that there is quite sufficient ground for the proposition that it is part of the preventive power, and, therefore, part of the preventive duty, of the police, in cases where there are such reasonable grounds of apprehension as the justices have found here, to enter and remain on private premises. It goes without saying that the powers and duties of the police are directed, not to the interests of the police, but to the protection and welfare of the public. (p. 254) … I am not at all prepared to accept the doctrine that it is only where [a breach of the peace] has been, or is being, committed, that the police are entitled to enter and remain on private premises. On the contrary, it seems to me that a police officer has ex virtute officii full right so to act when he has reasonable ground for believing that [a breach of the peace] is imminent or is likely to be committed.” (p. 255) 29. The continued existence of the common-law power of entry to prevent a breach of the peace and its applicability to circumstances of a domestic quarrel was recognised in McGowan v. Chief Constable of Kingston Upon Hull ([1968] Criminal Law Reports 34), where the Lord Chief Justice said: “Regardless of the invitation, there was sufficient [ground] to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring.”

train

001-91756

ENG

UKR

CHAMBER

CASE OF VERGELSKYY v. UKRAINE

Remainder inadmissible;Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award

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

5. The applicant was born in 1936 and lives in Romny. 6. After last being seen in the applicant’s house on 7 June 2003, Mr O.S., the applicant’s acquaintance, disappeared. On several occasions between June 2003 and March 2004 the applicant explained to the police that he was unaware of Mr O.S.’s whereabouts following his departure from the house. 7. On 11 June 2003 the police seized from the applicant’s house a knife and several objects spotted with a brown substance. According to an expert assessment obtained in March 2004, these spots were human blood that probably belonged to Mr O.S. 8. On 27 March 2004 the applicant confessed that he had accidentally killed Mr O.S during a drinking party. He had then dismembered the body, packed it in sacks and disposed of it in the Romenka River. On the same date criminal proceedings were instituted against him on suspicion of murder. The applicant was taken to the river bank to point out the place where he had dumped the sacks. However, no body parts were found. 9. On 30 March 2004 the applicant was detained as a criminal suspect. 10. On 6 April 2004 the investigator brought formal charges against the applicant for murder. 11. On 9 April 2004 the applicant was released after giving an undertaking not to abscond. 12. On 16 April 2004 the applicant informed the Town and the Regional Prosecutor that he had confessed to having killed Mr O.S. under torture. He further submitted that in reality Mr O.S. had apparently been killed by two masked robbers, who had broken into his house during the drinking party on 7 June 2003 and knocked the applicant unconscious. He had kept this story secret fearing reprisals by the robbers. 13. Between April and December 2004, on some four occasions, criminal proceedings against the applicant were suspended for periods ranging from several days to some three months on account of his ill-health or for unexplained reasons. At the same time, certain investigative actions, such as the examination of witnesses, were carried out during the periods when the investigation was officially suspended. 14. On 21 January 2005 the applicant was committed for trial. 15. Between February and July 2005 the prosecution withdrew the case file from the court on four occasions for the rectification of procedural omissions. On 1 August 2005 the applicant was committed for trial for the fifth time. 16. On 8 August 2005 human bones were retrieved from the Romenka River. On the same day the prosecution withdrew the case file from the court in order to verify whether these bones belonged to Mr O.S. 17. On 12 August 2005 the Town Court authorised the applicant to be remanded in custody for ten days. 18. On 19 August 2005 the Town Court, following a hearing held in the presence of the applicant and his lawyer, authorised that pending the outcome of pre-trial investigation the applicant be detained for a maximum period of two months, on the grounds that there was a serious suspicion that he had committed the offence with which he had been charged and that during the pre-trial proceedings he had changed his place of residence and attempted to influence a witness. 19. On 2 September 2005 the Town Prosecutor refused an application for bail lodged by the applicant. On the same date the Town Court informed the applicant that it was not competent to deal with bail applications while the case was at the investigation stage. 20. On 23 September 2005 the case file and a new bill of indictment were sent to the Town Court. 21. On 3 October 2005 the prosecutor withdrew the case for the rectification of omissions. The case was referred back to the Town Court on 4 October 2005. 22. On 13 October 2005 the Town Court scheduled the case for trial proceedings, reviewed the decision to hold the applicant in custody and found no reason to release him. In November 2005 the Town Court held five hearings. 23. On 24 November 2005 the Town Court decided that further investigations were called for and remitted the case to the prosecution. On the same date the court rejected an application by the applicant for his release on bail and authorised his detention pending the above-mentioned investigations. 24. The applicant appealed against the decision to extend his detention. On 7 December 2005 the Sumy Regional Court of Appeal (Апеляційний суд Сумської області, hereafter “the Court of Appeal”) found that it was not competent under the law to deal with this appeal. 25. On 18 January 2006 the case was referred back to the Town Court for trial. 26. Between March and June 2006 the Town Court scheduled ten hearings. Three of them were adjourned on account of the prosecutor’s failure to appear. One was adjourned on account of the failure to appear by the prosecutor and the applicant’s lawyer. 27. On 17 May 2006 the Town Court ordered the applicant’s release on bail. 28. On 5 June 2006 the Town Court ordered an additional assessment to be carried out by a genetics expert. 29. On 31 October 2006 the Town Court requested the expert to expedite the assessment. 30. On 16 November 2006 the expert assessment was carried out and on 12 December 2006 the report was delivered to the Town Court. 31. On 29 December 2006 the hearing was adjourned until 25 January 2006 to summon experts. The experts failed to appear on this date. 32. On 26 January 2007 the Town Court reminded the experts of their obligation to appear at hearings. 33. On 19 February 2007 the Town Court examined two experts and a witness and ordered a further assessment by a commission of experts. 34. On 22 February 2007 the Town Court addressed the prosecutor by letter demanding the submission of material evidence for expert assessment. On 5 March 2007 the Town Court sent a reminder. 35. On 17 April 2007 the Town Court made enquires of the expert as to the status of the assessment. 36. On 5 May 2007 the assessment was carried out. 37. Between June and October 2007 the Town Court scheduled six hearings. Two of them were adjourned on account of the prosecutor’s failure to appear. By letters of 28 August and 4 October 2007 the Town Court reminded the prosecutor of his duty to appear for hearings. 38. On 12 October 2007 the Town Court remitted the case for additional investigation. The Town Court referred, in particular, to the failure of the prosecution to carry out a comprehensive inquiry into the applicant’s allegation that he had confessed to the killing of Mr O.S. under duress. 39. On 20 December 2007 the Court of Appeal quashed this decision, having found that the shortcomings of the investigation of the murder were such that they could be addressed at the trial stage by examination of witnesses and other evidence in court. 40. On 10 June 2008 the Town Court remitted the case for additional investigation, referring to numerous procedural shortcomings in the carrying out of the investigation, the handling of evidence and the drafting of procedural documents. The court noted, in particular, that the investigation had been suspended on several occasions for no reason or in connection with the applicant’s ill-health, despite the fact that there was no relevant medical documentation attached. Furthermore, during these periods the authorities continued with their investigations. 41. According to the case file materials, the proceedings are currently pending. 42. According to the applicant, on 19 March 2004 he visited public baths with Messrs V.B. and V.S., his relatives. 43. Shortly after 10 a.m., immediately after he had returned home, the applicant was seized by two police officers and taken to the Romny Police Department (Роменський міськрайонний відділ УМВС України в Сумський області, hereafter “the Police Department”). There the police officers beat him with their fists and truncheons and stamped on his feet, demanding that he confess to the killing of Mr O.S. At about 3 a.m. on 20 March 2004 the applicant, completely exhausted, fell unconscious and was placed in a police cell for temporary detainees. 44. Shortly after 3 a.m. an ambulance arrived. The applicant complained about pain in the heart and a headache and was administered treatment for low blood pressure. The applicant was further detained. 45. On 22 March 2004 investigator I.S. proposed that the applicant sign an acknowledgement that he had been properly arrested on 20 March 2004 for swearing in public and that he had no claims against the police. The applicant agreed, allegedly hoping that his suffering would end. 46. On 22 March 2004 the applicant was brought before the Town Court, which sentenced him to seven days’ administrative arrest (адміністративний арешт) in the Centre for Temporary Detention (Ізолятор тимчасового тримання, hereafter “the ITT”) for petty hooliganism on 20 March 2004. 47. According to the applicant, each day he was taken to the Police Department, beaten, threatened and urged to confess to the killing. On 24 March 2004 the applicant told the police that Mr O.S. had apparently been killed by two masked robbers. However, the officers continued to demand that the applicant confess that Mr O.S. had been killed by him. As the last day of the applicant’s detention approached, the pressure was intensified. On 27 March 2004 the applicant pleaded guilty to the murder of Mr O.S. 48. On the evening of 27 March 2004 the applicant was formally released. However, the police in fact continued to keep him in some vacant offices in the Police Department, until on 30 March 2004 he was officially detained as a criminal suspect. 49. On 6 April 2004 the applicant underwent an assessment by a medical expert of the Romny Bureau of Forensic Medical Examinations (Роменське бюро судово-медичних експертиз). The examination revealed some eight large bruises (about 15x10 cm each) in the applicant’s groin area, on his thighs and shoulders. The expert concluded that these bruises could have resulted from a beating as well as from a fall. He further found it impossible to determine the probable date on which the bruises had been sustained, as they could remain on the body for up to one and a half months. 50. On 9 April 2004 the applicant was admitted to hospital on account of stress-associated asthenia (a personality disorder, characterised, in particular, by insomnia, anxiety, headache and bodily weakness). On 19 April 2004 the applicant returned home. 51. On 31 January 2008 a commission of experts analysed the medical documents relating to the applicant’s injuries. It confirmed the earlier findings by the single expert and noted that, regard being had to the number of bruises and their diverse localisation; they were unlikely to result from a single fall. 52. On 16 April 2004 the applicant lodged a criminal complaint against police officers for ill-treatment. The complaint was addressed to the Romny Town and Sumy Regional Prosecutors. 53. On 13 July 2004, on the basis of the statements of four police officers denying subjecting the applicant to any ill-treatment and the fact that during his questioning as a suspect on 1 April 2004 the applicant had not complained of any police violence, no prima facie case of ill-treatment was found and the inquiry into the applicant’s complaint was discontinued. 54. On 14 December 2004 the applicant was given access to the above decision. On 20 December 2004 he challenged it before the Town Court. 55. On 24 January 2005 the Town Court quashed the decision of 13 July 2004, finding that further inquiries were called for. It noted, in particular, that the police officers had been questioned before the formal commencement of the inquiry. Moreover, the investigator had failed to question persons listed in the applicant’s complaint who could allegedly confirm the applicant’s ill-treatment; to examine the circumstances of the applicant’s stay at the Police Department before his official arrest; or to determine how the applicant had sustained his injuries. 56. On 14 February 2005 the investigator decided that there was no prima facie case of ill-treatment. 57. On 26 April 2005 the Town Court quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in its decision of 24 January 2005. 58. In the course of the additional inquiry, the Prosecutors’ Office questioned the officers who had called the ambulance for the applicant on 20 March 2004, who could not recall any details; the members of the voluntary citizens’ guard, who confirmed having arrested the applicant at 4 p.m.; the ambulance doctor, who stated that she had not examined the applicant’s body on account of injuries; and the medical expert, who confirmed the findings of his assessment of 6 April 2004. On 15 May 2005 on the basis of this evidence and on the grounds set out in the decision of 13 July 2004, a fresh decision was taken not to initiate any criminal proceedings. 59. On 8 August 2005 this decision was quashed by the Town Court. The court found that the inquiries had been conducted in a perfunctory manner. It instructed the investigating authorities, in particular, to question the persons who had seen the applicant on 19 March 2004 at the public baths; the persons who had shared the cell with the applicant in ITT; and the applicant’s neighbours. 60. On 9 September 2005 it was decided not to institute criminal proceedings with reference to essentially the same grounds as before. 61. On 28 October 2005 the Town Court found that the prosecution had failed to comply with its earlier instructions. Referring to the case of Kmetty v. Hungary (no. 57967/00, 16 December 2003), the court noted that the prosecution had a duty to determine whether the applicant had sustained injuries resulting from his treatment by the police. 62. The Town Prosecutor’s Office appealed against the court’s decision. 63. On 27 December 2005 the Court of Appeal rejected the prosecution’s appeal and upheld the decision of 28 October 2005. 64. On 16 January, 12 March, 15 May, 13 August and 19 December 2006 the Prosecutors’ Office again refused to institute criminal proceedings. 65. On 24 February, 20 April, 31 July, 24 November 2006 and 16 January 2007 respectively the Town Court quashed these decisions referring to the cursory analysis of various sources of evidence and the failure of the investigation to establish a probable cause of the applicant’s injuries. 66. On 7 March 2007 a new decision not to institute criminal proceedings was taken. It was based on essentially the same evidence as before. Additionally, the investigator also explained why, in his opinion, further measures demanded by the court were either unavailable or irrelevant. For instance, it was no longer possible to find the objects with which the applicant could have purportedly been beaten. 67. On 12 April 2007 the Town Court quashed this decision. 68. By its subsequent decisions dated 10 May 2007 and 23 August 2007 the Prosecutors’ Office further refused to institute criminal proceedings. 69. These decisions were annulled by the Town Court on 21 June 2007 (upheld on appeal on 31 July 2007) and 25 September 2007 (upheld on 16 October 2007), respectively. 70. On 18 February 2008 the Prosecutors’ Office yet again refused to institute criminal proceedings. In addition to the reasons recited earlier, this decision referred, in particular, to the testimonies of Messrs V.B. and V.S. who stated that they had seen no injuries on the applicant’s body in the public baths. The prosecution found this evidence unreliable, since the witnesses were related to the applicant. Moreover, according to the attendant at the baths, she did not remember ever having seen the applicant in the public baths. As regards the testimonies by the applicant’s neighbours, they clearly recalled seeing him back at home on 19 April 2004. Their recollections concerning his presence at home between 19 March and 19 April 2004 were blurred. 71. The Prosecutors’ Office further stated that according to the Police Department visits journal, the applicant had entered the Police Department at 10:35 a.m. on 19 March 2004. The journal contained no record of his subsequent departure, apparently as a result of the fact that the door guard forgot to make the relevant entry. On that date the applicant was questioned by investigator I.S. about Mr O.S.’s disappearance. After the questioning, the applicant felt ill and was offered to stay in a police cell to recuperate. On 20 March 2004 at 3 a.m. an ambulance arrived to treat the applicant for blood-pressure complaints. Subsequently he felt better and left the cell by 8 a.m. on 20 March 2004. At about 4 p.m. on 20 March 2004 members of the voluntary citizens’ guard (ГФ «Громадський правопорядок») spotted the applicant who, apparently under the influence of alcohol, was swearing in a public street. As the applicant refused to cease his disorderly conduct in response to their demands, the guards took him to the Police Department. A report of an administrative offence was drafted and the applicant was detained in the ITT. According to applicable regulations, the staff of the ITT should have organised a medical examination of the applicant to detect any injuries or sickness before placing him in the ITT. No injuries were recorded on his body. However, since the applicant lodged no health-related complaints, the examination could have been cursory. In this connection it was not possible to rule out that the applicant’s bruises could have been sustained by a fall on 20 March 2004, shortly before he had been taken to the police, as at the time he was apparently under the influence of alcohol. At the same time, the applicant’s alcohol level was not checked, as he was not charged with being drunk in a public place. Between 22 and 27 March 2004 the applicant was daily checked out from his cell by officer I.S. for several hours at a time. These check-outs were for the purposes of the applicant’s engagement in community service or for discussions on public morale. On 27 March 2004 the applicant voluntarily confessed to having killed Mr O.S. The same day at 7 p.m. the applicant was released. 72. On 13 June 2008 the Town Court quashed this decision, referring to the fact that the investigation had still failed to comply with all its instructions and in order to determine whether the State was responsible for the applicant’s injuries. 73. On three occasions in the course of the investigation (in October 2005, April 2006 and April 2007 the Town Court also separately addressed the Prosecutors’ Office instructing it to take measures in respect of the continued non-execution of the court’s instructions by the investigating authorities. Referring to the cases of Kmetty v. Hungary (cited above) and Afanasyev v. Ukraine, (no. 38722/02, 5 April 2005) the court found that the criminal inquiry conducted had not been sufficiently thorough. 74. On 3 July 2008 the Sumy Regional Court of Appeal quashed the decision of 13 June 2008 and remitted the case for fresh consideration in first instance. According to the case-file materials, the proceedings are currently pending. 75. From 19 August 2005 to 17 May 2006 the applicant was remanded in custody. During certain periods the applicant was held in the Sumy Regional Pre-Trial Detention Centre (Сумський слідчий ізолятор, hereafter “the Sumy SIZO”). These periods were as follows: 26 September to 3 October 2005; 17 to 24 October 2005; 7 to 21 November 2005, 6 December 2005 to 5 January 2006; 14 to 20 February 2006; 6 to 13 March 2006; 15 March to 3 April 2006 and 25 April to 15 May 2006. The remainder of the time the applicant was held in the Romny ITT. 76. In August 2005 the authorities were informed that he suffered from several chronic conditions, in particular, osteochondrosis, secondary radicular syndrome, myopia, cerebral atherosclerosis, hypertension and adenoma of the prostate. 77. According to the applicant, being in detention had negative effects on his health. In particular, he began suffering from an asthmatic complaint as a consequence of being exposed to passive smoking in the cell. Furthermore, good quality medical assistance was not always readily available to him, even though he was suffering from numerous chronic conditions. Finally, medications were frequently supplied to the applicant by his sister, as the detention facility lacked them. Sometimes his sister was not informed in good time that further medications were needed. 78. In November 2005 the applicant consulted a doctor and was treated for allergic dermatitis. 79. In March 2005 the applicant consulted a doctor and was treated for cystitis. 80. On seven occasions throughout the period of his detention the applicant was tested for tuberculosis and other infections. 81. After his release and until the end of 2006 the applicant was treated in hospital twice: between 26 June and 7 July for dermophitia and between 10 and 21 October 2006 for adenoma. 82. Relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).

train

001-96597

ENG

BGR

CHAMBER

CASE OF LYUBOMIR POPOV v. BULGARIA

No violation of P1-1

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste

6. The applicant was born in 1933 and lives in Plovdiv. 7. In 1991 the Bulgarian Parliament adopted the Agricultural Land Act (“the ALA”, see for more detail paragraphs 83-95 below) which provided for the restitution of collectivised agricultural land. 8. On 4 March 1992 the applicant requested from the Pazardzhik agricultural land commission (“the land commission” or “the commission”) restitution of nine plots of agricultural land which he had previously owned in the area around the village of Govedare, totalling 44,029 square metres (request no. 12004/04.03.1992). 9. By a decision of 18 December 1992 (no. 42\3/18.12.1992) the commission recognised and restored “in actual boundaries” the property rights of the applicant in respect of seven of the plots, in particular those under nos. 1-5, 7 and 8 in his request of 4 March 1992, which totalled 41,299 square metres. The applicant was informed of the decision by a letter of 22 April 1993. The decision was subject to appeal within fourteen days of receipt. As no appeal was lodged against it the decision entered into force. 10. Despite the aforesaid decision, the land commission issued a second decision dealing with the same subject matter, which the applicant received by a letter of 28 December 1993. The decision’s number was identical with that of the first decision issued by the land commission (see paragraph 9 above). 11. By this decision, however, the commission recognised and restored the property rights of the applicant in respect of only five of the plots he had requested, namely those under nos. 1-5 in his request of 4 March 1992. The commission refused to recognise the property rights of the applicant in respect of plots nos. 7 and 8, with respective areas of 6,600 and 4,000 square metres. The grounds for the refusal were the following: “[These properties were] claimed [by means of] a certified declaration despite the existence of a [conflicting] property deed of 1954.” 12. The applicant appealed against this decision. 13. By amendment of 1995 to the Agricultural Land Act (section 14 §§ 6 and 7) agricultural land commissions were provided with the power to amend, in certain circumstances, their decisions which had entered into force (see paragraph 85 below). 14. By a decision of 12 September 1995 the Pazardzhik District Court declared null and void the land commission’s second decision communicated to the applicant by letter of 28 December 1993 (see paragraph 10 above). The domestic court found, inter alia, that: “the [land commission] violated the law by adopting decision no. 42\3/18.12.1992 in its version [communicated by] letter no. 668/28.12.1993, [as it] did not have the power to do so. The possibility for the [commission] to amend [its] decisions which have entered into force ... [was introduced] with the [latest] amendment to the [ALA]. ... [The] first administrative act [communicated by letter of 22 April 1993 had] entered into force and had [already] determined the ownership of the properties of ... the applicant, which were [recognised and] restored in their entirety.” 15. No appeal was lodged against the decision, so it entered into force on 20 September 1995. 16. Despite the aforesaid decision of the District Court, the land commission adopted another decision dealing with the same subject matter. 17. By a decision of 7 December 1995 (no. 48\15/07.12.1995) it readopted the text of its second decision, which had been declared null and void. It expanded its reasoning for refusing to recognise the applicant’s property rights in respect of plots nos. 7 and 8 as follows: “In connection with the possibility under section 14 §§ 6 and 7 of the [ALA] and the decision of the District Court [of 12 September 1995], the [commission] confirms its refusal: [These properties were] claimed [by means of] a certified declaration despite the existence of a [conflicting] property deed of 1954.” 18. On an unspecified date the applicant appealed against this decision. 19. In a final judgment of 26 May 1997 the Pazardzhik District Court declared it null and void. The domestic court found that the commission had failed to justify the grounds for amending its previous decision regarding the same properties, as there had existed no new facts or documents 20. On 3 September 1997 the applicant deposited a copy of the aforementioned judgment with the land commission and insisted that it comply with its first decision of 18 December 1992, which was still in force. 21. Before the appeal against the commission’s third decision was heard, the latter issued another decision dealing with the same subject matter. 22. By a decision of 20 March 1997 (no. 5-A111/20.03.1997) it apparently reiterated its refusal to recognise the applicant’s property rights in respect of plots nos. 7 and 8. The applicant appealed against this decision. 23. On an unspecified date in the beginning of 1998, the Pazardzhik District Court heard the applicant’s appeal and declared null and void the decision of 20 March 1997. No appeal was lodged against this judgment so it entered into force on an unspecified date. 24. On 8 May 1998 the applicant deposited a copy of the aforementioned judgment with the land commission. He demanded compliance with it and recognition of his property rights in accordance with the first decision of 18 December 1992. 25. Before the appeal against the fourth decision of the land commission was heard, the latter issued another decision dealing with the same subject matter. 26. By a decision of 16 October 1997 (no. 8A055/16.10.1997) it readopted the text of its third decision of 7 December 1995, which had been declared null and void by the Pazardzhik District Court on 26 May 1997 (see paragraphs 17 and 19 above). It expanded its reasoning for refusing to recognise the applicant’s property rights in respect of plots nos. 7 and 8 by stating, in addition to the previously used reasoning, the following: “[This decision] rescinds decision no. 48\15/07.12.1995 ... in compliance with order no. RD-09-1200 of 28.08.1997 of the Minister of [Agriculture] for a complete revision of the land redistribution plan for the Govedare area. In compliance with [the decision of 26 May 1997] of the Pazardzhik District Court.” 27. The applicant appealed against this decision on 21 November 1997. 28. Instead of forwarding the appeal to the District Court the land commission issued another decision dealing with the same subject matter. 29. By decision of 1 June 1998 (no. 2B175/01.06.1998) it readopted the text of its above-mentioned fifth decision (see paragraph 26 above). It only expanded its reasoning for refusing to recognise the applicant’s property rights in respect of plots nos. 7 and 8 by stating, in addition to the previously used reasoning, the following: “[This decision] rescinds [the] decision [of 16 October 1997] of the [land commission] in connection with appeal no. 4266/1997 lodged on the basis of § 31 of the [ALA]. The [commission] confirms the basis for its refusal. No new facts or documents have been presented.” 30. The applicant appealed against this decision on 16 September 1998. 31. By a letter of 10 September 1998 the applicant complained to the land commission about the numerous decisions it was issuing in respect of the same properties, of its continual disregard for the judgments in his favour and the constant need for him to appeal against each of the decisions. 32. By a judgment of 8 June 1999 the Pazardzhik District Court declared null and void the fifth and sixth decisions of the land commission, dated 16 October 1997 and 1 June 1998 (see paragraphs 26 and 29 above). The court found that by adopting these two decisions the commission was, in substance, amending its first decision of 18 December 1992 which had entered into force and which it did not have the power to amend. 33. No appeal was lodged against the judgment, so it entered into force on 1 July 1999. 34. Despite the aforementioned judgments of the Pazardzhik District Court the land commission issued a seventh decision dealing partly with the same subject matter. 35. By a decision of 16 September 1999 (no. 7B148/16.09.1999) it recognised and restored the applicant’s property rights in respect of plots nos. 6 and 9 in his request of 4 March 1992. It also recognised his property rights in respect of plots nos. 7 and 8, but refused to restore them because of the following: “The judgment [of 8 June 1999 of the Pazardzhik District Court], which recognised the [applicant’s] property rights, entered into force after the land redistribution plan had been published in the Official Journal. [This decision] rescinds decision no. 39\11 of 20.11.1992. [Subject to] compensation under section 10b § 1 of the [ALA].” 36. It is unclear whether the applicant appealed against this decision. 37. By a decision of 23 February 2005 the Pazardzhik Agriculture and Forestry Department (the former land commission) allotted to the applicant another plot in compensation for plot no. 7 and also awarded him compensation bonds. He appears to be satisfied with the compensation received. 38. At the time of the parties’ latest communications of 2006 he had not received any compensation for plot no. 8. 39. On 4 March 1992 (request no. 12007/04.03.1992) the applicant requested from the land commission the restitution of six plots of agricultural land which had previously been owned by his father in the area around the village of Govedare, totalling 63,101 square metres. The parties have not specified who the heirs of the applicant’s father were; it transpires from the documents that the applicant has three siblings. 40. By decision of 18 December 1992 (no. 42\3/18.12.1992) the commission recognised and restored the property rights of the heirs of the applicant’s father in respect of four of the plots, in particular, those under nos. 1, 2, 5 and 6, in his request of 4 March 1992, which totalled 34,401 square metres. The commission refused to recognise the property rights of the heirs of the applicant’s father in respect of plots nos. 3 and 4, which totalled 28,700 square metres. The grounds for the refusal were: “[Refusal to] recognise the property deeds [presented by] the inheritor – [the documents] are without notary certification for the transfer of the land.” 41. On an unspecified date the applicant appealed against this decision. 42. In a final judgment of 29 December 1993 the Pazardzhik District Court quashed the land commission’s decision in so far as it concerned plots nos. 3 and 4. It recognised the property rights of the heirs of the applicant’s father over those two plots and held that those properties were to be restored through a land redistribution plan. The District Court found, in particular, that the applicant’s father had acquired the said properties by adverse possession, so it was immaterial whether the property deeds had been certified by a notary or not. 43. Before the Pazardzhik District Court had heard the applicant’s appeal against the first decision of the land commission, the latter adopted a second decision dealing with the same subject matter. 44. By decision of 17 November 1993 (no. 80\9/17.11.1993) it rescinded its first decision, but then recognised and restored the property rights of the heirs of the applicant’s father only in respect of plots nos. 1 and 2 in his request of 4 March 1992, which totalled 20,801 square metres. It refused to recognise the property rights of the heirs of the applicant’s father in respect of plots nos. 3-6. The grounds for the refusal were the following: “[This decision] rescinds decision no. 42\3 of 18.12.1992 due to the discovery of a technical error. Properties nos. [3 and 4] – [Refusal to] recognise the property deeds [presented by] the inheritor – [the documents] are without a notary certification for the transfer of the land. Properties nos. [5 and 6] – [These properties were] claimed [by means of] a certified declaration despite the existence of [conflicting] property deeds.” 45. The applicant was informed of the decision by letter of 20 December 1993. He apparently appealed against it on an unspecified date. It is unclear whether the appeal was examined by the courts. 46. By a decision of 20 April 1994 (no. 98/17/20.04.1994) the land commission rescinded its second decision (see paragraph 44 above) and recognised and restored the property rights of the heirs of the applicant’s father in respect of plots nos. 1 and 2 in his request of 4 March 1992. The commission recognised their property rights in respect of plots nos. 3 and 4, totalling 28,700 square metres, refused to restore those properties “in actual boundaries” and held that they were to be restored through a land redistribution plan. Furthermore, it refused again to recognise the property rights of the heirs of the applicant’s father in respect of plots nos. 5 and 6. 47. The grounds for the commission’s decision were the following: “1. Recognises in compliance with the judgment [of 29 December 1993 of the Pazardzhik District Court]. 2. [This decision] rescinds decision [of the PALC] no. 80\9 of 17.11.1993.” 48. The applicant appealed against this decision on an unspecified date. It is unclear whether the appeal was examined by the courts. 49. Apparently, at a later stage the applicant obtained a satisfactory outcome in respect of plots nos. 5 and 6 and does not raise complaints in respect of them. 50. Plots nos. 3 and 4 were partially restored to him in 2000 (see paragraphs 74-76 below). 51. On an unspecified date in 1997 the applicant initiated an action for a declaratory judgment against the land commission, pursuant to section 11 § 2 of the ALA. He petitioned the courts to recognise that, as an heir of his parents, he had the right to have his property rights restored in respect of another four properties. 52. By a declaratory judgment of 2 April 1997 the Pazardzhik District Court found partly in favour of the applicant and recognised that the heirs of his parents had the right to have their property rights restored in respect of three of the claimed properties, namely, three plots of land of 6,600, 8,000 and 9,000 square metres respectively. 53. No appeal was lodged against this judgment so it entered into force on 5 May 1997. 54. On 17 June 1997 the applicant deposited a copy of the aforementioned judgment with the land commission and demanded compliance with it. 55. In response to the aforementioned judgment, the land commission issued another decision. 56. By a decision of 24 July 1997 (no. 7A069/24.07.1997) it rescinded its decision of 20 April 1994 (see paragraph 46 above), readopted the text of said decision and, despite the favourable judgment (see paragraph 52 above), refused to recognise and restore the property rights of the heirs of the applicant’s parents in respect of the two new plots of agricultural land of 6,600 and 8,000 square metres, now numbered 7 and 8 respectively. The grounds for the refusal were the following: “[This decision] rescinds decision [of the commission] no. 98/17 of 20 April 1994 on the basis of judgment [of 2 April 1997 of the Pazardzhik District Court] under section 11 § 2 of the [ALA] in respect of the properties under nos. 7 and 8 in the request. The property was restored to [those claimants with] documents dated most [recently] – declarations for entry into the [collective farm] of [the village of] Govedare in 1956 – [presented] by the successors” 57. On an unspecified date the applicant appealed against this decision. 58. In a judgment of 22 June 1999 the Pazardzhik District Court quashed the land commission’s fourth decision of 24 July 1997 in respect of the refusal to recognise and restore the property rights of the heirs of the applicant’s parents in respect of plots nos. 7 and 8. It found that the property rights of the heirs of the applicant’s parents in respect of these two properties had already been recognised by virtue of the judgment of 2 April 1997 of the Pazardzhik District Court (see paragraph 52 above) and that the properties at issue were to be restored through a land redistribution plan. 59. No appeal was lodged against this judgment, so it entered into force on 30 July 1999. 60. On 5 August 1999 the applicant deposited a copy of the aforementioned judgment with the land commission. Apparently taking into account that the revised land redistribution plan of Govedare had already been published (see paragraph 73 below), the applicant requested compensation for these two properties (nos. 7 and 8) in the form of comparable State or municipal land. 61. It is not clear whether the applicant obtained restitution of the plot of 9,000 square metres, also mentioned in the judgment of the Pazardzhik District Court of 2 April 1997. He does not raise complaints in respect of this property. 62. On an unspecified date in 1998 the applicant initiated another action for a declaratory judgment under section 11 § 2 of the ALA. He petitioned to the courts to recognise that, as an heir of his father, he had the right to have the property rights restored in respect of one more property, a plot of 6,000 square metres. 63. In a declaratory judgment of 19 December 1998 the Pazardzhik District Court recognised that the heirs of the applicant’s father had the right to have their property rights restored. 64. No appeal was lodged against the judgment so it entered into force on 20 January 1999. 65. On 28 January 1999 the applicant deposited a copy of the aforementioned judgment with the land commission. 66. In an attempt to comply with the judgments of the Pazardzhik District Court of 2 April 1997 and 19 December 1998 (see paragraphs 52 and 64 above), the land commission adopted another decision dealing with the three properties in question (those under nos. 7 and 8, plus the plot of 6,000 square metres in the judgment of 19 December 1998, thereinafter referred to under no. 9). 67. By a decision of 16 September 1999 (no. 7B148) the commission recognised the property rights of the heirs of the applicant’s parents in respect of the aforementioned properties, but refused to restore them “in actual boundaries”. 68. The commission based its refusal to restore plots nos. 7 and 8 on the judgment of 22 June 1999 of the Pazardzhik District Court (see paragraph 58 above). It reasoned as follows: “The judgment [of 22 June 1999 of the Pazardzhik District Court] which recognised the property rights [in question] entered into force after the land redistribution plan had been published in the Official Journal.” 69. In respect of its refusal to restore plot no. 9, the commission used similar reasoning. It indicated as follows: “The judgment [of 19 December 1998 of the Pazardzhik District Court] under section 11 § 2 [of the ALA] which recognised the property rights [in question] entered into force after the land redistribution plan had been published in the Official Journal.” 70. The applicant was informed of the decision on 28 October 1999. It is unclear whether he appealed against it. 71. In respect of plots nos. 7 and 8, the heirs of the applicant’s parents received municipally-owned land on 23 February 2005. The applicant appears to be satisfied with the location and the size of this land. 72. In respect of the plot numbered under no. 9, on 6 June 2003 the land commission assigned to the heirs of the applicant’s father compensation in the form of compensation bonds with a face value of 3,680 Bulgarian levs (BGN). The applicant does not specify whether he appealed against this decision. 73. The first land redistribution plan for Govedare was published on an unspecified date. It is unclear what properties were allocated to the applicant under it. For undisclosed reasons, on 28 August 1997 the Minister of Agriculture ordered the complete revision of the plan. 74. The revised land redistribution plan for Govedare was published in the Official Journal on 13 April 1999. 75. On 26 April 1999 the applicant appealed against the revised land redistribution plan. He complained of the size of the property that the heirs of his father had been allocated under the said plan for plots nos. 3 and 4 in his request no. 12007 of 4 March 1992 (see paragraph 39 above). He submitted a proposal for the amendment of the plan, according to which the heirs of his father were to receive a plot measuring 18,426 square metres. 76. In a judgment of 17 January 2000 the Pazardzhik Regional Court found in favour of the applicant and amended the revised land redistribution plan in accordance with the aforementioned proposal. The applicant took possession of the new plot thus allotted to his father’s heirs on 28 September 2000. At the time of the parties’ latest communications of 2006, he had not yet received any compensation for the remaining land to be restored, totalling 10,274 square metres. 77. The applicant did not appeal against the judgment of the Pazardzhik Regional Court, although he was entitled to. 78. On an unspecified date the applicant requested from the land commission the restitution of several plots of agricultural land previously owned by his mother in the area around the village of Hadzhievo. 79. By a decision of 22 December 1993 (no. 86/8/22.12.1992) the commission refused to recognise the property rights of his mother’s heirs in respect of seven plots of agricultural land. 80. On an appeal by the applicant, in a final judgment of 12 June 1995 the Pazardzhik District Court quashed the aforementioned decision of the land commission and, instead, restored the property rights of the heirs of the applicant’s mother in respect of the seven plots, totalling 35,300 square metres. 81. On 9 November 1995 the applicant deposited a copy of the aforementioned judgment with the land commission and demanded compliance with it. 82. On 30 March 2000 the land commission adopted a decision (no. 1В171/30.03.2000) whereby it allocated to the heirs of the applicant’s mother other land in compensation for the aforementioned property. The applicant, who appears to be satisfied with the size and quality of this land, took possession of it on 23 February 2005. 83. The Agricultural Land Act of 1991 (“the ALA”, Закон за собствеността и ползването на земеделските земи) provides, inter alia, that persons, or their heirs, whose land has been collectivised, may request restoration of their ownership rights under certain conditions (section 10 of the ALA). On the basis of certain statutory criteria, such as whether or not the plot of land once owned by the claimant or his or her ancestors had remained unaffected by urban construction, restitution may be “in actual boundaries” or through a redistribution plan. 84. Two possible ways of obtaining restitution are provided for: (a) administrative proceedings, initiated within a period of seventeen months following the entry into force of ALA, through a request to the local agricultural land commission (section 11 § 1) whose decision is subject to appeal before the courts (section 14 § 3), or, (b) after the expiry of that time-limit, through a civil claim to the competent court, directed against the respective land commission (section 11 § 2 of the ALA). 85. When seized with a request for restitution under section 11 § 1 of the ALA, it was the land commission’s task to establish whether the relevant statutory conditions were met and if so, to issue a decision restoring ownership. It could not revoke its decisions. Favourable decisions were not subject to appeal and were final. Following an amendment to the ALA of 1995, land commissions could modify their decisions within certain time limits in case where (1) they contained factual mistakes, or (2) with certain limitations, new facts or documents had been discovered (section 14 §§ 6 and 7). Some courts have stated that the decisions of the land commissions have characteristics similar to those of certifications in ex parte notary proceedings (opred. 10333-2002-VAS; opred. 1020-2003-VAS). It has also been stated that land commissions’ decisions are administrative decisions (1832-93-III). 86. A claimant whose request for restitution has been refused by the competent land commission may appeal to the respective District Court (section 14 § 3 of the ALA). The District Court has jurisdiction to examine the matter on the merits and determine whether or not the claimant has the right to restitution under the ALA. If it finds that the relevant statutory criteria for restitution are met, the court shall set aside the land commission’s refusal and order restitution (section 14 §§ 1-3 of the ALA). The District Court’s judgment is amenable to review (cassation). 87. Land commissions, which existed until 2002, were state bodies whose members were appointed by the Minister of Agriculture (section 33 of the ALA). In 2002 they were replaced by Agriculture and Forestry Departments, after 2008 named Agricultural Departments, whose members are appointed by the Minister of Agriculture and Food. 88. By section 14 of the Regulations for the Implementation of the Agricultural Land Act, a restitution request concerning the property of a deceased person lodged by one of the heirs benefits all of them. 89. Persons claiming restitution of agricultural land who have missed the seventeen-month time-limit under section 11 § 1, may bring an action for a declaratory judgment against the local land commission. In these proceedings the courts determine whether or not the claimant has the right to restitution. Where the courts decide in favour of the claimant, the land commission must comply and issue the necessary restitution decision, restoring the claimant’s rights “in actual boundaries” or through a land redistribution plan. 90. In the absence of an express provision, the legal theory accepts that, similarly to the procedure under section 11 § 1 of the ALA, an action brought by one of the heirs of a deceased person benefits all of them. 91. By section 10b of the ALA, former owners whose property cannot be restored “in actual boundaries” are to receive land by means of a land redistribution plan, on the basis of which the respective land commission adopts a decision to restore the property (section 17 of the ALA). 92. Where the land in a certain area is not sufficient to satisfy fully all former owners, the land to be provided to each of them is reduced. For the difference, they are to be compensated with municipal land or with compensation bonds, which can be used in privatisation tenders or for the purchase of State-owned land (sections 15 §§ 2 and 3 and 35 of the ALA). 93. In preparing a land redistribution plan, the land commission takes into consideration former owners’ claims which have been presented to it prior to the publication in the Official Journal of a notification that a draft plan has been prepared. It cannot take into account claims presented to it later; in that case, former owners are to receive compensation through municipal land or bonds (section 11 § 4 of the ALA). 94. Appeals against land redistribution plans were, at the relevant time, to be addressed to the respective Regional Court. They had to be accompanied by a proposal for a specific amendment to the plan (section 25 § 6 of the Regulations for the Implementation of the Agricultural Land Act). The judgments of the regional courts were subject to cassation. 95. Pursuant to section 17 § 8 of the ALA, the Minister of Agriculture is authorised to order the revision of a land redistribution plan where it has been established that the original one contained an obvious factual error. 96. Section 1 of the State Responsibility for Damage Act of 1988 (“the SRDA”) provides that the State is liable for damage suffered by private persons as a result of unlawful acts or omissions by State bodies or civil servants, committed in the course of or in connection with the performance of their duties. Section 4 of the Act provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission. 97. In some cases the domestic courts have allowed claims under section 1 of the SRDA on the basis of the authorities’ unlawful acts or omissions in restitution proceedings. In a judgment of 14 February 2008 the Supreme Court of Cassation awarded damages to the claimant, finding that the respective land commission had unnecessary delayed taking a decision on his request for restitution and had eventually unlawfully refused restitution (judgment no. 112 of 14 February 2008, case no. 1319/2007). In another judgment of 21 June 2002, the Nova Zagora District Court allowed a claim against the respective land commission, finding that the claimant had suffered damages as a result of the commission’s refusal to recognise and restore his rights to a certain property, and of its renewed failure to recognise and restore his rights after the initial refusal had been declared null and void by the courts (judgment no. 224 of 21 June 2002, case no. 74/2002). 98. However, in a judgment of 23 November 2004 the Veliko Tarnovo Regional Court dismissed a claim for damages against the respective land commission. It found that the rescission of a decision of the commission, which had entered into force and whereby the commission had recognised the claimant’s rights over certain properties, was null and void. Nevertheless, it concluded that the claimant had not suffered damages as the initial decision had not sufficed to make her the owner of the property at issue (judgment 240 of 23 November 2004, case no. 773/240). 99. In a judgment of 11 January 2005 the Smolyan Regional Court allowed a claim against the relevant municipality, finding that the claimants had suffered damage as a result of the municipality’s failure to duly correct their property’s borders in the cadastral maps (judgment no. 452 of 11 January 2005, case no. 407/2004).

train

001-57867

ENG

SWE

CHAMBER

CASE OF FREDIN v. SWEDEN (No. 2)

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

John Freeland

6. Mr Anders Fredin, an agricultural engineer, is a Swedish citizen. He lives at Grödinge, Sweden. The applicant and his wife own land in the municipality of Botkyrka, on which there is a gravel pit. They held a permit to extract gravel from the pit from 14 April 1983 until 1 December 1988, when the permit was revoked; it had previously been extended on the understanding that the activities in question would be terminated and restoration work carried out on the land by the latter date. The revocation of the permit, and the lack of a court remedy against this and a related measure, gave rise to an earlier case before the Court, which held in a judgment of 18 February 1991 (Series A no. 192) that there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention, but not of Article 1 of Protocol No. 1 (P1-1) taken either alone or in conjunction with Article 14 (art. 14+P1-1) of the Convention. 7. Following the revocation on 1 December 1988, the applicant applied to the County Administrative Board (länsstyrelsen) for a special extraction permit, so that he could comply with a plan adopted by the Board on 9 March 1987 for the restoration of the pit. The application was dismissed by the Board on 14 March 1989 and an appeal by the applicant against this decision was rejected by the Government (the Ministry of Environment and Energy) on 21 June 1989. 8. The applicant, seeking the annulment of the Government’s decision of 21 June 1989, applied to the Supreme Administrative Court (regeringsrätten) for review under the 1988 Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut 1988:205 - "the 1988 Act"). He alleged that, by denying him a special extraction permit, the competent authorities had prevented him from taking measures to comply with the restoration plan; the refusal contravened the principle of objectivity enshrined in Chapter 1, section 9, of the Instrument of Government (regeringsformen, which forms part of the Constitution). Moreover, contrary to the principle of proportionality and section 3 of the 1964 Nature Conservation Act (naturvårdslagen 1964:822), the authorities had gone beyond what was necessary in the interests of nature conservation, as well as other public and private interests. Their decision was also incompatible with the aim of nature conservation laid down in section 1(3) of the Act. Finally, the only reply given by the County Administrative Board to his question as to what steps he should take had been that the time-limit for restoration of the pit had expired; he had thus been the victim of a denial of justice. In addition, the applicant asked the Supreme Administrative Court to hold an oral hearing in his case. 9. In a decision (beslut) of 13 December 1990, the Supreme Administrative Court, sitting with five judges, dismissed the latter request by three votes to two, finding that there were no grounds under section 9 of the Administrative Procedure Act 1971 (förvaltningsprocesslagen 1971:291; see paragraph 14 below) for holding a hearing. As to the merits, on the basis of written observations submitted by the applicant and the County Administrative Board, it concluded unanimously that the Government’s decision was not unlawful and confirmed it. According to the minutes of deliberations on 30 October 1990, the two judges who were in favour of a hearing had regard in particular to the fact that the 1988 Act had been enacted in order to ensure that Swedish law complied with the Convention standards and also with the Strasbourg Court’s case-law in this area (see paragraph 11 below). They noted moreover that certain essential points of Mr Fredin’s case remained unclear, since there was disagreement between him and the County Administrative Board as to whether the above-mentioned restoration plan (see paragraphs 7 and 8 above) required the further extraction of gravel from the pit or simply the moving of gravel within it. In addition they drew attention to the lack of clarity in Mr Fredin’s plea against the Government. The same two judges considered that the Government, like the applicant and the County Administrative Board, should have submitted written observations on the case; apart from their reasons for rejecting the applicant’s appeal, they should have given their views on the above-mentioned issue of the need for further extraction of gravel and on whether their decision meant that Mr Fredin had been prevented from restoring the pit in the prescribed manner after 1 December 1988. 10. It was not possible under Swedish law for the applicant to appeal from the Supreme Administrative Court’s decision of 13 December 1990. 11. The 1988 Act was introduced as a result of the European Court’s findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 para. 1 (art. 6-1) of the Convention (see, for instance, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, pp. 29-31, paras. 78-87; the Pudas v. Sweden and the Bodén v. Sweden judgments of 27 October 1987, respectively Series A no. 125-A, pp. 13-17, paras. 28-42, and Series A no. 125-B, pp. 39-42, paras. 26-37). It was enacted as a temporary law to remain in force until 1991; its validity was subsequently extended to the end of 1994. 12. Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or another public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only judicial instance, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kind of administrative decision covered by the Act is further defined in Chapter 8, sections 2 and 3 of the Instrument of Government, to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions which fall outside its scope, none of which is relevant in the instant case. In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision "conflicts with any legal rule" (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp. 23-24), its review of the merits of cases concerns essentially questions of law but may, in so far as is relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case. 13. If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority (section 5 of the 1988 Act, as applicable at the relevant time). 14. The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act 1971. It is in principle a written procedure, but the Supreme Administrative Court may decide to hold an oral hearing on specific matters if this is likely to assist it in its examination of the case or to expedite the proceedings (section 9).

train

001-21922

ENG

NLD

ADMISSIBILITY

ÖZMEN v. THE NETHERLANDS

Inadmissible

Elisabeth Palm;Gaukur Jörundsson

The applicant states that he is İbrahim Özmen, a Turkish national of Kurdish origin, born in 1978. At the time of introduction of the application, the applicant was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague. The facts of the case, as submitted by the applicant, may be summarised as follows. On 16 February 1999, following the apprehension of the Kurdish leader Abdullah Öcalan by the Turkish authorities, a protest demonstration took place in The Hague in the course of which protesters occupied the residence of the Greek Ambassador and members of the Ambassador’s household were prevented from leaving the premises. On 17 February 1999, the applicant was arrested and subsequently detained in police custody (inverzekeringstelling) on suspicion of involvement in the offence of unlawfully depriving a person of his of liberty. Whilst in police custody, the applicant’s provisional placement in aliens’ detention (voorlopige vreemdelingenbewaring) was ordered, after he had been heard on this matter. On 24 March 1999, the applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) against the decision to order his provisional placement in aliens’ detention and he requested the court to award him compensation. The applicant was released from custody on 26 March 1999 and handed over to the aliens’ police (vreemdelingenpolitie), who placed him in aliens’ detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet). Subsequently and on the same day, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. As a result of the lodging of this request, the legal basis for his placement in aliens’ detention was changed to Article 26 § 1 (c) of the Aliens Act. On 12 May 1999, following a hearing held on 8 April 1999, the Hague Regional Court sitting in Nieuwersluis rejected the applicant’s appeal of 24 March 1999. It noted at the outset that the applicant did not hold a valid residence permit, that he lacked sufficient means of subsistence and that he had no fixed abode. In these circumstances, it accepted that the suspicions that the applicant would seek ways to evade his expulsion were not unfounded. It further noted that an order for the applicant’s expulsion had been issued. Although the Regional Court found that the hearing of the applicant on the measure of his provisional placement in aliens’ detention had fallen short of the requirements of Article 82 of the Aliens’ Decree (Vreemdelingenbesluit) in that it had been conducted in too routinely a manner and it was not apparent that the applicant had realised what was at issue, it concluded that this had not harmed the applicant’s material interests. On this point, the Regional Court observed that hearings pursuant to Article 82 of the Aliens’ Decree were held so that the person concerned might have an opportunity to put forward facts or circumstances which could lead to the conclusion that the imposition of this measure was not called for. However, at the hearing before the Regional Court of 8 April 1999 it could not be established whether any such facts or circumstances had in fact existed. The Hague Regional Court further held that it had not appeared that it was highly likely that the applicant’s asylum request would be granted. It concluded that the applicant’s placement in aliens’ detention was in accordance with the Aliens Act and, after having balanced all interests involved, could reasonably be regarded as justified. It consequently rejected the applicant’s claim for compensation for the time spent in aliens’ detention. On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsions of Turkish nationals of Kurdish origin. On the same day, the applicant was released from aliens’ detention. Article 26 of the Aliens Act, insofar as relevant, provides: “1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained: a. aliens whose expulsion has been ordered; b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered; c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 <of the Aliens Act>, pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees. 2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so. 3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month. ...” An alien whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens’ detention be terminated. It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control. Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127) There is no time-limit for the filing of an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point. On 27 July 1999, the State Secretary of Justice requested the Hague Regional Court to suspend until 15 August 1999 its examination of appeals, including requests for injunctions on expulsions, filed by asylum seekers of Kurdish origin, in view of a recent report of one such asylum seeker having encountered serious problems after his expulsion to Turkey. As the veracity of this report was not certain, the Minister of Foreign Affairs had been requested to investigate the matter and to submit his findings as to the origin, background and veracity of the report before 15 August 1999. On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin. On 16 December 1999, the State Secretary informed the Dutch Parliament that the results of an investigation into the facts on the basis of which the expulsion of Turkish nationals of Kurdish origin had been temporarily suspended had led to the lifting of that suspension.

train

001-109550

ENG

RUS

CHAMBER

CASE OF NEFEDOV v. RUSSIA

Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

5. The applicant was born in 1966 and lives in Irkutsk. 6. On 24 May 2002 the applicant, the head of the Anti-Drug Trafficking Department of the North-Eastern Customs Office at the time, was arrested on suspicion of abuse of position and drug trafficking. An investigator drew up an arrest record and, in detail, informed the applicant of his rights as an accused, including the right to have legal assistance and the right to remain silent. The applicant signed the record, noting that he clearly understood his rights, but he refused legal assistance and decided to make a statement. 7. According to the applicant, police officers beat him up and threatened him and his family. They also promised to release him in exchange for a confession. The applicant wrote a statement confessing to drug trafficking. 8. On the same date the investigator interrogated the applicant in the absence of counsel, whose assistance the applicant had refused. The refusal was recorded in a report duly dated and signed by the applicant. 9. The police searched the house of the applicant’s co-accused and found a parcel of heroin. The applicant claimed that a neighbour, Mr M., had seen a police officer putting the parcel into the closet. 10. On 27 December 2002 the applicant was released on a written undertaking not to leave the town. 11. On 10 March 2004 the Irkutsk Regional Court found the applicant guilty as charged and sentenced him to four years and six months’ imprisonment. In view of the applicant’s position, the trial hearings were closed to the press and public. The conviction was based on selfincriminating statements made during the pre-trial investigation, search records, expert examination reports and witness testimonies. According to the applicant, the trial court refused to hear Mr M. However, as noted in a statement of appeal lodged by the applicant’s co-accused, the trial court had heard Mr M. at least on two occasions: during the investigation phase of the trial, when he had testified and the parties had been allowed to ask questions, and when the trial court, having accepted the parties’ request, had again questioned Mr M. to clarify certain points. 12. The applicant alleged that the judgment of 10 March 2004 had not been pronounced publicly. 13. According to the Government, following the public pronouncement of the judgment, the Regional Court had notified the applicant of his right to appeal against conviction and had explained “procedural issues pertaining to lodging an appeal” to him. The Government provided the Court with typed notes signed by the applicant and his lawyer and certifying that they had been served with a copy of the judgment of 10 March 2004 and that the applicant had been informed of the ten-day time-limit for lodging an appeal. Another note submitted by the Government was handwritten by the applicant and showed that he had received a copy of the trial court’s records. 14. The applicant and his lawyer appealed against the conviction, having lodged lengthy appeal statements. They disputed the applicant’s involvement in the criminal offences he had been found guilty of and disagreed with the way the trial court had established the relevant facts, the distribution of roles between him and his co-defendant and the classification of his own acts. They submitted, in particular, that the trial court had disregarded the applicant’s testimony and statements by witnesses which supported it, in particular, regarding his submissions that he had committed the alleged act of drug trafficking whilst he had been undercover and acting within his official functions. In the appeal statement the applicant did not ask the Supreme Court to ensure his presence at the appeal hearing. 15. On 18 June 2004 the head of Detention Facility no. 1 in Irkutsk, where the applicant was detained at the time, received a telegram from the Supreme Court for the applicant informing him of an appeal hearing scheduled for 6 July. The Government also provided the Court with typed summonses not bearing any stamps or signatures. An official of the Supreme Court allegedly sent those summonses on 16 June 2004 to the Bar Association where the applicant’s counsel worked in order to confirm his ability to attend the appeal hearing on 6 July 2004. 16. On 6 July 2004 the Supreme Court of the Russian Federation upheld the judgment of 10 March 2004, having endorsed the Regional Court’s reasoning. The applicant was not brought to the appeal hearing. His counsel was also absent. The Supreme Court proceeded in their absence, heard a prosecutor who supported the conviction, and examined the applicant’s and his lawyer’s statements of appeal. 17. Article 51 of the CCrP provides as follows: “1. Participation of legal counsel in criminal proceedings is mandatory if: (1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code; (2) the suspect or the accused is a minor; (3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap; (3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code; (4) the suspect or the accused does not speak the language in which the proceedings are [to be] conducted; (5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty; (6) the criminal case falls to be examined by a jury trial; (7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code; 2. ... 3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on the request, or with the consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure the participation of legal counsel in the proceedings.” 18. Article 52 of the Code provides that an accused can waive his right to legal assistance, but such waiver must be established in the written form. The waiver can be revoked at any moment. 19. Article 360 establishes the scope of the examination of the case by an appeal court. It provides that the appeal court shall examine the legality, validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal. The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law of a lesser offence, but shall have no power to impose a more severe penalty or apply a law of a more serious offence. 20. Article 375 § 2 provides that if a convicted person wishes to take part in the appeal hearing, he must indicate that in his statement of appeal. 21. Under Article 376 § 2 parties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. A court is to decide whether to summon a convicted person held in custody. Article 376 § 3 provides that a convicted person held in custody who expressed a wish to be present at the examination of his appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall take a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall be always entitled to take part in the hearing. Article 376 § 4 states that if persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude the examination of the case. 22. Article 377 describes the procedure for the examination of cases by the appeal court. It provides, among other things, that at the hearing the court shall hear the statement of the party who had lodged the appeal and the objections of the opposing party. The appeal court shall be empowered, at the party’s request, to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party. 23. Article 378 establishes which decisions the appeal court may take. It provides that the appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment. 24. Article 379 sets out the grounds for quashing or setting aside judgments on appeal. In particular, a judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court in the judgment and the facts established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, also constitute grounds for reversing or changing the judgment. 25. Article 383 provides that the judgment shall be deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence, the personality of the convicted person, or if that sentence, although within the limits of the relevant Article of the Criminal Code, is unfair in its chosen type or extent, being either disproportionately lenient or disproportionately severe. A judgment may be reversed in connection with the necessity to impose a more severe penalty due to the fact that the penalty imposed by the trial court is deemed unfair as being disproportionately lenient, but only in instances when there is either a prosecution request or an application (as a private prosecution) by the victim or his representative to that effect. 26. Article 387 provides that where there has been a violation of the provisions of the Criminal Code, the appeal court may apply the law of a less serious offence and reduce the sentence, in accordance with legal reclassification of the acts committed. In doing so, the appeal court may not apply the law of a more serious offence or aggravate a sentence imposed. In cases where the trial court imposed a sentence more severe than that set forth by the relevant Article of the Criminal Code, the appeal court may reduce the sentence without changing the legal classification of the offence. 27. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.” 28. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in Article 51. It further underlined the obligation of courts to secure the participation of defence counsel in appeal proceedings. 29. On 18 December 2003 the Constitutional Court of Russia dismissed a constitutional complaint by Mr R. as inadmissible. In its ruling (определение) the Constitutional Court held, inter alia, that Article 51 of the Code of Criminal Procedure, which defined the situations where participation of a defence lawyer in criminal proceedings was mandatory, also applied to proceedings before a court of appeal. 30. In a number of cases (decisions of 13 October 2004 and 26 January, 9 February, 6 April, 15 June and 21 December 2005, 24 May and 18 October 2006, 17 January 2007, 3 September and 15 October 2008) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the grounds that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented. That approach was also confirmed by the Presidium of the Supreme Court in its report concerning cases adopted in the third quarter of 2005 (Decree of 23 November 2005) and by the Decree of the Plenary of the Supreme Court of 23 December 2008, as amended on 30 June 2009. In the latter document, the Supreme Court emphasised that an accused could only waive his right to a lawyer in writing, and that the court was not bound by that waiver.

train

001-83983

ENG

DEU

CHAMBER

CASE OF MOOREN v. GERMANY

No violation of Art. 5-1;Violations of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Peer Lorenzen

5. The applicant was born in 1963. At the date the application was lodged, he was living in Mönchengladbach. 6. On 25 July 2002 the applicant was arrested. 7. On the same day the Mönchengladbach District Court, after hearing representations from the applicant, ordered his detention on remand. The applicant was assisted from this point on by counsel. The District Court found that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1996 and June 2002. He had been working as a self-employed commercial agent for several firms in Germany since 1994 and been running a telephone service since 2000. In 2001 the company TMA Aachen had paid him commission amounting to 124,926.22 Deutschmarks (DEM). The court found that, according to the documents before it at that date, the applicant was suspected of having evaded turnover taxes of 57,374 euros (EUR), income taxes of EUR 133,279 and trade taxes of EUR 20,266. 8. The District Court noted that the applicant, who had availed himself of the right to remain silent, was strongly suspected of tax evasion on the basis of the business records that had been seized when his home was searched. He had to be placed in pre-trial detention because of a danger of collusion (Verdunkelungsgefahr) (see section 112 § 2 no. 3 of the Code of Criminal Procedure – paragraph 41 below). The documents seized were incomplete. There was therefore a risk that the applicant, if released, might destroy the missing documents or conceal further business transactions and accounts. 9. On 7 August 2002 the applicant, represented by counsel, lodged a motion for review of his detention order (Haftprüfung) with the Mönchengladbach District Court. His counsel also requested access to the case files. He argued that he had a right to inspect the files in order to examine all the facts and evidence on which the arrest warrant and, in particular, the strong suspicion that an offence had been committed were based and that domestic law prohibited the court from considering facts and evidence to which defence counsel had been refused access pursuant to section 147 § 2 of the Code of Criminal Procedure (see paragraph 44 below). 10. On 12 August 2002 the Mönchengladbach Public Prosecutor’s Office informed the applicant’s counsel that he was being refused access to the case files pursuant to section 147 § 2 of the Code of Criminal Procedure as access would jeopardise the purpose of the investigation. It added, however, that the public prosecutor in charge of the case was prepared to inform counsel orally about the facts and evidence. The applicant’s counsel did not take up that offer. 11. On 16 August 2002 the Mönchengladbach District Court heard representations from the applicant and his defence counsel. The applicant argued that there was no risk of collusion or of his absconding. Should the court nevertheless consider that he might abscond if released he was ready to comply with any conditions imposed by the court, such as handing over his identity papers. The applicant’s counsel complained that he had still not had access to the case files. 12. By an order of the same day, the Mönchengladbach District Court, which had before it the case files of the proceedings, upheld the arrest warrant. It found that there was still a risk that, if released, the applicant would tamper with factual evidence or interfere with witnesses. The applicant had so far tried to conceal his true place of residence and other personal details from the authorities and had acted with the intent to mislead which, 13. Following the applicant’s appeal, which was lodged on 16 August 2002 and was followed up by detailed reasons on 19 August 2002, the Regional Court informed the applicant in a letter dated 27 August 2002 that it considered that the risk of his absconding could serve as a ground for his continued detention. As to his counsel’s request for access to the case files, it stated that he should be informed orally about the content of the files in the first instance. 14. In a letter dated 2 September 2002, the applicant contested that view. He claimed, in particular, that in his case mere oral information about the content of the case files would not be sufficient. 15. On 9 September 2002, after hearing representations from the Public Prosecutor’s Office and considering the case files, the Mönchengladbach Regional Court dismissed the applicant’s appeal against the District Court’s decision dated 16 August 2002. It found that there was a strong suspicion that the applicant had evaded income, turnover and trade taxes. Furthermore, there was a danger of his absconding within the meaning of section 112 § 2 no. 2 of the Code of Criminal Procedure (see paragraph 41 below), as the applicant had connections in foreign countries and faced a heavy sentence. 16. In view of defence counsel’s refusal to accept the offer made by the Public Prosecutor’s Office to explain the content of the case files orally, the Regional Court found that it was impossible to assess whether the information given in this manner would be sufficient. At the present stage of the proceedings, counsel for the defence could not, however, claim to be entitled to unlimited access to the complete case files. 17. The Regional Court’s decision was served on the applicant’s counsel on 16 September 2002. 18. On 16 September 2002 the applicant, represented by counsel, lodged a further appeal against the detention order. He again claimed that he had a constitutional right to be given access to the facts and evidence on which the detention order was based. 19. On 17 September 2002 the Mönchengladbach Regional Court decided, without giving further reasons, not to amend its decision of 9 September 2002. On 18 September 2002 the Mönchengladbach Public Prosecutor’s Office, which had the case files, drafted a report which was sent to the Düsseldorf Chief Public Prosecutor’s Office with the files the next day. 20. On 26 September 2002 the Chief Public Prosecutor’s Office, in its submissions to the Düsseldorf Court of Appeal, stated that it was not prepared to give the applicant access to the case files. It argued that it was sufficient for the applicant to be notified of the overview of the Düsseldorf Tax Fraud Office on the amount of his income and amount of the taxes evaded in the years in question. The submissions and the case files reached the Düsseldorf Court of Appeal on 2 October 2002. 21. On 2 October 2002 the applicant sent further observations to the Düsseldorf Court of Appeal. 22. On 9 October 2002 the applicant, who had been sent the submissions of the Chief Public Prosecutor’s Office on 7 October 2002, contested its arguments. He stated that the overview was merely a conclusion of the Tax Fraud Office the merits of which he could not examine without having access to the documents and records on which it was based. 23. On 14 October 2002 the Düsseldorf Court of Appeal, on the applicant’s further appeal, quashed the District Court’s decision dated 16 August 2002 and the Regional Court’s decision dated 9 September 2002 upholding the applicant’s detention, and remitted the case to the District Court. 24. The Court of Appeal, which had the investigation files before it, found that the detention order issued by the District Court on 25 July 2002 did not comply with the legal requirements. Therefore, the decisions taken in the judicial review proceedings by the District Court on 16 August 2002 and by the Regional Court on 9 September 2002 (but not the detention order of 25 July 2002 itself) had to be quashed. Pursuant to section 114 § 2 of the Code of Criminal Procedure (see paragraph 42 below), the facts leading to a strong suspicion that the accused had committed a particular offence and the reasons for detention had to be set out in the detention order. In order to comply with the constitutional rights to be heard and to a fair trial, the facts and evidence on which the suspicion and the reasons for the defendant’s detention on remand were based had to be described in sufficient detail to enable the accused to comment on them and defend himself effectively. 25. The Court of Appeal noted that, in its decisions on the applicant’s detention, the District Court had, however, merely stated that the applicant was strongly suspected of tax evasion “on the basis of the business records seized when his home was searched”. It should, at minimum, have summarised the results of the evaluation of those records in order to enable the accused to oppose the decision on detention by making his own submissions or presenting evidence. This defect had not been remedied in the course of the subsequent decisions on the applicant’s continued detention. As counsel for the defence had also been refused access to the case files under section 147 § 2 of the Code of Criminal Procedure, these defects amounted to a denial of the right of the accused to be heard. 26. The Court of Appeal declined to take its own decision on the applicant’s detention itself pursuant to section 309 § 2 of the Code of Criminal Procedure (see paragraph 43 below) or to quash the detention order of 25 July 2002, which it considered to be defective in law (rechtsfehlerhaft), but not void (unwirksam). It stated that it would only quash the detention order if it was obvious that there was no strong suspicion that the accused had committed an offence and that there were no reasons for the arrest. It was for the District Court to inform the accused of the reasons on which the suspicion of his having committed an offence were based and to hear representations from him on that issue. Should the Public Prosecutor’s Office persist, in the interest of its investigations, in not informing the accused of the reasons, the detention order would have to be quashed. 27. As a consequence, the applicant remained in custody. 28. On 17 October 2002 the Mönchengladbach Public Prosecutor’s Office requested the District Court to issue a fresh amended detention order against the applicant. 29. On 29 October 2002 the Mönchengladbach District Court again heard representations from the applicant, his defence counsel, the Public Prosecutor’s Office and an official in charge of investigations at the Düsseldorf Tax Fraud Office on the applicant’s motion for judicial review of the detention order. The applicant’s counsel was given copies of four pages of the voluminous case files containing an overview by the Düsseldorf Tax Fraud Office of the amounts of income and taxes evaded by the applicant between 1991 and 2002. Relying on the applicant’s rights to be heard and to a fair trial, the applicant’s counsel complained that he had not been granted access to the case files before the hearing. 30. The Mönchengladbach District Court then issued a fresh detention order against the applicant. It stated that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1991 and June 2002. Listing in detail the applicant’s income from his various activities as a self-employed commercial agent and the amounts of tax payable, the District Court found that there was a strong suspicion that he had evaded turnover taxes of DEM 125,231.79, income taxes of DEM 260,025, solidarity taxes of DEM 15,240.11 and trade taxes of DEM 36,930. It based its suspicion on documents whose content was explained by a tax official present at the hearing, witness statements of the owners of the firms the applicant was working for, the applicant’s contracts of employment and the wage slips and commission statements that had been issued by the firms. 31. The District Court further found that there was a risk of the applicant’s absconding, which was a ground for detention under section 112 § 2 no. 2 of the Code of Criminal Procedure. He faced a lengthy prison sentence which could no longer be suspended on probation, had not notified the authorities of his place of residence for several years and had claimed that he was living in the Netherlands. 32. By an order of the same day, the Mönchengladbach District Court decided to suspend the execution of the arrest warrant on condition that the applicant, who in the meantime had complied with his duty to inform the authorities of his address, informed the court of every change of address, complied with all summonses issued by the court, the Public Prosecutor’s Office and the police, and reported to the police three times a week. It suspended the execution of the order to release the applicant at the request of the Public Prosecutor’s Office, which had immediately lodged an appeal. 33. On 7 November 2002, after hearing representations from the applicant and the Public Prosecutor’s Office, the Mönchengladbach Regional Court dismissed the applicant’s appeal against the detention order. It likewise dismissed the appeal lodged by the Public Prosecutor’s Office against the decision to suspend the execution of the detention order on the additional conditions that the applicant hand over his identity papers to the Public Prosecutor’s Office and deposit DEM 40,000 as security. 34. Having deposited the security, the applicant was released from prison on 7 November 2002. 35. On 8 November 2002 the applicant lodged a further appeal against the Regional Court’s decision, complaining that his counsel had still not been granted access to the case files. 36. By a letter dated 18 November 2002, the Mönchengladbach Public Prosecutor’s Office granted the applicant’s counsel access to the case files. It stated that it had intended to send the files to him at an earlier date. However, this had not been possible as the files had been at the Regional Court and had only recently been returned to the Public Prosecutor’s Office. The applicant’s counsel received the files for inspection on 20 November 2002. The applicant withdrew his further appeal on 10 December 2002. 37. On 23 October 2002 the applicant lodged a complaint with the Federal Constitutional Court against the decision of the Düsseldorf Court of Appeal dated 14 October 2002 and the detention order issued by the Mönchengladbach District Court on 25 July 2002. In his submission, his rights to liberty, to be heard in court and to be informed promptly by a judge of the reasons for his detention on remand as well as his rights to be heard within a reasonable time and to a fair trial as guaranteed by the Basic Law had been violated. He argued in particular that his right to liberty, the deprivation of which was only constitutional if it was in accordance with the law, had been breached by his illegal detention on the basis of a void detention order. The complete refusal to allow his defence counsel access to the case files pursuant to section 147 § 2 of the Code of Criminal Procedure had violated his right to be heard in court as guaranteed by Article 103 § 1 of the Basic Law (see paragraph 45 below) and his right to liberty under Article 104 § 3 of the Basic Law (see paragraph 46 below). The impugned decisions disregarded both the case-law of the Federal Constitutional Court and the Court’s case-law as laid down in its judgments of 13 February 2001 in the cases of Garcia Alva, Lietzow and Schöps v. Germany. The Court of Appeal’s refusal to quash the detention order and to take a decision itself and its decision to remit the case to the District Court instead had also breached his right to a fair hearing within a reasonable time. 38. On 4 and 11 November 2002 the applicant extended his constitutional complaint to include the decisions of the Mönchengladbach District Court dated 29 October 2002 and the decision of the Mönchengladbach Regional Court dated 7 November 2002. 39. On 22 November 2002 the Federal Constitutional Court, without giving further reasons, declined to consider the applicant’s constitutional complaint against the detention orders issued by the Mönchengladbach District Court on 25 July 2002 and 29 October 2002, the decision of the Mönchengladbach Regional Court dated 7 November 2002 and the decision of the Düsseldorf Court of Appeal dated 14 October 2002. 40. On 9 March 2005 the Mönchengladbach District Court convicted the applicant on eight counts of tax evasion and sentenced him to a total of one year and eight months’ imprisonment suspended on probation. The court found that the applicant, who had confessed to the offences, had evaded turnover taxes of DEM 129,795, income taxes of DEM 344,802 and trade taxes of DEM 55,165. 41. Sections 112 et seq. of the Code of Criminal Procedure (Strafprozessordnung) concern detention on remand. Pursuant to section 112 § 1 of the Code, a defendant may be detained on remand if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Grounds for arrest will exist where certain facts warrant the conclusion that there is a risk of his absconding (section 112 § 2 no. 2) or of collusion (section 112 § 2 no. 3). 42. According to section 114 §§ 1 and 2 of the Code of Criminal Procedure, detention on remand is ordered by a judge in a written arrest warrant. The arrest warrant names the accused, the offence of which he is strongly suspected, including the time and place of its commission, and the grounds for the arrest. Moreover, the facts establishing the grounds for the strong suspicion that an offence has been committed and for the arrest must be set out in the arrest warrant unless national security would thereby be endangered. 43. Under section 117 § 1 of the Code of Criminal Procedure, remand prisoners may ask at any time for judicial review (Haftprüfung) of the decision to issue an arrest warrant or for the warrant to be suspended. They may lodge an appeal under section 304 of the Code of Criminal Procedure (Haftbeschwerde) against a decision ordering their (continued) detention and a further appeal (weitere Beschwerde) against the Regional Court’s decision on the appeal (section 310 § 1 of the Code of Criminal Procedure). If the appeal court considers the appeal against the (continued) detention to be well-founded, it will take a decision on the merits at the same time (section 309 § 2 of the Code of Criminal Procedure). However, according to the domestic courts’ case-law, a detention order which does not comply with the duty to set out the grounds for suspecting the accused of an offence is not void, but merely defective in law. If, in such a case, the prosecution also refused access to the case file, the defective reasoning amounts to a refusal to hear representations from the defendant. In these circumstances, the court of appeal – by way of an exception to section 309 § 2 of the Code of Criminal Procedure – may remit the case to the district court (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, Strafverteidiger (StV) 1994, pp. 318-319; compare also Karlsruhe Court of Appeal, no. 3 Ws 196/00, decision of 26 September 2000, StV 2001, pp. 118-120, to which the Düsseldorf Court of Appeal referred in the present case). 44. Section 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the files which have been or will be presented to the trial court, and to inspect the exhibits. Paragraph 2 of this provision allows access to part or all of the files or to the exhibits to be refused until the preliminary investigation has ended if it might otherwise be at risk. At no stage of the proceedings may defence counsel be refused access to records concerning the examination of the accused, acts in the judicial investigation at which defence counsel was or should have been allowed to be present or expert reports (section 147 § 3 of the said Code). Pending the termination of the preliminary investigation, it is for the Public Prosecutor’s Office to decide whether to grant access to the files or not; thereafter it is for the president of the trial court (section 147 § 5). An accused who is in detention is entitled to seek judicial review of a decision of the Public Prosecutor’s Office to refuse access to the files (ibid.). 45. According to Article 103 § 1 of the Basic Law every person involved in proceedings before a court is entitled to be heard by that court (Anspruch auf rechtliches Gehör). 46. Article 104 § 3 of the Basic Law provides that every person provisionally detained on suspicion of having committed a criminal offence must be brought before a judge no later than the day following his arrest; the judge must inform him of the reasons for the arrest, hear representations from him and give him an opportunity to raise objections. The judge must then, without delay, either issue a written arrest warrant setting out the grounds therefor or order the detainee’s release.