Datasets:

glnmario

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ECHR

like 0

train

001-79608

ENG

SVK

CHAMBER

CASE OF NESTAK v. SLOVAKIA

Violation of Art. 5-4;Violation of Art. 6-2;Violation of Art. 6-1 (impartial tribunal);Not necessary to examine Art. 6-1 (procedural unfairness);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

5. The applicant was born in 1979 and lives in Moravské Lieskové. 6. On 6 April 2000, at around 1.30 a.m., two individuals robbed a gambling house in Liptovský Mikuláš. They were masked with stockings pulled over their heads and entered the club after closing time. They forced the last remaining employee to hand over cash and a stock of cigarettes by threatening him with a starting pistol and an electric paralyser. 7. On 6 April 2000, after 6 a.m., the police detained and subsequently charged the applicant and his former classmate and friend, R., with armed robbery within the meaning of Article 234 §§ 1and 2 (b) of the Criminal Code (CC). The applicant who was assigned an ex officio lawyer did not appeal against the charge. 8. At his first interrogation R. confessed to having committed the robbery together with the applicant and gave all relevant details. The applicant only confessed to having planned and prepared the robbery. According to him he had withdrawn from the plan at the last minute because he had become anxious. He had driven R. to the scene and had agreed to wait for him in a place agreed upon, but R. had not come to that place. 9. In his subsequent interrogation before a judge of the Liptovský Mikuláš District Court (Okresný súd) the applicant repeated the above version. He did not know the person who had committed the robbery with R. and had no explanation as to why R. wished to inculpate him. The applicant added that he had a debt which he intended to pay off from the proceeds of the planned robbery. He and R. had previously wanted to burgle a holiday cottage, but had abandoned the idea after a light had gone on inside. The applicant also stated that he was a self-employed entrepreneur and could settle his debt using money from his business or obtained from his father. 10. On 7 April 2000 the District Court remanded the applicant in detention. Testimonies of R. and a witness and other evidence provided a basis for a strong suspicion against the applicant. Even assuming that he had not taken part in the robbery as such, his involvement had in any event amounted to the offence of aiding and abetting under Article 10 § (c) of the CC. As the motive of his actions was his need to obtain money to pay off his debt, it could be presumed that, if released, the applicant would carry on his criminal activities to achieve that objective. This rendered his detention justified under Article 67 § 1 (c) of the Code of Criminal Procedure (CCP). On 12 April 2000 the District Court corrected clerical errors in the decision. 11. The applicant filed a complaint (sťažnosť) against his detention arguing that he had no previous convictions and that the weapon had been used by R. 12. On 16 May 2000 the Žilina Regional Court (Krajský súd) dismissed the applicant’s complaint observing that the testimony of R. and documentary evidence justified the suspicion that the applicant had been at least an accomplice to the robbery. It was true that he had no previous convictions but, at the same time, it was clear from his own submissions that his objective was to obtain money to discharge his debt. The reasons for detaining him, as established by the District Court, were therefore valid. 13. On 19 June 2000 the applicant discharged his lawyer and appointed a new one. 14. On 22 June 2000 the applicant was indicted to stand trial in the District Court on charges of conspiracy and robbery (Articles 9 § 2 and 234 §§ 1 and 2 (b) of the CC). 15. On 6 July 2000 the applicant’s new lawyer lodged a petition for the applicant’s release. He relied on extracts from the applicant’s accounting books and argued that the recent profits of his business were sufficient to settle the applicant’s debt. There was therefore no need to detain him. 16. On 11 July 2000 the District Court informed the applicant that a request for his release had been submitted on his behalf by a lawyer but that it could not be processed because the lawyer had not shown that he had a valid power of attorney from the applicant. On the same day the previous lawyer informed the District Court that his power of attorney had been terminated and that the applicant had new legal representation. 17. On 17 July 2000 the District Court held a private session (neverejné zasadnutie) to examine the petition of 6 July 2000 for the applicant’s release. The session was attended by a public prosecutor, but neither the applicant nor his lawyer was present. The District Court dismissed the petition. It referred to a previous statement by the applicant according to which it was the applicant who had proposed to R. that they should find a way to obtain money. The fact that the applicant had income from his business was not new. However, the information submitted by him as to the amount of his earnings was inconsistent and had no impact on the necessity to keep him in detention. 18. On 26 July 2000 the applicant complained of the decision of 17 July 2000 to the Regional Court. He argued that at the time of his remand he had not had detailed information about his financial situation. He now had such information and it showed that his financial standing had improved and was better than expected. 19. On 16 August 2000 the Regional Court held a private session to decide on the applicant’s complaint. It was attended by the prosecutor but not by the applicant and his lawyer. The Regional Court dismissed the complaint. It considered that the concern that the applicant might commit further offences was still justified. He had a debt which he could not repay and the evidence available indicated that this was the reason why he and R. had decided to carry out the robbery. As for the extracts from the accounting books which he had submitted, it could not be established whether they related to the business of the applicant or his father’s. 20. On 25 September 2000 the District Court held a hearing (hlavné pojednávanie) in the case. It took evidence from the applicant and R. and examined depositions of four witnesses. The applicant again petitioned for release arguing that he had sufficient means to pay off his debt and that the initial reason for detaining him therefore no longer existed. His petition was dismissed as the court found no new relevant facts which would invalidate the reasons for the applicant’s detention as set out in the earlier decisions. The hearing was adjourned until 23 October 2000 in order to await a judgment of the Nové Mesto nad Váhom District Court in a different criminal trial against R. 21. On 28 September 2000 the applicant filed a complaint against the dismissal of his petition for release. He argued that the courts had not convincingly refuted his argument that he had sufficient means to settle his debt. The applicant further complained of a violation of his right to be presumed innocent in that in their previous decisions the courts had expressed the view that he had committed the robbery despite the fact that he had not yet been convicted. 22. On 11 October 2000 the Regional Court held a private session to consider the applicant’s complaint. It was attended by the prosecutor in the absence of the applicant and his lawyer. The Regional Court dismissed the complaint holding that: “The accused was indicted for complicity in robbery ... The evidence which has been taken so far has proved that the accused Nešťák committed that offence as he needed money to pay off his debts (“...bolo preukázané, že obžalovaný Nešťák uvedeného trestného činu dopustil sa z dôvodu, že potreboval peniaze ...”). On this basis the authorities dealing with the case established that [the applicant’s] detention was necessary within the meaning of Article 67 § 1 (c) of the Code of Criminal Procedure, as the specific fear persisted that the accused would continue criminal activities in case of his release. Having examined the challenged decision and the reasons for the complaint against it, the Regional Court [considers] that the danger still exists that the accused will continue committing offences in case of his release regardless of his argument that his financial situation has improved and that he can pay off the debt. The Regional Court reached this conclusion also having regard to the fact that the accused had been tried by the District Court in Nové Mesto nad Váhom on 25 September 2000 and the District Court in Liptovský Mikuláš adjourned the hearing only because the judgment of [25 September 2000] had not become final and [the District Court in Liptovský Mikuláš] may be required to impose a consolidated penalty. The above thus shows that the accused has a tendency to commit offences regardless of his financial situation. The risk that, if released, he may continue to commit further offences with a view to obtaining financial means therefore still persists. The way in which the offence was committed also indicates the extent to which the accused is corrupt. This confirms the conclusion that he could commit further offences.” 23. On 23 October 2000 the District Court held another hearing following which, on the same day, it found the applicant guilty as charged and sentenced him to five and a half years’ imprisonment. The District Court noted that, at the pretrial stage of the proceedings, the applicant had admitted that he had come up with the idea of illegally obtaining money and that with R. they had explored the possibilities of doing so. At that time he had claimed that he had participated in preparing the robbery but had finally abandoned the idea of carrying it out. However, at the hearing, the applicant had changed his testimony and alleged that he had informed R. beforehand that he would not participate in the crime. The District Court also noted that R. had described in detail how the offence had been committed. According to him the initiative to steal money had come from the applicant and the applicant had actually carried out the robbery with him. This version of facts was supported by other evidence, in particular by the statements of the employee of the club and two other witnesses. It was corroborated by police reports concerning the discovery of weapons and other items connected with the robbery and the booty. The District Court found no grounds to disbelieve the version of R. The applicant’s version was however not supported by any evidence and was thus unreliable. 24. The applicant appealed. He argued that the first-instance court had failed to establish adequately the relevant facts and to give convincing reasons for its conclusion. In particular it had relied exclusively on the statements of R. and had given no relevant reasons for rejecting the applicant’s version. There was no evidence showing that the applicant had actually committed the robbery and the District Court had failed to address his argument that there were inconsistencies in the submissions of R. 25. On 7 November 2000 the District Court dismissed another request for release lodged by the applicant. 26. On 10 November 2000 the applicant complained about the decision of 7 November 2000 and challenged the judges of the Regional Court dealing with his case. He contended that in the above decision of 11 October 2000 they had expressed the view that the applicant had a tendency to commit offences and, in that connection, referred to the judgment of the Nové Mesto nad Váhom District Court of 25 September 2000. That judgment, however, concerned R. and not the applicant. According to the applicant, in the circumstances, the impartiality of the Regional Court’s judges was open to doubt. 27. On 15 December 2000, under Article 31 § 5 of the CCP, a different chamber of the Regional Court found that the three Regional Court judges dealing with the applicant’s case were not biased. It acknowledged that the reference in the decision of 11 October 2000 to the judgment of 25 September 2000 was a mistake. However, that mistake had no impact on the determination of the charges against the applicant. 28. On 10 January 2001 the Regional Court modified the first-instance judgment in that it reduced to five years the sentence imposed on the applicant. The chamber of the Regional Court was composed of the same judges who had delivered the decision of 11 October 2000. In its judgment the Regional Court addressed the applicant’s arguments. It found no discrepancy in the relevant part of the statements of R. indicating that he had committed the offence together with the applicant. Relying on the contents of the case file, the Regional Court upheld the conclusion that the applicant had initiated the offence and that he had committed it together with R. 29. On 10 January 2001 the Regional Court dismissed the applicant’s complaint against the decision of 7 November 2000. It noted that the applicant’s conviction had become final and that he was to start his sentence. In any event, at the relevant time the applicant’s detention under Article 67 § 1 (c) of the CCP had been justified. 30. On 25 August 2003 the Trenčín District Court released the applicant on parole. 31. Article 11 provides that international instruments on human rights and freedoms ratified by the Slovak Republic and promulgated under statutory requirements have precedence over national laws, provided that they guarantee greater constitutional rights and freedoms. 32. Under the Constitutional Court’s case-law (see, for example, the decision of 22 March 2000, file no. I. ÚS 9/00) ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. Accordingly, the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the Constitution or international treaties. 33. Pursuant to Article 17 § 2 no one shall be prosecuted or deprived of their liberty except for reasons and in a manner provided for by law. 34. Under Article 50 § 2 any person against whom criminal proceedings are conducted is to be presumed innocent until proved guilty by a final judgment by a court of law. 35. Article 9 § defines criminal complicity. Pursuant to that provision if a criminal offence has been committed by a common action of two or more individuals, each of them is criminally liable as if he or she committed the offence alone. 36. The offence of robbery is defined in Article 234. It provides that anyone who uses violence or a threat of immediate violence against another with the intention to take hold of someone else’s property is to be punished by imprisonment of two to ten years (§ 1). Imprisonment of five to twelve years applies if a weapon is used (§ 2 (b)). 37. Article 2 lays down fundamental principles of criminal proceedings. Pursuant to its paragraph 2 a person against whom the proceedings are conducted cannot be considered guilty until convicted by a final judgment of a court of law. 38. Basic legal rules concerning exclusion of judges are encompassed in Article 30. Judges should be excluded from taking part in steps in criminal proceedings if their impartiality is open to doubt on account of their link to the subject-matter of the proceedings, the persons directly concerned, the legal representatives or the prosecuting authorities involved (paragraph 1). After the bill of indictment (obžaloba) is lodged, judges should be excluded who at the pre-trial stage of the proceedings took part in deciding on the detention of the indicted person (paragraph 2). 39. Article 31 governs the procedure on exclusion of biased judges. If judges themselves declare that they are biased, the question of their exclusion is to be resolved by a chamber of a superior court (paragraph 1). In other situations the question of exclusion is to be decided by the body concerned (paragraph 2). If a Regional Court sits as a court of appeal, the exclusion of its judges is to be determined by a different chamber of the same court (paragraph 5). 40. Detention on remand is governed by the provisions of Articles 67 et seq. A person charged with a criminal offence (obvinený) can be detained inter alia when there are reasonable grounds for believing that he or she would continue criminal activity, complete an attempted offence or commit an offence which he or she prepared or threatened to commit (Article 67 § 1 (c)). 41. Article 68 § 1 provides that a person can be remanded in custody only after he or she has been charged. The detention order 42. Under Article 72 § 1 an investigator, a prosecutor or a judge has to examine at every stage of the criminal proceedings whether the reasons for detention persist. When the reasons for detention fall away, the detainee has to be released immediately. 43. Private sessions (neverejné zasadnutie) of courts in criminal matters are governed by the provisions of Chapter 15. Article 240 stipulates that decisions are to be taken in private if the law does not envisage their being taken at a hearing (hlavné pojednávanie) or in a public session (verejné zasadnutie). 44. Pursuant to Article 241 the president of the chamber notifies the public prosecutor that the court is to hold a private session as a rule at least three days in advance. 45. Under Article 242 a private session requires the permanent presence of all members of the court’s chamber and of a minutes recorder (paragraph 1). 46. Until 1 October 2002, unless the law provided otherwise, the presence of the public prosecutor at a private session was possible but not obligatory (paragraph 2). As from 1 October 2002 this provision was abolished by virtue of Act No. 422/2002 Coll. 47. The presence of any other person at a private session is excluded (former paragraph 3, now paragraph 2). 48. Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics. 49. Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personality rights be discontinued and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction. 50. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. 51. In an action of 26 June 2002 a married couple asserted a claim against the Ministry of Justice for financial compensation for non-pecuniary damage caused to them by detention on remand and criminal proceedings against them, which ended with their acquittal. The principal thrust of the claim was that their prosecution and the whole trial had been unlawful and arbitrary. The action was examined on appeal by the Banská Bystrica Regional Court under file number 16Co 256/05. In its judgment of 7 July 2006 the court interpreted the claim as a claim for protection of personal integrity under Article 11 of the Civil Code. It reviewed briefly the course of the criminal proceedings against the plaintiffs and concluded that they had failed to establish that there had been any unlawfulness. Relying on the judgment of the Supreme Court of 20 October 2005 file number 5Cdo 150/03, the court held that criminal proceedings which were conducted in compliance with the applicable laws could not constitute an unjustified interference with personal integrity even if they ended with an acquittal. The court also addressed briefly the length of the plaintiffs’ detention and concluded that it had not been excessive. The above claim was thus not accepted, unlike other claims made in the same action (compensation for lost profit, legal costs and infringement of the presumption of innocence). 52. Further details concerning protection of personal integrity under Articles 11 et seq. of the Civil Code are summarised in Kontrová v. Slovakia ((dec.), no. 7510/04, 13 June 2006). 53. Article 8 defines the jurisdiction of the ordinary courts. Pursuant to its first paragraph, unless jurisdiction is conferred by statute on other authorities, the ordinary courts examine and decide upon matters stemming from relations under civil law, labour law, family law, the law of cooperatives, and commercial law. Under paragraph 2, other matters may be examined and decided upon by the ordinary courts only if a statute so provides. 54. Under the terms of Article 135 civil courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence has been committed and by whom (paragraph 1). Other questions which normally fall to be decided by other authorities can be decided by a civil court. However, if the competent authorities decided upon such a question, the civil court will adopt their decision (vychádza z ich rozhodnutia). 55. The Act lays down rules for State liability for damage caused by unlawful decisions (Part (Časť) One) and wrongful official conduct (Part Two). 56. The general scope of State liability for damage caused by unlawful decisions is defined in section 1 (1). Pursuant to this provision the State is liable for damage caused by unlawful decisions by its bodies and agencies inter alia in criminal proceedings. However, decisions concerning detention and sentencing are excluded. 57. Special rules concerning State liability for damage caused by decisions on detention are embodied in sections 5 et seq. The State is liable for damage caused by such decisions only in respect of persons against whom the proceedings have been discontinued or who have been acquitted (section 5 (1)). 58. Section 18 (1) renders the State liable for damage caused by wrongful official conduct on the part of its bodies and authorities in carrying out their functions. A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the wrongful act in question. The Act does not allow for compensation for non-pecuniary damage unless it is related to a deterioration in a person’s health (for further details, see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001).

train

001-71023

ENG

GBR

ADMISSIBILITY

BANFIELD v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

The applicant, Mr Paul Banfield, is a United Kingdom national who was born in 1967 and is detained at HM Prison, Wakefield. The respondent Government are represented by their agent, Mr J. Grainger, of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant entered the Metropolitan police force in 1985, and transferred to the Cambridgeshire police in 1989. He was promoted to sergeant in 1998. On 21 June 2000 the applicant was convicted of sexual offences against women, including rape, and sentenced to a total of 18 years’ imprisonment. Three of the offences were committed whilst the applicant was on duty. His victims were young women in their 20s who had been detained at the Cambridge police station for minor offences. The applicant was the custody sergeant responsible for those women. While on duty at the police station, he sexually assaulted two of the women and raped the other. Two of the offences (burglary with intent to rape and rape) were committed by the applicant after his victim had informed him, when he was on duty in uniform in Cambridge, that she had been burgled some time previously. She gave him her name and address. The applicant subsequently entered the woman’s house in the middle of the night and raped her. The trial judge described the assaults committed by the applicant whilst on duty as “the most gross breaches of trust and duty”. On 27 June 2000, the applicant was dismissed from the police force by the Chief Constable. On that date he had 14 years and 40 days of pensionable service. On 27 September 2001, the Home Secretary on the request of the police authority issued a certificate of forfeiture under Regulation K5 of the Police Pensions Regulations 1987 (“the Regulations”). The letter accompanying the certificate stated: “The Secretary of State considered whether the offences, which Mr Banfield was convicted of, were liable to lead to a serious loss of confidence in the public service. In reaching his decision he took account of the circumstances leading up to the offences and conviction, the sentences imposed by the court and the media publicity given to the case. The Secretary of State considers the conviction on the offences of rape, indecent assault and burglary to be very serious; as it clearly constitutes the betrayal of important positions of trust, especially as three of the offences were committed while Mr Banfield was custody sergeant. The gravity of the offences is well illustrated by the judge’s comments. The Secretary of State also considers that Mr Banfield abused his position as a police officer, especially as the offences clearly constitute the betrayal of an important position of trust for personal satisfaction. He takes the view that as an officer of fourteen years’ service, Mr Banfield’s actions and conviction and the reporting of these, are liable to lead to a serious loss of confidence in a public service. The Secretary of State has decided therefore to issue a certificate which will allow the authority to forfeit Mr Banfield’s pension. ...” On 28 February 2002 the Complaints and Custody Visitors Committee of the Cambridgeshire Police Authority heard representations from the applicant as to why he should not forfeit his pension. The applicant was represented at that hearing by a solicitor. At the conclusion of the hearing, the applicant was notified that 75% of his pension would be forfeited; the remaining 25% represented his own contributions. The applicant appealed to the Crown Court, as provided for by Regulation H5 of the Regulations. A hearing was originally listed for 18 October 2002. However, the applicant was at that time seeking judicial review of the Legal Services Commission’s refusal to grant him civil legal aid for the purposes of the appeal. The hearing was accordingly adjourned pending the determination of the applicant’s claim for judicial review. That claim was dismissed on 6 March 2003 on the ground, inter alia, that it stood no prospects of success. The applicant’s appeal to the Crown Court was subsequently heard by the Recorder of Leeds on 28 and 29 April 2003, and judgment was given on 4 June 2003. The Recorder held that the forfeiture of the applicant’s pension did not represent a double penalty and did not otherwise unlawfully interfere with the applicant’s Convention rights. In support of the conclusions, he noted, amongst other matters: “A police officer’s pension is partly contributory but substantially publicly funded. It stands to represent the public’s gratitude for good public service given by the officer during his years of service, and an honourable police officer is entitled to that pension as of right. It must follow that if a police officer becomes a criminal the public must be entitled to say that he should not be rewarded as though he was a responsible and decent officer. If an officer’s criminality is such that it can only be likely to undermine the confidence of the public in the police as a service, then he cannot be rewarded for having produced that situation. In my judgment it is almost impossible to find circumstances in which public confidence is more likely to be undermined than in the present case. Some of the applicant’s attacks on women took place when they were in his care as custody sergeant at a police station. In addition, he used information coming to him as a police officer to prey on women outside the police station. Such conduct runs the very considerable risk of causing women not to trust their local police.” The Recorder did, however, request further evidence as to the basis on which it had been calculated that the applicant’s contributions represented only 25% of his pension. As a result of the information provided, the Recorder reduced the amount of the applicant’s pension ordered to be forfeit to 65%. The Recorder commented at the end of his judgment that, although the applicant had been obliged to present his own case, he had done so admirably and could not have been better represented by a lawyer. The applicant’s application for permission to apply for judicial review of the Crown Court’s decision was refused by Mr Justice Davis on 3 October 2003 on the following grounds: “2.1 The applicant’s application for legal aid was refused, for reasons which Collins J. has already decided cannot be attacked. The applicant may have been a litigant in person, but there is no question of inequality of arms or other unfairness: on the contrary, all the points that the applicant (who had ample time to prepare himself) wished to argue were fully debated before the Recorder of Leeds (and indeed the applicant partially succeeded). I note, in passing, that the Recorder observed that the applicant presented his case very ably and that he could not have been better represented by a lawyer. 2.2 There is no infringement of Article 1 [of Protocol No. 1]. The forfeiture of the pension can be justified by reference to the public interest, and a fair balance was struck and proportionality achieved, in the outcome of this case. No lack of proportionality arises from the fact that the applicant had already been sentenced to an 18-year term or other matters now advanced by him. As for Azinas v. Cyprus, that is clearly distinguishable: in that case the relevant statute provided for mandatory forfeiture of accrued pension rights, with no allowance for discretion. That is not this case. ... 2.6 In substance this claim is an appeal challenging the correctness of the Recorder of Leeds’ decision. But in my view the judge’s reasoning was correct in all relevant respects.” The written notification of the judge’s decision included a note that: “Where the judge has refused permission a claimant or his solicitor may request the decision to be reconsidered at a hearing by completing and returning form 86B within 7 days of the service upon him of this notice.” The applicant did not apply for reconsideration of the decision at a hearing. Regulation K5 of the Police Pensions Regulations 1987 provides, so far as relevant, as follows: “(4) [A] police authority ... may determine that [a] pension be forfeited, in whole or in part and permanently or temporarily as they may specify, if the grantee has been convicted of an offence committed in connection with his service as a member of a police force which is certified by the Secretary of State either to have been gravely injurious to the interests of the State or to be liable to lead to serious loss of confidence in the public service. (5) ... the police authority in determining whether a forfeiture should be permanent or temporary and affect a pension in whole or in part, may make different determinations in respect of the secured and unsecured portions of the pension; but the secured portion of such a pension shall not be forfeited permanently and may only be forfeited temporarily for a period expiring before the grantee attains state pensionable age or for which he is imprisoned or otherwise detained in legal custody. ” Home Office Circular 56/98 gives guidance on forfeiture of police pensions. Annex B sets out the three stages of the procedure. The first stage is for the police authority to identify a case where an officer has committed an offence in connection with his or her service as a member of a police force. The second stage is for the Home Secretary to consider whether the officer’s offence was either gravely injurious to the interests of the State or liable to lead to serious loss of confidence in the public service. The Circular provides: “A person’s rights to a police pension are part of the remuneration to which his/her service has entitled him/her and it is not axiomatic that a certificate will be issued. Forfeiture is an additional penalty which should not be added automatically to whatever sentence the Court has imposed. In deciding whether to issue a certificate therefore, the Home Secretary attaches a greater weight to the words “serious loss of confidence in the public service” than the harm inevitably caused by any police officer or former police officer who commits a crime. The Home Secretary will take into account: - The seriousness with which the Court viewed the offence (as demonstrated by the punishment imposed and the sentencing remarks); - the circumstances surrounding the offence and investigation; - the seniority of the officer or former officer (the more senior, the greater the loss of credibility and confidence); - the extent of publicity and media coverage; and - whether the offence involved: an organised conspiracy amongst a number of officers, active support for criminals, the perversion of the course of public justice, the betrayal of an important position of trust for personal gain, and/or the corruption or attempted corruption of junior officers.” The third stage of the procedure is the decision by the police authority whether or not the pension should be forfeited and the determination of the extent of the forfeiture. The Circular states that the courts have ruled that the pension may be forfeited by no more than 75%, the remainder reflecting an officer’s own contributions. It continues “As certificates are likely to be issued only in serious cases, it follows that substantial forfeiture (say, 30-75%) would normally be imposed.” Factors which might influence the extent of forfeiture include those listed above which reflect the gravity of the officer’s conduct, mitigating factors, illness and assistance given to the police during the investigation or following conviction. As to the amount of pension which can be forfeited, the Lord Chief Justice (Lord Bingham) explained in the case of Whitchelo v. Secretary of State for the Home Department (11 March 1997): “Regulation K5(5) draws a distinction between the secured and the unsecured portions of a pension. The secured portion of the pension fund is that which represents the officer’s own contributions. The unsecured portion represents a sum which would in ordinary circumstances be contributed out of public funds. It is understandable that a measure of protection should be guaranteed for the secured part. The unsecured part does not enjoy the same measure of protection. It is nonetheless a very serious step to deprive a former police officer of the unsecured portion of his pension since that represents a part of the reward for his service. It is plain, in my judgment, that an officer or former officer is not to be deprived even of the unsecured portion of his pension unless the condition permitting such forfeiture is clearly shown to be satisfied.”

train

001-79585

ENG

HUN

CHAMBER

CASE OF PEPSZOLG KFT ("v.a.") v. HUNGARY

Violation of Art. 6-1

5. The applicant is a limited liability company, founded in 1989, with its seat in Budapest. It is currently in the process of being wound up. 6. In 1991 an action was brought against the applicant company by an entity called Pesterzsébeti Papírgyár Leányvállalat which claimed to be the successor of PV Pesterzsébeti Papírgyár, one of the applicant company’s shareholders. The plaintiff sought inter alia the invalidation of the registration of the applicant company, claiming that the Articles of Association were against the law. 7. In its final decision of 28 May 1993, the Supreme Court held that the Articles of Association had been in force until the day of its decision, but were void thereafter. It ordered the winding-up of the applicant company. 8. Consequently, on 7 September 1993 the Court of Registration ordered the representative of the applicant company to submit the name, address and authorisation of a liquidation manager (végelszámoló). Despite the representative’s failure to comply with this order, on 30 November 1993 the Court of Registration declared the applicant company’s dissolution as of 28 May 1993, and registered the fact that it was in the process of winding-up. 9. On appeal, on 6 June 1995 the Supreme Court, sitting as a second-instance court, quashed this decision and remitted the case to the Court of Registration, holding that it had delivered its decision despite the representative’s failure to provide the requisite information. 10. In the resumed proceedings, on 12 December 1995 the Court of Registration appointed a liquidation manager and declared the retroactive dissolution of the applicant company, as of 28 May 1993. On 6 February 1996 it ordered that corresponding entries be made in the companies register. On 29 October 1996 the Supreme Court upheld the decision of 12 December 1995. A further appeal was dismissed on 7 February 1997. 11. On 15 June 1998, 14 June 1999 and 19 December 2005, the respective liquidation managers were consecutively replaced. 12. Meanwhile, in reaction to various appeals and requests for supplementation or rectification, amendments were made to the order of 28 May 1993 on 16 July, and 1 and 17 September 1999. On 26 January 2000 the judges of the Budapest Court of Registration declared themselves biased. Subsequently, the Pest County Court of Registration was appointed to deal with the case. On 17 April and 30 May 2000 respectively, this court ordered that the decisions of 12 December 1995 and 6 February 1996 be amended. On 21 September 2001 the Supreme Court, sitting as a second-instance court, dismissed the applicant company’s appeal filed against a procedural order of 12 July 1999. 13. On 11 May 2005 the Pest County Directorate of the Tax Authority initiated execution proceedings against the applicant company. 14. The winding-up proceedings are still pending. 15. In 1991 the applicant company instituted proceedings against several defendants, claiming damages in the amount of 330,000 Hungarian forints, plus accrued interest (“the 1991 proceedings”). 16. Moreover, on 7 April 1992 the applicant company brought an action in trespass and for restitutio in integrum of a real property against Pesterzsébeti Papírgyár Leányvállalat (“the 1992 proceedings”). On 23 April 1992 the Budapest XX/XXI District Court transferred this case to the competent Budapest Regional Court. On 28 September 1992 the plaintiff completed its action. 17. On 10 March 1993 the Regional Court suspended the proceedings pending the establishment of the validity of the applicant company’s Articles of Association (see paragraphs 5 and 6 above). In April 1994 the applicant company requested the continuation of the proceedings. 18. On 17 October 1994 the Regional Court continued the proceedings and invited the applicant company to complete its action. It gave better particulars of its claims on 29 March and 25 October 1995. 19. The Regional Court held hearings on 28 November 1995, 24 January, 21 May, 16 October and 27 November 1996. On 13 October 1997 it requested a further supplementation of the applicant company’s claims. The latter complied with the order on 3 November 1997. On 25 November 1997 an expert engineer was appointed. 20. On 25 March 1998 the court, upon the parties’ request, stayed the proceedings. On 2 November 1998 the proceedings resumed. Further hearings took place on 11 December 1998, 21 April and 30 June 1999, 22 March 2000 and 17 January 2001. 21. On 15 September 2001 the applicant company submitted a motion for bias against the Regional Court. The Supreme Court rejected the motion on 11 January 2002. On 28 January 2003 the winding-up manager submitted a motion for bias against the presiding judge which was rejected on 11 February 2003. 22. On 12 February 2003 the 1991 and the 1992 proceedings were joined. On 26 June 2003 the Regional Court held a hearing and again invited the applicant company to complete its claim, which it did on 6 October 2003. On 18 November and 11 December 2003, respectively, two further motions of the applicant company for bias were rejected. 23. After a hearing on 20 November, on 26 November 2003 the Budapest Regional Court delivered a partial decision. On 16 March 2005 the Szeged Court of Appeal confirmed this decision. The applicant company lodged a petition for review with the Supreme Court. On 19 September 2005 the Supreme Court dismissed its petition. 24. Meanwhile, in February 1995 the applicant company instituted another set of proceedings against the Pesterzsébeti Papírgyár Kft., the successor of the respondent in the 1992 proceedings (“the 1995 proceedings”). On 20 March 1995 and 28 November 1995, the court held hearings. At the latter date, it invited the parties to submit preparatory documents. They complied with the order on 16 January and 23 January 1996, respectively. On 21 May 1996, and 19 June and September 1997, the court held further hearings. 25. On 25 November 1997 and 22 March 2000, the court appointed technical experts who submitted their opinions on 23 April 1998 and 8 September 2000, respectively. 26. Meanwhile, on 11 December 1998 another hearing took place and the proceedings were suspended. On 31 August 1999 the applicant company requested the court to continue the proceedings. On 17 January 2001 the court held a hearing and again suspended the proceedings. 27. On 27 August 2001 the applicant company lodged a motion for bias against the court which was dismissed by the Supreme Court on 11 January 2002. In November 2003 these proceedings were joined to the 1991 and 1992 proceedings. 28. The proceedings concerning the remainder of the joined 1991-1992-1995 cases are still pending at first instance. 29. In 1995 Pesterzsébeti Papírgyár Kft. filed a motion for the protection of possessions with the Pesterzsébet Municipality. On 8 November 1995 the motion was rejected. Subsequently, on 23 August 1995 the complainant brought an action in trespass against Castell Ltd., which claimed to be the successor of the applicant company, and other defendants, including the applicant company itself. 30. In its order of 26 February 1996, the Budapest XX/XXI/XXIII District Court stated that the applicant company had been dissolved and had therefore no capacity to conduct legal proceedings. It requested the plaintiff to provide the court with the name of the applicant company’s liquidation manager. 31. On 29 October 1996 the Court of Registration informed the District Court that Castell Ltd. was not a registered company. 32. The case was then transferred to the Pest Central District Court and, on 7 October 1997, to the Budapest Regional Court. On 15 October 1998 the Regional Court held that the Budapest XX/XXI/XXIII District Court was competent to hear the case. 33. On 26 November the District Court requested the plaintiff to specify its claims. On 16 December 1998 the plaintiff requested the extension of the time-limit and on 15 February 1999 it complied with the District Court’s order. On 1 April 1999 the respondents submitted their counter-claims. 34. On 1 March 1999 the District Court ordered the defendants to clarify the relation between the applicant company and Castell Ltd. In reply, the court was informed that the applicant company “had changed its name to Castell Ltd.” on 29 August 1992; however, the changes had not been registered by the Court of Registration. 35. On 25 May 1999 the District Court discontinued the proceedings against Castell Ltd., but not against the applicant company, whose winding-up was in progress. Subsequently, extensive correspondence developed between the parties and the court concerning the service of this decision and the capacity of the applicant company and Castell Ltd. to conduct legal proceedings. In the course of these events, the applicant company repeatedly submitted to the court that the two entities were one and the same, but in vain. 36. Subsequently, the District Court suspended the proceedings until the termination of the proceedings described in chapter “A” above. On 16 July 2003 the defendants complained of this decision. On 18 July 2003 the District Court dismissed their complaint. On appeal, the Budapest Regional Court, acting as a second-instance court, quashed the first-instance decision and ordered the District Court to continue the proceedings. 37. Ultimately, the decision of 25 May 1999 became final. On 3 March 2004 the District Court again suspended the proceedings until the termination of the case outlined in chapter “A” above. The defendants appealed. On 9 September 2004 the Budapest Regional Court dismissed the appeal. The proceedings have been pending ever since. 38. On either 21 November or 1 December 1995, Pesterzsébeti Papírgyár Kft. brought another action in trespass against Castell Ltd., in the context of a challenge to a decision by the Pesterzsébet Municipality given on 3 November 1995. Again, extensive correspondence developed between the court and the parties as to Castell Ltd.’s locus standi. 39. On 19 December 1995 the District Court invited the plaintiff to submit documents. In its submissions of 15 January 1996, the plaintiff requested the suspension of the proceedings. On 22 January 1996 the District Court refused the request. 40. On 22 February 1997 the Budapest XX/XXI/XXIII District Court transferred the case to the Pest Central District Court. On 3 December 1997 the District Court held a hearing and, at the parties’ request, stayed the proceedings. On 26 May 1998 the plaintiff requested the continuation of the proceedings. 41. On 20 January 1999 the Pest Central District Court forwarded the case file to the Budapest Regional Court for appropriate delegation. On 7 December 1999 the Regional Court appointed the Budapest XX/XXI/XXIII District Court to hear the case. 42. On 2 May 2000 the District Court discontinued the proceedings, holding that Castell Ltd. was not a registered legal entity. On 23 May 2003 the court confirmed that this decision had become final on 17 June 2000. 43. On 25 September 2002 the applicant company’s liquidation manager requested the continuation of the proceedings. On 23 May 2003 the District Court dismissed the request. On 28 May 2003 the applicant company complained of this decision. On 10 July 2003 the District Court dismissed the complaint. On 16 July 2003 the applicant company appealed. 44. On 10 July 2003 the court rejected Castell Ltd.’s appeal, introduced after the actual service of the first instance decision, as being inadmissible ratione personae. 45. On appeal, on 11 December 2003 the Budapest Regional Court ordered the resumption of the proceedings. 46. On 20 April 2004 the plaintiff eventually withdrew its action. 47. On 4 March 1991 PV Pesterzsébeti Papírgyár, a shareholder of the applicant company (see paragraph 5 above), brought an action against the latter, challenging a shareholders’ resolution. Subsequently, a manager employed by the plaintiff withdrew the action, and the proceedings were discontinued on 22 May 1991. This decision was not served on the applicant company. 48. On 9 March 2004 the applicant company requested proper service of the decision. On 10 September 2004 the Szeged Court of Appeal observed that the manager in question had not been entitled to act on behalf of the plaintiff, which in any case had ceased to exist in 1997. Consequently, the proceedings had to be declared as having been interrupted (félbeszakadt) as of 10 December 1997. 49. On 28 September 2004 the applicant company requested the Budapest Regional Court to proceed with the case, in order to obtain a proper order to discontinue and finally terminate the interrupted proceedings. On 30 May 2005 the Regional Court dismissed the request. The applicant company’s appeal was to no avail. 50. Subsequently, on 1 March 2005 the Company submitted a motion for bias against the Regional Court, which was dismissed by the Supreme Court on 24 March 2005. 51. On 20 February 2006 the Budapest Regional Court finally discontinued the proceedings.

train

001-89849

ENG

RUS

CHAMBER

CASE OF SEMOCHKIN v. RUSSIA

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

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

4. The applicant was born in 1941 and lives in Salavat. In 1998–2004 he obtained two judgments against the authorities. 5. On 2 February 1998 the Leninskiy District Court of Ufa awarded the applicant 9,019.88 Russian roubles (“RUB”) in pension arrears against the Ministry of the Interior of Bashkortostan. This judgment became binding on 12 February 1998, but was not enforced immediately. In 2000–2002, the bailiff’s service’s servicing bank had its licence suspended pending insolvency proceedings. On 31 July 2002 the bailiffs made a bank transfer to the applicant, but the transfer failed because of a clerical mistake. 6. As the applicant believed that the bailiffs had caused the delay, on 15 August 2001 he sued them for the judgment debt and non-pecuniary damages. After two first-instance hearings, one appeal hearing, and two supervisory-review hearings, on 18 November 2004 the Kirovskiy District Court partly held for the applicant. It confirmed the bailiffs’ fault, awarded RUB 45,509.20 that included the original judgment debt adjusted for ination and costs, but rejected the claim for non-pecuniary damages. 7. Both the applicant and the bailiffs appealed against this judgment, but the applicant’s appeal was not accepted because he had missed the time-limit. On 10 February 2005 the Supreme Court of Bashkortostan upheld the judgment of 18 November 2004. The applicant and the bailiffs were absent from this hearing. Earlier the applicant had asked the courts to examine the case in his absence. 8. On 5 September 2005 the bailiffs enforced the judgment of 2 February 1998. 9. On 29 March 2006 the Ministry of Finance enforced the judgment of 18 November 2004. 10. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.

train

001-95768

ENG

UKR

CHAMBER

CASE OF GLINOV v. UKRAINE

Violation of Article 8 - Right to respect for private and family life

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

7. The applicant was born in 1978 and is currently serving a sentence in Rivne Regional Penitentiary no. 76. 8. According to the applicant, he was detained and ill-treated in police custody from 19 to 21 October 2003. There are no further details or documents. 9. In the evening of 31 October 2003 the applicant, together with another person, was arrested by the Fontanka police unit of the Kominternovo District Police Department in flagrante delicto on the scene of a robbery and car hijacking. As it would later be confirmed by at least two eye-witnesses (see paragraph 23 below), the applicant attempted escaping from and showed resistance to the police. 10. According to the applicant, he pleaded guilty to several counts of robbery under torture. He alleged in particular that he had been heavily beaten with rubber truncheons, hanged with his arms twisted behind him and administered electric shocks. 11. On 1 November 2003 the applicant signed the arrest report in confirmation that his procedural rights had been explained to him. 12. On the same day the applicant was taken to the Kominternovo Temporary Detention Facility, where a doctor examined him and made a note that he had a bruise under his left eye. 13. On 4 November 2003 the investigator submitted to the Kominternovo Town Court (Комінтернівський районний суд – “the Kominternovo Court”) a motion on the applicant's detention as a preventive measure pending trial. The investigator noted that the applicant was suspected of having committed serious crimes (three counts of robbery with violence on 22, 26 and 31 October 2003), had no permanent place of residence and had a criminal record, and thus could hinder the investigation or abscond if at liberty. According to the investigator, the applicant had fully admitted his guilt. 14. On the same date the Kominternovo Court remanded the applicant in custody, having upheld the investigator's reasoning. 15. On 26 December 2003 the Kominternovo Court extended the term of the applicant's detention to four months, having referred to the necessity to complete the investigation. 16. On 15 June 2004 the applicant was committed for trial. 17. No further documents concerning the applicant's detention are available in the case file. 18. While having raised a general complaint about the conditions of his detention, the applicant did not describe them until in response to the information submitted by the Government. 19. According to the information provided by the Government, from 7 November 2003 to 3 November 2006 the applicant had been held in fifteen different cells, the smallest of which had measured 7.17 square meters (the applicant had spent three and a half months there, sharing with another inmate), while the largest one had measured about 34.1 square meters (where he had stayed for fifteen days, sharing with eleven other inmates). Each of the cells had a toilet separated from the living area, sufficient natural and artificial light, operational heating, ventilation, water supply and sewage system. 20. As it transpires from a note by the Odesa SIZO administration issued on an unspecified date, disinfection, disinsection and rat extermination were regularly carried out on the SIZO premises. 21. The Government provided seven colour photos of the cells the applicant had been detained in. The photos showed that the cells were clean and looked as if they had been repaired not long before the photos had been taken. They had sufficient natural light; the lavatories were separated from the living area and appeared to be clean. 22. The applicant contested the accuracy of the information submitted by the Government in so far as the number of inmates per cell was concerned and alleged that there had been more detainees in the cells than indicated by the Government. He also alleged that he had not been detained in the cells shown in the photos. 23. On 23 March 2006 the Malynovskyy District Court of Odesa (Малинівський районний суд – “the Malynovskyy Court”), to which the case had been transferred from the Kominternovo Court on an unspecified date, found the applicant guilty of three counts of robbery with violence, committed on 22, 27 and 31 October 2003 by a group of persons acting in concert, and sentenced him to fourteen years' imprisonment with confiscation of all his personal property. The court based its findings, inter alia, on the testimonies of the victims of all three instances of robbery, medical reports concerning the injuries they sustained during those robberies, as well as material evidence (certain items seized from the applicant and recognised by the victims as the stolen ones; two knives, a hammer and a sack discovered in the car, which the co-defendants had left immediately before their arrest). The court also heard two eye-witnesses of the applicant''s face noted on 1 November 2003 might have been sustained in the course of his fight with the police prior to his arrest. 24. On 22 May 2007 the Odesa Regional Court of Appeal (Апеляційний суд Одеської області) upheld that verdict. 25. The applicant appealed in cassation, alleging that his conviction was not based on solid evidence. The cassation appeal did not contain any allegation of ill-treatment in police custody. 26. No information about the final outcome of the proceedings has been provided by the parties. However, it appears from the case file that the Supreme Court found against the applicant. 27. The applicant's letters to the Court dated 30 March, 10 May, 9 June, 12 July, 28 November, 8 and 15 December 2005, as well as 20 March, 16 May and 3 November 2006, were accompanied by cover letters, signed by the Governor of the Odesa SIZO, which contained a brief summary of their contents (for example: “Please find attached a complaint by the accused, Glinov, concerning his rights and the conduct of the investigation in his case”, “... concerning his case and actions of the police officers”, “...concerning the judge's actions”, “... concerning the defence of his rights”, “... concerning the withdrawal of his case”, etc.). 28. The first page of each of the eighteen letters from the applicant to the Court bore the SIZO stamp with the dispatching date noted in handwriting (eight of those had been sent before 21 December 2005, the other ten on various dates after 21 December 2005 – see paragraph 38 below). 29. From May 2005 to March 2006 the Registry of the Court requested the applicant eight times to submit documents in substantiation of his complaints under Articles 3 and 5 of the Convention. 30. Each of the requests was followed by a letter from the applicant, in which he noted that: there were no copying facilities in the SIZO and that he would copy the documents by hand; the facts of his case were self-explanatory; the prospects of Ukraine's accession to the European Union were poor given the alleged violations in his case; and the witnesses allegedly required protection for unspecified reasons. The applicant made no explicit reference to the Court's requests. 31. The applicant's letters reached the Court on average two weeks to two months following their dispatch. 32. The case file contains copies of sixteen stamped certificates issued by Odesa-59 Post Office to the SIZO administration in confirmation that it had accepted correspondence from detainees (including the applicant) to be sent to the Strasbourg Court. It also contains copies of extracts from the SIZO logbooks of incoming and outgoing correspondence and “correspondence delivery acts” signed by the SIZO officials. 33. Between the end of December 2005 and April 2006 (with the exact date not documented due to a technical mistake), the Court received a ten- page letter from the applicant dated 13 December 2005, in which he outlined his vision for the reform of penitentiaries in Ukraine with a view of improving the conditions of detention. It was accompanied by a cover letter from the SIZO administration dated 15 December 2005, according to which its registered number was 5-3-G-1087. The case file contains a copy of a post office receipt of 16 December 2005 for the dispatch, inter alia, of letter 5-3-G-1087 from Mr Glinov. 34. By a letter of 15 May 2006, which reached the Court on 26 May 2006, the applicant sought the withdrawal of his application referring to “... the failure [of the SIZO administration] to forward [his] letter to the Court of 13 December 2005 in fifty-three pages; a partial change of the charges against [him] on 23 December 2005; a ruling of the court and ... the intense pressurising by the authorities ...” 35. On 23 May 2006 the Court sent a letter to the applicant informing him that his application had been struck out of the list by decision of Committee on 16 May 2006. 36. On 2 October 2006 the Court informed the applicant about the restoration of the application to the list of cases and its communication to the respondent Government on 25 September 2006. 37. Following the communication of the application to the Government, the applicant's correspondence with the Court continued, with some of his letters bearing the SIZO stamp (see paragraph 28 above). 38. Section 13 of the Pre-Trial Detention Act, before it was amended on 1 December 2005 (with the amendments having entered into force on 21 December 2005), had provided for monitoring by the administration of detention centres of applications, complaints and letters of detainees, with an exception of correspondence with the Ombudsman and with the prosecutor, which could not be monitored. 39. By the amendments of 1 December 2005 to the above Act, the list of exceptions was extended to include correspondence with the Court. 40. The Instruction on Review of Correspondence of Persons Held in Penitentiaries and Pre-trial Detention Facilities, approved by Order no. 13 of the State Department for Enforcement of Sentences of 25 January 2006, elaborates the above provision as follows: “1.5. ... Correspondence of prisoners and detainees with the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as with other relevant international organisations of which Ukraine is a member or participant, authorised persons of those international organisations or prosecution authorities, shall not be subject to censorship and shall be dispatched or handed to the prisoner or detainee within twenty-four hours. ... 2.4. Prisoners or detainees shall personally and in the presence of the inspector seal the envelopes with correspondence addressed to the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as to other relevant international organisations of which Ukraine is a member or participant, to authorised persons of those international organisations or prosecution authorities. Prisoners or detainees shall personally and in the presence of the inspector open letters received from the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as from other relevant international organisations of which Ukraine is a member or participant, from authorised persons of those international organisations or from prosecution authorities. ...” 41. Article 3 of the European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights, ratified by Ukraine on 4 November 2004 and in force for it since 1 January 2005, reads as follows: “1. The Contracting Parties shall respect the right of the persons referred to in paragraph 1 of Article 1 of this Agreement to correspond freely with the Commission and the Court. 2. As regards persons under detention, the exercise of this right shall in particular imply that: a) if their correspondence is examined by the competent authorities, its despatch and delivery shall nevertheless take place without undue delay and without alteration; b) such persons shall not be subject to disciplinary measures in any form on account of any communication sent through the proper channels to the Commission or the Court; c) such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Commission, or any proceedings resulting therefrom. 3. In application of the preceding paragraphs, there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, for the detection or prosecution of a criminal offence or for the protection of health.”

train

001-98692

ENG

BIH

CHAMBER

CASE OF DOKIĆ v. BOSNIA AND HERZEGOVINA

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

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

5. Flats represented nearly 20% of the pre-war housing stock of Bosnia and Herzegovina (around 250,000 housing units out of 1,315,000). By local standards, they were a particularly attractive type of home, equipped with modern conveniences and located in urban centres. Practically all flats were under the regime of “social ownership” – a concept which, while it does exist in other countries, was particularly highly developed in the former Socialist Federal Republic of Yugoslavia (“the SFRY”). They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. All citizens of the SFRY were required to pay a means-tested contribution to subsidise housing construction. However, the amount an individual had contributed was not amongst the legal criteria taken into account in the waiting lists for allocation of such flats. 6. The rights of both the allocation right holders (public bodies which nominally controlled the flats) and the occupancy right holders were regulated by law (the Housing Act 1984, which is still in force in Bosnia and Herzegovina). In accordance with this Act, an occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a nominal fee. When occupancy right holders died, their rights transferred, as a matter of right, to their surviving spouses (indeed, spouses held occupancy rights in common) or registered members of their family households who were also using the flat (sections 19 and 21 of this Act). In practice, these provisions on transfer meant that occupancy rights originally allocated by public bodies to their employees could pass, as of right, to multiple generations for whom the initial employment-based link to the allocation right holder no longer existed. Occupancy rights could be cancelled only in court proceedings (section 50 of this Act) on limited grounds (sections 44, 47 and 49 of this Act), the most important of which was failure by the occupancy right holders to physically use their flats for their own housing needs for a continuous period of at least six months, without justified grounds (such as, military service, medical treatment, prison sentence, or temporary work elsewhere in the SFRY or abroad). Although inspections were foreseen to ensure compliance with this requirement (section 42 of this Act), occupancy rights were rarely, if ever, cancelled on these grounds prior to the 1992-95 war. Moreover, on 24 December 1992 the Constitutional Court of the Republic of Bosnia and Herzegovina annulled the inspection provisions. 7. Following its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. More than 2.2 million people left their homes as a consequence of “ethnic cleansing” or generalised violence. As a rule, they fled to areas controlled by their own ethnic groups. All parties to the conflict quickly adopted procedures allowing the flats of those who had fled the territory under their control to be declared “abandoned” and allocated to new occupancy right holders. While the alleged rationale for the allocation of “abandoned” properties was to provide humanitarian shelter to displaced persons, particularly attractive properties – typically urban flats – were commonly awarded to the military and political elites. In some cases, occupancy rights were cancelled pursuant to the aforementioned section 47 of the Housing Act 1984, because of failure by the occupancy right holders to use their flats for a continuous period of at least six months. In most cases, however, the authorities applied legislation specially enacted for those purposes: the Abandoned Flats Act 1992, the Abandoned Flats Decree 1993, the Refugee Accommodation Decree 1993, the Refugee Accommodation Act 1995 and the Abandoned Property Act 1996. 8. The concept of “social ownership” was abandoned during the 1992-95 war . As a result, socially owned flats were effectively nationalised. 9. On 14 December 1995 the General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Peace Agreement”) entered into force. Pursuant to that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. In the immediate aftermath of the war, legislation on abandoned property remained in force in both Entities and reallocation of flats continued nearly unabated, which further reinforced ethnic separation. 10. All such legislation was repealed in 1998 under international pressure. Initially, however, in the Federation of Bosnia and Herzegovina only those who could prove that they were genuine refugees or displaced persons were entitled to return to their pre-war homes (former section 3(2) of the Restitution of Flats Act 1998). The vague terms of this provision left broad discretion to the housing authorities and reportedly led to abuses. The High Representative therefore repealed it in July 1999. Nevertheless, as a result of strong resistance of the military of the Federation of Bosnia and Herzegovina (see decision CH/97/60 et al. of the Human Rights Chamber of 7 December 2001, § 56), a similar restriction remained in force as regards military flats (section 3a of this Act). While this was done on the pretext of creating a pool of flats which could be used to house destitute war veterans and their families, the domestic Human Rights Chamber held that there was no evidence that the property was necessarily being used for this stated purpose (see, for example, its decision CH/97/60 et al. of 7 December 2001, § 154). The Organisation for Security and Cooperation in Europe maintained, in its third-party submissions to that Chamber, that many high-ranking military officials in the Federation of Bosnia and Herzegovina whose housing needs were otherwise met had nevertheless been allocated military flats, in direct contravention of domestic legislation, and that the Ministry of Defence of the Federation of Bosnia and Herzegovina had almost 2,000 unclaimed military flats at its disposal to pursue the legitimate aim of housing war veterans without the need to reach out for claimed ones (see decision CH/02/8202 et al. of the Human Rights Chamber of 4 April 2003, § 121; see also the High Representative's submissions in decision CH/97/60 et al. of the Human Rights Chamber of 7 December 2001, § 61). 11. The JNA, the armed forces of the SFRY, nominally controlled around 16,000 flats in Bosnia and Herzegovina until the 1992-95 war. 12. On 6 January 1991 the JNA members were offered the opportunity to purchase their flats at a discount on their market value (see the Military Flats Act 1990). On 18 February 1992 Bosnia and Herzegovina put on hold the sale of military flats on its territory (see the Suspension on the Sale of Flats Decree 1992). The Decree was respected in what is today the Federation of Bosnia and Herzegovina, and those who had purchased military flats located in that Entity could not register their ownership and remained, strictly speaking, occupancy right holders (a purchase contract does not of itself transfer title to the buyer under domestic law). Since the Decree was ignored in what is today the Republika Srpska, those who had purchased military flats in that Entity became their registered owners. 13. During the war, the local armed forces (namely, the ARBH, HVO and VRS forces) assumed the nominal control of all non-privatised military flats on the territory under their respective control. Although on 1 January 2006 those forces merged into the armed forces of Bosnia and Herzegovina, non-privatised military flats are still under the nominal control of the Entities (see “Relevant domestic law and practice” below). 14. The dissolution of the SFRY was a gradual process which took place in 1991/92 (see Opinion No. 11 of the Arbitration Commission of the International Conference on the Former Yugoslavia of 16 July 1993). Bosnia and Herzegovina declared its independence on 6 March 1992. It was recognised by the European Community and the United States on 7 April 1992 and admitted to membership of the United Nations on 22 May 1992. 15. On 15 May 1992 the United Nations Security Council, acting under Chapter VII of the United Nations Charter, demanded that all units of the JNA and all elements of the Croatian Army either be withdrawn from Bosnia and Herzegovina, or be subject to the authority of the Government of Bosnia and Herzegovina, or be disbanded and disarmed with their weapons placed under effective international monitoring (see Resolution 757). While the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the United Nations Secretary General and the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990s, later established that JNA members born in Bosnia and Herzegovina actually remained there with their equipment and joined the VRS forces and only those born in Serbia and Montenegro left and joined the VJ forces (see the United Nations Secretary General's report of 3 December 1992, A/47/747, § 11, and the ICTY judgment in the Tadić case, IT-94-1-A, § 151, 15 July 1999). 16. The ICTY has also held that the VRS forces were to be regarded as acting under the overall control of and on behalf of the Federal Republic of Yugoslavia and that hence, even after 19 May 1992, the armed conflict in Bosnia and Herzegovina between the local Serbs and the central authorities of Bosnia and Herzegovina must be classified as an international armed conflict (see the ICTY judgment in the Tadić case, IT-94-1-A, §§ 146-62, 15 July 1999, and the ICTY judgment in the Čelebići case, IT-96-21-A, §§ 34-51, 20 February 2001). It has arrived at a similar conclusion as regards the relationship between neighbouring Croatia and the HVO forces (see the ICTY judgments in the Blaškić case, IT-95-14-T, §§ 95-123, 3 March 2000, and IT-95-14-A, §§ 167-78, 29 July 2004). 17. The International Court of Justice (“the ICJ”), the principal judicial organ of the United Nations, has arrived at a different conclusion in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) case. It held that despite much evidence of direct and indirect participation by the VJ forces, along with the VRS forces, in military operations in Bosnia and Herzegovina, the acts of those who committed genocide at Srebrenica cannot be attributed to the Federal Republic of Yugoslavia under the rules of international law of State responsibility (see the judgment of 26 February 2007, §§ 377-415). 18. The applicant was born in Serbia in 1960. He lives in Niš, Serbia. 19. Being a lecturer at a military school in Sarajevo, the applicant was allocated a military flat there in 1986. 20. On 9 March 1992 he bought the flat pursuant to the Military Flats Act 1990. Although he had paid the full purchase price on 18 February 1992 (in the amount of 379,964 Yugoslav dinars), the local authorities refused to register his title (see paragraph 12 above). 21. On 18 April 1992 the military school was transferred from Bosnia and Herzegovina to Serbia (initially to Sombor and then to Niš). On 19 May 1992 the applicant decided to leave Bosnia and Herzegovina and to continue lecturing at the same military school. 22. On 17 August 1998 the applicant made an application for the restitution of his flat in Sarajevo. On 30 March 2000 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 23. On 17 July 2000 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 30 March 2000. 24. On 21 May 2001 the applicant lodged an application with the Human Rights Chamber, a domestic human-rights body. He relied on Articles 6, 8 and 14 of, and Article 1 of Protocol No. 1 to, the Convention. 25. On 25 April 2002 the Sarajevo Cantonal Court, on an application for judicial review, quashed the administrative decisions of 30 March and 17 July 2000 for procedural reasons and remitted the case for reconsideration. 26. On 9 July 2002 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction. 27. On 12 November 2002 the competent housing authorities refused once again the applicant's application for restitution pursuant to section 3a of the Restitution of Flats Act 1998. 28. On 12 September 2003 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 12 November 2002. 29. On 26 November 2003 the applicant lodged an application for judicial review. On 22 June 2004 the Sarajevo Cantonal Court stayed the proceedings under an instruction from the legislature of the Federation of Bosnia and Herzegovina. 30. On 28 December 2005 the Ministry of Defence of the Federation of Bosnia and Herzegovina formally allocated the disputed flat to Dž.K., a former member of the ARBH forces. It would appear, however, that Dž.K. had lived in that flat even before, since 25 April 2000. 31. On 8 March 2006 the Human Rights Commission (which had succeeded the Human Rights Chamber in 2004) found a violation of Article 6 of the Convention because of the length of the restitution proceedings and awarded the applicant 2,100 convertible marks for non-pecuniary damage in this connection. Having established the excessive length of the restitution proceedings, the Human Rights Commission held that they did not constitute an effective remedy which would have to be used as a condition for the examination of the applicant's substantive complaints. In accordance with domestic jurisprudence, it considered that although the purchase contract of 9 March 1992 had not of itself transferred title to the impugned flat to the applicant, it had conferred on him valuable personal rights (that is, the rights to occupy the flat and to be registered as owner) amounting to “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. The Human Rights Commission further held that the situation complained of (that is, the applicant's inability to repossess the flat and to register his title to it) undoubtedly amounted to a continuing interference with the peaceful enjoyment of his “possessions”. While assessing the proportionality of the interference, the Human Rights Commission held that the applicant's service in the VJ forces after the 1992-95 war demonstrated his disloyalty to Bosnia and Herzegovina. Taking into consideration also the serious shortage of housing units and compensation to which the applicant was entitled, the Human Rights Commission concluded that the interference was justified. It therefore found no violation of Article 1 of Protocol No. 1 to the Convention and considered it to be unnecessary to examine the discrimination and Article 8 complaints. 32. On 30 August 2006 the Supreme Court of the Federation of Bosnia and Herzegovina quashed the decision of 22 June 2004 and remitted the case to the Sarajevo Cantonal Court for reconsideration. 33. On 19 December 2006 the Sarajevo Cantonal Court upheld the administrative decision of 12 September 2003. 34. The applicant has not been allocated a flat in Serbia, but receives from the Serbian authorities a rent allowance in the monthly amount of approximately 100 euros (EUR). It would appear that he has not applied for compensation pursuant to section 39e of the Privatisation of Flats Act 1997 (see paragraph 37 below). 35. On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void. As explained in paragraph 12 above, this affected flats in the Federation of Bosnia and Herzegovina only. 36. On 3 November 1997 the domestic Human Rights Chamber held that a contract to purchase a military flat, although it had not of itself transferred title to the buyer, conferred on the buyer valuable property rights (that is, the rights to occupy the flat and to be registered as owner) which constituted “possessions” for the purposes of Article 1 of Protocol No. 1 to the Convention. It then found a breach of that Article and ordered the Federation of Bosnia and Herzegovina to restore the legal validity of all such contracts (decision CH/96/3 et al.). 37. On 5 July 1999 the Federation of Bosnia and Herzegovina amended the Privatisation of Flats Act 1997 and the Restitution of Flats Act 1998. While all such contracts have since been regarded as legally valid, two categories of buyers are not entitled to repossess their flats and to register their title (see section 39e of the Privatisation of Flats Act 1997 and section 3a of the Restitution of Flats Act 1998). First, those who served in foreign armed forces after the 1992-95 war. Since those who were granted a refugee or equivalent status in a country outside the former SFRY are exempted, the restriction affects only those who served in the forces of the successor States of the SFRY and, in reality, almost exclusively those who served in the VJ forces referred to in paragraph 15 above. The second category is those who acquired an occupancy or equivalent right to a military flat in a successor State of the SFRY. At present, people falling into those categories are only entitled to the refund of the amount paid for their flats in 1991/92 plus interest at the rate applicable to overnight deposits (see section 39e of the Privatisation of Flats Act 1997, as amended on 11 July 2006). Previously the compensation was calculated differently: the value of a flat was to first be calculated at a rate of approximately EUR 300 per square metre, the age of the flat was to then be taken into consideration with the depreciation of 1% of its value for each year. 38. On 7 December 2001 the Human Rights Chamber considered the amended legislation to still be discriminatory and in conflict with Article 1 of Protocol No. 1 to the Convention. It ordered the Federation of Bosnia and Herzegovina to register the applicants as owners, regardless of their service in foreign armed forces (decision CH/97/60 et al.). The relevant part of that decision (§ 164) reads as follows: “It could potentially be reasonable and necessary to bar persons serving in a foreign army from the exercise of certain rights; however service in a foreign army is not a basis for stripping a person of an otherwise valid property contract.” The Human Rights Commission, which had succeeded the Human Rights Chamber in 2004, followed that approach in decisions CH/98/514 of 7 July 2004 and CH/99/1704 of 1 November 2004, but on 9 February 2005 it decided to depart from that jurisprudence (decision CH/98/874 et al.). It regarded those who had served in foreign armed forces after the 1992-95 war as disloyal to Bosnia and Herzegovina and held that it was hence justified to strip them of their purchase contracts. The same approach has subsequently been applied in numerous follow-up cases. 39. On 27 June 2007 the Human Rights Commission held in a similar case (also concerning the purchase of a socially owned flat before the 1992-95 war which had not been followed by the registration of ownership) that a legally valid purchase contract, although it had not of itself transferred title to the buyer, conferred on the buyer valuable property rights (notably the right to be registered as owner) which constituted “possessions” for the purposes of Article 1 of Protocol No. 1 to the Convention (see decision CH/03/13106 and CH/103/13402 of 27 June 2007). 40. On 9 July 2009 the Supreme Court of the Federation of Bosnia and Herzegovina held that a tenancy right of limited duration on a military flat in Serbia should not be regarded as equivalent to occupancy right for the purposes of the restitution legislation. 41. Since 2 August 1992 it has no longer been possible to acquire occupancy rights in Serbia (see section 30(1) of the Housing Act 1992). From that date until 14 December 2004 members of the armed forces had the opportunity to acquire a tenancy right of unlimited duration on a military flat. Since 14 December 2004 they have only had the right to acquire a tenancy right of limited duration. 42. The Dayton Peace Agreement was initialled at a military base near Dayton, the United States, on 21 November 1995. It entered into force on 14 December 1995 when it was signed in Paris, France. It put an end to the 1992-95 war in Bosnia and Herzegovina. The relevant part of Annex 4 (the Constitution of Bosnia and Herzegovina) reads as follows: “All refugees and displaced persons have the right freely to return to their homes of origin. They have the right, in accordance with Annex 7 to the General Framework Agreement, to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void.” The relevant part of Annex 7 (the Agreement on Refugees and Displaced Persons) provides: “All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina. The Parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries.” “Any returning refugee or displaced person charged with a crime, other than a serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the Former Yugoslavia since January 1, 1991 or a common crime unrelated to the conflict, shall upon return enjoy an amnesty. In no case shall charges for crimes be imposed for political or other inappropriate reasons or to circumvent the application of the amnesty.” 43. The Agreement on Succession Issues was the culmination of nearly ten years of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the High Representative (appointed pursuant to Annex 10 to the Dayton Peace Agreement). It entered into force between Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), “the former Yugoslav Republic of Macedonia” and Slovenia on 2 June 2004. The provision concerning occupancy rights reads as follows: “Domestic legislation of each successor State concerning dwelling rights ('stanarsko pravo/ stanovanjska pravica/ станарско право') shall be applied equally to persons who were citizens of the SFRY and who had such rights, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 44. The relevant principles, endorsed by the United Nations Sub-Commission on the Promotion and Protection of Human Rights in 2005 (E/CN.4/Sub.2/2005/17), are the following: “1.1 The Principles on housing and property restitution for refugees and displaced persons articulated herein are designed to assist all relevant actors, national and international, in addressing the legal and technical issues surrounding housing, land and property restitution in situations where displacement has led to persons being arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence. 1.2 The Principles on housing and property restitution for refugees and displaced persons apply equally to all refugees, internally displaced persons and to other similarly situated displaced persons who fled across national borders but who may not meet the legal definition of refugee (hereinafter 'refugees and displaced persons') who were arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence, regardless of the nature or circumstances by which displacement originally occurred.” “2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal. 2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution. “7.1 Everyone has the right to the peaceful enjoyment of his or her possessions. 7.2 States shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general principles of international law. Whenever possible, the 'interest of society' should be read restrictively, so as to mean only a temporary or limited interference with the right to peaceful enjoyment of possessions.” “16.1 States should ensure that the rights of tenants, social-occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution programmes. To the maximum extent possible, States should ensure that such persons are able to return to and repossess and use their housing, land and property in a similar manner to those possessing formal ownership rights.” “21.1 All refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation. 21.2 States should ensure, as a rule, that restitution is only deemed factually impossible in exceptional circumstances, namely when housing, land and/or property is destroyed or when it no longer exists, as determined by an independent, impartial tribunal. Even under such circumstances the holder of the housing, land and/or property right should have the option to repair or rebuild whenever possible. In some situations, a combination of compensation and restitution may be the most appropriate remedy and form of restorative justice.” 45. The relevant part of the Resolution reads as follows: “... 9. In the light of the above, the Assembly calls on member states to resolve post-conflict housing, land and property rights issues of refugees and IDPs, taking into account the Pinheiro Principles, the relevant Council of Europe instruments, and Recommendation Rec(2006)6 of the Committee of Ministers. 10. Bearing in mind these relevant international standards and the experience of property restitution and compensation programmes carried out in Europe to date, member states are invited to: ... 10.4. ensure that previous occupancy and tenancy rights with regard to public or social accommodation or other analogous forms of home ownership which existed in former communist systems are recognised and protected as homes in the sense of Article 8 of the European Convention on Human Rights and as possessions in the sense of Article 1 of the First Protocol to the Convention; 10.5. ensure that the absence from their accommodation of holders of occupancy and tenancy rights who have been forced to abandon their homes shall be deemed justified until the conditions that allow for voluntary return in safety and dignity have been restored; ...”

train

001-57986

ENG

GBR

CHAMBER

CASE OF WELCH v. THE UNITED KINGDOM (ARTICLE 50)

Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed

John Freeland;R. Pekkanen

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 15 January 1994 within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 17440/90) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 (art. 25) by a British citizen, Mr Peter Welch, on 22 June 1990. 2. In a judgment of 9 February 1995 ("the principal judgment", Series A no. 307-A), the Court found that the confiscation order of 24 August 1988 made against the applicant following his conviction for drugs offences amounted to the retrospective imposition of a penalty in breach of Article 7 para. 1 (art. 7-1) of the Convention (ibid., pp. 11-15, paras. 22-36, and point 1 of the operative provisions). The Court also held that the respondent State was to pay the applicant, within three months, £13,852.60, less the sums paid by way of legal aid, in respect of costs and expenses (ibid., p. 15, paras. 40-41, and point 2 of the operative provisions). 3. As the question of the application of Article 50 (art. 50) was not ready for decision in respect of pecuniary and non-pecuniary damage, the Court reserved it and invited the Government and the applicant to submit in writing, within three months, their observations on the matter and, in particular, to notify the Court of any agreement they might reach (ibid., p. 15, para. 39, and point 3 of the operative provisions). 4. The negotiations for an agreement having proved unsuccessful, the Registrar received memorials from the Government and the applicant on 4 and 5 May 1995 respectively concerning the question of damage. 5. In accordance with an order of the President of 16 May 1995, comments on the claims made by the applicant were submitted by the Government on 18 July. The applicant replied to these submissions on 18 September. On 20 October a further comment was received from the Government. 6. On 6 November 1995 the Secretary to the Commission informed the Registrar that the Delegate had no observations to make as regards the above submissions. 7. Mr R. Pekkanen, who was unable to take further part in the case, was subsequently replaced by Mr F. Gölcüklü (Rule 22 para. 1 of Rules of Court A).

train

001-5150

ENG

NLD

ADMISSIBILITY

JAGER v. THE NETHERLANDS

Inadmissible

Elisabeth Palm;Gaukur Jörundsson

The applicant is a Dutch national, born in 1958, currently serving a prison sentence in The Hague. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague. A. On 24 November 1994, the partially undressed body of the nine-year-old girl F. was found on a path along a railway near allotments in The Hague. The post mortem examination carried out on the same day resulted in a finding that it was likely that she had died on 24 November 1994 between 7.30 and 9.30 a.m. from a loss of blood caused by stab wounds. The autopsy conducted on 25 November 1994 confirmed this finding. On 25 and 28 November 1994 respectively, the deputy public prosecutor (hulpofficier van justitie) ordered the police to conduct a search of the crime scene and the adjacent allotments. A plaster cast was made of the bicycle tire tracks found at the crime scene. No other traces were found. On 25 November 1994, Ms A. gave a statement to the police to the effect that, at around 8.20 a.m., she had seen the victim, a friend of her daughter, sitting on the back of a pink lady’s bicycle ridden by a man. She gave a description of this man’s features and clothes. Given certain factual similarities of the killing of F. and the killing of a young girl in 1980 of which the applicant had been found guilty, the police placed him under observation as from 26 November 1994. On 6 December 1995, upon request of the public prosecutor, a preliminary judicial investigation (gerechtelijk vooronderzoek) against the applicant was opened. On 20 December 1994, the applicant was arrested and detained on remand. On that occasion the police also seized, amongst other items, a coat and a pink and white lady’s bicycle found in the applicant’s home. The police interrogated the applicant repeatedly. During some of these interrogations in January 1995, the interrogating police officers used a specific interrogation technique; the so-called “Zaanse verhoormethode”. The applicant did not make any confession statement. Upon the order of the deputy public prosecutor, the ditches in the area of the crime scene were searched on 18 January 1995, which resulted in the finding of a blade, apparently broken off a pocket knife. Furthermore, on 23 January 1995, a pocket knife with a missing blade was found in a ditch. On 25 January 1995, the forensic laboratory informed the investigating authorities that the bicycle tire tracks found on the crime scene globally corresponded with the rear tire of a bicycle seized in the applicant’s home, but that no characteristic similarities had been found. The front tire of the bicycle seized did not correspond with the tracks found. On 16 February 1995, the forensic laboratory informed the investigating authorities that fibres discovered in the pocket knife found on 23 January 1995 corresponded, given the colour and material, with a coat seized in the applicant’s home and that the blade found on 18 January 1995 could have caused the stabbing holes in the victim’s clothes. According to a report of 16 March 1995 by the forensic laboratory on the investigation of fibres found on the coat seized in the applicant’s home on 20 December 1994 and the coat of the victim, it was very well possible that both coats had been in contact with each other. At some unspecified point in time, the applicant was summoned to appear before the Regional Court (Arrondissementsrechtbank) of The Hague on charges in relation to F.’s killing. By judgment of 6 April 1995, following adversarial proceedings, the Regional Court convicted the applicant of murder and sentenced him to life imprisonment. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of the Hague. On 27 September 1995, the Court of Appeal took evidence from the applicant, from the witness Ms A. and from the expert-witness H., an official of the forensic laboratory. On 22 November 1995, the Court of Appeal granted the request of the defence to be provided with copies of the tapes of the applicant’s interrogations by the police. It further ordered the applicant’s examination at the Psychiatric Observation Clinic of the Prison System (Psychiatrische Observatiekliniek van het Gevangeniswezen). On 3 April 1996, the Court of Appeal rejected a request by the defence to make funds available to the defence in order to enable the defence to commission one or more experts. In its report dated 1 May 1996, the Psychiatric Observation Clinic stated, inter alia, that the applicant was suffering from a serious personality disorder with narcissistic, dependent and anti-social features. It was further found that he was incapable of adequately expressing his aggression and to regulate his aggression when such feelings would emerge. Consequently, his behaviour could be both impulsive and explosive. The report also stated that there continued to be a distinct likelihood of repetition of aggressive behaviour towards women and girls. On 22 May 1996, the Court of Appeal took evidence from Ms B., a psychologist who had examined the applicant in the Psychiatric Observation Clinic over a period of seven weeks. She declared, inter alia, that the applicant’s examination had disclosed a great discrepancy between his verbal and performal IQ, which expressed itself in the applicant’s case by a specific disorder, i.e. a nearly total inability to read and write. In her opinion, there were no indications that this disorder caused mental problems in other areas. She stated that, for instance, his capacity for concentration was very good and that he was able to compensate his handicap by a reasonably good memory. On the same day, the Court of Appeal took evidence from two police officers who had been involved in the applicant’s interrogations and from Mr H. Hoenderdos, the communication expert who had assisted the police in their interrogations of the applicant. By judgment of 5 June 1996, following adversarial proceedings, the Court of Appeal quashed the judgment of 6 April 1995, convicted the applicant of homicide and sentenced him to fourteen years’ imprisonment with deduction of the time spent in pre-trial detention. In addition, the Court of Appeal imposed a post-sentence confinement order (“TBS-order”; terbeschikkingstelling) with compulsory treatment at public expense (met bevel tot verpleging van overheidswege). The Court of Appeal rejected the request by the defence for an adjournment of the court’s examination in order to seek further evidence from experts as to the applicant’s mental health, interrogation techniques and the forensic findings. It held on this point that this concerned in fact requests for a counter-expertise and considered that the defence had had sufficient opportunity to obtain this. It concluded that the criminal investigation authorities had carried out sufficient investigations and that it considered itself to be sufficiently informed. As regards the admissibility of the prosecution, the judgment of 5 June 1996, insofar as relevant, reads: <Translation> “The examination of the arguments submitted by the defence consist of two parts, those submitted by Mr Sandberg (I) and those submitted by Ms Later (II). (I). According to Mr Sandberg, the public prosecution department must be declared inadmissible in its prosecution, because the actions of the police and the prosecution in the criminal investigation are, to a too large extent, contrary to the requirements of a fair trial. In the first place, the combination of a) premature investigatory activities and b) the manner of interrogation (use of the “Zaanse verhoormethode”) constitutes a gross violation of the prohibition of pressure set out in Article 29 of the Code of Criminal Procedure (Wetboek van Strafvordering) and of the requirements of a fair trial (Article 6 of the Convention). Secondly, by keeping secret the use of the “Zaanse verhoormethode” and the calling in of the expert Hoenderdos, the finding of truth has suffered to such an extent that, also on that ground, it can no longer be held that there has been a fair trial. … 1.a. As from 26 November 1994, the suspect has been observed for about one month, during which several “indications” have been gathered. This observation was an unlawful act of investigation, as on that moment the suspicion of guilt was absolutely insufficient. The suspicion of <the applicant> was only based on the fact that there appeared to be similarities in the modus operandi between the present fact and the fact of 1980. This comparison is, however, incorrect. 1.b. Although the defence suspects that the “Zaanse verhoormethode” has been used as from the outset, the objections of the defence are aimed in particular at the interrogations having taken place on 14 and 15 January 1995 under the direction of Mr Hoenderdos. At the beginning of the interrogation on 14 January 1995, the birthday of the suspect’s daughter who is about the same age as the victim (creative extension of the collage of photographs of family and victim), the first hours are spent talking about trivialities. Subsequently the thumbscrews are tightened and the suspicion is brought up. By sitting close to the <suspect>, by the interrogators’ encircling of the <suspect>, unbridled pressure is exerted on the <suspect>. Despite the emotionally deplorable situation of the suspect, the interrogators have pursued the interrogations in as much as possible. The particular personality features of the suspect have in no way been taken into account. This manner of interrogation is unlawful and in violation of the prohibition of pressure. 2. According to the defence, the police and justice <department> consider the named Hoenderdos as an expert. His appointment only becomes apparent in the public prosecutor’s official report of 14 May 1996; also the investigation judge, who was aware of the calling in of Hoenderdos, has remained silent about this. Both the police officers involved and the investigation judge should have recorded in minutes the activities of Hoenderdos - the judge (and also the defence) need to be enabled to verify the application of methods and means of investigation - and further Hoenderdos should have made a report. … The court rejects these arguments. Ad 1.a. The following has appeared during the trial: On 24 November 1994, near the allotments complex Loolaan … in The Hague, the victim was found, the upper part <of the body> dressed, jeans and underpants pulled down. She was killed by a large number of stab wounds, no traces of sexual violence were found. A partially broken off bush was found at a distance of some meters. The girl had been seen some hours earlier with a man <sitting> on the back of a bicycle. On 26 November 1994, one of the police officers involved in the investigation checked the police administration for facts that, qua modus operandi, were similar to the present case. He found the following: In 1980, in the dunes near …, a seven-year-old girl was found dead, she was partially undressed, pants and underpants had been pulled down. She had been killed by stab wounds, no traces of sexual violence were found. The girl was covered with branches. In relation to these facts, the accused was placed at the Government’s disposal (ter beschikking van de regering gesteld). It was subsequently determined that the applicant’s home is located at a distance of about four kilometres from the <present> crime scene. Two police officers involved in the investigation … on 26 November 1994 … saw the applicant looking outside through the window <of his home> and found that he resembled a composition drawing made on the basis of a witness statement. The court considers that the foregoing constituted a sufficient suspicion of guilt for further investigatory activities against the suspect. In that context … the suspect was observed for some time on 9 and 19 December 1994. … There is no question of a premature prosecution activity, so that the <applicant’s> observation by the police neither in itself nor in combination with the manner of interrogation constitutes a violation as argued. Ad 1.b. As to this <point> the following has appeared during the trial: In January 1995 Hoenderdos, a communication expert, has become involved in the case because the team that interrogated the accused had internal problems and because the investigation had reached deadlock. In the week before the weekend of 14 and 15 January 1995 Hoenderdos has spoken for the first time with the team and has offered his assistance in the interrogation of the suspect. The only time he had available for this was this weekend. In that weekend, the suspect has been interrogated at length during which the team members sat close to him. In an adjacent room, the interrogation was watched and listened to by Hoenderdos, who drew the police officers’ attention to various communication signals. During this interrogation use was made of collages of photographs in which, inter alia, three photographs of the suspect’s family members were displayed around a photograph of the victim. The court considers this use of family photographs in a collage of this kind contrary to the requirements of a fair trial. The infringement of these requirements thus made is - also in the light of the exceptional seriousness of the fact - in the court’s opinion neither in itself nor in connection with what has appeared in respect of the interrogations of such gravity that this should lead to the inadmissibility of the prosecution. Ad 2. It has not appeared from the case-file or otherwise that the police and justice <department> (and the investigating judge) considered Hoenderdos as an expert within the meaning of Article 227 of the Code of Criminal Procedure. A report by Hoenderdos is therefore not required. The court further considers that - apart from the question whether this was required - that the suspect’s rights have not been neglected as argued by the failure to mention the assistance by Hoenderdos, as the use of the contested collage of photographs appears already sufficiently from the case-file. Counsel has referred in various places, in support of his pleadings, to the European Convention of Human Rights and the case-law of the European Court of Human Rights. Also considered along those lines, the court does not reach other findings than those set out above. (II) Apparently in the context of her primary argument that the public prosecution should be declared inadmissible, counsel Ms Later, in addition to what Mr Sandberg has already submitted in relation to the European Convention of Human Rights, has argued that in this case various other provisions of the Convention have been violated. a) Counsel has placed the manner of interrogation of the suspect by the police and the use of the so-called method “Hoenderdos” in the context of Article 3 of the Convention; inhuman treatment. … d) Article 6 para. 3 sub b would be violated because the defence has insufficient facilities. This provision is submitted in conjunction with e) Article 6 para. 1, access to court, which provision is violated because, for lack of financial means, the suspect has in fact not been enabled to defend himself in the proceedings. f) By the withholding of information, in particular information about the method “Hoenderdos”, the principle of fair trial and in particular <the principle of> equality of arms, Article 6 para. 1, has been violated, also by the public prosecutor’s selection of investigation data, the public prosecutor’s approaching of the judges’ chamber about a judicial on-site inspection and the conducting of a search of the premises of the Social Fund for the Building Industry without informing the defence of this. g) Finally a violation of Article 5 of the Convention is argued, because there was insufficient indication of guilt, so that the <suspect’s> situation of detention must be considered as contrary to this provision. Ad a. The court has already expressed itself about the use of the method “Hoenderdos” in the present case and the consequences to be attached to this. Noting the seriousness of the act committed, the court considers the intensity of the interrogations not of such a nature that these <interrogations> justify the qualification of inhuman treatment. … Ad d and e. After the preparation of the case before the court, it has been examined for the first time on 27 September 1995. Subsequently, on 22 November 1995 and 22 May 1996, further examinations on the substance have taken place. Taking into account that the case must be dealt with within a reasonable time, the court considers that the defence has been provided with sufficient facilities during that period to investigate what it wished to investigate. The counter-investigations at the expense of <the> justice <department>, as wished by the suspect, have been refused by the court, since the contention that the suspect has a right to a counter-expertise at the State’s expense finds no support in the law. On that ground, the absence of facilities and financial means cannot have as consequence the inadmissibility of the prosecution. Ad f. It has not been established that information, essential for his defence, has been withheld from the suspect. As to the withholding of information about the method “Hoenderdos” the court refers to it remarks already stated above. It has also not been established … that there has been an unbalanced compilation of the case-file. That the defence was not informed of a request by the prosecutor for a judicial on-site inspection and <that the defence> has not been informed, prior or during this search, of the search of the premises of the Social Fund for the Building Industry cannot lead to the inadmissibility of the prosecution. The circumstances are thereto of insufficient weight. Ad g. In the light of the following decision of the court, this <point> does not warrant examination.” The Court of Appeal based the applicant’s conviction on, inter alia, his evidence to the trial courts, statements made by the witness Ms A. to the police and the court, and on police and forensic reports. On the basis of the cruelty of the facts, the applicant’s diminished responsibility at the time of the offence and the high risk that the applicant would repeat aggressive behaviour towards women and girls, the Court of Appeal decided to impose not only a criminal sanction but also a post-sentence confinement order with compulsory treatment at public expense. The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 13 May 1997. As to the applicant’s complaint that the Court of Appeal had unjustly held that there had been a fair trial and equality of arms between the public prosecution and the defence, the Supreme Court held that the Court of Appeal had correctly found that the use of the “Zaanse verhoormethode” was incompatible with the requirements of a fair trial. It further accepted as correct the Court of Appeal’s findings as to the question whether there were sufficient suspicions against the applicant to justify further investigatory measures. As regards the manner in which the applicant had been interrogated by the police, the Supreme Court did not exclude that, under certain circumstances, unlawful activities of the criminal investigation and prosecution authorities could result in such a serious violation of the principles of a fair trial that these should lead to the inadmissibility of the prosecution. However, such a far reaching sanction could only follow where it would concern serious violations of those principles by, deliberately or with gross negligence, disrespecting the suspect’s interests in his right to a fair hearing of his case. In the impossibility to give a general rule on this point, this question needed to be examined on a case to case basis. After having noted the Court of Appeal’s findings in the present case as to the interrogations at issue and in particular the specific part which the Court of Appeal had correctly found to be in violation of the requirements of a fair trial, the Supreme Court accepted the Court of Appeal’s conclusion that these interrogations were not of such a nature that it should result in the inadmissibility of the prosecution. The Supreme Court further considered the applicant’s complaint that the defence had not sufficiently been enabled to avail itself of investigatory possibilities in that the Court of Appeal had rejected his request to make funds available to him in order to allow him to take initiatives aimed at obtaining a counter-expertise whereas he did not have any funds himself to do so. He explained that he had wished to submit counter-expert evidence in relation to the investigation made of his personality, on some material evidence and on the interrogation method used by the police. The Supreme Court noted that the applicant had had several possibilities during the pre-trial stage of the proceedings to obtain, at the State’s expense, further investigations and further counter-expert evidence. The Supreme Court further noted that the experts, who had carried out an examination of the applicant’s personality or the material evidence, had been heard before the trial court and that the defence had been able to put questions to them. As regards the interrogation technique used by the police, the Supreme Court noted that the applicant’s statements used in evidence were statements given either before the investigating judge or before the trial court. The Supreme Court held that, in these circumstances, the Court of Appeal’s rejection of the applicant’s requests for further expert evidence on the basis of a finding that the investigation had been sufficient could not be regarded as unreasonable. It further considered that the Court of Appeal had correctly held that the applicant’s contention that the State has to bear the costs of any investigation requested by the defence, in its generality, is not supported by the law and that this is not in conflict with Article 6 of the Convention. The Supreme court also considered that the Court of Appeal had rejected on correct grounds the arguments raised by the defence about withholding information to the defence and the compilation of the case-file. B. Relevant background and domestic law Article 29 of the Code of Criminal Procedure, insofar as relevant, reads: <Translation> "1. In all cases where a person is heard as a suspect, the questioning judge or civil servant shall refrain from everything which could have the effect of obtaining a statement of which it could be said it was not freely made. The suspect is not obliged to answer. 2. Before the hearing the suspect is informed that he is not obliged to answer. …” On 15 May 1996, following the national broadcast of a television programme in which the “Zaanse verhoormethode” was discussed, a Member of Parliament put questions about this interrogation technique to the Minister of Justice, who decided to seek the views of the Criminal Investigation Advice Commission (Recherche Adviescommissie; hereinafter “RAC”) as to the lawfulness and functionality of this method. On 21 August 1996, the Minister of Justice informed Parliament that, once she would have taken notice of the final outcome of two trials in which the lawfulness of this method had been raised as well as the RAC advice, she would take a final decision as to the acceptability of this interrogation technique. In the meantime, she had instructed the public prosecution department to suspend the use of this technique. In November 1996, in conformity with the advice contained in the RAC report of 1 November 1996, the Minister of Justice decided to prohibit the use of the “Zaanse verhoormethode”. The RAC report describes the “Zaanse verhoormethode” as an interrogation technique based on the so-called CASE 36 (Communication Analysing System Europe 36) communication method. The method was developed by a communication expert and was further elaborated for police practices. CASE 36 is described in the report as a communication method focussing in particular on the way in which a person internally perceives the outside world. The application of the CASE 36 technique allows to obtain a very accurate picture of the behaviour of a person and the internal processes on which this behaviour is based, thus enabling to communicate effectively (a correct statement by the suspect) and efficiently (within a short time). The CASE 36 technique is based on Neuro Linguistic Programming (NLP); originally a form of psychotherapy. NLP has been defined as “the study of the structure of subjective experience”. NLP provides a model of human behaviour and communication which answers questions like “How does a person behave in relation to his environment, how does he take in information and how does he process this information?” An interrogation according to the CASE 36 communication method is aimed at the creation of a tie between the suspect and interrogators through which an optimal communication must become possible and thus to attain the truth via communication. The actual interrogation is prepared by planning certain steps to be taken during the interrogation. This planning includes, amongst other things, the allocation of individual roles (father figure, specialist, analyst, person of confidence) to each member of the interrogation team. Furthermore, a preliminary meeting with the suspect takes place in order to find out which pattern of thought (in detail or global) he uses and what his “focal points” are, i.e. to what points he looks when he is not specifically asked to look at something. A determination of “focal points” is relevant for the making of “visual chronological lines”. In having the suspect draw (visual) chronological lines during the interrogation, it is attempted to verify when what has taken place. This takes place, inter alia, by making a suspect relive an experience in his mind. If a suspect has a auditive preference, there is a bigger chance of communication and a reliving when he is made to listen to recordings, like telephone conversations. Has the suspect a sensory preference, the chance of communication is bigger when having him touch an object found at the crime scene, whereas in case of a visual preference, he can be shown photographs of the crime scene. In case a suspect has a “focal point” on a particular spot on a wall, it is possible to place photographs there. He will unconsciously look at them after which, as the intention is, he will remember facts insofar as he has been responsible for them. The showing of photographs includes both photographs connected to the offence and photographs linked to the suspect’s person, like photographs of his spouse or children. These two kinds of photographs are either shown separately or combined with each other. The interrogation team leader and the external communication expert watch and listen to the interrogation in another room. There are four hidden cameras covering the entire interrogation room and one hidden camera aimed at the suspect’s face. The suspect is informed that the interrogations are recorded but does not know where the cameras are. The interrogators receive instructions via earphones from the team leader or the external communication expert during the interrogation. The interrogation is constantly adapted to the suspect’s behaviour. The suspect’s non-verbal communication is followed and whether his behaviour is congruent, i.e. whether his body language is in conformity with his verbal expressions. Other features of this interrogation technique are the copying of a suspect’s physical behaviour which is intended to reassure the suspect and the so-called “pushing in”, i.e. to push one by one and at a deliberate moment the chairs of each interrogator close to the suspect until in the end all interrogators sit intimately around the suspect. The interrogations are conducted within a couple of days, lasting on average ten hours per day depending on how the interrogation proceeds. Under Article 37a-e of the Code of Criminal Procedure, a trial court may - in addition to a criminal sanction and if the protection of public order so requires - issue a confinement order (TBS order) in respect of a perpetrator of an offence, who has been found guilty and who has been found to have a mental disorder and to be dangerous. A TBS order can include a separate order for compulsory treatment at public expense.

train

001-105116

ENG

POL

COMMITTEE

CASE OF SKURAT v. POLAND

Violation of Art. 6-1

Lech Garlicki;Nebojša Vučinić

6. The applicant was born in 1977 and lives in Gdańsk. 7. On 16 May 2005 the applicant was arrested. 8. On 17 May 2005 he was charged with having assisted in counterfeiting a secondary education diploma (udzielenie pomocy w podrobieniu świadectwa maturalnego). The applicant was released on the same day, after having paid a bail of 6,000 Polish zlotys (PLN). 9. On 30 August 2005 a bill of indictment against the applicant and two other persons was lodged with the Gdańsk District Court (Sąd Rejonowy). 10. On an unspecified date, one of the co-accused, A.D., requested the court to sentence her without carrying out the whole proceedings and her case was severed for separate examination. A judgment against A.D. was given on 5 October 2005. 11. A first hearing, scheduled on 30 November 2005, was adjourned. No reasons for this decision were provided. 12. The trial started on 22 December 2005. 13. On one occasion a hearing was adjourned, as the applicant’s coaccused failed to appear. 14. Two hearings were adjourned, as the applicant and his co-accused have not been transferred to the court from prison. 15. On five occasions the applicant’s lawyer failed to attend the hearings. It appears that on two of those occasions he has not been properly summoned. 16. Two hearings, scheduled on 9 October and 6 November 2007, were adjourned, as the case-file concerning another set of criminal proceedings has not been delivered to the trial court. 17. Two hearings, scheduled on 11 December 2007 and 18 January 2008, were adjourned, without any reasons being provided. 18. A hearing scheduled on 27 February 2008 was cancelled due to the judge-rapporteur’s illness. 19. On 11 April 2008 the District Prosecutor (Prokurator Prokuratury Rejonowej) requested the trial court to exclude judge J.M., to whom the applicant’s case was assigned, from the proceedings. The prosecutor relied on the fact that J.M. had given a judgment against A.D. and that, according to the recent case-law of the Supreme Court, in circumstances like those of the present case, the same judge could not examine a case against several co-accused on the basis of the same evidentiary material. 20. On 21 April 2008 the Gdańsk District Court granted the prosecutor’s request and excluded J.M. from the proceedings. The trial has recommenced. 21. On 9 October 2008 the Gdańs Distirct Court quashed the preventive measure imposed on the applicant (see paragraph 8 above). The amount paid as bail was returned to the applicant. 22. The proceedings are still pending before the first-instance court. 23. On 10 April 2008 the applicant lodged a complaint about a breach of his right to a trial within a reasonable time with respect to the first set of criminal proceedings against him. He relied on the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The applicant sought PLN 10,000 in just-satisfaction. 24. On 1 July 2008 the Gdańsk Regional Court (Sąd Okręgowy) acknowledged that the proceedings have indeed been lengthy and awarded PLN 1,000 to the applicant. It underlined that the trial court has failed to ensure that the hearings were adequately prepared and organised. It also noted that the applicant’s lawyer has partly contributed to the overall length of the proceedings. In that respect the trial court was criticised for not having taken disciplinary measures against the applicant’s lawyer at an earlier stage of the proceedings, by informing the Gdańsk Regional Bar about the advocate’s failure to perform his duties. 25. On 21 November 2006 the applicant was arrested on suspicion of drug trafficking. 26. On 22 November 2006 the Gdańsk Distirct Court remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that if released, the applicant might tamper with evidence. In that respect the court underlined the fact that the applicant has not admitted to having committed the offence he had been charged with. The court also stressed the severity of the anticipated sentence. 27. The applicant’s appeal against the detention order, likewise his further appeals against decisions prolonging his detention and all his subsequent applications for release were unsuccessful. 28. On 12 January 2007 a bill of indictment was lodged with the Gdańsk District Court. It comprised forty-seven charges of drug trafficking brought against six defendants. 29. On an unspecified date charges against four of the co-accused, A.S., M.S., D.G. and M.K., were severed, as they requested the court to sentence them without carrying out the whole proceedings. A judgment in their case was delivered on 4 July 2007. 30. On 11 April 2007 the trial court held its first hearing. 31. During the court proceedings, the applicant’s detention was further prolonged on 17 January, 21 May, 10 August and 16 November 2007 and on 16 February and 16 May 2008. In all their detention decisions the authorities repeatedly relied on a strong suspicion that the applicant had committed the offence in question, which was supported by evidence from witnesses. They attached importance to the grave nature of that offence and the likelihood of a severe sentence of imprisonment being imposed on the applicant. They further considered that the need to secure the proper conduct of the proceedings, especially the need to obtain evidence from witnesses, justified holding him in custody. 32. On 16 May 2008 the applicant requested the trial court to exclude judge J.M. from the proceedings. He relied on the fact that J.M. had given a judgment against A.S., M.S., D.G. and M.K. and that consequently, he could not examine a case against him, on the basis of the same evidentiary material (see also paragraph 19 above). 33. On 2 June 2008 the judge was excluded from the proceedings. The trial had to restart. 34. On 25 July 2008 the Gdańsk District Court lifted the applicant’s detention. The court found that the applicant’s detention was already approaching a two-year period and that, taking into consideration that the trial had to be repeated, he could no longer be held in detention. According to the court, the risk that the applicant would obstruct the proceedings has no longer been a relevant factor, in view of the lapse of time. 35. From 20 November 2007 to 23 September 2008 the applicant served a prison sentence ordered in another set of criminal proceedings against him. 36. The proceedings are still pending before the District Court. 37. On 14 April 2008 the applicant received a letter from his lawyer. In that respect the applicant presented a copy of an envelope which bears a stamp “censored (“ocenzurowano”). The stamp is crossed out. The envelope also contains a handwritten note which says “censorship abandoned” (“odstąpiono od cenzury”), date and illegible signature. 38. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 39. The relevant statistical data, recent amendments to the Code of Criminal procedure designed to streamline criminal proceedings and references to the relevant Council of Europe materials can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, § 27-28 and 30-35, 3 February 2009). 40. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are presented in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005VIII, and its judgment s in the cases of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V and Krzysztofiak v. Poland, no. 38018/07, §§ 2331, 20 April 2010.

train

001-22079

ENG

AUT

ADMISSIBILITY

R.W. and C.T.G.-W. v. AUSTRIA

Inadmissible

Georg Ress

The applicants, R.W. and C. T.G.-W. are Austrian nationals, born in 1962 and 1967 and living in Hallein and Oberndorf, respectively. They are represented before the Court by Mr G. Tews, a lawyer practising in Linz. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are the parents of a son born in wedlock in 1990. On 30 June 1993 the Oberndorf District Court (Bezirksgericht) granted the applicants’ petition for divorce by consent. In the settlement regulating the legal consequences of the divorce the applicants agreed, contrary to section 177 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), to continue exercising joint custody over their son. The settlement was subject to approval in separate custody proceedings. On 13 January 1994 the Oberndorf District Court, in the custody proceedings, refused approval of the settlement on the ground that the law did not provide for joint custody after divorce except where the former spouses continued to live in a common household, which was not the applicants’ case. The applicants appealed against this decision. They submitted an expert opinion which, having regard to both applicants’ relationship with their son and their ability and willingness to care jointly for him, stated that awarding joint custody would be desirable in the interests of the child’s well-being. On 6 April 1994, the Salzburg Regional Court (Landesgericht) adjourned the proceedings and requested the Constitutional Court (Verfassungsgerichtshof) to review the constitutionality of section 177 of the Civil Code. The Constitutional Court, by judgment of 10 October 1995 (see below), found that the said section was in conformity with the Constitution. Thereupon, on 13 March 1996 the Salzburg Regional Court dismissed the applicants’ appeal. It noted that, having regard to the clear wording of section 177 of the Civil Code, the courts were not empowered to grant joint custody after divorce except where the former spouses continued to live in a common household, even where this would be in the interests of the child’s well-being in the circumstances of the particular case. On 6 November 1996 the Supreme Court (Oberster Gerichtshof) dismissed the applicants’ appeal on points of law. Section 177 of the Civil Code, in the version in force at the material time, provided as follows: “(1) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void, or that the parents have lived separately for more than a limited period, they may submit an agreement to the court stating which one of them will exercise sole custody over the child in the future. The court has to approve the agreement if it corresponds to the interests of the child’s well-being. (2) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child’s well-being, the court has to decide which parent should have the right to sole custody in the future. In case the parents have lived separately for more than a limited period the court only decides upon the request of one of them. (3) Section 167 applies accordingly.” Section 167 of the Civil Code provides, for children born out of wedlock, that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child’s well-being. In a judgment of 10 October 1995, the Constitutional Court ruled on the constitutionality of section 177 of the Civil Code. It noted the Supreme Court’s constant case-law according to which section 177 excluded an award of joint custody to both parents in case of divorce, except in the rare case when they continued to live together with the child in a common household. As to Article 8 of the Convention, it found that the award of sole custody after divorce to one parent was an interference with the other parent’s right to respect for his or her family life, which was justified under the second paragraph of this Article. Given the legislator’s margin of appreciation, it was to be considered necessary for the protection of the rights of others. In particular, it was proportionate, as the parent not having custody retained a number of rights, such as the right of access and the right to be informed and heard as regards certain important matters. Moreover, the law did not prevent parents, who wished to share their parental rights after divorce, from doing so in practice. As to Article 5 of Protocol No. 7, the Constitutional Court found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender only. It did not generally demand that joint custody be awarded to parents after divorce. By amendment which entered into force on 1 July 2001 (Federal Gazette - Bundesgesetzblatt - 135/2000), section 177 of the Civil Code was changed. It now reads as follows. “(1) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void, the parents continue to exercise joint custody. They can, however - even for the purpose of changing an existing arrangement - submit an agreement concerning custody to the court which may provide for sole custody of one parent. ... (2) Where the parents want to exercise joint custody they have to submit an agreement to the court stating with which parent the child has its main residence. (3) The court has to approve the parents’ agreement to ensure that it is in the best interests of the child.” A newly introduced section 177a provides that where an agreement about the child’s main residence is not achieved within a reasonable time, or where an agreement on custody is not reached or is not in the child’s best interests, the court has to award sole custody to one parent. Equally, where both parents exercise joint custody after dissolution of their marriage the court, upon the request of one of them, has to award sole custody to one parent according to the child’s best interests where an agreed solution cannot be reached. According to section 148 of the Civil Code, in the version in force at the material time, the parent not having custody has a right of access. Moreover, according to section 178 of the Civil Code in the version in force at the material time, the parent not having custody has the right to be informed by the other parent about certain measures listed in section 154 §§ 2 and 3 (which in cases of joint custody require the agreement of both parents), and has the right to be heard within a reasonable time. The submissions of the non-custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child’s well-being. The measures at issue include the change of the child’s first or family name, the entry into or secession from a church or other religious group, the child’s placement in care, the acquisition or renunciation of a particular nationality, the early termination of an apprenticeship or employment contract, the recognition of paternity of a child born out of wedlock, as well as certain important provisions concerning the child’s property. Following the above-mentioned amendment of the Civil Code section 148 provides that the parent not living in a common household (be it that he/she is the non-custodial parent or that the parents exercise joint custody) has a right of access. Section 178 still contains the rights of the non-custodial parent, but has slightly strengthened his/her position in case he/she is prevented from exercising the right of access and in case the custodial parent fails to give the required information.

train

001-76778

ENG

SWE

ADMISSIBILITY

KARIM v. SWEDEN

Inadmissible

The applicant, Mr Fazlul Karim, is a Bangladeshi national who was born in 1975 and is currently in Sweden. He is represented before the Court by Ms A. Enochsson, a lawyer practising in Stockholm. The respondent Government are represented by their Agent Mr C.H. Ehrenkrona of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 May 2003 the applicant arrived in Sweden and, on the following day, he applied to the Migration Board (Migrationsverket) for asylum and a residence permit. On 28 May 2003 an initial interview was held with the applicant and, on 15 July 2003, the Migration Board conducted a second interview. During these interviews, the applicant stated that he had been active within the Jatiya Party [Ershad] in the district of Rajshahi where he lived. He had commenced his political activities in 1997 and, in 2000, he became the organisation’s secretary within the district. He had been responsible for organising meetings and demonstrations and for recruiting new members to the party. On 1 July 2002 he had been arrested during a demonstration and had been beaten by the police while being taken to the police station. During his detention, he had been tortured two to three times per day. He had, inter alia, been beaten all over his body with sticks, suspended with his hands and feet tied from a pipe, burnt with cigarettes and had had water mixed with chilli thrown in his face. He had been told that the ill-treatment would continue until he stopped his political activities. After he had been detained for 26 days, one of the leaders of the Jatiya Party [Ershad] had managed to get him out. He had been arrested a second time, on 10 January 2003, in connection with a meeting in one of the party’s offices. He had been detained for 30 days before his father had managed to bribe the police, paying 500,000 Bangladeshi Taka (around EUR 6,500), to get him released. Also this time he had been badly tortured and had had to stay at a private hospital for one week following his release to get treatment for his injuries. He had not reported the torture to the authorities since it was the police and supporters of the governing party who had carried it out. The police had also ordered him to present himself at the police station twice a month but he had only done so on one occasion. However, he had continued his political activities and, on 5 March 2003, the police and some supporters of the governing party had come to his home, looking for him. As he had not been at home, they had destroyed his belongings and had harassed his father, saying that they would kill the applicant should they find him. Following this, the applicant had gone into hiding. On 10 March 2003 a supporter of the governing party had been murdered in his neighbourhood and the applicant claimed that he had been accused of the murder as yet another means of persecuting him because of his political affiliation. Due to these incidents, he had travelled to some relatives in Dhaka who had arranged for him to leave the country with the help of smugglers, to whom the applicant’s father had paid 800,000 Taka (around EUR 10,500). The applicant alleged before the Migration Board that he would be arrested and tortured if he was returned to Bangladesh and that the political persecution of him would continue. To support his claims, he submitted a medical certificate from Bangladesh made by Dr. Serajul Islam at the Raj Clinic in Rajshahi. It stated that the applicant had been cared for at the hospital between 11 and 18 February 2003 as he had scars and wounds after receiving blows to his body. He had been given antibiotics and painkillers, as well as medication to subdue his anxiety. The applicant also relied on a certificate from the District Secretary, Mr Muklesur Rahman, of the Jatiya Party [Ershad] in Rajshahi which stated that he had been very active within the party and had been arrested and tortured on two occasions. The applicant further invoked medical certificates from Sweden from which it appeared that he had been admitted to psychiatric care between 26 June and 8 August 2003, and thereafter had been in regular contact with the psychiatric service for asylum seekers in Stockholm. He had been diagnosed as suffering from post traumatic stress disorder (PTSD) and depression. In a submission of 18 September 2003, the applicant claimed that he had been raped and subjected to serious sexual abuse while in detention in Bangladesh and that he had repeated flashbacks and nightmares from the abuses. He stated that he had been too ashamed and afraid to recount these events during the interviews with the Migration Board. On 8 December 2003 the Migration Board rejected the application. It first noted that the general situation in Bangladesh was not good but that it was not such that it could grant the applicant asylum solely on this basis. The Migration Board did not question that the applicant had been involved in the Jatyia Party [Ershad] in the Rajshahi district or that he had been the victim of abuse and torture, which it regarded as serious. However, the Migration Board considered that the applicant’s political involvement had been on a local level and that he had not held a prominent position within the party. Moreover, the harassment and abuse of which he had been the victim seemed to be personal aggressions from supporters of the governing party and police officers who had acted on their own initiative. Thus, it found that the abuses were not sanctioned by the Bangladeshi authorities and that the applicant would not be of interest to the authorities because of his political involvement. Consequently, he would not face a real risk of torture or ill-treatment if returned to his home country. Furthermore, with regard to the applicant’s claim that he had been accused of murder, the Migration Board considered that he would have the opportunity to defend himself in a court of law and that the legal system in Bangladesh worked relatively well. Even if he were to be convicted in the first instance, he could appeal to the higher courts in Bangladesh which were considered to be independent and fair. In these circumstances, the applicant could not be granted asylum in Sweden. As concerned the applicant’s mental health, the Migration Board noted that, in October 2003, he had requested to be exempt from having a working permit in order to be able to work in Sweden. The Board considered this as a sign of improvement of the applicant’s health. Moreover, it observed that there was psychiatric care available in Bangladesh where the applicant should be able to get adequate treatment. The Board further found that the applicant was not suffering from a serious mental disorder or any other disorder of such a serious nature that he could be granted leave to stay in Sweden based on humanitarian grounds. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adding that, although torture was prohibited by Bangladeshi law, it was widespread. Moreover, the Bangladeshi authorities sanctioned persecution of political opponents and, if he was prosecuted for murder, he would risk being kept in detention for a very long time before the case was heard by the courts. The applicant further stated that he had continuous nightmares about the torture and the sexual abuse of which he had been a victim, and had serious thoughts of suicide. According to him, his friends had to keep an eye on him all the time. He relied on medical certificates which supported his statements concerning his poor mental health. On 22 April 2004 the Aliens Appeals Board rejected the appeal. It shared the Migration Board’s reasoning and conclusion that the applicant could not be granted asylum. With regard to his poor mental health, the Aliens Appeals Board noted that he was not undergoing regular treatment except that he met with a nurse for counselling. Thus, it found that the applicant was not in such poor health that he could be granted a residence permit on humanitarian grounds. In October 2004 the applicant lodged a new application for a residence permit on humanitarian grounds, invoking his continuously deteriorating mental health. He relied on medical certificates from the Crisis and Trauma Centre which confirmed that he had been subjected to grave and systematic torture, and that it had caused him to develop PTSD with a psychotic strain. He was considered to be in need of extensive treatment. Moreover, between April and September 2004, he had been admitted to psychiatric care on several occasions (6-11 May 2004, 19 May-7 June 2004, 5-12 July 2004, 10-12 August 2004 and 28-30 September 2004) because he had been considered to be suicidal. On 19 October 2004 the Aliens Appeals Board decided to stay the enforcement of the deportation of the applicant until further notice. It further requested an independent physician (förtroendeläkare) to examine the applicant and to submit her observations and conclusions to the Board. On 19 November 2004 the physician, Dr A. Voltaire Carlsson, a specialist in psychiatry, submitted her findings which were based on a personal examination of the applicant and access to all his medical journals and certificates. She observed that the applicant suffered from flashbacks from the torture and rape, and that he blamed himself for the abuses. Moreover, he was constantly anxious and depressed but the psychiatrist found no sign of psychotic symptoms or paranoia. However, his health had not improved and, although he had never injured himself, he had expressed suicidal thoughts and plans. Thus, she considered that a risk of suicide in the future could not be excluded and she concluded that there existed certain impediments against the enforcement of the deportation order. In response to the independent physician’s conclusion, two of the applicant’s regular physicians, Dr G. Roth and Dr H.P. Søndergaard, replied that they considered that there were clear and absolute impediments against the enforcement of the deportation order since the applicant suffered from grave PTSD and depression, and because there was a real risk that he would try to commit suicide. On 31 January 2005 the Aliens Appeals Board rejected the new application. It first noted that the applicant had only invoked humanitarian grounds based on his poor mental health and that it was only in exceptional cases that leave to stay could be granted on that basis. The Aliens Appeals Board found that the medical certificates and the independent physician’s report did not show that the applicant had a serious mental disorder for which a residence permit should be granted on medical grounds. It considered that the applicant could receive proper treatment in his home country and noted that his relatives remained there. Thus it concluded that it would not violate the standards of humanity to deport him to Bangladesh. The applicant then lodged another new application with the Aliens Appeals Board. He stated that, since the last rejection, he had been admitted to psychiatric care on three occasions (4-8 February 2005, 11-23 February 2005 and 17-21 March 2005) due to a high risk of suicide. His treating physicians considered that he suffered from a serious and complicated psychiatric disorder due to his traumas in his home country and that there was an absolute impediment to the enforcement of his deportation order. On 13 April 2005 the Aliens Appeals Board rejected the new application on the grounds that the applicant had invoked no new circumstances of relevance. As the applicant refused to leave Sweden voluntarily and went into hiding to avoid deportation, the Migration Board, on 10 June 2005, transferred the responsibility for implementing the deportation order to the police authority. On 1 July 2005 the applicant lodged yet another new application with the Aliens Appeals Board because he had, once again, been admitted to psychiatric care. On 4 July 2005 the Aliens Appeals Board decided not to stay the enforcement of the deportation order. However, on 6 July 2005, following the Court’s indication under Rule 39 of the Rules of Court, the Migration Board decided to stay the deportation of the applicant until further notice. The Migration Board’s decision is still in force. On 5 January 2006 the Court adjourned the case at the request of the Swedish Government following the enactment of an interim amendment to the Swedish Aliens Act, on the basis of which the applicant’s case would be reviewed. On 6 April 2006 the applicant informed the Court that, on 27 March 2006, the Migration Board had decided not to grant him a residence permit in Sweden on the basis of the interim amendment to the Aliens Act. The Migration Board had concluded that the applicant could not be granted leave to stay on medical grounds and that he could get adequate care in his home country. According to a medico-legal protocol, dated 26 August 2004, and a medico-legal certificate, dated 8 September 2004, both by Dr E. Edston, a specialist in forensic medicine at the Crisis and Trauma Centre, the applicant had a large number of scars on his body, some of which were typical after burning and severe violence (skarpt våld). It was considered very unlikely that the applicant could have caused these injuries himself or that they were the result of accidents. Instead, the findings confirmed that he had been tortured as he had claimed. With regard to the applicant’s mental health, he has submitted several medical reports from the aforementioned psychiatrists (Drs Søndergaard, Roth and Voltaire Carlsson) dating from September 2004 to February 2006, as well a report dated 30 June 2005 from Dr J. Guterstam, assistant physician, and Dr O. Broström, chief physician at the Karolinska Hospital. According to these reports, the applicant was admitted for psychiatric care for the first time between 26 June and 8 August 2003, just one month after his arrival in Sweden on 25 May 2003. Subsequently, he has been admitted to psychiatric care on repeated occasions but for shorter periods, the last time between 30 June and the beginning of July 2005, due to the risk of suicide. However, on no occasion has he been committed to compulsory psychiatric care (tvångsvård), i.e. taken into care against his will. He has had continuous contact with psychiatric services and has had a positive attitude to treatment all along. All the physicians agreed that the applicant suffered from serious PTSD and depression, and that his health had not improved despite the treatment. Dr Roth and Dr Søndergaard also considered that he had a serious and complicated psychiatric disorder, with which diagnosis, however, Dr Voltaire Carlsson disagreed as she had found no signs of psychotic symptoms when examining the applicant. Nevertheless, she considered that a risk of suicide could not be excluded, although the applicant had never injured himself. Drs Roth and Søndergaard maintained in their reports that there was a real risk of suicide as the applicant was constantly struggling with self-destructive thoughts, and had suicidal impulses and clear flashbacks from torture. Thus, in the view of Dr Voltaire Carlsson, there were certain impediments against the enforcement of the deportation order because of the applicant’s mental health condition, whereas Drs Roth and Søndergaard insisted that there was an absolute impediment against the deportation as the applicant was in such poor mental health that he could act in desperation if he were to be deported. These two physicians also stated that the applicant’s poor health had been caused by the traumas of which he had been the victim in Bangladesh and by the prolonged insecurity in Sweden. They estimated that he would need extensive treatment, both medical and psychiatric, for a long time and in a secure environment. In the last certificate, dated 22 February 2006, Dr Roth wrote that the applicant’s condition had not improved but rather worsened because he was very frustrated over his uncertain situation in Sweden. He had continuous contact with a psychologist at the clinic and got his medication in doses for one week at a time to prevent a suicide by overdose. He was medicated with the anti-psychotic drug, Zyprexa, the anti-depressive drug, Clomipramine, as well as with anxiety reducing medication and sleeping pills. The Bangladeshi government is the main provider of health services in the country, with the private sector playing an increasingly larger role. Moreover, non-governmental organisations (NGOs) are involved in the provision of primary health care and in rehabilitation. The country has a national mental health programme and there are budget allocations for mental health. However, both the budget and the number of mental health professionals are largely inadequate. Medicines, including antidepressants, are available and commonly used in Bangladesh for the treatment of mental illness. Different types of psychotherapy are also used in treatment. Formal care and treatment of mentally ill persons started in 1957 when the Pabna Mental Hospital was opened and, in 1969, the first outdoor clinic started functioning in Dhaka Medical College. Since the 1970s, more institutes were opened and, in 2002, the National Mental Health Institute opened as a fully operational hospital and educational centre. Moreover, each military hospital has a mental health department and there are mental health sections in hospitals in several cities around the country. Several smaller, private clinics have also been established, in particularly in and around Dhaka, such as the Bidyut Mental Clinic. Furthermore, the Bangladesh Association of Psychiatrics, the Bangladesh Psychological Association and the Bangladesh Clinical Psychology Association have their seats in Dhaka and are affiliated to the Dhaka Medical College, the Department of Psychology and the Department of Clinical Psychology at the University of Dhaka, respectively. Also, in 1992, an NGO, the Bangladeshi Mental Health Association, was created with the mission to provide community-based mental health service to the people in Bangladesh. It has its base at the Monorog Clinic in Dhaka. The basic provisions, applied in the present case, concerning the right of aliens to enter and to remain in Sweden were laid down in the 1989 Aliens Act (utlänningslagen, 1989:529 – hereinafter referred to as “the 1989 Act”). However, the 1989 Act was replaced, on 31 March 2006, by a new Aliens Act (Utlänningslag, 2005:716 – hereinafter referred to as “the 2005 Act”). Both the 1989 Act and the 2005 Act define the conditions under which an alien can be expelled from the country, as well as the procedures relating to the enforcement of decisions under the Acts. Chapter 1, Section 4 of the 1989 Act provided that an alien staying in Sweden for more than three months should have a residence permit. Such a permit could be issued, inter alia, to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). For example, serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the granting of a residence permit if it was a life-threatening illness for which no treatment could be provided in the alien’s home country. Further, according to the 1989 Act, an alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals (Chapter 3, Section 2). By “an alien otherwise in need of protection” was meant, inter alia, a person who had left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 3, Section 3). An alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he or she filed a so-called new application based on circumstances which had not previously been examined, and if the alien was entitled to a residence permit under Chapter 3, Section 4, or it would be contrary to the requirements of humanity to enforce such a decision (Chapter 2, Section 5 b). Regard could also be had to serious illness under this provision. Such new applications were filed with and examined by the Aliens Appeals Board (Chapter 7, Section 7). When it came to enforcing a decision on refusal of entry or expulsion, account had to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 8, Section 1). In essence, there have not been any major changes to the provisions referred to above in the 2005 Act, with the exception of the following: Through the enactment of the 2005 Act, the Aliens Appeals Board has been replaced by the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3). Moreover, it is no longer possible to lodge so called new applications but, instead, the Migration Board shall, on its own initiative, determine whether there is any impediment to the deportation or expulsion (Chapter 12, Section 18). Furthermore, between 15 November 2005 and 30 March 2006, some interim amendments to the 1989 Act were in force, according to which the Migration Board, upon application by an alien or on its own initiative, could re-determine final decisions already taken by the Aliens Appeals Board. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children.

train

001-101458

ENG

NOR

CHAMBER

CASE OF AUNE v. NORWAY

No violation of Art. 8;Remainder inadmissible

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

5. The applicant was born in 1976 and lives in Stjørdal. Together with Mr G., she has a son A, who was born on 21 February 1998. From another relationship she also has a son, B (born in 1995). Both children have been in foster care since 1998. The present application relates to a decision of 25 April 2005 by the Southern and Northern Trøndelag County Social Affairs Board (hereinafter “the County Board”) to deprive the applicant and G. of parental responsibilities in respect of A and to authorise his adoption. The proceedings before the County Board had been brought by the child welfare services following an initiative by G. 6. The taking into care of A - first as an emergency measure on 26 August 1998, then on a permanent basis on 29 December 1998 - had been decided on the grounds both of suspicion that he had been subjected to ill-treatment and of his parents' drug abuse problems (a decision by the County Board which Trondheim City Court upheld on 22 September 1999, whilst limiting the applicant's contact with A to four hours four times a year; these measures became final after the applicant had withdrawn her appeal to the Frostating High Court in part due to a worsening of her drug abuse problem). The measure had been taken in light of A's hospitalisation in July 1998, after G. had found him unconscious in his bed and had resuscitated him. A had arrived unconscious at the hospital and had been placed in intensive care. The examinations, in which large amounts of liquid had been found in his brain, had required operations on A involving the placement of a drain in his brain. Suspecting that A had repeatedly been subjected to ill-treatment, the hospital reported both parents to the police. Because of this suspicion and the parents' appearing intoxicated at the hospital, the child welfare authorities were contacted. 7. In view of the state of the evidence, the police subsequently decided to discontinue the investigation in respect of both parents. 8. Although a vulnerable child due to trauma in early life, A developed well in foster care, first with Mr and Mrs R. and then, from October 1999, when he was one year and eight months old, with Mr and Mrs O., whom he considered his psychological parents and with whom he developed particularly strong links. 9. At the same time as A, B was taken into public care and was placed with the applicant's father and his cohabitant partner, who later became his foster parents. They protested against A being placed in a different foster home from his brother. 10. The child welfare services had had contact with the applicant because of concerns about hers and G.'s drug abuse as early as 1996. The extent of the applicant's drug abuse before A's birth was uncertain but, according to her, she had started using heroin after A was taken into care in August 1998. Since 2000 she had spent periods of varying duration in detoxification centres. In the autumn of 2005 she started methadone treatment (medically based rehabilitation). She lived with her mother and received disability benefit, then got a new cohabitant, with whom she set up a renovation business and worked in addition to receiving disability benefit. 11. From the time A was compulsorily taken into care in August 1998 until the autumn of 2003, the applicant attended six of the fifteen visits that had been arranged for her to have contact with A. For approximately a year no visits took place, because of her drug abuse problem. From the autumn of 2003 contact visits resumed and the applicant, with her mother, also spent nights at the foster home. The applicant, her mother and the foster parents agreed that contact functioned very well in 2003. There was also regular access in 2004, including in December 2004 at the farm where the applicant lived. The applicant, her mother and B spent the weekend of 22 to 24 April 2005 at the foster home. 12. On 29 October 2005 the foster parents travelled with A to Trondheim for him to meet B. The applicant was prevented from taking part as she was undergoing detoxification before starting methadone treatment. 13. In its decision of 25 April 2005 to deprive the applicant of her parental responsibilities in respect of A and to authorise his adoption by his foster parents, the County Board gave, inter alia, the following reasons: “[A.] has been described to the County Board as a boy with many good qualities. He is described as cheerful, sociable, sensitive, imaginative, thoughtful and philosophical. At the same time, he is a boy who has a background that makes him especially vulnerable and with special care needs. It should be noted that [A] was born prematurely and during the first months of his life experienced serious neglect which, inter alia, resulted in his sustaining brain damage. He has several times experienced close relationships being broken up, first having to move from his parents to the emergency foster home and then on to the foster home. [A]'s development in the foster home has been very positive and today his functioning is normal for a person of his age. In his assessment of [A]'s vulnerability, the appointed expert [Z] stated as follows on page 8: '... Nevertheless, it will continue to be necessary for many years to come to take account of the fact that he is a high-risk child in every area, in other words that he may react more strongly than normal to new pressures and one must expect that his development could be more vulnerable to stress and strain from everyday life. He will therefore continue to need care providers who are more sensible, responsible and loving than would be the case for a normal child.' Psychologist [Z] expanded on this to the County Board and reiterated his assessment. He considered that [A] had a conditional sense of security, meaning that he functioned well as long as he knew he was safe. [A]'s insecurity manifested itself in the fact that he was concerned about whether or not he would remain with his foster parents. Psychologist [Z] was of the opinion that [A] was unusually concerned with this issue and that he expended energy on keeping this subject at arm's length. His vulnerability to further negative developments meant that he would be continuously dependent on the presence of secure adults who he knew would be there for him. He was dependent on the calm and structure provided by the foster parents. The expert's assessment has been emphasised by the statements given by the case officer of the Child Welfare Services, the foster parents, the supervisor and a teacher. The descriptions of [A] received by the County Board show that he needs a great deal of calm and predictability and that he is particularly vulnerable to stress. He needs a great deal of time to do things at his own pace. He is a thoughtful and philosophical boy who is absent-minded, remote and dreamy. It is precisely because his character is not superficial that the County Board is concerned about the strain caused by uncertainty about the future. Generally, foster children need reassurance. However, the County Board finds that this is a very prominent feature in [A] and that it takes a form that is harmful to him. The supervisor told the County Board about a contact visit in [X] with his maternal grandfather and [B] at which the foster parents had not been present. [B] had then told [A] that [the applicant] was his mother. Although [A] already knew this, he crept behind a chair and hid. When they returned to T, the foster parents were waiting for them. The supervisor's description of [A]'s reunions with the foster parents was an intense description of the way in which [A] clung to his foster father and how he sought assurances that he would be staying with them. The foster parents had stated that both before and after contact visits, [A] needed constant reassurance that they would always love him and that he would always live with them. ... In the County Board's assessment, [A]'s need to know that he would always remain in the foster home has not been met to a satisfactory degree. There has been continuous conflict in relation to [A]'s placement. It is understandable that the mother's family should react to the placement. However, the approach used towards [A]'s foster parents have not been in [A]'s best interest. Letters and cards have been written and cooperation between the maternal grandfather and his cohabitant and the foster parents has been strained; it is the County Board's understanding that this conflict is still ongoing, although it is no longer as pronounced. The maternal grandfather and his cohabitant openly express a negative attitude towards the foster parents and have difficulty in appreciating that they are contributing to the conflict. The mother and maternal grandmother have gradually come to work well with the foster parents on the question of contact visits, but express a sceptical attitude towards the foster parents on the subject of contact even when adoption is only a possibility. The County Board also finds that the mother and her family envision the return of [A] in the longer term. The County Board was told that this question had been put on hold. It was impossible for the County Board to elicit an acknowledgment that [A] would remain in the foster home until he reached the age of eighteen. The County Board's opinion, having heard the evidence, is also supported by [the applicant's lawyer] Mrs Thiis' response of 1 March 2005, from which it is apparent that it is not possible to establish with certainty that the applicant will never be in a position to care for the child. It would be most unsatisfactory for [A] and his foster parents to have this question hanging over them at all times. The County Board finds that the foster parents too must be safeguarded in relation to the unpredictability of what might happen, because A picks up on their uncertainty. He expressed to psychologist [Z] that it was his wish that the foster parents should take all decisions in his life. ... The County Board considers that [A]'s need for security and secure ties to the foster family are more important than maintaining contact with a father and a mother whose lives are very unstable. There has been no improvement in the circumstances of the lives of the father and the mother over the last seven years. In the assessment of the County Board the foster parents are undoubtedly best placed to make the choices that are right for [A] today and in the future. An adoption would also provide [A.] with the necessary assurance that there would be no future proceedings in relation to returning him to the parents. [A] is a very vulnerable boy who needs the security that the foster home and the environment around it represent for him. This, combined with an open question about future proceedings to return [A], the level of conflict between the mother's family, in particular the maternal grandfather and his cohabitant, and the foster parents and the conflict between [A]'s mother and father, induce the County Board to draw the conclusion that there are strong grounds for granting consent to adoption.” 14. The applicant lodged an appeal against the County Board's decision of 25 April 2005 at Trondheim City Court, which by a judgment of 14 December 2005 upheld the decision. 15. On a further appeal by the applicant the Frostating High Court, sitting with three judges and four lay members, including two psychologists, and after hearing the applicant, G., a representative of the Municipality, expert Z, a guardian representing A and fourteen witnesses, unanimously overturned the City Court's judgment on 3 October 2006. 16. The High Court observed that the removal of parental responsibilities and adoption would entail severing A's ties to his biological origins. These were particularly far-reaching measures that would have irreversible consequences and ought to be supported with strong reasons. 17. The High Court found no reason to doubt that the condition in section 4-20(3)(a) of the Child Welfare Act, that it was probable that the parents would permanently be unable to provide proper care for A, had been fulfilled. The applicant had also conceded that this was the case. 18. Nor did the High Court doubt that the condition in section 4-20(3)(c) had been met, namely that the foster parents were fit to bring up A as their own child. 19. The central issue was whether adoption would be in A's best interest as required by section 4-20(3)(b). Under any circumstance, in order for adoption to be authorised it ought to be in the child's best interest. Moreover, the measure should not be incompatible with Article 8 of the Convention. 20. In this regard, the High Court noted the various factors pertaining to A's attachment to his foster parents and the foster home environment, notably that he had been with his foster parents since he was approximately one year and eight months old, that he considered them as his psychological parents, called them “mama” and “papa”, and that he did not consider himself different because he was a foster child. In the same way as a child would benefit from favourable conditions of upbringing, it would be in A's best interest too to grow up in a well-functioning home such as his foster home. He was also a very vulnerable child with a particular need for foreseeability, framework and structure. These considerations alone suggested that he would benefit from adoption, in that he would be ensured an upbringing under particularly favourable conditions. 21. The High Court observed that A had had contact with his biological family, namely his paternal grandmother and great-grandmother, his mother (“mama Lise”), his brother and his maternal grandmother and grandfather. He knew them well and knew that they were his biological family. In the same way as he had expressed a definite wish to live in the foster home he had stated that he wished to have contact with the applicant and his brother B. 22. The High Court noted that since last year, when the applicant had started methadone treatment, there had been several positive contacts between the applicant, B and A. Previously there had been long interruptions of contact, partly because of the applicant's drug abuse, but also because of a lack of coordination and facilitation on the part of the child welfare services. The fact that, despite this, there had been so many instances of contact, not least in 2004 when five contact visits had been arranged, ought to a large extent be ascribed to the foster parents, who had actively contributed to the facilitation of contact. In 2005 only one meeting with the applicant had taken place. However, while awaiting methadone treatment she had been prescribed the drug Dolcontin. In October 2005 she had been unable to take part in contact visits while undergoing detoxification before starting the methadone treatment. Since last year, the contact visits had been drug free. 23. As regards the Municipality's concern that the applicant and her family, especially her father, had conducted a major battle against the child welfare services and against A's placement in the foster home, the High Court observed the following. The pressure did not subside until the adoption case was opened. According to the Municipality there had been reason to believe that there would be new pressures aimed at the foster parents unless adoption was authorised. The High Court agreed that in so far as the family had acted directly against the foster parents and children, this was blameworthy and an undesirable situation. The High Court had nonetheless based itself on the applicant's statement that, despite her preference that the boys be brought up together, she agreed that A was doing very well in the foster home. She had no wish to change this situation. The High Court found that such an attitude on her part contributed to the creation of a secure environment for A in his care situation. The High Court further found reason to rely on the applicant's statement in court that she to a greater extent than before would be able to confront her father in respect of his initiatives regarding A's placement. 24. The High Court further observed that both the child welfare services and the foster parents regarded it as desirable and positive for A's development that his contact with the applicant and the remainder of his biological family be maintained after any adoption. Before the High Court the foster parents had expressed that they were prepared to allow as much contact as would be natural. The High Court found no reason to doubt this and emphasised that it was largely thanks to them that A had had contact with the biological family at a level which went beyond the minimum. 25. The High Court reiterated that the Supreme Court had on several occasions emphasised that the relationship between the child and its biological parents ought to carry great weight in the wider discretionary assessment. In both of the judgments reported in Norsk Retstidende, 1997534 and Norsk Retstidende, 2001-14, the Supreme Court had concluded, each time by a majority, that adoption should not be authorised. In both cases it had been deemed desirable that contacts between mother and child be maintained. 26. The last-mentioned judgment had contained reasoning which could be transposed to the present case. A had an established attachment to his mother and brother which ought to be continued. The applicant had previously been a heavy drug abuser and had currently started rehabilitation, which according to experience would be long and difficult and involved a risk of relapse. That risk would increase if adoption were to be authorised, especially in the period after such an authorisation. During the year in which the applicant had been drug-free she had developed positively. She currently lived with a cohabitant in their own house; the couple had registered their own company and were working legally in addition to receiving a disability pension. 27. In the first-mentioned judgment it had also been the case that the children had a need for contact with their mother. The Supreme Court majority had held that authorising adoption was questionable in that it would leave it to the adoptive parents to decide on contact. This ruling, the High Court pointed out, had been a clear invitation to consider whether the law should be amended so as to confer a right to contact between children and biological parents after an adoption had been effected without the parents' consent. On this point the High Court quoted the conclusion of Report No. 40 to the Storting [Parliament] in 200 1-2002, point 9.9.3: “The Ministry of Children and Family Affairs monitors thoroughly any developments regarding these issues and assesses continuously whether there are reasons for amending the Act. In the view of the Ministry, there is nonetheless insufficient basis for making such amendments at present. An adoption under section 4-20 of the Child Care Act is a particularly far-reaching measure and one should be cautious about making amendments that could lead to an increase in the number of such adoptions. In the report referred to it is maintained that authorisation of adoption under the Child Welfare Act should not be granted in cases in which it is considered to be beneficial for the child to maintain contact with his or her biological parents. The Ministry of Children and Family Affairs shares this view and is concerned as to how best to ensure that consent to adoption not be granted where contact with the biological parents is desirable. The Ministry is considering whether guidelines for such situations should be introduced.” 28. In light of the above, the High Court held that as a main rule adoption should not be authorised when continued contact between a child and its biological parents was desirable. The reasons adduced for A's adoption were insufficient to justify a departure being made from this main rule in the instant case. 29. The Municipality, joined by G., appealed to the Supreme Court against the High Court's assessment of the evidence and application of the law. 30. The Supreme Court appointed two experts. Mrs H., a specialist in clinical psychology, submitted a report whilst the other expert withdrew. 31. On 20 April 2007 the Supreme Court unanimously upheld the City Court's judgment, disagreeing with the High Court's interpretation and application of the law. 32. Mrs Justice Coward's reasoning, which the other four Justices on the panel endorsed in the main, could be summarised as follows. 33. It was undisputed that the foster parents fulfilled the condition in section 4-20(3)(c) of the Child Welfare Act that they had been shown to be suited to raise the child as their own. 34. However, unlike before the lower courts, before the Supreme Court the applicant argued that it was not probable that she was permanently unable to provide proper care for A for the purposes of section 4-20(3)(a); she only conceded that the alternative ground for authorising adoption under that provision, namely A's attachment to the foster home, had been fulfilled. 35. In this regard Mrs Justice Coward observed that both parents had a long history of drug abuse problems. The applicant had been on a rehabilitation scheme since October 2005 and had been drug-free during the entire treatment. She had established an individual enterprise with her current cohabitant, had obtained a driving licence and had plans to pursue studies. Despite this positive development, the court-appointed expert had stated a clear opinion to the effect that the applicant was unable to provide A with proper care. Mrs Justice Coward, like the High Court, found no reason to doubt either that the condition of inability to provide care was fulfilled. And G. had at no time alleged that he was capable of providing care for his son. Over the years he had spent several periods in prison for drug offences and violent assault. 36. Mrs Justice Coward found no doubt that the further condition in section 4-20(3)(c), that the foster parents be able to raise A as their own child, had been fulfilled. Only positive remarks had been made about them by the experts and by the lower courts. Nothing had emerged before the Supreme Court which weakened these observations made by the High Court: “[Mr and Mrs] O. had been described as caring, resourceful, generous and warm people who had a solid network. They had contributed to A's maintaining contact with his biological family. Over the years they had also contributed to contact being arranged beyond the minimum level and ... in connection with [the applicant's] own home at [X]. They had both appeared and given statements before the High Court which bore out the way they had been described by other courts. The High Court relies on their assurances that they love A as their own child, that they only wish the best for him and that as far as they are concerned A should stay with them.” 37. The central issue was whether authorising adoption would be justified in A's best interest (section 4-20(3)(b)). Mrs Justice Coward observed: “(47) As regards the general meaning of this condition, it has been stated in several Supreme Court judgments that, in order for an authorisation of adoption to be granted against the will of the biological parents, there must be pressing reasons. Moreover, it is clear that the decision must be based on a concrete assessment of the individual case. However, the assessment must also be based on general experience, including experience from research into child psychology or child psychiatry. (48) The relationship between general experience and special considerations has been discussed in a number of Supreme Court judgments. In its judgment reported in Norsk Retstidende, 1991-557 it held at page 562 that the decision on the deprivation of parental responsibilities '... must depend on an overall and concrete assessment of the competing interests. Some of these considerations are of a general nature, namely considerations that normally — but to varying degrees — apply in cases of this type, whereas other considerations are particular to the case. In my view, there is only limited scope for drawing up general principles on how these considerations should be balanced against one another.' (49) In Norsk Retstidende, 2001-14 (23), the Supreme Court held that: 'Thus, it is mainly the general empirical doctrine, that long-term foster relationships are best served by a transition to adoption, that militates in favour of adoption in this case. As a starting point, general assumptions — based on comparative investigations into how foster children who have been adopted have fared in comparison with children who have not been adopted or who have been returned to their biological parents — cannot be entirely decisive in a specific instance. Such general considerations will, to varying degrees, need to be supplemented by specific and individual circumstances. In the present case, such circumstances appear to be present only to a limited extent.' (50) In my view, no clear distinction can be drawn between general experience and individual considerations: general experience may be formed with greater or lesser degrees of nuance, for example, on the basis of the child's age when placed in the foster home and the duration to date and future duration of the placement. In this case, the expert had stated that according to general experience a foster home was not to be preferred for long-term placement of a child who had come to the foster home before it had established ties to a biological parent; in such instances adoption would offer the best solution for the child's development. In my view, a general but nuanced experience of this nature must carry considerable weight. In any event, individual factors — for or against adoption — must be assessed against general experience. (51) Moreover, in Norsk Retstidende, 2001-14 (22)— on the basis of the case-law of the European Court of Human Rights — there appears to be a requirement that authorisation of adoption against the will of the parents should be granted only 'in exceptional circumstances'. Reference has in particular been made to the first case of Adele Johansen v. Norway [Johansen v. Norway, 7 August 1996, Reports of Judgments and Decisions 1996 III]. Of course, doubt can be raised about whether such a requirement in fact follows from the case-law of the European Court of Human Rights, inter alia in view of the admissibility decision on 10 October 2002 in the second case of Adele Johansen v. Norway [Johansen v. Norway (dec.) 12750/02, 10.10.2002]. I, at least, find it unclear what such a requirement should entail; a long-term foster home placement would normally occur precisely when the child would be in a situation that would otherwise be characterised as exceptional. In my view, from the case-law of the European Court of Human Rights hardly anything more could be deduced than that an adoption requires particularly weighty reasons. (52) After adoption, the biological parents would no longer have a legal right to contact. Against this background, the High Court held that as a main rule authorisation for adoption should not be granted if contact with the biological parents is desirable. Particular reference is made to Report No. 40 to the Storting [Parliament] in 200 1-2002, page 145, where a discussion concluded as follows: 'In the report referred to it is maintained that authorisation of adoption under the Child Welfare Act should not be granted in cases in which it is considered to be beneficial for the child to maintain contact with his or her biological parents. The Ministry of Children and Family Affairs shares this view and is concerned as to how best to ensure that consent to adoption not be granted where contact with the biological parents is desirable. The Ministry is considering whether guidelines for such situations should be introduced.' (53) I attach little weight to this statement. It was not made in connection with the legislative procedure and accordingly has little value as a source of law. Moreover, the statement is lacking in nuance so that it is by no means clear that it is intended to apply to situations in which it is assumed that contact will continue after an adoption. Neither the wording of the Act nor the Supreme Court case-law suggests that adoption should be ruled out if contact with the biological parents is desirable. It is true that in two judgments dealing with issues under the 1992 Child Welfare Act — reported in Norsk Retstidende, 1997- 534 and Norsk Retstidende, 2001-14 — the Supreme Court refused to authorise adoption in two such cases. However, neither of these judgments, which were both rendered with dissenting opinions (3-2), concluded that adoption was precluded in law in such cases. In the 1997 judgment, the majority raised strong doubts as to whether contact would in fact take place after an adoption. The issue of contact was viewed as an element in the overall assessment of the best interests of the child. (54) As regards the points of departure in law, I am otherwise in agreement with the Municipality that it follows from section 6-3 of the Child Welfare Act and Article 12 of the Convention on the Rights of the Child that the child's own wishes are of importance. (55) Moreover, it is not clear to me that the case-law under the European Convention on Human Rights makes any contribution to the resolution of a case such as the present one beyond what follows from the case-law of the Norwegian Supreme Court. Decisions in which the European Court has found adoption to be incompatible with the Convention have concerned cases with very little in common with this case. Moreover, the aforementioned admissibility decision in the second Johansen case indicates that the European Court too attaches weight to the child's own wishes and the child's special need for secure and calm conditions to prevail in the foster family. (56) Having conducted a review of the situation in law, I will now move on to the assessment of the present case. (57) This case concerns a foster home placement that has already been of considerable duration and is intended to continue for many years, and has no 'connection' in a narrow sense to his biological parents. I refer to the passages quoted from the expert witness's report on the subject of the discussion of [the applicant's] ability to care for the child. The general experience outlined by the court-appointed expert is that in such cases adoption would be better for the child than a continuing foster home arrangement. (58) That the general experience is also pertinent to our case is in my view apparent from a number of intertwined elements. As a result of what [A] underwent during the first year of his life, he is a vulnerable child. He was born seven weeks prematurely, experienced serious neglect and was severely ill-treated on several occasions to the degree that he sustained cerebral haemorrhage. In addition, he underwent the strains of being moved several times during the early months of his life. He has a need for security, including certainty that he belongs to his foster parents. One problem in this context is that [the applicant's] wish has been that [A] should live with her father and his cohabitant, and there has been considerable unrest around the placement with the foster parents. It is hard to ignore the possibility that the biological family, particularly [A]'s father and his cohabitant, will play a part in creating further unrest around [A] if he is not adopted. (59) A sense of belonging is important to [A] today and could become even more important to him during his teenage years, when he will have to deal, inter alia, with the fact that his biological parents have been involved in drug abuse and that his father has also been involved in crime. I refer to the court-appointed expert's comments on this point: '[A] is generally described as a confident child, although I also found him to be rather small and careful. It is worth noting the supervisor's statement that she as a nurse continued to view him as a vulnerable child about whom she was concerned, but that her worries did not materialise for as long as he remained with his foster parents. I share this view: his, in part, dramatic start in life as a premature baby and the subsequent neglect in the care and life-threatening ill-treatment he suffered made him vulnerable, but it is only when he is under pressure that this vulnerability manifests itself. In this context, the identity of the person(s) responsible for the ill-treatment is not of significance. What matters is his experience. Notwithstanding his current sense of security within the foster family, adoption would offer an extra element of protection. He may well need this in the coming years since, in psychological terms, the teenage years are a period in which early problems and experiences more readily come to the surface and need to he tackled. With time, he would also need to tackle issues of drug abuse and crime. I would also strongly emphasise the importance of absolute emotional security when he is told/becomes aware that his mother and his father were both heavy drug users, that they are on methadone, that he has been exposed to gross ill-treatment and that his parents are suspected of this ill-treatment, and that his father has served a total of over six years in prison. This will need to be integrated in his self- perception/identity.' (60) The parties disagree about the extent to which [A] himself wishes to be adopted. As has already been noted, the wishes of the child must be an element in the overall assessment of the best interests of the child. It is, of course, not easy for a nine-year-old to grasp the difference between being adopted and being in a foster home. However, [A] had at least said to the court-appointed expert that he wanted his foster parents to decide everything, including when he should see his mother and half-brother, and accordingly that the Child Welfare Services should not have anything to do with the question of contact. And I agree with the expert that in [A]'s situation it might be natural to view this as an expression of a wish to be adopted. (61) This leads on to the question of contact with the biological family. There is no disagreement that contact is desirable, particularly with [A]'s mother and half-brother. In the event of adoption, the biological parents would no longer have any legal right of contact, and this could militate against adoption, as can be seen above in the discussion of the legal points of departure. However, in the present case the foster parents have granted the biological family contact far beyond their legal entitlement, both in terms of the persons involved and the extent of the contact. In earlier periods, [the applicant] was unable to take part in contact visits. However, the foster parents can of course not be blamed for this. G, who had also been granted contact rights, has not wished to exercise this right as long as his life was burdened by drugs and crime. His mother and grandparents, however, have established a good relationship with the foster parents and keep in contact with them and with [A]. (62) [The applicant] has raised doubts as to whether the foster parents would continue to be open to contact in the event of an adoption. The County Board, the City Court, the High Court and the experts who interviewed the foster parents have been in no doubt that this openness to permitting contact will continue; the City Court found this to be the case 'with great certainty, bordering on absolute certainty'. I agree that this must be accepted and, accordingly, that the fact the legal right to contact will cease to apply in the event of an adoption will not constitute a major factor in the assessment of [A]'s best interests. (63) Despite this, [the applicant] might feel concern about the question of contact, and [A.]'s adoption would at the very least be emotionally difficult for her. She submitted that this might adversely affect [A]. I consider that this argument against adoption does not outweigh the factors suggesting that adoption would be in [A.]'s best interest. I also refer to [the applicant's] contact person in the methadone project, who stated that she now 'has mature strategies for handling adversity'. (64) Finally, I would point to the fact that it is apparent that G. is now in favour of [A.]'s being adopted by the foster parents. Both the County Board and the City Court found that this view had been reached after a full assessment of the best interests of the boy, and I see no reason to doubt this. (65) As will be apparent from the comments above, my view is that the County Board's decision to deprive the parents of parental responsibilities and to authorise adoption ought to be upheld. I will quote the expert's closing remarks on what message society would convey to [A] through the Supreme Court judgment: authorisation to adopt entails 'acknowledging his full right to be the child of his parents': 'A decision that he should remain a foster child would tell him that the people with whom he has always lived and who are his parents and with whom he established his earliest ties and sense of belonging should remain under the control of the Child Welfare Service — the public authorities — and that they are not viewed by society as his true parents but rather as foster parents under an agreement that can be terminated. His biological parents, who abused drugs and may have exposed him to serious ill-treatment and with whom he has established no ties, continue to be regarded by society as his true parents whose rights must be protected. If the outcome is that authorisation is granted for adoption to proceed, the message communicated to him would be that the injustice he suffered as an infant would be remedied in the only way that remains possible, that is to say by acknowledging his full right to be the child of his parents.'” 38. After the meeting arranged on 29 October 2005 described under sub-heading 2 above, several visits were arranged for the applicant and A to have contact. 39. From 10 to 11 March 2006 the applicant and her mother visited A at Mr and Mrs O's home. On 6 May and 5 August 2006 A visited the applicant, his brother B and members of the applicant's family. From 3 to 4 November 2006 the applicant and B visited A. 40. On 23 March 2007 (which was the correct date according to the applicant) there was a contact visit to celebrate her mother's birthday. From 21 to 22 July 2007 the applicant, her mother and B visited A. 41. From 1 to 2 February 2008 the applicant and B visited A. From 11 to 12 October 2008 A visited the applicant. B and the applicant's mother were also present. 42. Between 3 and 5 April 2009 A went to watch B competing in a cross-country race. Hospitalised due to pregnancy, the applicant was unable to attend. On 2 August 2009 A attended the baptism of his new brother (“C.”, born on 9 May 2009). 43. A has in addition maintained contact with the applicant through telephone calls and SMS messages. 44. Section 4-20 of the Child Welfare Act 1992 (lov om barneverntjenester) provided in relevant parts: “If the County Board has made a care order, the Board may also decide that the parents shall be deprived of their parental responsibilities. [...] When an order has been made depriving the parents of parental responsibilities, the County Board may give its consent for a child to be adopted by persons other than the parents. Such consent may be given if (a) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, it is determined that removing the child may lead to serious problems for him or her and (b) adoption would be in the child's best interests and (c) the applicant adoptive parents have been the child's foster parents and have shown themselves fit to bring up the child as their own and (d) the conditions for adoption under the Adoption Act have been fulfilled.”

train

001-94963

ENG

SVK

CHAMBER

CASE OF KIS v. SLOVAKIA

Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

4. The applicant was born in 1969 and lives in Košice. 5. On 3 April 2001 the applicant filed an action with the Košice II District Court. He claimed that the defendants had lost the right to use a flat. 6. The first hearing in the case was held on 21 September 2004. 7. On 23 September 2004, on the applicant's complaint, the Constitutional Court found a violation of Article 6 § 1 of the Convention in respect of the length of the above proceedings. It noted that the case was not complex. The applicant's conduct had partially contributed to their duration at the initial stage in that he had not paid the court fees at the time of filing the action. The District Court was responsible for delays totalling twenty-five months. The Constitutional Court awarded the applicant 20,000 Slovakian korunas (SKK) (the equivalent of 500 euros (EUR) at that time) as just satisfaction. It also ordered the District Court to reimburse the applicant's legal costs and to proceed with the case speedily. 8. On 12 April 2005 the District Court found against the applicant. 9. The Košice Regional Court, on appeal, quashed the judgment on 16 November 2005 and remitted the case to the District Court. 10. The District Court asked the defendants and the applicant to submit information and invited several doctors to indicate whether the defendants' state of health would allow them to attend a hearing. A hearing was held in November 2006 at which the applicant requested a modification of his action. His request was subsequently rejected. 11. The District Court found against the applicant on 27 February 2007. 12. On 15 October 2007 the Regional Court upheld the judgment. After having been served on the parties to the proceedings, the decision became final on 29 November 2007.

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001-60725

ENG

BEL

CHAMBER

CASE OF WYNEN AND CENTRE HOSPITALIER INTERRÉGIONAL EDITH-CAVELL v. BELGIUM

Violation of Art. 6-1 as regards the inadmissibility of statement of grounds of appeal;No violation of Art. 6-1 as regards notification to the applicants of the hearing in the Court of Cassation;No violation of Art. 6-1 as regards the possibility of replying to the advocate-general's submissions;No violation of Art. 6-1 as regards refusal of the request for a reference for a preliminary ruling;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

9. The first applicant was born in 1923 and lives in Braine-l’Alleud. The second applicant has its registered office in Brussels. 10. In October 1990 a magnetic-resonance imaging (MRI or NMR) unit with a built-in electronic calculator – a high-technology medical device – was installed at the IMEC. In accordance with a royal decree of 27 October 1989, a department in which an MRI unit was installed was regarded as a “high-cost medico-technical service” within the meaning of section 44 of the Hospitals Act, consolidated on 7 August 1987. Pursuant to that statutory provision, such services had to be approved. The criteria for approval were laid down in the royal decree. The relevant department at the IMEC had not, however, obtained the necessary approval. 11. On 15 March 1991 the Ministers of Public Health for the Brussels-Capital bilingual region lodged a complaint with the public prosecutor against the first applicant for installing high-cost medical equipment without the prior approval of the minister responsible for public health. In January 1993 the first applicant and the IMEC, his employer, which was civilly liable for his acts, were summoned to appear in the Brussels Criminal Court. The Belgian State subsequently applied to join the proceedings as a civil party. 12. On 22 March 1994 the Brussels Criminal Court acquitted the first applicant and cleared the IMEC. 13. On 31 March 1994 that judgment prompted the following speech by a member of Parliament during the passage of a bill amending the Hospitals Act: “I was shocked by the court ruling last week in the Wynen case. Everyone knows Dr Wynen’s habit of not caring about legislation. He illegally installs high-cost scanners at his hospital, the Edith-Cavell, and justifies his actions with arguments about medical ethics.” (summary record, House of Representatives, 1993/94 ordinary session, sitting of 31 March 1994) 14. State Counsel’s Office and the civil party appealed against the judgment of 22 March 1994. In their appeal submissions the applicants argued, among other things, that the royal decree of 27 October 1989, which had formed the basis for the prosecution, was unlawful, particularly as it concerned a matter dealt with by legislation at community rather than federal level. They pointed out in that connection: “Section 44 of the Hospitals Act empowers the King to lay down approval and planning criteria for the installation of magnetic-resonance imaging (MRI) units with built-in electronic calculators, with a view to controlling public expenditure. The decree lays down a number of conditions relating to: (1) the department in which the equipment is installed; (2) the number of employees and their qualifications; (3) the safety of the equipment and of the surrounding area; (4) quality control of the work carried out by users; (5) the geographical location of the equipment (the requirements vary according to the power of the equipment); and (6) the number of beds. At best, only the fifth criterion can possibly come under the responsibility of the Federal Ministry of Social Affairs. The other conditions pursue a quite different aim, namely that of regulating the provision of health care, responsibility for which currently falls to the Communities by virtue of section 5(1)(I)(1) of the Special Law of 8 August 1980 on institutional reform. Seeing that four of the five conditions it lays down do not come under the responsibility of the national authorities, the royal decree of 27 October 1989 should be declared unlawful in its entirety since it cannot be applied only in part.” The applicants also submitted that the complaint, civil-party application and appeal by the Belgian State were unlawful, inadmissible and void; that the complaint by the Belgian State infringed the principle of equality enshrined in Articles 10 and 11 of the Constitution in that the public authorities, without applying any objective or reasonable criteria proportionate to the aim pursued, had refrained from reporting other similar offences to the public prosecutor; that the royal decree of 27 October 1989 and, at the very least, the penalty for which it provided, had been tacitly repealed; and, lastly, that the decree infringed several fundamental rights, including the right to life and health, freedom of choice with regard to medical treatment and the prohibition of inhuman and degrading treatment. 15. On 12 January 1995 the Brussels Court of Appeal reversed the judgment, imposed a suspended fine of 2,340 Belgian francs on the first applicant and ordered him to pay costs, applying, inter alia, sections 37 to 42 and 44 of the Hospitals Act. The IMEC was held to be jointly and severally liable for payment of the fine and the costs. In particular, the Court of Appeal dismissed the applicants’ arguments that the royal decree of 27 October 1989 had been tacitly repealed or was unlawful. 16. The applicants appealed to the Court of Cassation against that judgment. In their pleadings they relied on, inter alia, Articles 6 and 7 of the Convention, their main arguments being that the Court of Appeal had based its judgment on contradictory and inconsistent reasoning and had, in particular, applied section 116(8) of the Hospitals Act (which concerned high-cost medical “equipment”), whereas, pursuant to the royal decree of 27 October 1989, an MRI unit constituted a high-cost medico-technical “service”, the setting up or operation of which came under section 16(10) of that Act; that the Court of Appeal had omitted to examine whether the royal decree of 27 October 1989 was compatible with the Special Law of 8 August 1980 on institutional reform, which had apportioned powers among the State, the Communities and the Regions, or with the principle of equality enshrined in Articles 10 and 11 of the Constitution, and that it had failed to refer the matter to the Administrative Jurisdiction and Procedure Court; that it had infringed the general principle of the burden of proof and the presumption of innocence; that the lawfulness of the royal decree of 27 October 1989, which the Court of Appeal had applied, had not been established; and that, in any event, the penalty for which it provided had been tacitly abolished by a subsequent provision, namely section 120(1) of the Law of 22 December 1989. Under the second limb of their second ground of appeal, the applicants asserted that the Court of Appeal had breached section 26(1) of the Special Law on the Administrative Jurisdiction and Procedure Court (see paragraph 28 below) by refusing to refer a preliminary question to that court as to whether section 44 of the Hospitals Act contravened the rules laid down by or pursuant to the Constitution to determine the respective powers of the (federal) State, the Communities and the Regions. They submitted in that connection: “The appellant argued in his appeal submissions that the royal decree of 27 October 1989 did not comply with the Special Law of 8 August 1980 on institutional reform in that it laid down approval criteria relating to health-care policy, a matter which is the responsibility of the Communities. The judgment appealed against should not merely have assessed whether the royal decree of 27 October 1989 was compatible with the consolidated Hospitals Act which it implemented, since the King is not entitled to stay or dispense with the enforcement of the laws on institutional reform; moreover, the consolidated Hospitals Act does not confer, and could not possibly have conferred, on him the authority to derogate from the laws on the distribution of powers. ... Furthermore, seeing that [the Court of Appeal] held that the royal decree complied with the consolidated Hospitals Act, it was required by section 26(1) of the Special Law of 6 January 1989 to submit a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether the Act contravened the rules on the distribution of powers between the State, the Communities and the Regions.” The applicants accordingly asked the Court of Cassation to submit the following question to the Administrative Jurisdiction and Procedure Court: “In so far as section 44 of the consolidated Hospitals Act of 7 August 1987 is to be construed as empowering the King to lay down the rules set out in the royal decree of 27 October 1989 ‘establishing standards which a service that has installed a magnetic-resonance imaging unit with a built-in electronic calculator must satisfy in order to be approved as a high-cost medical service within the meaning of section 44 of the Hospitals Act, consolidated on 7 August 1987’, does that provision contravene: (1) the rules on the distribution of powers, seeing that by virtue of, inter alia, section 5(1)(I)(1), policy on the provision of health care within and outside health institutions is the responsibility of the Communities; ...” Under the third limb of the second ground of appeal, based on Article 149 of the Constitution, which lays down the obligation to give reasons for judgments and decisions, the applicants asked the Court of Cassation to submit a further preliminary question to the Administrative Jurisdiction and Procedure Court as to whether section 44 of the Hospitals Act breached Articles 10 and 11 of the Constitution, which safeguarded the principle of equality and non-discrimination. 17. The civil party, which was the respondent before the Court of Cassation, filed pleadings in reply on 8 September 1995. 18. On 19 October 1995 the applicants filed supplementary pleadings in which, among other things, they set out four fresh grounds of appeal – based, in their submission, on public policy – alleging violations of various provisions of the Constitution and the Convention, in particular Articles 2 and 3. In their new grounds they submitted that the royal decree of 27 October 1989 was unlawful; that the principle of equality had been infringed in that, among the many hospitals that possessed the equipment in issue, only the applicants had been prosecuted; that the penalty set forth in the Hospitals Act had been abolished; and, lastly, that a number of fundamental rights, including the right to life, had been infringed. The applicants also reiterated their request to have the preliminary question cited above submitted to the Administrative Jurisdiction and Procedure Court. 19. On 8 January 1996 the date set for the hearing was entered on the list displayed at the registry and in the courtroom of the Court of Cassation. 20. The Court of Cassation held a public hearing on 24 January 1996. The applicants assert that they were not notified of the date of the hearing, such an omission being in accordance with Article 420 ter, second paragraph, of the Code of Criminal Procedure (CCP), which provided that dates set for hearings in the Court of Cassation were entered on the list of pending cases at least fifteen days in advance, without any further notification. As is apparent from the record of the hearing, the court heard evidence from the reporting judge, the representative of Principal State Counsel’s Office and counsel for the civil party. State Counsel did not attend the deliberations that took place after the hearing. On the same day, after the deliberations, the Court of Cassation dismissed the applicants’ appeal, having declared their supplementary pleadings inadmissible as being out of time, pursuant to Article 420 bis, second paragraph, of the CCP, which provided that persons appealing to the Court of Cassation could not file any pleadings once two months had elapsed from the date on which the case was entered on the general list. 21. In its judgment, delivered on the same day, the Court of Cassation held, in particular, that the reasoning given in the judgment appealed against had not been contradictory and that the contention that the Court of Appeal had applied section 116(8) instead of section 116(10) of the Hospitals Act amounted to complaining of an incorrect reference to the applicable legal provision, an error that had no bearing on the penalty imposed since the two provisions in question provided for the same penalty. It further held that the complaint that the royal decree was incompatible with the Special Law of 8 August 1980 amounted to challenging the Law’s constitutionality, a question outside the Court of Appeal’s jurisdiction. Furthermore, the Court of Appeal was under no obligation to submit a preliminary question to the Administrative Jurisdiction and Procedure Court if it considered that the reply to the question was not essential for it to be able to give judgment. The Court of Cassation further noted that the Court of Appeal had not infringed the rules on the burden of proof as, in dismissing the complaints that the royal decree of 27 October 1989 was unlawful, it had based its decision not on the appellants’ arguments but on the consideration that it was not for the courts to take the place of the executive in assessing the appropriateness of a measure falling within the executive’s sphere of competence. The Court of Cassation also dismissed the argument that the royal decree in question was unlawful or had been repealed, holding that section 120 of the Law of 22 December 1989 was in no way incompatible with the Hospitals Act of 7 August 1987 as it merely provided for an additional sanction in the form of a limit on fees and, consequently, had not tacitly abolished the criminal penalties provided for in that Act. Lastly, the Court of Cassation refused the request to submit a preliminary question to the Administrative Jurisdiction and Procedure Court. In so far as the question concerned the compatibility of section 44 of the Hospitals Act with the rules on the distribution of powers, the Court of Cassation held: “Furthermore, in so far as the appellant asked the Court to submit a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether section 44 of the Hospitals Act, consolidated on 7 August 1987, contravenes the ‘rules on the distribution of powers, seeing that by virtue of section 5(1)(I)(1), policy on the provision of health care within and outside health institutions is the responsibility of the Communities’, he did not state the precise nature of the alleged contravention. Under the aforementioned section 5(1)(I)(1) of the Special Law of 8 August 1980 on institutional reform, policy on the provision of health care is a ‘person-related matter’ falling within the responsibility of the Communities [matière personnalisable], but only subject to certain exceptions, such as legislation laying down organisational principles, or funding arrangements, where these are governed by such legislation. Since the consolidated Act of 7 August 1987 lays down organisational principles governing hospitals and, in particular, their funding, the appellant should have explained in the preliminary question he intended to have submitted to the Administrative Jurisdiction and Procedure Court precisely why he considered that section 44 of the Act was not covered by the exceptions whereby legislation laying down organisational principles, and the funding arrangements made in such legislation, are not ‘person-related matters’ for which responsibility is assigned to the Communities by Article 128 § 1 (former Article 59 bis § 2 bis) of the Constitution, but are matters which under the Constitution remain the preserve of federal legislation. Accordingly, the request for the submission of a preliminary question in relation to this limb of the ground of appeal is inadmissible as being insufficiently precise. ...” The Court of Cassation also declared the preliminary question inadmissible in so far as it concerned the compatibility of section 44 of the Act with Articles 10 and 11 of the Constitution, on the ground that the question was “extraneous both to Article 149 of the Constitution, the only provision alleged to have been infringed in this limb of the ground of appeal, and to the failure to reply to the appellant’s submissions, the only complaint raised in the limb in question”. 22. At the material time Article 420 bis of the CCP provided: “Appellants wishing to make oral submissions in the Court of Cassation shall set out their grounds of appeal in pleadings which must be communicated in advance to Principal State Counsel’s Office at least eight days before the hearing. However, they may not produce any pleadings or documents – other than those concerning the discontinuance or resumption of the proceedings or indicating that the appeal has become devoid of purpose – once two months have elapsed from the date on which the case was entered on the general list. ...” 23. At the material time Article 420 ter of the CCP provided: “Proceedings shall be governed by the provisions of Articles 1105 to 1109 of the Judicial Code. Nevertheless, by way of derogation to the second paragraph of Article 1106 of the Code, the date set for a hearing shall, without any further notification, be entered on the list of cases pending before the court at least fifteen days prior to the hearing. The list shall be displayed at the registry and in the courtroom and shall contain the names of the parties, the lawyers and the representative of Principal State Counsel’s Office instructed to make submissions in the case.” In practice, however, the parties and their lawyers were entitled to ascertain the date of the hearing by telephoning the registry of the Court of Cassation or requesting it by ordinary mail to inform them of the date in writing. That practice was long established and its existence was reiterated in the Court of Cassation’s annual report for 1997/98. However, the Law of 14 November 2000 (see paragraph 26 below) repealed the second and third paragraphs of Article 420 ter of the CCP, bringing the arrangements for notifying the parties of hearings in criminal cases into line with those laid down in the second paragraph of Article 1106 of the Judicial Code. 24. At the material time Article 1107 of the Judicial Code provided: “After the report has been read out, submissions shall be heard from the lawyers present at the hearing. Their addresses shall relate exclusively to the issues of law raised in the grounds of appeal or to objections to the admissibility of the appeal. Principal State Counsel’s Office shall then make its submissions, after which no further documents shall be accepted.” However, since Borgers v. Belgium (judgment of 30 October 1991, Series A no. 214-B), the Court of Cassation had allowed the parties or their lawyers to address the court a second time after State Counsel had made his submissions. The parties could also seek an adjournment in order to give themselves additional time to prepare their submissions in reply, which could, moreover, take the form of a memorandum for the deliberations (note en délibéré). Such requests were systematically allowed by the Court of Cassation. In the rare cases in which State Counsel’s submissions had been prepared in writing and communicated to the court before the hearing, a copy was also sent to the parties before the hearing. The Committee of Ministers of the Council of Europe took note of those judicially initiated procedural amendments in its Interim Resolution DH (98) 133 of 22 April 1998. 25. In a letter of 22 November 2001 to the Minister of Justice, Principal State Counsel at the Court of Cassation made the following observations in relation to the present case: “In the instant case the submissions were made orally and the parties did not reply to them, either orally or by submitting a memorandum for the deliberations, as they were entitled to do, if necessary after an adjournment which they would have been granted in accordance with standard practice if they had requested it. By establishing this practice in a statutory instrument, the Law of 14 November 2000 confirmed that the practice complied with the requirements of European case-law.” 26. A law of 14 November 2000, which came into force on 29 December 2000, amended Article 1107 of the Judicial Code as follows: “After the report has been read out, Principal State Counsel’s Office shall make its submissions. Submissions shall then be heard from the parties. Their addresses shall relate exclusively to the issues of law raised in the grounds of appeal or to objections to the admissibility of the appeal or of particular grounds. Where the submissions of Principal State Counsel’s Office are in writing, the parties may, at the very latest during the hearing and solely in reply to those submissions, submit a memorandum in which they may not raise any new grounds of appeal. At the hearing each party may seek an adjournment in order to reply orally or by means of a memorandum to the written or oral submissions of Principal State Counsel’s Office. The Court shall fix the time-limit for submitting the memorandum.” 27. Other relevant provisions of the Judicial Code read as follows: “The rules set out in this Code shall apply to all proceedings, except such as are governed by statutory provisions which have not been expressly repealed or by principles of law whose application is not compatible with that of the provisions of this Code.” “The file shall include the following: ... 6. State Counsel’s opinion; ... A list of documents, kept up to date by the registrar and indicating the date on which the documents were submitted, shall be appended to the file.” “In so far as no derogation is laid down in the provisions of this Book, the rules concerning first-instance procedure shall be applicable to appeal proceedings.” 28. Section 26 of the Special Law of 6 January 1989 on the Administrative Jurisdiction and Procedure Court, as worded at the material time, provided: “(1) The Administrative Jurisdiction and Procedure Court shall give a preliminary ruling, in the form of a judgment, on questions concerning (i) contravention by one of the statutes, decrees or rules contemplated by Article 134 of the Constitution of the rules laid down by or pursuant to the Constitution to determine the respective powers of the State, the Communities and the Regions; (ii) without prejudice to (i) above, any conflict between decrees or rules as contemplated by Article 134 of the Constitution promulgated by different legislative authorities, provided that the conflict stems from the scope of the decrees or rules in question; and (iii) contravention of Articles 10, 11 and 24 of the Constitution by one of the statutes, decrees or rules contemplated by Article 134 of the Constitution. (2) A court before which a preliminary question has been raised must seek a ruling on the matter from the Administrative Jurisdiction and Procedure Court. However, the court shall be exempted from this obligation where the action is inadmissible for procedural reasons based on rules which are not themselves the subject of an application for a preliminary ruling. A court whose decisions are open to challenge in the form of an ordinary appeal, a petition to reopen proceedings, an appeal on points of law or an application for judicial review in the Conseil d’Etat shall also be exempted from this obligation (i) where the Administrative Jurisdiction and Procedure Court has already given a ruling on a question or appeal having the same object; (ii) where it considers that the reply to the preliminary question is not essential for it to be able to give judgment; or (iii) where it is manifestly apparent that the law, decree or rule contemplated in Article 134 of the Constitution does not contravene any rule or Article of the Constitution contemplated in section 26(1).”

train

001-120961

ENG

LTU

CHAMBER

CASE OF BANEL v. LITHUANIA

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life;Effective investigation);Pecuniary damage - award;Non-pecuniary damage - award

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

5. The applicant was born in 1970 and lives in Vilnius. 6. On 6 June 2005 the applicant’s son, E.B., born on 20 August 1991 and then thirteen years of age, was playing with other children outside the applicant’s apartment, situated in Naujamiestis district (Naujamiesčio seniūnija) in the city of Vilnius. Whilst the children were standing on the balcony of an ancillary building containing cellars, the balcony broke off the building and collapsed. Part of the balcony fell on E.B., who died at the scene from the injuries he received. Two other children, V.J. and A.B., suffered minor bodily injuries. 7. On the same day the police opened a pre-trial investigation. On that day and the next investigators surveyed the scene of the accident. 8. On 7 June 2005 a forensic expert established that E.B. had died because the balcony block had fallen on to him, broken his spine and crushed his internal organs. 9. By Vilnius city police investigator’s decision of 4 July 2005 the applicant was recognised as having victim status. 10. According to the Government, after the accident the future of the ancillary building containing the cellars was discussed at a meeting of the Vilnius municipal council on 14 June 2005. An expert inspection of 18 July 2005 recommended that the building be fenced off until it could be demolished. [The Vilnius city municipality] Commission on Residential and Non-Residential Houses and Premises on 11 October 2005 approved the demolition of the building. In accordance with a contract signed on 4 October 2005 between the Vilnius city council and Naujamiesčio būstas, the Vilnius municipal enterprise, in December 2005 that enterprise demolished the building. 11. On 7 September 2006 the applicant lodged, in the criminal proceedings, a civil claim for non-pecuniary damage, in the sum of 3,000,000 Lithuanian litai (LTL), and for litigation costs with the Vilnius City Prosecutor’s Office. She submitted that the Vilnius city municipality and its institutions had failed to supervise the buildings and, as a result, her son had died. The loss caused her immense moral suffering and depression. Even though it was not possible to bring her son back, the persons responsible should compensate the non-pecuniary damage. The applicant also referred to Article 6.250 § 2 of the Civil Code (see Relevant domestic law below), arguing that the amount of damage could be assessed according to all the circumstances established in the criminal case and the [criminal] court had such competence. 12. By a decision of 21 November 2006, the prosecutor recognised the applicant as a civil claimant in the criminal case, on the basis of Articles 109 and 110 of the Code of Criminal Procedure. 13. On 11 January 2007 A.J., an employee of Naujamiesčio būstas, was charged with the offence of failure to fulfil official duties, under Article 229 of the Criminal Code. The authorities considered that A.J. had failed to inspect the buildings at issue and to inform the municipality of their condition, even though he had been assigned that function by order of the Naujamiesčio būstas director on 28 January 2004. On the same day the authorities imposed a restrictive measure on A.J., namely an obligation not to leave his place of residence. 14. By a decision of 11 October 2007 the Vilnius City Prosecutor’s Office discontinued the pre-trial investigation. The prosecutor referred to Article 7 § 13 of the Law on Local Self-Governance which determined that in the most general sense supervision of the use of construction works was the municipality’s responsibility. Similarly, Article 42 of the Law on Construction set out the municipality’s duty to supervise the use of residential houses and other constructions. The prosecutor analysed in detail whose responsibility it had been, and when, in respect of Vilnius city municipality and Naujamiesčio būstas, to supervise the buildings, given that there had been changes in the bodies between 1999 and 2005. She noted that in May 2004 the city had made some enquiries of Naujamiesčio būstas about the cellars, but there was no-one in the municipality who had the responsibility of supervising the activities of Naujamiesčio būstas. However, the prosecutor considered that the evidence gathered was contradictory, and that therefore it was not possible to establish which body – the Vilnius city municipality or Naujamiesčio būstas – had been responsible for the proper maintenance of the building, the collapse of which had resulted in the death of the applicant’s son. Therefore the prosecutor could not identify any physical person who could be held accountable for failure to act and to ensure that the building was in good condition and not dangerous. The prosecutor thus dropped the criminal charges in respect of A.J. Moreover, under Article 229 of the Criminal Code a corporate person could not be held criminally liable. However, the prosecutor noted that, in accordance with Article 6.266 of the Civil Code, the applicant and the parents of the two injured children could lodge civil proceedings against Vilnius city municipality or Naujamiesčio būstas, and claim that the building had been left unattended. 15. The applicant appealed against the above decision, arguing that the Vilnius city municipality and Naujamiesčio būstas had been aware for a long time that the building was in a dangerous state (avarinės būklės), but no one had known what to do with it. The father of V.J. also appealed, submitting that the investigation had been going on for a long time, but no person had been found responsible for the building and thus for the accident. 16. By a decision of 12 November 2007 a prosecutor reopened the investigation. She noted that it was imperative to take measures to identify the person or persons whose responsibility it had been to take care of the building’s maintenance and to establish why they had not done so. 17. On 3 July 2008 another prosecutor at the Vilnius City Prosecutor’s Office decided to discontinue the pre-trial investigation. The prosecutor found that the evidence as regards which body owned the collapsed building was contradictory. However, he considered that the Vilnius city municipality was the de facto owner of the building. On the basis of documents dated 2004 and 2005, the prosecutor also concluded that the municipality had known earlier about the poor condition of the building where the accident had happened. Nonetheless, in 2004-05 an administrative reform had taken place within the Vilnius city municipality, as a result of which new administrative units had been created, the responsibilities of those units redistributed and new people assigned to those administrative units. Consequently, at the time of the incident there was no one who had the duty to manage derelict and unused buildings. There was therefore insufficient evidence to find that a crime under Article 229 of the Criminal Code had been committed. 18. The prosecutor also suggested that the applicant lodge a civil claim on the basis of Article 6.266 of the Civil Code. 19. On 12 August 2008 a higher prosecutor upheld that decision. The applicant appealed. 20. On 12 January 2009 the Vilnius City First District Court found that the pre-trial investigation had not been sufficiently thorough and effective. As a result, the identity of the owner of the derelict buildings had not been established. The court drew the prosecutor’s attention to specific actions to be taken and specific circumstances to be examined, whilst noting the applicant’s earlier requests to the prosecutor to the same effect. Having given the prosecutor precise instructions, including to obtain archived documents from 1970-75, the district court emphasised that without that specific information it was not possible to establish the identity of persons who had failed to adopt a timely final decision, in accordance with their official duties, about the future of the derelict buildings and their proper maintenance. The prosecutor’s decision was quashed as unfounded. 21. On 2 March and 22 July 2009 the applicant wrote to the Attorney General, arguing that the pre-trial investigation had been superficial and that the prosecutors at the Vilnius City Prosecutor’s Office had been passive and unwilling to discover the truth, thus stalling the investigation. For the applicant, the investigation in essence consisted of sending written questions and answers from one municipal institution to another. It was clear that neither of the institutions, Vilnius city municipality or Naujamiesčio būstas, was willing to take responsibility for failing to perform its duties. The applicant thus asked the Attorney General to take over the investigation or to transfer it to the Vilnius Regional Prosecutor’s Office. She also observed that although more than seven months had passed since the court decision of 12 January 2009, the prosecutors had still not taken all the required investigative actions. 22. On 30 July 2009, the Vilnius City District Prosecutor’s Office again discontinued the pre-trial investigation, in essence upholding the conclusions of the decision of 3 July 2008 to the effect that the evidence as to which body was in possession of the building at issue was contradictory. Accordingly, it was not possible to identify the physical person whose duty it was to maintain the building, and who was therefore liable for the death of one child and injury of two others. 23. On 29 September 2009 the applicant appealed, arguing that even though four years had passed since the accident, the prosecutors had not been active enough and had therefore failed to establish who was responsible for the maintenance of the building. The applicant argued in addition that the prosecutors had also failed to take all the steps which had been ordered by the court on 12 January 2009. The correspondence between Vilnius city municipality and Naujamiesčio būstas showed that both bodies had known the building was derelict, and yet no effort had been made to repair or demolish it. Immediately after the incident the building had been fenced off and demolished by the municipality, even though the municipality had earlier denied that it was within its control and had argued that it did not have the legal authority to tear down the building. The applicant asked for the pre-trial investigation to be reopened. 24. By a higher prosecutor’s decision of 16 October 2009, the investigation was reopened. For the prosecutor, it was possible that the employees of the Vilnius city municipality or those of Naujamiesčio būstas had not performed their duties that stemmed from [Article 229 of] the Criminal Code, Article 42 § 1 (3) of the Law on Construction and other relevant legal acts. It was therefore indispensable to establish which particular person had been designated by the municipality to inspect/supervise the buildings without owners in question (kam pavesta bešeimininkių pastatų priežiūra) in Naujamiestis district. If such functions had not been assigned to any particular unit or person at the municipal or district level, the prosecutor should consider whether the municipality’s or district’s managers (vadovai) should be held responsible under Article 229 of the Criminal Code. 25. On 7 December 2009 K.G., a senior specialist in Naujamiestis district, was charged with failure to carry out official duties, under Article 229 of the Criminal Code. By a decision of the Naujamiestis district director (seniūno) on 3 January 2005 K.G. had been given the responsibility of monitoring empty buildings belonging to the municipality. The criminal investigator considered that K.G. had failed to inform the municipality about the danger posed by the derelict cellars in question, as he should have done under Article 42 [§ 3 (1)] of the Law on Construction (see paragraph 33 below). 26. On 18 May 2010 a prosecutor for the Vilnius City District discontinued the investigation, as no physical persons criminally liable for the accident could be identified. The prosecutor noted, however, that the Vilnius city municipality had learned on 28 February 2005 of the poor state of the building the collapse of which had caused the death of the applicant’s son. However, at that time the municipality was going through structural changes and the duties and responsibilities of the municipality’s employees were being redistributed, therefore there was no particular person with the specific duty to take action on derelict and abandoned buildings. Moreover, taking into account the short period of time that had elapsed between that date and the accident (three months), it was not possible to conclude that the municipality’s employees had been stalling the process of finding a solution to the question of what had to be done with the building. The evidence collected in the case did not prove that employees of the Vilnius city municipality, the Naujamiestis district or Naujamiesčio būstas had failed to carry out any of their clearly prescribed duties and had thus caused the death of one child and injuries to two others. The prosecutor therefore dismissed the criminal charges against A.J., an employee of Naujamiesčio būstas, and against K.G., a Naujamiestis district specialist. The prosecutor suggested that the applicant and the parents of the two children who had been injured in the accident bring separate civil proceedings under Article 6.266 of the Civil Code. 27. The applicant appealed, arguing that the case should be returned for a fresh pre-trial examination, so that the ownership of the buildings could be established and the persons (physical and corporate) liable for the accident thus identified. 28. By a ruling of 9 August 2010 the Vilnius City First District Court refused to reopen the pre-trial investigation, because a criminal action under Article 229 of the Criminal Code had become time-barred. The pre-trial investigation had been opened on 7 June 2005 and the Code of Criminal Procedure provided a five-year term to prosecute a crime of a negligent or minor premeditated nature. The court therefore did not address the applicant’s complaint that the pre-trial investigation had been flawed. 29. The applicant appealed, questioning the effectiveness of the investigation and asking for it to be reopened. 30. By a final ruling of 15 September 2010 the Vilnius Regional Court upheld the lower court’s decision to discontinue criminal proceedings under the statute of limitations. 31. According to Article 19 of the Lithuanian Constitution, a person’s right to life shall be protected by law. 32. The Law on Local Self-Government provides that one of the functions of a municipality is to supervise how buildings are used and to manage land and other property which belong to it by the right of ownership (Article 7 §§ 13 and 15). 33. The Law on Construction at the relevant time provided: “1. The following public administration bodies shall exercise supervision of use of construction works: 1) the regional governor’s office as in the list approved by the Government, or an institution authorised by it, in respect of constructions of exceptional significance, those of national significance, and construction works situated within establishments of likely hazard, with the exception of the construction works referred to in subparagraph 2 of paragraph 1 of this Article; 2) the Ministry of Communication and Transport and/or organisations authorised by it as in the list approved by the Government or an institution authorised by it, in respect of traffic routes and other engineering constructions related thereto, as well as hydrotechnical construction works in the Baltic Sea and bodies of inland water, with the exception of traffic routes which do not belong to the sphere of its management; 3) municipal authorities, in respect of residential dwellings and other constructions which are not specified in sub-paragraphs 1 and 2 of paragraph 1 of this Article ... 3. Public authorities which are engaged in supervision of the use of buildings shall enjoy the following rights: 1) in the event that it becomes clear that the condition of a building poses a threat to the health or life of people who reside, work or happen to be for other purposes in the building or near it, or to the environment, and taking into account the type of threat posed, they may demand that the operator of the building take measures to protect people and, if necessary, may insist that the area be evacuated, that the building cease to be used, or they may prohibit any activity in the building (if necessary also within the construction site or area); 2) they may set time-limits for taking all the actions specified in sub-paragraph 1 and immediately inform the owner of the building (when the user is not the owner of the building or works); 3) they may contact the police in order to temporarily restrict access to the area or premises, to stop works which are being carried out there, and to restrict or prohibit traffic, if the environment, public order, personal safety or the State are endangered; 4) in cases and procedures laid down by the Code of Administrative Law Offences, they may draw up a record of administrative offences, consider administrative offences and impose administrative penalties, or refer administrative offences to the courts. 4. Officers of public administration bodies which are engaged in supervision of the use of buildings shall have the right to demand that the operator of a construction site produce mandatory documents relating to the supervision of the site, as referred to in Article 43 of this Law, indicating that they have permission to perform such other functions in connection with supervision of the use of buildings, which have been assigned to them...” 34. On 4 February 1999 the Vilnius city management board adopted decision 205V “Approval of order giving power to declare buildings in poor condition, and identification of buildings in Vilnius which may be taken into the possession of the local authority”. Paragraphs 3 and 4 of the order set out the district director’s (seniūno) duty to manage lists and keep records of derelict buildings, and to periodically provide those documents to the Vilnius city management board. Companies which have contracts to manage buildings, district engineers and senior local architects were responsible for the provision of data for the above-mentioned lists. 35. On 24 February 1999 the Vilnius city mayor adopted decision 100 “Derelict Buildings Commission”. The commission was to meet once a week, to analyse information provided by district directors and to deal with issues concerning demolition of buildings in poor condition. 36. The Criminal Code provides: “A civil servant or a person equivalent thereto who fails to perform his duties through negligence or performs them inappropriately, where this results in significant damage to the State or to a legal or a natural person, shall be punished by deprivation of the right to be employed in certain positions or to engage in certain types of activity or by a fine or by arrest or by imprisonment for a term of up to two years.” 37. Pursuant to Article 95 of the Criminal Code and Article 3 § 1 (2) of the Code of Criminal Procedure, as relevant at the material time, a person who has committed a criminal offence may not be convicted once five years have lapsed, if for example an offence such as failure to perform official duties has been committed. 38. Articles 109 and 110 of the Code of Criminal Procedure stipulate that a person who has sustained pecuniary or non-pecuniary damage because of a crime may lodge a civil claim against the suspect within criminal proceedings. The claim will be examined by the criminal court together with the criminal case. A civil claimant may submit evidence and requests and appeal against the decisions of the investigators, prosecutors or a court. 39. The Civil Code provides: “1. Non-pecuniary damage shall be deemed to be a person’s suffering, emotional experiences, inconvenience, mental shock, emotional depression, humiliation, deterioration of reputation, diminution of possibilities to associate with others, and so on, evaluated by a court in terms of money. 2. Non-pecuniary damage shall be compensated for only in cases provided for by laws. Non-pecuniary damage shall be compensated for in all cases where it has been incurred due to crime, health impairment or deprivation of life, as well as in other cases provided for by laws. The courts shall, when assessing the amount of non-pecuniary damage, take into consideration the consequences of such damage being sustained, the gravity of the fault of the person by whom the damage is caused, his financial status, the amount of pecuniary damage sustained by the aggrieved person, also any other circumstances of importance for the case, while abiding by the criteria of good faith, justice and reasonableness.” “1. If damage has been caused by the collapse of buildings, construction works, installations or other structures, including roads, or if the damage has been caused by any defect thereof, the owner (manager) shall be liable for damages unless he can prove that the situation has occurred because of circumstances indicated in Paragraph 1 of Article 6.270 of this Code. 2. It shall be presumed that the owner (manager) of buildings, construction works, installations or other structures is the person indicated as their owner (manager) in the Public Register.” “1. Damage caused by unlawful acts of institutions of public authority must be compensated for by the State from the State budget, irrespective of the responsibility of a particular public servant or other employee of public authority institutions. Damage caused by unlawful actions of municipal authority bodies must be redressed by the municipality from its own budget, irrespective of whether an employee is at fault. 2. For the purposes of this Article, “public authority institution” means any entity of public law (including a State or municipal institution, official, public servant or any other employee of these institutions), as well as private individuals executing functions of public authority. 3. For the purposes of this Article, “action” means any action (active or passive) of an institution of public authority or its employees that directly affects the rights, liberties and interests of persons (including legal acts or individual acts adopted by the institutions of State and municipal authority, administrative acts, physical acts, with the exception of court judgments – verdicts in criminal cases, decisions in civil and administrative cases and orders). 4. Civil liability of the State or municipality, subject to this Article, shall arise where employees of public authority institutions fail to act in the manner prescribed by laws for these institutions and their employees.” 40. The Government provided Lithuanian court decisions concerning effective remedies in personal injury or destruction of property cases. They firstly noted the Supreme Court’s ruling of 11 October 2005 in civil case 3K-7-365/2005, in which the Tauragė city municipality had been held liable for the improper maintenance of the drainage system. The municipality was held accountable under Article 6.266 of the Civil Code for the injuries the claimant had sustained and ordered to pay LTL 15,000 for the non-pecuniary damage she had sustained by falling into a sewer well. 41. As the second example the Government referred to the Klaipėda Regional Court’s ruling of 21 July 2010 in civil case 2A-421-253/2010, in which the claimant claimed damages for a broken clavicle suffered by her son, who had fallen into an uncovered cellar. The court concluded that the municipality’s department responsible for maintenance of the buildings had failed to act with due diligence and, on the basis of Article 6.250 of the Civil Code, awarded the child’s mother LTL 2,500 in non-pecuniary damages. 42. Lastly, the Government noted the Supreme Court’s ruling of 13 November 2005 in civil case 3K-3-584/2005, concerning liability in tort of the building owners, under Article 6.266 of the Civil Code. The Supreme Court held that the owner (manager) of the buildings, installations and other structures had absolute (no-fault) responsibility for damage caused by its collapse or deficiencies. In that case the Vilnius city municipality was determined to be the owner of the premises in question and therefore liable for the pecuniary damage caused by the rupture of a water pipe. The municipality was to compensate the claimant for destruction of its property in the amount of LTL 7,300.

train

001-90722

ENG

POL

CHAMBER

CASE OF WENERSKI v. POLAND

Violation of Art. 3 (substantive aspect);Violation of Art. 8;Non-pecuniary damage - award

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

4. The applicant was born in 1970 and lives in Kluczbork. 5. The applicant is a habitual offender and has a criminal record. He was charged with robbery and detained on remand in the Wołomin Detention Centre and later in the Łódź Detention Centre from 18 December 2001 to 8 August 2003, when the final judgment was given in his case. At present he is serving prison sentences after conviction for various offences. 6. The applicant suffers from severe ophthalmological problems resulting from an eye injury sustained during a fight with a fellow inmate. In 1996, before he was detained, his right eye was removed. He is currently one-eyed. His problems concern mainly the socket of his extracted eye. 7. In 1998 an expert in ophthalmology, Prof. J.Sz., found it necessary to operate on the applicant’s right eye socket to have the remains of the extracted eye removed. The surgery should have been performed while the applicant was released from detention. However, it did not take place, for unknown reasons. 8. In April and June 2000 different specialists from Warsaw and Bytom examined the applicant. It was suggested that he undergo a reconstruction of his right eye socket at Warsaw Medical University Hospital, which was scheduled for 14 August 2000. In a decision of 3 July 2000 the Medical Commission at Warsaw Remand Centre ordered a two-month suspension of the applicant’s prison sentence. It appears that the operation was not performed as the applicant failed to appear for a preliminary examination. 9. On 14 February 2002, while the applicant was detained on remand, another specialist in ophthalmology discovered that there was a need to perform a reconstruction of his right eye socket. An operation was scheduled for 22 April 2002; it was, however, postponed until 27 May 2002, since as stated in the applicant’s medical certificate of 29 April 2002, the hospital refused to perform it “under escort”, which implied that he would be transported back to a detention centre’s hospital immediately after the operation. 10. The surgery scheduled for 27 May 2002 was not performed since the applicant was granted neither release from detention nor a suspension of his prison sentence for the necessary period. The Government observed that on 24 May 2002 new criminal charges had been brought against the applicant and that for this reason he could not be released. In this connection, the judge in charge of the applicant’s case asked the Bytom Remand Centre hospital whether the applicant’s operation could be postponed. This question was answered in the negative after an examination on 22 August 2002. Moreover, the applicant was found to be in need of a different operation on his left eye, namely a vitrectomy. 11. The applicant’s vitrectomy on his left eye was scheduled to be performed at the Bytom Remand Centre hospital on 3 October 2002. It was cancelled since the applicant refused to undergo this operation at the Bytom Remand Centre hospital. He protested against the conditions in which it was to take place and insisted on being treated at Warsaw Medical University Hospital. 12. On 10 June 2002 the applicant was examined in the ophthalmology ward of the Bytom Remand Centre hospital. The doctors, however, decided not to operate on the applicant’s right eye socket in the Remand Centre hospital, since special facilities had to be in place. Therefore it was decided to have the operation performed at Warsaw Medical University Hospital on 22 September 2002. It was further requested that the applicant be released for the period of the operation and aftercare. The surgery did not take place since the applicant was not granted release, for unknown reasons. 13. In the meantime a doctor at Warsaw Medical University Hospital agreed to operate on the applicant’s right eye socket “under escort”, which did not require the applicant to be released. 14. In a letter of 8 October 2002 the hospital which had agreed to perform the operation “under escort” scheduled the operation for 19 November 2002. Furthermore, in a letter of 29 October 2002 another hospital confirmed that an operation on the applicant could be carried out “under escort”. 15. An entry in the applicant’s medical records dated 19 November 2002 stated that the operation should be performed immediately. For unknown reasons, the surgery did not take place. 16. On 31 December 2002 the Łódź Detention Centre informed the Wołomin District Court that an operation had been scheduled for 4 February 2003 and that any postponement of the planned treatment of the applicant might harm his health and endanger his life. Nevertheless, it transpires from the case file that the applicant was not treated on that date. 17. On 18 February 2004 the partial reconstruction of the applicant’s right eye socket was performed at the Norbert Balicki Academic Clinical Hospital in Łódź. Subsequently, during a check-up on 20 October 2004 at the Bytom Remand Centre hospital, the applicant was found to be in need of a supplementary operation on his right eye socket. 18. On 10 November 2004 another specialist gave an opinion on the applicant’s condition in which he stated that the operation had merely an aesthetic purpose and that it could be performed “under escort” in January 2005. 19. In a letter of 12 April 2005 a different hospital, which had been asked to perform the operation “under escort”, refused to do so. 20. In the applicant’s medical records covering the period from July until October 2005 it was repeatedly stated that the operation should be performed immediately. 21. On 1 April 2005 at the surgical ward of the Medical Academy in Gdańsk a foreign body (a metal bar) was removed from the applicant’s right eye socket. It was the result of a self-inflicted injury of an unspecified date. 22. On 17 January 2006 the applicant was transported to a hospital to see a doctor. There, the applicant was diagnosed with an inflammation of his right eye socket. The specialist recommended waiting for an operation until the inflammation had healed. 23. In a letter of 15 March 2006 the applicant informed the Court that the operation had not yet been performed. He stressed that his state of health had seriously deteriorated and that he was suffering from an inflammation of his right eye socket. 24. During an examination of 14 August 2006 at the Łódź Detention Centre, the specialist found that the applicant’s right eye was infected with a virus and that his condition required urgent surgery. 25. In December 2006 the applicant was transported to the Plastic Surgery Ward of the Clinical Hospital of the Polish Ministry of Defence, as the operation to be performed was of a highly complicated character. A specialist examining the applicant found that a complex, multi-stage plastic operation on the applicant’s right eye socket had to be performed. It was stressed, however, that such procedures were not covered by the Polish National Health Fund. In a letter of 2 January 2007 the applicant was informed that the operation could be performed, provided that he covered its costs. 26. On 9 January 2007, after the applicant had again been examined at the Łódź Detention Centre, it was found that his right eye socket had to be urgently operated on. 27. Medical certificates of 16 January 2007 issued by the Łódź Detention Centre stated that there was no inflammation of the applicant’s right eye socket and that his condition could be treated at the centre’s hospital ward. It appears that the surgery was not performed. 28. After another refusal to have the operation performed, the applicant contacted the Oncology Centre at the Maria Skłodowska-Curie Institute, headed by Prof. E.T., requesting help. In reply to the applicant’s letter Prof. E.T., after examining his medical records, stated that his condition required immediate surgery and scheduled the date of the consultation for 15 February 2007. The consultation did not take place, since it appears that the management of the Łódź Detention Centre did not grant the necessary leave. 29. On 9 February and 30 March 2007 the Bytom Remand Centre hospital informed the applicant that its ophthalmology ward did not perform plastic surgery on eye sockets. 30. The applicant used various means in order to draw the attention of the authorities to his health problems. 31. On numerous occasions he requested to be released from detention on remand on account of his eye problems. 32. His requests were repeatedly refused (decision of the Wołomin District Prosecutor of 4 March 2002 and decisions of the Wołomin District Court of 30 July 2002 and 12 November 2002). His appeal against the decision of 4 March 2002 was dismissed (the Warsaw Regional Prosecutor’s decision of 5 April 2002). 33. The applicant also tried to challenge his detention by lodging an appeal against an order of 20 November 2002 prolonging his detention on remand. In a decision of 13 December 2002 the Warsaw Regional Court dismissed his appeal against the detention order of 20 November 2002. 34. The applicant also lodged requests for a suspension in serving his prison sentence for the period of his treatment in hospital and aftercare. His requests were refused by the Łódź Regional Court in decisions of 2 December 2002, 29 November 2004 and 27 February 2006. 35. The courts repeatedly stated in their reasons for their decisions that the requested operation could be performed “under escort”, without leave being necessary, and that the delay in performing the operation would not result in any deterioration of the applicant’s health. In its refusal of 27 February 2006 the court also relied on the fact that the inflammation of the applicant’s right eye socket was a medical contra-indication against the immediate performance of the operation. It considered that the operation should be delayed until the inflammation had healed. 36. The applicant also lodged numerous complaints with the authorities in charge of detention centres, as well as with supervisory institutions, about his lack of proper medical care. All his complaints were found to be unsubstantiated. The authorities repeatedly stated that the applicant had been seen by doctors on numerous occasions, that he had been given all medicines prescribed for him and that there were no medical arguments against the operation being carried out “under escort” (letters of the Warsaw-Białołęka Detention Centre of 10 January 2003 and the Warsaw Regional Inspectorate of 27 January 2003). It was also emphasised that the applicant had not proved that he had used the suspensions of his prison sentence which he had previously been granted in compliance with their purpose (undergoing medical treatment). 37. The applicant contested the finding that he had not undergone any medical treatment during the periods when he had been granted suspensions of his prison sentence. He instituted criminal proceedings against the health-care institution of the detention centre on a charge of making a false statement. In the course of these proceedings it was established that the applicant had undergone some medical treatment during the contested periods (he had had his eye removed). 38. The applicant submitted an envelope sent to him from the Court, bearing the logo of the Council of Europe. It bears stamps marked “censored” and “a judge” and a stamp of the Warsaw-Białołęka Detention Centre with the date 9 April 2003 and an illegible signature. It also bears a stamp of the Council of Europe with the date 25 March 2003. It appears from the case file that the applicant was not present when the correspondence was censored. Furthermore, the applicant claimed that his correspondence had been stopped and that he had received it with a delay of about one month. 39. Rules on access to medical assistance for convicted prisoners are set out in the Code of Execution of Criminal Sentences of 6 June 1997 (Kodeks karny wykonawczy – “the 1997 Code”), which entered into force on 1 September 1998. 40. The relevant part of Article 115 § 1 of the Code provides as follows: “A convicted person shall have access to free health care ...” Article 115 was substantially amended in 2003 and on subsequent occasions, the amendments extensively covering the range of medical assistance available to convicted persons and rules for its application. The provision referred to above remained unchanged in substance. 41. As regards access to medical assistance for persons detained on remand, Article 214 § 1 of the Code provides as follows: “Unless exceptions are provided for in the present Chapter, a person detained on remand shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of remand prisoners.” 42. The relevant domestic law concerning the censorship of prisoners’ correspondence is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006.

train

001-102360

ENG

MDA

ADMISSIBILITY

STRELTOV v. MOLDOVA

Inadmissible

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

The applicants, Mr Alexandr Strelţov and Mr Ion Tătăroi, are Moldovan nationals who were born respectively in 1961 and 1958. Both applicants were represented before the Court by Mr Anatolie Bîzgu. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu. As with the applicants in the pilot judgment of Olaru and others (Olaru and others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009), the applicants in the instant cases complained of a breach of their rights guaranteed under Article 6 of the Convention and under Article 1 of Protocol No. 1 as a result of the authorities’ failure to comply with final judicial decisions delivered by domestic courts in their favour. By a final judgment of 5 May 2006 the Supreme Court of Justice ruled in favour of Mr Tătăroi and ordered the Moldovan Ministry of Finance, together with the Ministry of Economy and Trade and the Căuşeni local authorities, to provide him with accommodation. By a final judgment of 16 May 2006 the Supreme Court of Justice ruled in favour of Mr Strelţov and ordered the Moldovan Ministry of Finance, together with the Ministry of Economy and Trade and the Căuşeni local authorities, to provide him with accommodation. On 22 May 2006 Mr Tătăroi signed a contract by which the Căuşeni local authorities handed over to him property rights in respect of an apartment situated in Căuşeni. The contract was registered with the cadastral authorities on 9 August 2006. On 12 December 2006 Mr Strelţov signed a similar contract in respect of another apartment situated in Căuşeni. The contract was registered with the cadastral authorities on 22 March 2007. Following communication of the applications, on 30 June 2010 the Government informed the Court that the final judgments in favour of Mr Tătăroi and Mr Strelţov had been enforced, respectively, on 22 May 2006 and 12 December 2006. The Government also attached copies of sale contracts signed by the applicants and other relevant documents.

train

001-91497

ENG

HUN

CHAMBER

CASE OF EOSOLY v. HUNGARY

Violation of Article 6 - Right to a fair trial

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

4. The applicant was born in 1958 and lives in Hévízgyörk. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 1996 the applicant brought an action in compensation against his former employer before the Pest County Labour Court. In March 2003 the Labour Court partly found for him. The applicant appealed. On 3 November 2004 the Pest County Regional Court upheld the first-instance decision. The courts relied on documentary evidence, the opinion of an auditor and testimonies of witnesses and the parties. 7. The applicant lodged a petition for review with the Supreme Court. On 9 February 2005 the Supreme Court dismissed the applicant’s petition. This decision was served on him on 25 April 2005.

train

001-114479

ENG

GEO

ADMISSIBILITY

MANUKYAN v. GEORGIA

Inadmissible

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

1. The applicant, Mr Karen Manukyan, is a Georgian national, who was born in 1982 and lives in Rustavi. He was represented before the Court by Mr Zaza Khatiashvili and Mr Levan Javakhadze, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 2 September 2004 a married couple, Mr E.M. and Mrs N.K, lodged a criminal complaint with the police, alleging that they had been victims of kidnapping and extortion. On 7 September 2004 criminal proceedings were initiated under Articles 143 § 2 (a) and (b), 181 § 2 (a) and (b) and 236 §§ 1 and 2 of the Criminal Procedure Code of Georgia for aggravated unlawful deprivation of liberty, extortion and unlawful purchase and possession of firearms. 4. On 13 September 2004 the applicant was arrested in connection with the above proceedings. As disclosed by the record of a search of the applicant’s vehicle, which according to the applicant had been falsified, several items of evidence were found in the vehicle and collected for further examination, including one hand grenade, several cartridges and a face mask. 5. The applicant alleges that on the same date several police officers subjected him to ill-treatment upon his transfer to the Ministry of Internal Affairs of Georgia, with the aim of obtaining a confession to the charges against him. The police officers allegedly tied the applicant to a chair and beat him for five hours, the applicant receiving a particularly large number of blows to the head. The beatings were allegedly encouraged and supervised by two senior police officers, Mr B. Kh. and Mr. J. J., who threatened to kill the applicant if he did not plead guilty. 6. Subsequently, the applicant was transferred to a temporary detention centre, where, upon admission, he was visually examined by a duty officer in the presence of another prison officer. According to the record drawn up by the duty officer and duly signed by the applicant (“the record of 13 September 2004”), multiple scratches and reddened areas were identified on the applicant’s neck. The record also stated that the applicant had said that he had sustained those injuries prior to his arrest. 7. At a photo identity parade held on 14 September 2004, the victims identified the applicant as one of their kidnappers. 8. On 17 September 2004 a department head of the Tbilisi City Prosecutor’s Office, relying on the record of 13 September 2004, instructed the Vake-Saburtalo district prosecutor to inquire into the origin of the applicant’s injuries and take any lawful actions required. As disclosed by the case file, the above request has not resulted in any actual investigative actions. 9. On 25 April 2006 the applicant and three co-accused were convicted on multiple charges of aggravated kidnapping, extortion, hostage-taking, unlawful purchase and possession of firearms, and causing both grave and minor bodily injuries, committed while acting in an organised, armed criminal gang. The applicant was sentenced to thirteen years’ imprisonment. The applicant’s conviction was primarily based on the victims’ statements, the results of the identity parade, the record of the search of the applicant’s vehicle, statements from the police officers who had conducted the search, and an analysis of the incoming and outgoing mobile phone calls of the applicant and his three co-accused. According to the transcript of the trial hearing, both victims identified the applicant in court as the perpetrator. The court rejected the applicant’s alibi and supporting witness testimonies as unsubstantiated, reasoning that the alibi had been made up with the sole purpose of evading criminal responsibility. 10. In his appeal dated 30 May 2006, the applicant reiterated all the arguments made by him at the first-instance hearing. Notably, the applicant challenged the results of the search of his vehicle and complained of inaccurate assessment of evidence by the trial court and also about the dismissal of his alibi. The applicant did not make allegations of ill-treatment. 11. On 29 January 2007 the Tbilisi Court of Appeal, whilst whilst rejecting one of the aggravating circumstances modifying the qualification of the offences, maintained the applicant’s conviction and his sentence of thirteen years’ imprisonment. The appellate court endorsed the reasoning of the first-instance court concerning the conclusiveness of the incriminating evidence. On 25 July 2007 the Supreme Court of Georgia rejected the applicant’s appeal on points of law. 12. On 10 October 2007 the applicant’s lawyer lodged a criminal complaint with the General Prosecutor of Georgia and, relying on Article 3 of the Convention, requested the initiation of a criminal investigation of the applicant’s allegations of ill-treatment. The lawyer denounced the failure of the prosecuting authorities to carry out the prosecutor’s instructions of 17 September 2004, and to conduct an inquiry into the circumstances in which the applicant had sustained his injuries. The lawyer particularly stressed the relevant authorities’ failure to question the applicant in connection with his injuries. In support of the above request, the lawyer provided the General Prosecutor of Georgia with a copy of the record of 13 September 2004 assessing the applicant’s injuries, the applicant’s statement describing ill-treatment he stated he had suffered – including the names of some of the alleged perpetrators, and a copy of the prosecutor’s decision of 17 September 2004. 13. The above complaint was forwarded to the Tbilisi City prosecutor on 20 October 2007 with a request to report back. 14. On 1 November 2007 criminal proceedings were initiated by the prosecuting authorities in connection with the applicant’s allegations of ill-treatment on 13 September 2004. On 5 January 2008, while being questioned as a witness, the applicant maintained his allegations of ill-treatment and named the key suspects again. On 24 January 2008 a forensic examination established that the applicant’s injuries as described in the record of 13 September 2004 were of a minor nature, causing no damage to his state of health. 15. As disclosed by the relevant criminal case file submitted by the Government, several witnesses were questioned, including two of the alleged suspects named by the applicant and the two investigators and the prosecutor in charge of the criminal case against the applicant. They all denied the applicant’s allegations. Several other investigative actions were also carried out for the purpose of verifying the applicant’s claims. According to the Government, no evidence was found to substantiate the applicant’s allegations. 16. On 6 February 2005 the applicant was transferred to the psychiatric wing of the prison hospital with symptoms of post-traumatic stress disorder. By that time he had developed insomnia, frequent headaches and dizziness. He complained in particular of depression, irritability and tinnitus. Following a psychiatric evaluation, the applicant was diagnosed as suffering from emotionally unstable personality disorder and post-traumatic nonpsychotic cerebral syndrome. The medical report of the applicant’s treatment in the prison hospital between 6 February and 4 May 2005 noted that the applicant had suffered from concussion several times in the past. The report also noted that the applicant had never been registered with any psychiatric hospital in the past and that his parents did not suffer from any genetically transmissible diseases. 17. The applicant was discharged from the prison hospital after four months of treatment and returned to Tbilisi no. 1 Prison on 4 June 2005. 18. On 30 October 2007 the applicant’s lawyer wrote a letter to the governor of Tbilisi no. 1 Prison, where the applicant was an inmate at the material time, inquiring about the availability of a psychiatrist in the prison. In a reply of 5 November 2007, the prison governor informed the lawyer that the applicant had been transferred to Rustavi no. 6 Prison. He further maintained in general terms that a psychiatrist from the prison hospital was asked to attend whenever the need arose. 19. In September 2010 the applicant raised new medical grievances with the prison authorities. Notably, he complained of pain in the waist area and after a medical check-up was diagnosed with radiculopathy. The applicant was prescribed relevant drug-based treatment on an out-patient basis. 20. As disclosed by his medical file, the applicant subsequently had periodic consultations with various specialists, including a psychiatrist. The most recent consultation, on 15 August 2011, indicated that the applicant’s mental condition was stable, with no signs of psychosis. 21. The relevant provisions of the Code of Criminal Procedure, as in force at the material time, read as follows: Article 261 – Obligation to initiate a preliminary investigation “Upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. ...” Article 263 – Information concerning the commission of a crime “1. A preliminary investigation shall be opened on the basis of information concerning the commission of a crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity ... reported in the media, or brought to light during the investigation of a case by the authority in charge of the investigation ...”

train

001-70899

ENG

GBR

ADMISSIBILITY

PERRIN v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

The applicant, Mr Stephane Laurent Perrin, is a French national, who was born in 1971 and lives in Hove, the United Kingdom. He was represented before the Court by J. Welch, a lawyer practising in London. On 25 October 1999 an officer with the Obscene Publications Unit of the Metropolitan Police used, in the course of his duties, a computer at a police station in the United Kingdom to access a web page which he found on the internet. When he viewed that page he saw people covered in faeces, coprophilia, coprophagia and men involved in fellatio. The page was in the form of a preview for other material that could be viewed on payment of a subscription. Anyone wanting more of that type of material could click on to a link marked “subscription to our best filthy sites.” The officer did that and provided his name, address, and credit card details. He was then given access to a second web page which contained similar material to the first. On 12 November 1999 the officer visited the web site again and viewed a third web page. The applicant was subsequently arrested and interviewed by police officers about his involvement in the publication of internet sites. He stated in his interviews with the police that the internet site viewed by the officer was operated and controlled by Metropole News Group, a company based in the United States of America that complied with all the local laws and of which the applicant was a majority shareholder. The applicant was charged with three counts of publishing an obscene article, contrary to section 2 of the Obscene Publications Act 1959 (“the 1959 Act”). The three counts related to the three respective web pages which the officer had viewed. The matter came for trial before Southwark Crown Court in October 2000. At the start, the applicant entered an admission, through his counsel, that he was legally responsible for the publication of the web pages viewed by the police officer. The issue for the jury was whether those pages were obscene within the meaning of section 2 of the 1959 Act. The trial judge directed them as to the definition of “obscene” provided by section 1(1) of the 1959 Act (see below). On 16 October 2000 the applicant was convicted on the first count, which related to the preview page, and acquitted him on the two other counts. On 6 November 2000 he was sentenced to thirty months imprisonment. The applicant sought leave to appeal to the Court of Appeal on the ground, inter alia, that his conviction violated Article 10 of the Convention. He submitted that it was an interference with his right to freedom of expression which was neither prescribed by law, nor proportionate. His main point was that the 1959 Act was not sufficiently foreseeable because the major steps towards publication of the web pages had taken place outside the jurisdiction: he maintained that English courts should only be able to convict when the major steps towards publication took place within their jurisdiction. He further submitted that section 2 of the 1959 Act was not sufficiently clear. As to proportionality, he pointed out that similar material was readily available on the internet and that there were better means of inhibiting access, such as industry self-regulation, blockage by service providers and steps taken at home. On 22 March 2002 the Court of Appeal dismissed his appeal against conviction. It relied on Handyside v. the United Kingdom (judgment of 7 December 1976, Series A no. 24, § 44) and Hoare v. the United Kingdom (no. 31211/96, Commission decision of 2 July 1997) in holding that section 2 of the 1959 Act was sufficiently precise for the interference in question to be prescribed by law. In regard to proportionality, it reviewed the Convention case law and observed that there was a margin of appreciation in relation to judgments about morality. It held that the interference with the applicant’s freedom of expression was limited in that he was only convicted on the first count. It considered that, even if the 1959 Act only provided limited protection to vulnerable people, there is no reason why a responsible government should abandon that protection in favour of the limited remedies advocated by the applicant. Finally, it noted, on the jurisdictional point, that the applicant’s suggestion, that conviction should only be possible where major steps had been taken towards publication in a place over which the court had jurisdiction, would undermine the aim that the law was intended to protect by encouraging publishers to take the steps towards publication in countries where they were unlikely to be prosecuted. It concluded that the interference in question was justified under Article 10 § 2. His appeal against sentence was also dismissed, the Court of Appeal finding as follows: “It is pointed out that this was material that had to be sought out. That, of course, is true. As [counsel for the applicant] accepts, it was available to the young but they had to seek it. On the other hand, it is precisely the sort of material which some young would seek in the privacy of their own bedrooms and it is they who have to be protected, so far as is possible, by the law. There is, as [counsel for the applicant] submits, difficulty with the worldwide web, but it is through the worldwide web that people are able to make very substantial profits.... Finally, it is submitted that, if one looks at the authorities, sentences passed in relation to other offences were not of this magnitude, at any rate where the offence was not, on the face of it, relating to child pornography. That is true so far as it goes, but again the danger in relation to this type of offence was its accessibility to the young and vulnerable. In those circumstances it seems to us that, bearing in mind the statutory maximum of three years, the judge adopted the right approach in this case, and we see no reason to interfere with the sentence which he imposed.” On 30 October 2002 the House of Lords refused the applicant leave to appeal. The 1959 Act (as amended by the Obscene Publications Act 1964, the Criminal Law Act 1977, the Cinema Act 1985, the Broadcasting Act 1990 and the Criminal Justice and Public Order Act 1994) provides in so far as relevant: “1. Test of obscenity (1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. (2) In this Act “article” means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures. (3) For the purposes of this Act a person publishes an article who – (a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or (b) in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matter is data stored electronically, transmits that data.... 2. Prohibition of publication of obscene matter (1) Subject as hereinafter provided, any person who, whether for gain or not publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or to another) shall be liable – (a) ... (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both ... 4. Defence of public good (1) Subject to subsection (1A) of this section [which is concerned with moving picture films or soundtracks] a person shall not be convicted of an offence against section two of this Act, and an order for the forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.”

train

001-5454

ENG

GBR

ADMISSIBILITY

ACCURACY INTERNATIONAL LIMITED AND 13 OTHERS v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicants appear to be engaged in the wholesale distribution of firearms. A list of applicants is annexed to the present decision. They are represented before the Court by Edwin Coe, Solicitors, London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants refer to, and adopt, application no. 37683/97 brought by Ian Edgar (Liverpool) Limited (“Ian Edgar”), without providing any factual material to support their individual claims. Controls on firearms in Great Britain, including controls on the possession of pistols, revolvers, rifles and the ammunition for them, were introduced for the first time in 1920. In 1934, fully-automatic weapons were prohibited, and in 1962, airguns and shotguns were made subject to restrictions for the first time. The controls were consolidated in the Firearms Act 1968. In 1988, semi-automatic and self-loading rifles were prohibited, and in 1992, disguised firearms were prohibited. In March 1996, an individual entered a primary school in Scotland and shot dead a teacher and 16 children, and wounded 13 others. He had with him four handguns and 743 rounds of ammunition. The Government subsequently established a public inquiry chaired by the Hon. Lord Cullen, which presented a report to the Parliament of the United Kingdom in October 1996 (“the Cullen Report”). Following the presentation of the Cullen Report, legislation was passed in 1997 prohibiting the possession of handguns, and schemes were set up for the payment of compensation to private individuals and to dealers in firearms in respect of handguns the possession of which was prohibited. By the beginning of 1999, approximately £22 million had been paid out to some 1,500 dealers under the schemes, of a total of some £67 million which had been paid out to individuals, dealers and others. The Government estimate the total costs which will be involved in paying compensation under the schemes to be some £120 million.

train

001-98575

ENG

CYP

ADMISSIBILITY

CAKIR v. CYPRUS

Inadmissible

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

The five applicants are Cypriot nationals who live in the “Turkish Republic of Northern Cyprus” (“TRNC”). The first applicant, Mrs Halide Çakir, is the mother of the second, third and fourth applicants, Mr Serkan Çakir, Mrs Sinem Çakir and Mr Songür Çakir. The fifth applicant, Mr Mehmet Çakir, is the brother-in-law of the first applicant. The applicants were born in 1947, 1965, 1968, 1971 and 1943 respectively. The first four applicants have lodged the application on their own behalf and on behalf of Mr Erdoğan Çakir, the husband of the first applicant and the father of the second, third and fourth applicant. The fifth applicant has lodged the application on his own behalf and on behalf of his brothers, Mr Erdoğan Çakir and Mr Mustafa Çakir. The applicants were represented before the Court by Mr Z. Necatigil and Ms S. Karabacak, lawyers practising in the TRNC. The complaints raised in the present application concern events that took place during the second round of military operations by Turkey in northern Cyprus in August 1974. Before the events of August 1974, the applicants, Mr Erdoğan Çakir and Mr Mustafa Çakir lived in Ktima, in the district of Paphos. On 14 August 1974, the Turkish quarter of Ktima was under heavy fire from units of the Cypriot National Guard. The United Nations Peace Force advised Turkish-Cypriot residents, through loudspeakers, to remain in their houses and the Çakir family, including the applicants and Erdoğan and Mustafa Çakir, gathered in the house of Erdoğan Çakir. At the time, the second, third and fourth applicants were children aged nine, six and three years respectively, Mustafa Çakir was 22 years old and Erdoğan Çakir was 36 years old. Everyone in the house was in civilian clothes and unarmed. While they were in the house, members of the Greek-Cypriot forces fired at the door with automatic weapons. They subsequently kicked the door open while continuing to fire, shooting and wounding Erdoğan Çakir, who was close to the door. Mustafa Çakir then entered from the adjacent room with his hands on his head pleading with the assailants not to shoot as there were women and children among them. He was taken outside and shot with an automatic weapon. He died immediately. The dead and wounded were taken outside while the women and children were kicked, humiliated, abused and struck with rifle butts before being pushed out of the house. Erdoğan Çakir, who was still alive at the time not having received fatal wounds, was taken away by the Greek-Cypriot forces, together with the dead body of Mustafa Çakir. All the remaining Turkish Cypriots were taken from their houses to the football pitch in town. There they were divided into groups. A number of them, including the fifth applicant, were sent to a prisoners' camp and the rest were sent back to their homes. The fifth applicant was detained in the prisoners' camp for 42 days. On 15 August 1974, the day after the killings, the dead bodies of Erdoğan and Mustafa Çakir were returned to their relatives by the United Nations Peace Force. They were taken by their relatives to the courtyard of the local mosque for burial. Erdoğan Çakir's jaw and ribs were broken and he had pinholes in his body. The Social Welfare Officer of the town, Murad Hüsnü Özad, identified by name six persons he alleged were responsible for the crimes committed on 14 August 1974. According to the applicants, the Greek-Cypriot authorities also knew the identities of the persons concerned and the Greek-Cypriot President at the time announced that those responsible would be punished. In 2005, the second applicant visited the tombs of his father and uncle in the Greek part of the island. He was approached by a Greek-Cypriot who informed him of the names of three people responsible for their deaths; all three were among those previously accused by Murad Hüsnü Özad of the killings. The second applicant was also told that the massacre had been ordered by a Greek military chief commandant. By letter dated 23 February 2006 the applicants' lawyer requested the Attorney-General of the Republic of Cyprus to inform him, by the end of March 2006, whether the authorities had carried out any investigation into the killings of Mr Erdoğan Çakir and Mr Mustafa Çakir; the result of any such an investigation; and whether the persons involved in the commission of the crimes had been brought to justice. By letter dated 20 April 2006 the Attorney-General informed the applicants' lawyer that the contents of his letter of 23 February 2006 was under consideration and that he would contact him in due course. No further correspondence from the Attorney-General has been received by the applicants' lawyer.

train

001-97518

ENG

DEU

ADMISSIBILITY

KOPKA v. GERMANY

Inadmissible

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

The applicant, Mr Markus Kopka, is a German national who was born in 1976 and lives in Planegg. He was represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld. , may be summarised as follows. The applicant is the father of two children, born in 2003 and 2005. Since the couple's separation in 2007 the children have been living with their mother. On 25 July 2007 the mother lodged a request to be granted sole parental authority over the children in order to return with them to her country of origin, Peru. On 3 December 2007 the Munich District Court (Amtsgericht) rejected the request. On 9 May 2008 the Munich Court of Appeal (Landgericht) quashed the District Court's decision and granted the mother sole parental authority over both children. On 20 May 2008 the applicant lodged a complaint which was rejected by the Munich Court of Appeal on 30 June 2008. On 13 August 2008 the Federal Constitutional Court refused to admit the applicant's constitutional complaint for adjudication. This decision was served on the applicant's counsel on 18 August 2008.

train

001-89859

ENG

UKR

CHAMBER

CASE OF SVERSHOV v. UKRAINE

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objection dismissed (ratione personae);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - award

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

5. The applicant was born in 1985 and is currently detained in prison no.105, the Kherson region. 6. On 19 January 2002 the applicant, a minor at the time, was arrested on suspicion of having killed his grandmother and robbed her apartment together with a Mr G. 7. On 22 January 2002 the applicant was formally charged with murder and aggravated robbery. 8. The Kerch Town Court (Керченський міський суд – “the Kerch Court”) held a hearing on 22 January 2002, in the presence of the applicant and his lawyer. It ordered the applicant’s pre-trial detention on the ground that he might abscond if released because he was suspected of having committed serious crimes. 9. On 15 March 2002 the Kerch Court extended the applicant’s pre-trial detention for up to a total of four months. It found that there was sufficient evidence on which to found a reasonable suspicion that the applicant had committed serious offences. 10. In April 2002 the applicant’s lawyer requested the investigator to replace the applicant’s detention with a less restrictive preventive measure. By a ruling of 28 April 2002, the request was rejected on the ground that the applicant was suspected of having committed serious crimes and might prevent the establishment of the truth in the case. 11. On 13 May 2002 the Kerch Prosecutor (Прокурор міста Керч) sent the case file, together with the bill of indictment, to the Kerch Court for the trial proceedings. 12. On 27 May 2002 the judge of the Kerch Court held a committal hearing at which the applicant’s lawyer lodged a new request for release, stating that the applicant was a minor; had no previous convictions; could not obstruct the collection of evidence or destroy it; had positive aspects to his character; permanently resided in Kerch; did not – and could not – try to abscond due to the lack of resources or relatives in other parts of the country; and, lastly, that there was no indication that he would reoffend if released. The Kerch Court committed the applicant for trial on charges of murder and aggravated robbery. In its committal order the court also rejected the applicant’s request for release and extended his detention during the trial proceedings without giving any grounds. 13. On 23 August 2002 the applicant’s lawyer lodged another request with the Kerch Court for the applicant’s release on the same grounds as the one of 27 May 2002. According to the Government, it was considered and rejected on the same day. 14. On 16 October 2002 the Kerch Court referred the case back for additional pre-trial investigation. The court also rejected the applicant’s request for release, noting that he was suspected of having committed serious crimes and there were no grounds for applying a less restrictive preventive measure to him. 15. In December 2002 the applicant’s lawyer lodged two requests with the investigator for the applicant’s release. Both requests were rejected on the ground that the applicant was suspected of having committed serious crimes and might prevent the establishment of the truth in the case. 16. On 28 December 2002 the Crimea Court of Appeal (“the Crimea Court”) considered the investigator’s request for the applicant’s further detention. The court decided that further investigative actions were required in respect of the applicant and his co-accused and, given that the applicant was accused of serious crimes, there were sufficient grounds for his further detention. The court accordingly extended the applicant’s detention to 10 March 2003. 17. On 23 February 2003 the applicant’s lawyer submitted a request to the investigator for the applicant’s release. 18. On 24 February 2003 the request was rejected on the ground that the applicant was suspected of having committed serious crimes and might prevent the establishment of the truth in the case. 19. In March 2003 the investigation was completed and the case was referred to the Kerch Court. 20. On 27 March 2003 the applicant’s lawyer requested the Crimea Court to replace the applicant’s detention with an obligation not to abscond as there was not enough evidence on which to found a reasonable suspicion that the applicant had committed a crime. He also reiterated the arguments in support of the applicant’s release set out in his previous requests of 27 May and 23 August 2002 (see paragraphs 12 and 13 above). 21. At a committal hearing of 3 April 2003, the Crimea Court rejected the request on the ground that the reasonableness of the suspicion could be verified only during the trial proceedings. It committed the applicant for trial on charges of aggravated murder and aggravated robbery and maintained his detention during the trial proceedings, noting that there were no grounds for replacing the applicant’s detention by a different preventive measure. 22. On 7 May 2003 the Crimea Court convicted the applicant and Mr G. of aggravated murder and aggravated robbery and sentenced them to thirteen and ten years’ imprisonment respectively. 23. On 2 October 2003 the Supreme Court quashed that judgment and remitted the case to the Kerch Prosecutor’s Office for further investigation. The court did not make any ruling on the applicant’s further detention. 24. In December 2003 the applicant’s lawyer submitted a request to the investigator for the applicant’s release. The request was rejected on the ground that the applicant was suspected of having committed serious crimes. 25. On 12 January 2004 the Crimea Court committed the applicant for trial. The court further maintained the applicant’s detention without giving any grounds. 26. On 12 January 2004 the applicant lodged a request for his release with the Crimea Court, based on the same arguments as in his requests of 27 May and 23 August 2002 and 27 March 2003. His request was rejected by the Crimea Court on the same day without any reasons. 27. On 6 February 2004 the Crimea Court found the applicant and Mr G. guilty of aggravated murder and aggravated robbery and sentenced them to thirteen and ten years’ imprisonment respectively. 28. On 13 May 2004 the Supreme Court upheld the judgment of 6 February 2004. 29. On 20 May 2002 the applicant’s lawyer filed a request for the applicant’s release with the Governor of the Simferopol Pre-Trial Detention Centre (the Simferopol SIZO). The request was based on the argument that the term of the applicant’s detention pending trial, as authorised by the Kerch Court in the detention order of 15 March 2002, had expired on 19 May 2002 (four months after his arrest) and that no new decision had been taken extending this term. 30. In a letter of 30 May 2002 the Governor of the Simferopol SIZO informed the applicant’s lawyer that the applicant had been moved to the Kerch temporary detention centre (“the Kerch ITU”) on 20 May 2002. He further stated – referring to Article 156 of the Code of Criminal Procedure – that in any event there were no grounds for the applicant’s release as the time-limit referred to in the above request was applicable only to pretrial proceedings. However, as from 13 May 2002, the date when the bill of indictment was sent to the court (see paragraph 11 above), the applicant’s detention had been classified as detention during trial. Consequently, the applicant could not be released on the ground of the expiry of the four-month time-limit referred to. 31. On 29 May 2002 the applicant lodged two administrative complaints: one with the Simferopol Zheleznodorozhny District Court against the Simferopol SIZO and the other with the Kerch Court against the Kerch ITU in respect of his allegedly unlawful detention after 19 May 2002. 32. On 1 October 2002 the Simferopol Zheleznodorozhny District Court rejected the applicant’s administrative complaint against the administration of the Simferopol SIZO about his allegedly unlawful detention after 19 May 2002 on the ground that a complaint of that nature should be considered in the criminal proceedings and not in administrative proceedings. 33. On 26 March 2003 the Crimea Court upheld the decision of the first-instance court. 34. On 26 September 2007 the Higher Administrative Court quashed the decisions of the lower courts and remitted the case to the first-instance court for consideration on the merits on the ground that criminal procedural law did not provide for the possibility of challenging the failure of a prison administration to release a suspect or accused. 35. The proceedings are still pending. 36. On 10 October 2003 the Kerch Court considered the administrative complaint brought by the applicant against the Kerch Police Department for being held in their temporary detention centre (“the Kerch ITU”) from 20 to 27 May 2002. The court found in part for the applicant, having established that his detention there without a valid court order was contrary to Article 29 of the Constitution and Article 5 of the Convention and therefore unlawful. The court rejected the applicant’s request for release, however, stating that at the time of consideration of the case the applicant’s detention was maintained by a court order and that it could not decide the issue in civil (administrative) proceedings. 37. On 12 July 2004 the Crimea Court set aside the decision of the first-instance court on the ground that Article 156 of the Code of Criminal Procedure obliged the head of a penitentiary institution to free a detainee only if no decision on continued detention was made during the pre-trial investigation. It further noted that: “The law does not require the head of the pre-trial detention facility to free an accused in respect of whom the term of pre-trial detention has expired but no decision of the court has arrived imposing a preventive measure in the form of detention during the trial proceedings in the case.” The court concluded that the administration of the Kerch ITU could act only within its competence and had done so. The court further noted that the reference by the first-instance court to a violation of Article 5 of the Convention was unsubstantiated and that the applicant’s detention between 20 and 27 May had not been contrary to Article 29 of the Constitution and Article 5 of the Convention. 38. On 30 November 2007 the Zaporizhzhzya Court of Appeal, acting as a court of cassation, upheld the decision of the Crimea Court. 39. The relevant provision of the Constitution reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” 40. The pertinent provisions of the Code provide, in so far as relevant, as follows: “Detention during pre-trial investigation shall not exceed two months. In cases in which it is impossible to complete the investigation of the case within the period provided for by Part One of this Article and there are no grounds for discontinuing the preventive measure or replacing it with a less restrictive measure, the period of detention may be extended: (1) up to four months - ...by a judge of the court which issued the order for the application of the preventive measure; (2) to nine months - in cases of serious and especially serious crimes ... by a judge of an appellate court; (3) to eighteen months - in particularly complex cases involving especially serious crimes ... by a judge of the Supreme Court of Ukraine;... ...The period of detention during pre-trial investigations shall expire on the day the court receives the case file; however, the time taken by the accused and his representatives to study the criminal case file shall not be included in the calculation of the period of detention... ...In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed two months. The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court, in accordance with the procedure and within the time-limit prescribed by Part Two of this Article. Save where the period has been extended pursuant to the procedure established by this Code, in the event of the expiry of the maximum period for detention as a preventive measure allowed by Parts One and Two of this Article, the body of inquiry, the investigator, or the prosecutor shall be obliged to release the person from custody without delay. Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts One, Two and Six of this Article expires. They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation” Article 241 Terms of committal proceedings “A committal hearing shall be held within ten days or, in complex cases, thirty days of receipt of the case file by the court.”

train

001-114518

ENG

GBR

CHAMBER

CASE OF C.N. v. THE UNITED KINGDOM

Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude);Non-pecuniary damage - award

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

4. The applicant was born in 1979. 5. The applicant travelled to the United Kingdom from Uganda on 2 September 2002. She claimed that she had been raped several times in Uganda and that her purpose in travelling to the United Kingdom was to escape from the sexual and physical violence which she had experienced. She intended to work to support herself in the United Kingdom and to pursue further education. 6. According to the applicant’s account, a relative named S. and a Mr A. helped her obtain a false passport and a visa to enable her to enter the United Kingdom. However, the applicant claimed that on arrival in the United Kingdom S. took her passport and travel documents and did not return them to her. 7. The applicant lived for a number of months at various houses belonging to S. in London. She claimed that during this time he constantly warned her that she should not talk to people and that she could easily be arrested or otherwise come to harm in London. She was also shown violence on television and told that this could happen to her if she was not careful. 8. In January 2003 S. introduced the applicant to a man called M. who ran a business providing carers and security personnel for profit. The applicant attended a short carers’ training course and thereafter did some overnight shifts as a carer and as a security guard in a number of locations. The applicant asserted that on each occasion payment was made by the client to M., who transferred a share of the money to S.’s bank account in the apparent belief that he would pass it on to her. However, she claimed that she did not receive any payment for the work that she did. 9. In early 2003 the applicant began to work as a live-in carer for an elderly Iraqi couple (“Mr and Mrs K”). She found the role physically and emotionally demanding as Mr K. suffered from Parkinson’s disease and she was required to change his clothing, feed him, clean him and lift him as necessary. As a result, she was permanently on-call during the day and night. On one Sunday every month she was given a couple of hours leave but on these occasions she would usually be collected by M. and driven to S.’s house for the afternoon. She accepted that after a couple of years she was permitted to take public transport but said she was warned that it was not safe and that she should not speak with anyone. 10. The applicant claimed that the GBP 1,600 Mr and Mrs K. paid every month for her services was sent directly to M. by cheque. A percentage of that money was passed by M. to S. on the apparent understanding that it would be paid to her. However, she received no significant payment for her labour. Occasionally Mr and Mrs K would give the applicant presents or second-hand clothes and from time to time S. would give her GBP 20 or GBP 40 when she went to his home on her monthly afternoon of leave. It was sometimes suggested that S. was saving up her income for her education, but she denied that any money was ever given to her. 11. In August 2006 Mr and Mrs K. went on a family trip to Egypt. The applicant was unable to accompany them because she did not have a passport. In their absence, the applicant was taken to a house belonging to S. When he left for a business trip to Uganda, she remained in the house with his partner, H. The applicant asserted that H. effectively prevented her from leaving the house and warned her not to speak with anyone. 12. On 18 August 2006 the applicant left the house. She went to a local bank, where she asked someone to call the police. Before the police arrived, she collapsed and was taken to St Mary’s Hospital, where she was diagnosed as HIV positive. She was also suffering from psychosis, including auditory hallucinations. 13. The applicant remained in hospital for one month. H. visited the applicant in hospital and the applicant claimed that during these visits she tried to persuade her to return to S.’s house. In particular, she warned her that when she left the hospital she would have to pay for anti-retroviral medication and if she did not return to the house she would be “on the streets”. 14. Following her discharge from hospital, the applicant was housed by the local authority. On 21 September 2006 she made an application for asylum. The application was refused on 16 January 2007. The Secretary of State for the Home Department considered that the applicant could access protection in Uganda to prevent further sexually motivated attacks. Moreover, he found that if she had been genuinely afraid of S., she would have tried to escape from him earlier. The applicant appealed. Her appeal was dismissed on 20 November 2007. In dismissing the appeal, the Immigration Judge expressed serious concerns about the applicant’s credibility and found much of her account to be implausible. 15. In April 2007 the applicant’s solicitor wrote to the police and asked that they investigate her case. The Metropolitan Police Human Trafficking Team, a police unit specialising in the investigation of human trafficking offences, commenced an investigation to ascertain whether or not she had been the victim of a criminal offence. The police interviewed the applicant on 21 June 2007. During the investigation, the Human Trafficking Team sought the views of the United Kingdom Human Trafficking Centre in Sheffield, a multi-agency organisation which provided a central point of expertise in the field of human trafficking. However, the Centre advised that there was no evidence to substantiate the allegation that the applicant had been trafficked into the United Kingdom and observed that during her time working with Mr and Mrs K she had been well looked after. 16. On 26 September 2007 the police informed the applicant’s former solicitor that there was “no evidence of trafficking for domestic servitude in the interview”. 17. On 26 August 2008 the applicant’s current solicitor wrote to the police asking for the reasons for discontinuing the investigation. On 5 September 2008 the police noted that the Head of Legal Services at the United Kingdom Human Trafficking Centre had advised that there was no evidence to substantiate the applicant’s allegation that she had been trafficked into the United Kingdom. He further advised that while the applicant worked with the K family she was well looked after and given some money. There was, however, a dispute over money and it may have been that “her cousin kept more than he should have done”. 18. On 5 September 2008 the police informed the applicant’s solicitor that “a decision was taken not to proceed with the matter as there was no evidence that she [the applicant] had been trafficked”. On 18 September 2008 the police reiterated that following the interview “it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted”. 19. On 5 December 2008 the applicant’s solicitor wrote to the police to ask them to consider prosecutions for other offences, including a jus cogens offence of slavery or forced labour. 20. On 18 December 2008 the applicant was assessed by the POPPY Project, a Government funded project providing housing and support for victims of trafficking. The POPPY Project concluded that she had been “subjected to five of the six indicators of forced labour” (as identified by the ILO). In particular, her movement had been restricted to the workplace, her wages were withheld to pay a debt she did not know about, her salary was withheld for four years, her passport was retained, and she was subjected to threats of denunciation to the authorities. 21. On 5 January 2009 the police began to conduct further investigations. On 14 January 2009 the police noted that a statement had been obtained from the agent who arranged the applicant’s work with Mr and Mrs K (presumably the man previously identified as M.). He stated that he had been introduced to the applicant by a person he believed to be her relative. He was supplied with a passport, a national insurance number and a criminal records check. The agent stated that the applicant came to the agreement with her relative that her wages would be paid to him. She only complained about this arrangement in or around June 2006. The agent also stated that he feared the applicant’s relative, who was a wealthy and powerful man well-connected to the Ugandan government. 22. The police were unable to make contact with Mr and Mrs K. Eventually they made contact with a member of the K family. However, no statement appears to have been taken as the (unidentified) woman told the police that she was leaving the country for medical treatment. 23. On 25 February 2009 the police informed the applicant’s solicitor that the evidence did not establish an offence of trafficking. They noted that “at this stage there is no evidence that would support exploitation of any kind”. 24. Police officers met with the applicant and her representative on 11 March 2009. The applicant’s solicitor asserted that at this meeting a police officer indicated that it was the Metropolitan Police’s provisional view, given expressly without formal authority, that there was no offence in English criminal law which applied to the facts of the case. The solicitor further asserted that the police apologised for the cursory manner in which the case had been dealt with previously and confirmed that the applicant’s account was credible. 25. In an entry dated 27 March 2009 the police noted that: “It is clear that this female was not trafficked into the UK for labour exploitation. She having applied for a visa in her real name to come to the UK was refused. She then in agreement with her father then obtained a false passport with a forged visa stamp. These false documents were paid for by her father with the assistance of her uncle... She willingly commenced work that was arranged by her uncle as a live-in carer for an elderly couple. The family at first wanted to pay her wages direct. But on the request of the victim she stated the money should be paid to the agency and then the money should then be transferred to her uncle’s account who in turn would send the money back to Uganda. This agreement was made in order to hide from the authorities the fact that the victim did not have a national insurance number. If money was paid to her then she would have had to pay tax and her false identity would have come to the notice of the tax office and then to the [United Kingdom Border Agency]. This would then lead to her arrest and eviction from the UK... ...There is no evidence to show that this female is/was a victim of slavery or forced labour. She willingly worked and was in fact paid but she choose that the money should go via her uncle in order to conceal being in the UK. It is basically a situation that one criminal (her uncle) has taken all the proceeds of their crime...” 26. At that meeting the applicant’s solicitor pointed out that S. had taken the applicant’s identity documents from her upon her arrival in the United Kingdom and that this was grounds to prove possible forced labour. However, the police indicated that the documents taken from the applicant were false documents purchased by her and her father to enable her to enter the United Kingdom. 27. On 31 March 2009 the police spoke again with the applicant’s solicitor. While they accepted that not every enquiry had been carried out, such as production orders relating to relevant bank accounts, it was important to ensure that the limited resources of the Human Trafficking Team were used to best effect and they could not, therefore, carry out any further investigation into the applicant’s complaints. 28. The applicant was assessed by a clinical psychologist specialising in violence against women. The psychologist concluded in her 16 May 2009 report that the applicant was “suffering to a severe degree from a complex form of chronic Post-Traumatic Stress Disorder (PTSD), in conjunction with a Major Depressive Disorder and she presents a moderate risk of suicide.” In particular, she noted that the applicant presented “in ways consistent with a victim of trafficking and forced labour, in the context of a history of sexual assaults”. 29. On 11 August 2009 the police noted that they would write to the applicant’s solicitor to confirm that “this particular case does not fulfil the requirements of human trafficking as per UK legislation and that legislation does not exist in relation to sole and specific allegations of domestic servitude where trafficking is not a factor”. 30. On 12 August 2009 the police wrote to the applicant’s solicitor in the following terms: “I can confirm that after undertaking an investigation of the case including interviewing Ms N. a decision has been made to conclude the investigation. This decision is based on several factors, one being that after consultation with the legal representative of the Human Trafficking Centre the circumstances of Ms N.’s case did not appear to constitute an offence of trafficking people for the purposes of exploitation contrary to the Asylum and Immigration Act 2004. I am not aware of any specific offence of forced labour or servitude beyond that covered by section 4 of the Asylum and Immigration Act 2004 though regulation of working conditions are controlled by such areas as health and safety legislation and in certain instances the Gangmasters Act 2004...” 31. Section 71 of the Coroners and Justice Act 2009, which received Royal Assent on 12 November 2009, made slavery, servitude and forced or compulsory labour criminal offences punishable by a fine and/or up to fourteen years’ imprisonment. Section 71 came into force on 6 April 2010 but did not have retrospective effect. 32. Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 created the offence of trafficking people for exploitation. It provides that: “(1) A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and— (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere. (2) A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and— (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere. (3) A person commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the “passenger”) and— (a) he intends to exploit the passenger outside the United Kingdom, or (b) he believes that another person is likely to exploit the passenger outside the United Kingdom. (4) For the purposes of this section a person is exploited if (and only if)— (a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour), (b) he is encouraged, required or expected to do anything as a result of which he or another person would commit an offence under the Human Organ Transplants Act 1989 (c. 31) or the Human Organ Transplants (Northern Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)), (c) he is subjected to force, threats or deception designed to induce him— (i) to provide services of any kind, (ii) to provide another person with benefits of any kind, or (iii) to enable another person to acquire benefits of any kind, or (d) he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that— (i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and (ii) a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement. (5) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.” 33. On 12 November 2009 the Coroners and Justice Act 2009 received Royal Assent. Section 71, which will come into force “on such day as the Secretary of State may by order appoint”, provides as follows: “71 Slavery, servitude and forced or compulsory labour (1) A person (D) commits an offence if— (a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or (b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour. (2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour). (3) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both. (4) In this section— “Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950; “the relevant period” means— (a) in relation to England and Wales, 12 months; (b) in relation to Northern Ireland, 6 months.” 34. Articles 1 and 2 of the Convention provide as follows: “Article 1 1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. 2. With a view to this complete suppression, recourse to forced or compulsory labour may be had, during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees hereinafter provided. 3. At the expiration of a period of five years after the coming into force of this Convention, and when the Governing Body of the International Labour Office prepares the report provided for in Article 31 below, the said Governing Body shall consider the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period and the desirability of placing this question on the agenda of the Conference. Article 2 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-- (a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (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; (d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.” 35. The ILO has developed indicators of forced labour which provide a valuable benchmark in the identification of forced labour. These indicators are: “1. Threats or actual physical harm to the worker. 2. Restriction of movement and confinement to the work place or to a limited area. 3. Debt bondage: where the worker works to pay off a debt or loan, and is not paid for his or her services. The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt. 4. Withholding of wages or excessive wage reductions, that violate previously made agreements. 5. Retention of passports and identity documents, so that the worker cannot leave, or prove his/her identity and status. 6. Threat of denunciation to the authorities, where the worker is in an irregular immigration status.” 36. The United Kingdom ratified the Convention on 17 December 2008 and it came into force on 1 April 2009. 37. Article 4 defines “trafficking in human beings" as follows: “(a) the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; 38. Article 19 provides that: “Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph (a) of this Convention, with the knowledge that the person is a victim of trafficking in human beings.” 39. Article 5 of this Convention, which the United Kingdom ratified in 1927, provides that: “The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery. It is agreed that: (1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes. (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence. (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.” 40. Recommendation 1523 (2001) provides, as relevant, that: “1. In the last few years a new form of slavery has appeared in Europe, namely domestic slavery. It has been established that over 4 million women are sold each year in the world. 2. In this connection the Assembly recalls and reaffirms Article 4, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also the definition of slavery derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights. 3. The Assembly also recalls Article 3 of the ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 6, which proclaims the right of access to a court in civil and criminal matters, including cases where the employer enjoys immunity from jurisdiction. ... ... ... 5. It notes that the victims’ passports are systematically confiscated, leaving them in a situation of total vulnerability with regard to their employers, and sometimes in a situation bordering on imprisonment, where they are subjected to physical and/or sexual violence. 6. Most of the victims of this new form of slavery are in an illegal situation, having been recruited by agencies and having borrowed money to pay for their journey. 7. The physical and emotional isolation in which the victims find themselves, coupled with fear of the outside world, causes psychological problems which persist after their release and leave them completely disoriented. ... ... ... 9. It regrets that none of the Council of Europe member states expressly make domestic slavery an offence in their criminal codes. 10. It accordingly recommends that the Committee of Ministers ask the governments of member states to: i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes; ... ... ... vi. protect the rights of victims of domestic slavery by: a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds; b. taking steps to provide them with protection and with social, administrative and legal assistance; c. taking steps for their rehabilitation and their reintegration, including the creation of centres to assist, among others, victims of domestic slavery; d. developing specific programmes for their protection; e. increasing victims’ time limits for bringing proceedings for offences of slavery; f. establishing compensation funds for the victims of slavery.” 41. Recommendation 1663 (2004) further provides, as relevant, that: “The Assembly thus recommends that the Committee of Ministers: i. in general: a. bring the negotiations on the Council of Europe draft convention on action against trafficking in human beings to a rapid conclusion; b. encourage member states to combat domestic slavery in all its forms as a matter of urgency, ensuring that holding a person in any form of slavery is a criminal offence in all member states; c. ensure that the relevant authorities in the member states thoroughly, promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible; d. recommend that member states review their immigration and deportation policies, granting victims of domestic slavery at least temporary residence permits (if possible, in conjunction with work permits) and allowing them to file complaints against their abusive husbands or employers if they wish to do so; e. urge member states to provide an efficient support network for victims (including emergency accommodation, health care, psychological and legal counselling services) and attribute funds to non-governmental organisations working in this area; f. ensure that victims of slavery are provided with reparation, including compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition; ii. as concerns domestic servitude: a. elaborate a charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001) on domestic slavery. Such a charter, which could take the form of a Committee of Ministers’ recommendation or even of a convention, should guarantee at least the following rights to domestic workers: – the recognition of domestic work in private households as “real work”, that is, to which full employment rights and social protection apply, including the minimum wage (where it exists), sickness and maternity pay as well as pension rights; – the right to a legally enforceable contract of employment setting out minimum wages, maximum hours and responsibilities; – the right to health insurance; – the right to family life, including health, education and social rights for the children of domestic workers; – the right to leisure and personal time; – the right for migrant domestic workers to an immigration status independent of any employer, the right to change employer and to travel within the host country and between all countries of the European Union and the right to the recognition of qualifications, training and experience obtained in the home country; b. recommend the introduction of a system of accreditation for agencies placing domestic workers, which would commit these agencies to certain minimum standards, such as charging reasonable fees, tracking the employees they have placed and providing emergency help in cases of difficulty. Accredited agencies could have visa applications put forward on their behalf validated automatically; c. ensure regular monitoring by appropriate authorities of the agencies accredited under the system referred to in sub-paragraph b above.”

train

001-97271

ENG

GRC

CHAMBER

CASE OF SYNGELIDIS v. GREECE

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

Anatoly Kovler;Dean Spielmann;Flogaitis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Spyridon Flogaitis

5. The applicant was born in 1957 and lives in Athens. He is a businessman, who married M.A. on 20 September 2003. At the time of their marriage M.A. was already a member of the Greek parliament (MP). On 24 March 2004 their son was born. 6. At the end of 2004 the applicant's marriage broke down. It was pronounced dissolved by mutual consent by the Athens Court of First Instance on 7 July 2005. 7. The applicant and M.A. concluded an agreement on 14 December 2004 resolving issues of custody and access in relation to their son. These arrangements were endorsed by a formal decision of the Athens Court of First Instance of 20 January 2005 (decision no. 528/2005). In particular, M.A. was to have custody of the child until he came of age, and he was to live with her. The applicant was entitled to open access to his son, subject to the child's needs, and certain minimum periods and days of contact were specified. In fact, he was entitled to see his son every day between 5 p.m. and 8 p.m. 8. On a number of occasions the applicant was unable to have contact with his son in accordance with the provisions of the court's order. 9. On 20 October 2005 the applicant lodged an indictment with the prosecutor of the Athens Court of First Instance based on Article 232A of the Criminal Code. He requested the sum of ten euros by way of nominal compensation for the non-pecuniary damage which M.A.'s breach of decision no. 528/2005 had caused him, reserving his right to seek further compensation before the civil courts. 10. On 24 August 2006 the prosecutor of the Athens Court of First Instance referred the indictment to the prosecutor of the Supreme Court. The matter was referred to the Minister of Justice on 30 August 2006 for onward transmission by him to the President of the Greek parliament, so that leave of Parliament to bring the proceedings could be sought under Article 62 of the Greek Constitution. The file was received by Parliament on 3 October 2006. 11. On 28 November 2006 the Parliament's Ethics Committee gave the opinion that M.A.'s immunity should not be lifted. In its report the Committee considered that “one of the grounds provided for by Article 83 § 3 of Parliament's Regulations applied in this case”. 12. On 6 December 2006, by a majority of 107 votes to 68 following a secret ballot, Parliament, sitting in plenary session, refused to grant leave. No reasons were given for its decision. 13. In the meantime, on 31 March 2005, M.A. had brought criminal proceedings against the applicant for placing a security guard outside her building after having allegedly received telephone calls threatening him and his family. These proceedings were subsequently dismissed both at first instance and on appeal. 14. On 20 December 2005 the Athens Court of First Instance varied the custody arrangements. The court's order made specific provision for the payment of a 1,000-euro fine by M.A. should she breach any of its provisions (decision no. 9599/2005). M.A. has allegedly consistently failed to comply with these revised arrangements. On 20 March 2007 and 26 March 2007 the applicant lodged two further indictments with the prosecutor of the Athens Court of First Instance following alleged breaches of the court's decision. The applicant again sought compensation for non-pecuniary damage. 15. On 9 May 2007 the prosecutor of the Athens Court of First Instance referred the indictment dated 26 March 2007 to the prosecutor of the Supreme Court. The matter was referred to the Minister of Justice on 22 May 2007 for onward transmission by him to the President of the Greek Parliament, so that leave of Parliament could be sought under Article 62 of the Greek Constitution. On 22 May 2008 the Parliament's Ethics Committee decided that the request should be rejected without being placed before the full Parliament for consideration, on the basis that the request for waiver of immunity was substantially the same as the first request. 16. The relevant parts of the Greek Constitution provide: “1. The members of parliament shall be elected for a term of four consecutive years, commencing on the day of the general elections...” “1. A member of parliament shall not be prosecuted or in any way interrogated for an opinion expressed or a vote cast by him in the discharge of his parliamentary duties... 2. A member of parliament may be prosecuted only for libel, under the relevant law, after leave has been granted by Parliament...” “During the parliamentary term members of parliament shall not be prosecuted, arrested, imprisoned or otherwise confined without prior leave granted by Parliament... ...No leave is required when members of parliament are caught in the act of committing a felony...” 17. The relevant parts of the Greek Criminal Code provide: “Persons who are entitled, under the Civil Code, to compensation for damage for non-pecuniary harm and restoration of damage may join the criminal proceedings as civil parties” “Anyone who intentionally fails to comply with a temporary order of a judge or court or with a provision of a court decision by which they are obliged to act or to refrain from acting...may be punished by up to one year's imprisonment...” 18. The relevant parts of the Greek Civil Code provide: “Whoever unlawfully and culpably causes damage to another shall be bound to make reparation to the other for any damage thus caused...” “In the case of an unlawful act, the court may, irrespective of any award of compensation for pecuniary damages, award reasonable compensation ... for any non-pecuniary harm suffered...” 19. Articles 946 and 947 of the Civil Procedure Code also enable a court to punish non-compliance with a judgment or order by imprisonment or by a fine of up to 5,900 euros. 20. By virtue of Article 1048 of the Civil Procedure Code, a court may not order the imprisonment of a member of parliament during his or her mandate and for four weeks after the mandate expires. 21. Article 83 of the Regulations of Parliament provides as follows: “1. Petitions by public prosecutors for leave to commence criminal proceedings against an MP under Article 61 § 2 and Article 62 § 2 of the Greek Constitution, having first been checked by the Supreme Court's prosecutor, shall be submitted to Parliament through the Minister of Justice and registered in a special book according to the order of their introduction... ... 3. Having heard the MP in respect of whom the lifting of immunity is sought, if he or she wishes to be heard... the relevant Committee shall examine, on the basis of the documents forming part of the request, whether the offence for which the lifting of the immunity is sought is related to the MP's political activity; whether the prosecution is politically motivated; or whether it is aimed at undermining the authority of Parliament or of the MP, or at obstructing, to a significant extent, the exercise of their functions, or at influencing the operation of Parliament or of the parliamentary group of which the MP is a member. 4. Within a fixed period set by the President of the Parliament, the Committee shall prepare a report without examining the veracity of the accusation... ... 5...after the Committee submits its report on the issue concerned, the petition shall be entered in the agenda of the Parliament in plenary session... ... 7. Parliament shall decide on the petition by means of a show of hands... The MP in respect of whom the lifting of immunity is sought, the presidents of the political parties or their substitutes if they wish, may give their opinion... Parliament may decide on the basis of a secret ballot if proposed by the President or by the president of the political party to which the MP belongs...”

train

001-79570

ENG

AUT

CHAMBER

CASE OF WIESER v. AUSTRIA

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

Christos Rozakis

6. The applicant was born in 1958 and lives in Dornbirn. 7. Upon criminal information laid by the applicant's wife, the Feldkirch Regional Court, on 9 February 1998, issued an arrest warrant against the applicant and a search warrant of his house. The applicant was suspected of having bodily assaulted and raped his wife, of having threatened her with a firearm, of having sexually assaulted his minor stepdaughter and of being in possession of child pornographic videos. The arrest warrant pointed out that there were reasons to assume that the applicant would react with “massive resistance” upon his arrest and would “try to escape prosecution”. 8. On 9 February 1998 at around 23.45 hours six police officers of the special task force (Sondereinsatzgruppe) of the Altach gendarmerie entered the applicant's house. The officers were equipped with bullet-proof vests and shields. Further, they wore masks. 9. The applicant submits that before the police entered his house, he had observed two suspicious persons, namely two of the officers, lingering around his parking. He had, therefore, armed himself with a kitchen knife However, when the police entered his house he immediately dropped the knife and held his hands up. 10. The police officers forced the applicant to the ground and handcuffed him. 11. The applicant submits that he had recognised the police officers on their emblems and had declared at once that he would not do anything and collaborate with the police. An officer allegedly replied to him that he would better do so otherwise he would be “picked off”. 12. The applicant was subsequently laid on a table where he was stripped naked, searched for arms and dressed again. According to the applicant he was blindfolded during this time. Upon the shock of his arrest the applicant had urinated in his clothes. The police officers, despite the applicant's repeated requests, refused to let him change his clothes. 13. The applicant submits that he was then again forced to the ground where he remained for about 15 minutes while some of the police officers searched his house. According to the applicant he was lying face down while a police officer pressed his knee on the back of his neck. This police officer allegedly told the applicant: “Don't move, otherwise you are dead.” He further submits that it was only when he was lifted up that, without giving any further reasons, he was told that he was arrested. 14. The applicant was subsequently taken to the Altach police station where he was questioned until about 3.40 a.m. when he was released and taken back to his house. 15. During all of the time of his arrest and detention the applicant remained handcuffed. Upon his request, however, the handcuffs were covered with a garment when leaving the house and were later attached in his front instead behind his back. 16. On 10 February 1998 the applicant was again heard by the gendarmerie. On 11 February 1998 he prepared a note for the file in which he described the events at issue. He made, however, no reference to the fact that he had been blindfolded while stripped. 17. The criminal proceedings against the applicant were discontinued on 25 June 1998. 18. Meanwhile, on 3 March 1998, the applicant complained to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungs-senat) that the treatment he had suffered during his arrest and at the police station amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. He referred to his stripping by the police officers, the forcing to the ground while an officer pressed his knee against the back of his neck, the threats by the officers and the refusal to let him change his wet clothes. He finally complained that his handcuffing had not been necessary as he had been cooperative and had not shown any sign of resistance during all of the time. 19. The Independent Administrative Panel held two hearings on 8 and 28 July 1998. It questioned the applicant, the director of the Vorarlberg Public Security Authority (Sicherheitsdirektor), the police officer who had headed the mission, another police officer who had assisted the applicant's arrest and the police officer who had questioned the applicant at the Altach police station. The police officers submitted that the applicant's wife had informed them that the applicant was violent, regularly consumed alcohol, was in possession of a fire-arm and had attended training for hand-to-hand combat for several years. He had allegedly received his wife several times with a weapon in his hand when she was entering the house. The applicant's wife had warned the police that the applicant “was up to do anything”. 20. The two officers who had participated in the applicant's arrest confirmed that the applicant had been strip-searched. One officer explained that this had been done for their and the applicant's safety and in order to find the weapon. The applicant had been informed about the arrest and search warrant before being undressed. After the strip search the applicant had been seated on a sofa. The other officer stated that after the strip search the applicant had been laid and held on the floor. He denied, however, that somebody had approached the applicant's neck with his knee. Both officers confirmed that the applicant had not shown any sign of resistance and denied that the applicant had been threatened to “be picked off”. The officer who had heard the applicant at the police station submitted that he had not lessened the applicant's handcuffs because during some of the time he had been alone with the applicant at the police station. 21. On 6 November 1998 the Independent Administrative Panel rejected the applicant's complaints. It found that the police officers had acted on the basis of an arrest warrant and had not exceeded the instructions of the investigating judge. The handcuffing of the applicant had been a necessary accompanying measure to the applicant's arrest because of the applicant's assumed resistance and escape. Against this background also the stripping of the applicant could not be regarded as excessive, especially as the applicant was suspected to be in the possession of weapons. The applicant's further complaints about the threatening, the holding down by pressing a knee against the back of his neck and the refusal to let him change his wet clothes were, even assuming that the applicant's allegations were true, of no relevance for the proceedings at issue as they concerned merely the way of proceeding during an authorised arrest and were attributable to the court. A review of lawfulness did not fall within the Independent Administrative Panel's competence. 22. On 22 February 1999 the Constitutional Court declined to deal with the applicant's complaint. 23. The applicant filed a complaint with the Administrative Court in which he repeated his submissions made before the Independent Administrative Panel. He further complained about the fact that the intervening officers had been masked. 24. On 21 December 2000 the Administrative Court partly granted the applicant's complaint. It quashed the Independent Administrative Panel's decision insofar as the refusal of the police officers to let the applicant change his clothes was concerned and remitted the case back to the Panel for further examination. 25. The Administrative Court dismissed the remainder of the applicant's complaint. It noted that the police officers had been confronted with a person suspected of severe crimes who was allegedly in possession of a firearm and was trained in hand-to-hand combat and who, furthermore, was holding a knife when meeting them. The handcuffing and complete stripping of the applicant and the alleged fixation and threatening by the police officers did not, therefore, exceed the instructions of the investigating judge. The court did not consider the applicant's detention for some four hours and his handcuffing during this period of time as excessive either. It noted in the latter regard that, despite the applicant's calm and cooperative behaviour, there was reason to believe that the applicant once liberated from his handcuffs would try to escape or use force. The Administrative Court finally noted that the applicant had not raised the complaint that the officers had been masked before the Independent Administrative Panel. This complaint was, however, inadmissible in any way as it did not concern an act of direct administrative authority and coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt). 26. On 3 May 2001 the Vorarlberg Independent Administrative Panel found that the police officers' refusal to let the applicant change his wet clothes had not been covered by the instructions of the investigating judge who had ordered the applicant's arrest and constituted inhuman or degrading treatment in breach of Article 3 of the Convention. The applicant subsequently received compensation in the amount of approximately 2,400 euros. 27. Sections 139 to 149 of the Code of Criminal Procedure (Strafprozeß-ordnung) concern the search of premises and persons and the seizure of objects. 28. Section 139 § 2 stipulates that a search of a person and his clothes is inter alia admissible when this person is suspected of a crime. 29. According to section 140 §§ 1 and 2, a search should in general only be carried out after the person concerned has been heard, and only if the person or objects searched are not voluntarily rendered and if the reasons leading to the search have not been eliminated. It is not required to hear persons of bad reputation, or to have such a hearing where there is danger in delay. 30. Section 140 § 3 states, as a rule, that a search may only be carried out on the basis of a reasoned search warrant issued by a judge. 31. Section 142 § 1 stipulates that when searches of premises and persons are carried out any disturbance and harassment of the person concerned which is not strictly necessary has to be avoided. Searches have to be carried out in respect of the rules of decency. By virtue of section 67a § 1 of the General Administrative Procedure Act (Allgemeines Verwaltungs-verfahrensgesetz), Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons alleging a violation of their rights resulting from act of direct administrative compulsion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt). According to relevant jurisprudence and doctrine acts of administrative organs which are based on a court order are not attributable to the administrative authorities, but to the courts. Such an act is, however, attributable to the administrative authorities when the judicial order has been manifestly exceeded.

train

001-61829

ENG

FIN

CHAMBER

CASE OF PABLA KY v. FINLAND

No violation of Art. 6-1

Nicolas Bratza

7. The applicant is a limited partnership company founded in 1986 and based in Helsinki. 8. The applicant company, which was running a restaurant in Helsinki, rented the restaurant premises from an insurance company, Keskinäinen Henkivakuutusyhtiö Suomi (KHS). In 1994 it was offered the opportunity to rent more premises, which would be renovated to be suitable for restaurant use. When the renovation was finished, the applicant company found that there were excessive toilet facilities and that part of the planned restaurant facilities were missing, especially those planned to be built in the cellar. The applicant company paid 251,000 Finnish marks (approximately 42,200 euros) for the renovation expenses and the monthly rent was raised considerably. The amended rent contract had been signed before the extension work commenced. 9. In 1997 the applicant company instituted civil proceedings against KHS before a Division of the Helsinki District Court (käräjäoikeus, tingsrätt) known as “the Housing Court” (asunto-oikeus, bostadsdomstolen). The applicant company claimed that there had been a breach of the rent contract, as the newly renovated facilities did not correspond to the original plan, on the basis of which the applicant company had signed the amended rent contract. KHS disagreed with the applicant company, arguing that even though there had originally been a plan to build restaurant facilities in the cellar, it had later proved to be impossible to build such an extension and that the applicant company had been aware of this before signing the contract (see paragraph 19 below). 10. On 17 September 1997 the Housing Court found in favour of the insurance company, rejecting the applicant company's action for compensation in accordance with the Act on Commercial Leases. 11. The applicant company appealed to the Helsinki Court of Appeal (hovioikeus hovrätt), requesting that the District Court's decision be quashed. On 11 December 1997 the Housing Court Division of the Court of Appeal upheld the District Court's decision without an oral hearing. One of the members of the Court of Appeal, M.P., was a member of the Finnish parliament at the time. He had been an expert member of the Court of Appeal since 1974. From 1987 to 1990 and from 1995 to 1998 he was also a member of parliament. For the latter period the date of election was 19 March 1995. 12. On 9 February 1998 the applicant company applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, complaining, inter alia, about the lack of independence of Judge M.P., who had both legislative functions as a member of parliament and judicial functions as a member of the Court of Appeal. On 5 May 1998 the Supreme Court refused the applicant company leave to appeal. 13. Under section 9 of the Parliament Act (valtiopäiväjärjestys, riksdagsordning 278/1983), which was in force in 1997, only certain military positions and certain high positions in the judiciary, as well as the duties of officials supervising the lawfulness of government activities, were incompatible with the duties of a member of parliament, but there were no such restrictions as regards membership of a court of appeal. That provision read as follows: “The Chancellor of Justice, the Assistant Chancellor of Justice, a Justice of the Supreme Court or of the Supreme Administrative Court, the Parliamentary Ombudsman and the Assistant Parliamentary Ombudsman may not hold the office of a representative. If a representative is appointed to one of the aforesaid offices or elected Parliamentary Ombudsman or Assistant Parliamentary Ombudsman, his parliamentary mandate shall expire.” This provision corresponds to the existing section 27 of the Constitution (perustuslaki, grundlagen 731/1999). 14. According to section 23 of the State Civil Servants Act (valtion virkamieslaki, statstjänstemannalagen 750/1994), a public official must be absent from office for the period of time he or she performs the duties of a member of parliament. 15. Under section 29(1) (504/1984) of the Act on Court Proceedings in Cases concerning Rental Matters (laki oikeudenkäynnistä huoneenvuokra-asioissa, lag om rättegång i hyresmål 650/1973), as in force at the relevant time, the court of appeal was required to consider appeals concerning rent contracts as a bench of three judges and two expert members, one of whom represented the views of landlords and the other the views of tenants. The expert members of the court of appeal were appointed by the President of the Republic for a period of four years. Members must be between 25 and 70 years old, and have full legal capacity (section 29(2)). Expert members were required to take an oath (section 31). 16. The Act on Court Proceedings in Cases concerning Rental Matters was repealed by Act no. 597/2002, which came into force on 1 January 2003. Expert members no longer take part in the proceedings before the district courts or courts of appeal. Instead, the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) applies to the proceedings. 17. The provisions concerning the disqualification of judges are contained in Chapter 13, section 1, of the Code of Judicial Procedure. At the relevant time the said provision was worded as follows: “If the plaintiff or the defendant wishes to challenge a judge, he shall do so in a proper manner, and that judge shall decide whether or not to stand down. The following shall be the legal grounds for disqualification: where the judge is related by blood or marriage to one of the parties to a degree which would constitute a bar to marriage under Chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; where the judge is the opposing party or a publicly known “enemy” of a party; where the judge or a listed relative has an interest in the case, where they stand to obtain particular benefit or suffer particular loss in it; where the judge has served as a judge in the case in another court; where the judge has served as an advocate or witness in the case; where the judge has previously, on the orders of a court, decided a part of the case; or where the judge has a similar case pending before another court. If the judge knows that such grounds exist in his regard, even though the parties are not aware of the same, the judge shall stand down of his own accord.” 18. The provisions of Chapter 13 of the Code of Judicial Procedure concerning the impartiality of judges were amended by an Act (441/2001) which came into force on 1 September 2001. The government bill (HE 78/2000) contains an extensive account of the existing legislative provisions, the case-law of the European Court of Human Rights and precedents of the Supreme Court concerning the disqualification of judges. The amendment has not changed the Government's assessment of the present case. 19. The Act on Commercial Leases (laki liikehuoneiston vuokrauksesta, lag om hyra av affärslokal 482/1995) was presented as a government bill on 21 November 1994. It was adopted on 17 February 1995 and came into force on 1 May 1995.

train

001-86503

ENG

GBR

ADMISSIBILITY

STANWORTH v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Brian Stanworth, is a British national who was born in 1938 and lives in Manchester. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 31 August 1990. On 13 August 2001 the applicant applied for widows’ benefits. On the same day the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The applicant ceased to be entitled to child benefit in 1998 and therefore was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

train

001-102955

ENG

DNK

CHAMBER

CASE OF P.K. v. DENMARK

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

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

5. The applicant was born in 1945 in Sri Lanka. He is of Tamil ethnicity. Currently he lives in a centre for asylum seekers in Denmark. 6. On 18 May 2007, with a valid passport and a Sri Lankan ID card, the applicant entered Denmark and requested asylum. His eldest son, his daughterin-law, his grandchild and his brother-in-law already lived there and had permanent residence permits. 7. According to an asylum registration report of 23 May 2007 the applicant was born and grew up in the north of Sri Lanka. His wife died in 1978 and his two sons, born in 1975 and 1977, were brought up by their maternal grandmother. In 1995 the applicant and his eldest son moved to a refugee camp. They stayed there until 1998, when the eldest son was sent out of the country and the applicant went to Colombo. The applicant stayed in Colombo until 2002. Thereafter he lived in Jaffna. On 17 May 2007, with the help of an agent, he went by plane to Denmark. The agent had picked him up at the airport in Copenhagen and driven him to a centre where he could request asylum. He could not explain why he was in possession of a train ticket issued on 28 April 2007 for the town where his brother-in-law lived. The applicant wanted to live in Denmark with his son. It was better than living in Sri Lanka. The applicant had not had contact with his youngest son since 1995 and his brother remained in Sri Lanka. 8. In an asylum application form of 31 May 2007, the applicant added that while staying in the refugee camp his eldest son had been arrested five times and the applicant had been arrested twice. To leave the camp it had been obligatory to obtain permission from the military. In 1998 the applicant helped his eldest son leave the country. While in Colombo the applicant was arrested and detained three times by the authorities in order to check whether he had permission to stay there. When a peace agreement was concluded in 2002, the applicant went to Jaffna to live with his brother. The applicant's nephew in Jaffna had been killed by the authorities on 14 November 2006 because he was suspected of being an LTTE member. Thereafter the applicant was constantly harassed by the military forces and he also had problems with the LTTE. 9. According to an interview report of 29 November 2007 prepared by the Danish Immigration Service (Udlændingestyrelsen, now Udlændingeservice), the applicant stated that he had not been politically active or member of any political party or organisation. He had no previous convictions and had not been detained, charged, arrested or imprisoned, and was not a wanted person in his country of origin. In 1995 he wanted to get away from north Sri Lanka due to unrest there. He and his eldest son had to live in a refugee camp because they were unable to obtain an entry permit for Colombo. In February 1998 they received the entry permit and entered Colombo. At the end of 1998 the applicant's son went to Denmark. Thereafter, the applicant lived on the money his son sent him. Between 2002 and 2005 the applicant could freely travel between Colombo and Jaffna. He lived permanently in an apartment in Colombo, but often travelled to Jaffna. His brother died from an illness and during the last two years in Sri Lanka the applicant lived with his brother's widow and five children to save up money and to be with his family until his departure. After the nephew was killed, the military forces came to the house seven or eight times and interviewed the applicant about the LTTE. The military was mainly looking for his brother's other children, who were young, while he was an old man. He wanted to get away and live in peace with his son in Denmark. He had not had any contact with anybody in his country since his departure. 10. On 20 December 2007 the applicant's request for asylum was refused by the Immigration Service, which found that the applicant failed to fulfil the criteria under section 7 of the Aliens Act (Udlændingeloven), notably because his relationship with the LTTE was so remote that he would not be of sufficient interest to the authorities or in real and concrete danger of being subjected to treatment contrary to Article 3 of the Convention upon return to Sri Lanka. 11. The applicant appealed to the Refugee Appeals Board (Flygtningenævnet) before which an oral hearing was held on 31 March 2008. It appears that the applicant maintained that his brother had moved to India (and not died from an illness as previously stated). Also, the applicant explained that he had in fact seen the nephew being shot. The other people in the village and the applicant's sister-in-law reported to the LTTE who had informed the authorities about the nephew's activities, and consequently the informer, a woman, was killed by the LTTE. The Refugee Appeals Board upheld the decision to refuse to grant the applicant asylum on the same day. It attached importance to the applicant's statement that the visits by the authorities concerned the young people of the household, and found that the applicant was not himself an object of interest to the authorities. 12. On 23 June 2008 the applicant's request for a residence permit on humanitarian grounds under section 9 b, subsection l, of the Aliens Act was refused by the Ministry of Refugee, Immigration and Integration Affairs. In its decision the Ministry took account, inter alia, of the applicant's age and health and found that, according to the information available, the applicant did not suffer from any physical or mental illness of a very serious nature, and that no circumstances otherwise provided any basis for granting a residence permit on humanitarian grounds. 13. On 14 November 2008 the Danish Refugee Council (Dansk Flygtningehjælp), an NGO, requested that the Refugee Appeals Board reopen the case. It referred to the applicant's previous explanations and the general deterioration of the security situation in Sri Lanka. It also added that, according to the applicant's eldest son, it was in fact the applicant who had reported to the LTTE who it was that had informed the authorities on the nephew's membership. Allegedly, the authorities were therefore interested in the applicant. The eldest son had also informed the applicant's representative that the killed nephew's brother had stated that the authorities were looking for the applicant after his departure. Moreover, the eldest son had been granted asylum status in Denmark due to his affiliation with the LTTE and because he had been tortured during an investigation in 1998. Thus, according to the applicant's eldest son, the applicant had been detained because of him. 14. On 14 November 2008, on the applicants' behalf, the Danish Refugee Council also submitted a letter to the Court of Human Rights requesting that it stay the applicants' deportation. 15. On 17 November 2008, the Court of Human Rights decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court's decision. 16. Consequently, on 19 November 2008 the Refugee Appeals Board extended the time-limit for the applicants' departure until further notice. 17. On 9 January 2009 the Refugee Appeals Board again refused to reopen the applicants' asylum case finding that no essential new information or aspects had been submitted. It rejected the information added by the applicant's son as fabricated for the occasion. 18. On 16 June 2009 the Refugee Appeals Board decided to suspend the examination of asylum cases concerning ethnic Tamils from northern Sri Lanka, including the applicant's case. 19. On 16 December 2009, on the basis of the most recent background information concerning Sri Lanka including, inter alia, a Memorandum of 26 October 2009 prepared by the Ministry of Foreign Affairs, the Refugee Appeals Board decided to review the suspended cases, including the applicant's case. 20. On 16 March 2010 the Refugee Appeals Board refused to reopen the applicant's case as it found that the most recent general background information would not lead to a revised assessment of the case. More specifically in its letter to the applicant's representative it stated as follows: “... The Refugee Appeals Board still finds that your client's fear of the LTTE and the Sri Lankan authorities does not warrant a residence permit under section 7 of the Aliens Act. In that connection, the Refugee Appeals Board refers to the fact that your client stated during the asylum procedures that he had not been a member of or sympathised with the LTTE and that he had not been sought by or had problems with the LTTE at any time prior to his departure. He stated that the family had no contact with the LTTE while he lived with his brother. On the contrary, the LTTE supposedly avenged the murder of your client's nephew by killing the woman who had allegedly informed on your client's nephew to the authorities. The Refugee Appeals Board thus finds itself unable to accept the supposition that your client has outstanding issues with the LTTE which, in fact, was defeated in May 2009. Your client has also referred to fear of persecution by the Sri Lankan authorities. In this connection, the Refugee Appeals Board refers to the fact that during the asylum procedures your client stated that personally he was not an object of interest to the authorities, that he was solely questioned about his knowledge of other LTTE members in connection with the murder of his nephew which took place three or four years ago, and that personally he has not been persecuted or threatened in his country of origin. Your client also left his country of origin without any problems using his own genuine passport. Thus, the Board finds that it has not been rendered probable that your client would be of interest to the Sri Lankan authorities or suspected of supporting the LTTE. The possibility that as an ethnic Tamil from northern Sri Lanka your client risks being questioned and investigated by the authorities upon entry into his country of origin does not lead to a revised assessment of the case under asylum law. The individuals at particular risk of being detained and investigated upon entry in Colombo are young Tamils, men in particular, from northern and eastern Sri Lanka; those without ID; those not resident or employed in Colombo; and those recently returned from the West, see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 - 29 August 2009. Regardless of whether it is accepted as a fact that the Sri Lankan authorities have suspected your client of supporting the LTTE, it does not lead to a revised assessment. In this respect, the Refugee Appeals Board refers to the fact that it appears from the background material available to the Board that, in general, individuals who have supported the LTTE on a lower level are not of interest to the authorities. Thus, generally, only high profile members of the LTTE who are still active and wanted, or individuals wanted for serious criminal offences are of interest to the authorities, see Home Office, Operational Guidance Note, Sri Lanka, August 2009, and Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 - 29 August 2009. Your client has also referred to a fear of the general situation of insecurity in Sri Lanka and the fact that he is old and wants to live in Denmark where there is peace and quiet. Moreover, he has no family in his country of origin to take care of him, but he has agreed with his son living in Denmark that he can stay with the son and be provided for. As in the previous decisions in the case, the Refugee Appeals Board still finds that the general situation for ethnic Tamils in Sri Lanka is not of such nature that it in itself warrants a residence permit under section 7 of the Aliens Act. Thus, the Refugee Appeals Board fully relies on the decisions of 31 March 2008 and 9 January 2009. Against that background, the Board still finds that it has not been rendered probable that, in case of return to Sri Lanka, your client would be at concrete and individual risk of persecution as covered by section 7(1) of the Aliens Act, or that your client would be at a real risk of outrages as covered by section 7(2) of the Aliens Act. The Refugee Appeals Board further states that the Board has no authority to decide whether your client could be granted a residence permit under other provisions of the Aliens Act. Such authority lies with the Danish Immigration Service and the Ministry of Refugee, Immigration and Integration Affairs. It should be noted that your client's time-limit for departure is still postponed on the basis of the request of 18 November 2008 from the European Court of Human Rights. If your client's lawful stay in Denmark lapses, he must leave the country immediately, see section 33(1) and (2) of the Aliens Act. As appears from the decision of the Board of 31 March 2008, your client may be forcibly returned to Sri Lanka if he does not leave voluntarily, see section 32a, cf. section 31, of the Aliens Act.” 21. By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the former Aliens Authorities (now called the Immigration Service) and in the second instance by the Refugee Appeals Board. 22. Pursuant to section 56, subsection 8, of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board's decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority. 23's country of origin or first country of asylum. For this purpose, the Refugee Appeals Board has a comprehensive collection of general background material on the situation in the countries from which Denmark receives asylumseekers. The material is up-dated and supplemented on a continuous basis. The background material of the Refugee Appeals Board is obtained from various authorities, in particular the Danish Ministry of Foreign Affairs and the Danish Immigration Service. In addition, background material is procured from various organisations, including the Danish Refugee Council, Amnesty International and other international human rights organisations and the UNHCR. Also included are the annual reports of the US State Department (Country Reports on Human Rights Practices) on the human rights situation in a large number of countries, reports from the British Home Office, reports from the documentation centre of the Canadian Refugee Appeals Board, reports from the Swedish Ministry for Foreign Affairs, reports from EURASIL (European Union Network for Asylum Practitioners), reports from the authorities of other countries and to some extent articles from identifiable (international) journals. Moreover, the Board may request the Danish Ministry of Foreign Affairs to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms. The Refugee Appeals Board also retrieves some of its background material from the Internet. Internet access also enables the Board to obtain more specific information in relation to special problems in individual cases. 24. Usually, the Refugee Appeals Board assigns counsel to the applicant. Board hearings are oral and the applicant is allowed to make a statement and answer questions. The Board decision will normally be served on the applicant immediately after the Board hearing, and at the same time the Chairman will briefly explain the reason for the decision made. 25. Extensive information about Sri Lanka can be found in NA. v. the United Kingdom, no. 25904/07, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009. 26. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country's parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE's leadership had been killed. 27. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons' camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya. 28. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict. “Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.” 30. A Human Rights Watch [HRW] press release, dated 28 July 2009, reported that: “The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.” 31. A further Human Rights Watch press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave. 32. In August 2009, the first post-war local elections were held in Northern Sri Lanka. The British Broadcasting Corporation reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People's Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place. 33. On 7 September 2009, James Elder, the official spokesman for the United Nations Children's Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps. 34. On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes. 35. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities. 36. On 21 November 2009, the Sri Lankan Government announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009. 37. In its Global Appeal 2010-2011, the UNHCR reported that: “The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions. The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed. Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries. The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities. With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.” 38. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement. 39. Human Rights Watch, in their report, World Report 2010, estimated that six months after the main fighting ended, the Government continued to hold more than 129,000 people (more than half of them women and girls) in the camps. Over 80,000 of these were children. The camps were severely overcrowded, many of them holding twice the number recommended by the UN. As a result, access to basic requirements such as food, water, shelter, toilets and bathing, had been inadequate. These conditions imposed particular hardships on the elderly, children and pregnant women. The camps were under military administration, and effective monitoring by humanitarian agencies was lacking. The authorities failed to provide camp residents with sufficient information about the reason for their continued detention, the whereabouts of relatives, or the criteria and procedure for their return home. 40. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows: 4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to “extra-legal detention centres” maintained by the military and observed: “These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, 'the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary'. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will detained for a further period of 'rehabilitation' and then released.” ... 4.25 Referring to the “at least 11,000 people” detained “in so-called 'rehabilitation centers” because of their alleged association with the LTTE, the HRW [document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees' fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities' consistent failure to inform families of the basis for the detainees' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been 'disappeared'.” 4.31 The UNHCR 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka', 5 July 2010 reported that “In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps” adding that “According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females.” and noted that “Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.” 41. The November 2010 COI Report also set out: 4.09 The EIU [The Economist Intelligence Unit], Country Report, Sri Lanka, July 2010 reported: “The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country's ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka's covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. “The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN's appointment of a three-member panel to examine possible human rights violations during the island's civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.” ... 4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: “The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island's civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ... 4.12 On 17 September 2010 the UN News Service reported that “Secretary-General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.” The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.” 42. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission – hereafter “BHC”, Colombo, on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed: “[T]he correct procedure for [Department of Immigration and Emigration [DIE]] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer's office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department [CID], or allowed to proceed. The office of the State Intelligence Service [SIS] is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED [Immigration and Emigration Department] and take details in order to ascertain in [sic] the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.” 43. The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows: “Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder's nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.” 44. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official's opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival. 45. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested. 46. The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention: - Outstanding arrest warrant - Criminal record - Connection with the LTTE - Bail jumping/escape from custody - Illegal departure from Sri Lanka - Scarring - Involvement with media or NGOs - Lack of an ID card or other documentation 47. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 set out the following: 33.20 The BHC letter of 30 August 2010 went on to observe that: “At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. “The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.” ... 33.22 A British High Commission letter of 14 September 2010 reported: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.” 48. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad. 49. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there must register with the local police station with a national ID card or full passport, and details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police. “The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.” “The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.” 53. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010, which superseded the April 2009 Guidelines contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that: “given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.” 54. In summary, the following were UNHCR's recommendations: All claims by asylum seekers from Sri Lanka (i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) journalists and other media professionals; (iii) civil society and human rights activists; (iv) women and children with certain profiles; and (v) lesbian, gay, bisexual and transgender (LGBT) individuals. It was also stated that in the light of Sri Lanka's 26 year internal armed conflict, and a record of serious human rights violations and transgressions of international humanitarian law, exclusion considerations under Article 1F of the 1951 Convention Relating to the Status of Refugees may arise in relation to individual asylum seeker claims by Sri Lankan asylum seekers. 55. The BBC reported in March 2010 that the Colombo Police force had opened four special units in Colombo suburbs able to take statements in Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans had to rely on a friend to translate their complaints into Sinhala.

train

001-58292

ENG

ITA

GRANDCHAMBER

CASE OF IMMOBILIARE SAFFI v. ITALY

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

Luzius Wildhaber

8. I.B., a construction company, was the owner of an apartment in Livorno, which it had let to L.B. 9. In a registered letter of 20 April 1983, it informed the tenant that it intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date. 10. In November 1983 I.B. served a notice to quit (disdetta) on the tenant, but he refused to leave. 11. In a writ served on the tenant in November 1983, I.B. reiterated its intention to terminate the lease and summoned the tenant to appear before the Livorno magistrate (pretore). 12. On 21 November 1983 the magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 September 1984. That decision was made enforceable on 7 December 1983. 13. On 30 May 1985 I.B. served notice (precetto) on the tenant requiring him to vacate the premises. On 26 September 1985 it served notice on the tenant informing him that the order for possession would be enforced by a bailiff (significazione di sfratto) on 19 November 1985. The bailiff made several unsuccessful attempts to enforce the order (on 19 November 1985, 28 March, 30 September and 17 December 1986, 4 April and 21 December 1987). 14. Immobiliare Saffi became the owner of the apartment in 1988 following a corporate merger with, inter alia, I.B. It pursued the enforcement proceedings. 15. Between 15 December 1988 and 9 January 1996 the bailiff made eleven attempts to recover possession (on 15 December 1988, 9 June and 30 October 1989, 30 October 1990, 17 February and 17 May 1991, 18 May 1992, 15 May 1993, 8 February 1994, 13 January 1995 and 9 January 1996). Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension or staggering of evictions, the applicant company was not entitled to police assistance. 16. By March 1989, when Law no. 61 of 21 February 1989 came into force providing for the staggering of the enforcement of orders for possession, requests for police assistance had been made to the Prefect of Livorno in 1,186 cases: 354 for arrears of rent, 56 because the owner required the premises for his own use, 55 for other reasons, and 722 (the applicant company’s case included) because the lease had expired. The Prefect decreed on 16 May 1989 and 19 February 1990 that decisions on the provision of police assistance would be taken by reference to the criteria laid down in Law no. 61/89, namely the order of priority established by the legislature, the date of the request for assistance, any special features of the individual case and the requirement that 30% of the total number of orders for possession outstanding should be enforced each month. 17. In reply to a question from the Registry, counsel for the applicant company informed the Court on 30 April 1999 that the apartment had been repossessed on 11 April 1996, following the death of the tenant. 18. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. 19. The last statutory extension to all but a small number of specifically excepted categories of subsisting leases was introduced by Law no. 392 of 27 July 1978 (“Law no. 392/78”) and was effective until 31 December 1982, 30 June 1983 or 31 December 1983, depending on the date of signature of the lease. 20. Under section 56 of Law no. 392/78, it is for the magistrate to fix the date for enforcement of the order for possession, having regard to both the tenant and the landlord’s circumstances and the grounds on which the lease was terminated. Enforcement cannot be deferred for more than six, or exceptionally twelve, months. If the tenant fails to vacate the premises within the time allowed by the magistrate the landlord may issue enforcement proceedings. 21. Orders are made enforceable by the appending of an instruction by the magistrate “to any bailiff whose services are requested, any person empowered to enforce the order, State Counsel, and any police officer to assist in the enforcement of this order when required by law”. 22. By Articles 608 and 513 of the Code of Civil Procedure, the bailiff’s task is to enjoin the tenant to vacate the premises and he may to that end seek police assistance “whenever necessary”. The bailiff reinstates the owner in his property and returns the keys to him. The police act as officers of the court. 23. Numerous provisions have established rules for the suspension of the enforcement of orders for possession (ordinanze di sfratto). A first suspension was introduced by Legislative Decree no. 795 of 1 December 1984. Those provisions were incorporated in Legislative Decree no. 12 of 7 February 1985, which became Law no. 118/85 and covered the period from 1 December 1984 to 30 June 1985. That legislation also provided for the staggered resumption of evictions on 1 July, 30 September and 30 November 1985 and 31 January 1986, depending on when the decision that the lease had been terminated became enforceable. Section 1(3) of Law no. 118/85 laid down that enforcement would not be suspended if repossession had been ordered on the grounds of rent arrears. Similarly, no suspension could be ordered in certain cases, for example where the landlord required the property for his own use or for the use of his spouse, children or ascendants (Article 3, first sub-paragraph, number 2, of Legislative Decree no. 629 of 15 December 1979, which became Law no. 25 of 15 February 1980 (“Law no. 25/80”)). 24. A second suspension was introduced by Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986 (“Law no. 899/86”). It covered the period from 29 October 1986 to 31 March 1987 and included the same exceptions as the preceding legislation. Law no. 899/86 also established that the prefect, after consulting a committee that included representatives of both tenants and landlords (commissione provinciale), was responsible for determining the criteria for authorising police assistance in evicting tenants who refused to surrender possession. Section 3(5 bis) of Law no. 899/86 also provided that the eviction of any tenant entitled to subsidised housing was in all cases suspended until 31 December 1987. 25. A third suspension was introduced by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988. It initially covered the period from 8 February 1988 to 30 September 1988, which was subsequently extended until 31 December 1988. 26. A fourth suspension was introduced by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989 (“Law no. 61/89”), and covered the period up to 30 April 1989. 27. All the aforementioned laws and decrees contained additional provisions relating to the financing of subsidised housing and to housing benefits. 28. Law no. 61/89 also provided that as from 1 May 1989 requests for police assistance in enforcing orders for possession would be dealt with in order of priority, as determined according to criteria established by the prefects after consultation with statutory prefectoral committees, whose members included the prefect, the mayor and representatives of both tenants and landlords. Among the cases having priority were those in which it was not possible for enforcement to be suspended. In particular, priority was given to landlords urgently requiring premises as accommodation for themselves, their spouse, children or ascendants. Landlords seeking priority treatment were required to make a statutory declaration. As regards evictions in all other cases, provision was made for police assistance to be staggered over a maximum of forty-eight months from 1 January 1990. 29. The system whereby the enforcement of orders for possession was to be staggered was extended by a series of legislative decrees including the following: from 31 December 1993 to 31 December 1995 (Legislative Decree no. 330/93); from 31 December 1995 to 29 February 1996 (Legislative Decree no. 546/95); from 29 February 1996 to 26 April 1996 (Legislative Decree no. 81/96); from 26 April 1996 to 25 June 1996 (Legislative Decree no. 217/96); and from then to 31 December 1996 (Legislative Decree no. 335/96). 30. Law no. 566 of 4 November 1996 ratified a series of legislative decrees that had not been enacted as laws. It provided that police assistance would be staggered until 30 June 1997. 31. That arrangement was extended until 31 January 1998 by Legislative Decree no. 172/1997. In addition, Article 1 bis of that legislative decree added to the prefects’ existing power to lay down general criteria for determining whether police assistance would be made available the power to decide precisely when and how police resources would be allocated in each individual case, without having to deal with requests for police assistance in the chronological order in which they were made by the bailiffs. Consequently, the prefectoral committees would usually only be able to express an opinion on the general criteria to be followed in determining whether police assistance was to be given, not on whether assistance should in fact be given in a particular case. 32. By Legislative Decree no. 7/1998 the date for the resumption of evictions was postponed to 31 October 1998. 33. In a judgment (no. 321) of 24 July 1998, the Constitutional Court held that Article 1 bis of Legislative Decree no. 172/1997 was contrary to Article 24 of the Italian Constitution guaranteeing inter alia the right of access to a court, as it made the decision regarding the date of enforcement of an order for possession – which is set in advance by the magistrate in accordance with section 56 of Law no. 392/78 – subject to review by a prefect. The Constitutional Court said that the role of the prefects should be limited to cooperating – as officers of the court – in the enforcement of judicial orders for possession. The fact that their powers had been enlarged to include individual cases had led to substantial delays in the enforcement of court orders. That was contrary to every individual’s entitlement to have his rights decided by a court. The Constitutional Court stressed that it was unacceptable for court orders to be undermined or affected by administrative decisions. 34. Recently, Legislative Decree no. 375 of 2 November 1998 delayed the resumption of evictions to 28 February 1999. 35. Section 6 of Law no. 431 of 9 December 1998 on the rules governing lease agreements and the vacation of residential premises provides that where an order for possession has already been made and is enforceable when that law comes into force, the landlord and tenant have six months – during which period enforcement of the order is suspended – in which to decide whether to enter into a new lease. Should no agreement be forthcoming within that period, the tenant may, within thirty days thereafter, request a magistrate to set a fresh date for the enforcement of the order. The magistrate’s decision regarding the date of enforcement incorporates permission for the bailiff to seek police assistance to enforce the order. The date of eviction may be deferred for up to a maximum of eighteen months if the tenant is aged 65 or over, if he has five or more dependent children, if he is on the list of transferable personnel (liste di mobilità) kept by businesses, if he is in receipt of unemployment benefit or low-paid-worker benefit, if he has been formally allocated welfare housing, if he has purchased a house that is under construction or if he owns property in respect of which repossession proceedings are pending. The same rule applies if the tenant or a member of his family who has been living with him for at least six months is handicapped or terminally ill.

train

001-72028

ENG

SWE

ADMISSIBILITY

NILSSON v. SWEDEN

Inadmissible

The applicant, Mr Christoffer Nilsson, is a Swedish national who was born in 1980 and lives in Torslanda, Sweden. He was represented before the Court by Mr U. Carlzon, a lawyer practising in Gothenburg. The Swedish Government (“the Government”) were represented by their Agent, Mrs E. Jagander, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 November 1998 the applicant was apprehended by the police on suspicion, inter alia, of aggravated drunken driving and driving without a driving licence. The applicant obtained a driving licence on 15 December 1998. Subsequently, on 5 May 1999, the County Administrative Board (länsstyrelsen) of Västra Götaland informed the applicant that the Board was considering whether to withdraw his driving licence until further notice in accordance with the Driving Licence Act (körkortslagen 1998:488) on the ground of his suspected aggravated drunken driving (grovt rattfylleri) and unlawful driving (olovlig körning) on 21 November 1998. In that connection the Board pointed out that, in the absence of a legally enforceable judgment or a summary punishment order or similar, the Board could not take a definite decision on the matter. On 24 June 1999 the Mora District Court (tingsrätt) convicted the applicant, notably under sections 3(1) and 4A of the 1951 Traffic Offences Act (trafikbrottslagen 1951:649) of aggravated drunken driving, with an alcohol level of at least 0.69 milligrams per litre in his breath, and of driving without holding a driving licence. The District Court based the conviction on the applicant’s own account according to which, in so far as he could recall, he had, from 2 p.m. onwards on 21 November 1998, consumed eight halflitre bottles of strong beer, one gin and tonic and one strong liquor; on a report analysing the results of the breathalyser test carried out on the night of 21 November 1998; on the records of his statement to the police on the same night, and on witness evidence. The District Court did not find credible the applicant’s statement made during the trial hearing that, because of his state of drunkenness, he could not recall having driven the car in question. As to sentencing, the District Court observed that aggravated drunken driving was normally punishable by imprisonment. However, in view of the applicant’s age, his personal circumstances and his agreeing to carry out community service, the District Court found that a departure from normal practice was warranted, and imposed a suspended sentence together with 50 hours’ community service (“Villkorlig dom med samhälltjänst femtio (50) timmar”). The District Court added that should it instead have imposed a prison sentence, it would have sentenced the applicant to one month’s imprisonment. No appeal was made against the above judgment, which became legally enforceable. On 29 July 1999 the County Administrative Board issued a further notification replacing the previous one of 5 May 1999, informing the applicant that, in the light of the District Court judgment of 24 June 1999, which had acquired legal force, it intended to take a definite decision on the withdrawal of his driving licence; the Board gave the applicant until 30 July 1999 to submit his comments. On 5 August 1999 the Board withdrew the applicant’s driving licence. It took note of his submissions that he had used his driving licence blamelessly since it had been issued to him on 15 December 1998, and that he needed the driving licence in order to transport his sailing boat over long distances in order to take part in top-level regattas. However, referring to his conviction for aggravated drunken and unlawful driving on 21 November 1998 by a judgment (of 24 June 1999) which had become legally enforceable, the Board stressed that the applicant had violated a rule which was essential for road safety. This transgression could not be viewed as minor. Having regard to the offence committed by the applicant, the Board found that withdrawal of the applicant’s licence for less than a year would not be possible and ordered that his licence be withdrawn for 18 months. The applicant appealed against the Board’s decision before the County Administrative Court. He reiterated that, since 15 December 1998, he had used his driving licence without committing any further offence and that, in the circumstances, the withdrawal constituted double jeopardy, in breach of Chapter 30, Article 9 of the Code of Judicial Procedure and Article 4 § 1 of Protocol No. 7 to the Convention. On 17 August 1999 the County Administrative Court refused a request by the applicant to stay execution of the withdrawal order. By a judgment of 12 October 1999 it dismissed his appeal, relying on the applicant’s conviction of 24 June 1999 and the relevant provisions in Chapter 5 of the Driving Licence Act. The County Administrative Court considered a number of decisions from the Convention institutions’ caselaw and concluded that no clear precedent existed that could invalidate the Swedish system on the withdrawal of driving licences. Bearing in mind the damaging consequences a finding of incompatibility would have for road safety, the County Administrative Court found no reasons for setting aside the Board’s decision to withdraw the applicant’s driving licence. On 11 November 1999 the Administrative Court of Appeal, on an appeal by the applicant, upheld the County Administrative Court’s judgment of 12 October 1999. The applicant lodged an appeal against the above judgment, which the Supreme Administrative Court dismissed on 18 December 2000. Its judgment contained the following reasons: “[The applicant’s] driving licence and driving licence permit have been withdrawn in accordance with Chapter 5, sections 2, 3 (1) and 6 of the Driving Licence Act (1998 : 488) on the grounds that he has been convicted of an aggravated offence of drunken driving and of unlawful driving by a legally binding judgment of the district court. The period of suspension has been set at 18 months. The main issue in this case is whether the withdrawal of [the applicant’s] driving licence is in conflict with the principle established under Article 4 § 1 of Protocol No. 7 to the European Convention on Human Rights (“Article 4 § 1”), according to which no one shall be liable to be tried or punished twice for the same offence (ne bis in idem). [The applicant’s] opinion in the matter is that the fact that his driving licence was withdrawn after the decision to convict him of a traffic offence means that he has been punished twice for the same matter. The European Convention - with the additions made, inter alia, in Protocol No. 7 – has been incorporated into Swedish law by means of SFS 1994:1219. ... The intended scope of Article 4 § 1 is unclear, as is the principle expressed therein. The wording of the article therefore provides no clear guidance as to whether the Swedish system of driving licencerelated measures [körkortsingripande] might come into conflict with the Article. Neither are there many legal precedents in this area. As to the various requirements set out in the Article, it stipulates, first of all, that no one may be ‘punished’ more than once for an offence. The question here is whether the said withdrawal of the appellant’s driving licence represents a punishment within the meaning of the Convention. Under Swedish law, driving licencerelated measures have traditionally been implemented for trafficsafety reasons, that is, they have been regarded as a precautionary measure on the part of society aimed at drivers who jeopardise traffic safety. Hence, measures of this kind have not been regarded as a form of punishment. It is, however, difficult to argue that a decision to withdraw a driving licence because the licence-holder has committed an offence is purely a traffic-safety measure. As a rule, the period of suspension is calculated on a standardised basis in proportion to the seriousness of the offence – in the same way as the penalty. Hence, it is not based on an individual assessment of the likelihood of a repeat of conduct that might jeopardise traffic safety. This means that the decision to withdraw a driving licence – like the punishment for the traffic offence – is aimed at least in part at persuading the holder to respect existing traffic regulations. Over time, the distinction between precautionary measures and punishment has become increasingly unclear in cases of this kind (see for example SOU 1991:39 p. 86, Government Bill 1993/94:133, pp. 44 et seq., Government Bill 1997/98:124, pp. 42 et seq. and SOU 2000:26, pp. 141 et seq.). ... Under Chapter 5, section 3 of the Driving Licence Act, a driving licence is withdrawn if any of eight criteria are met. Three of these criteria apply not to cases in which the licenceholder has committed an offence but to situations in which the holder is to be barred from holding a driving licence on grounds of unreliability as regards sobriety, illness, injury or similar circumstances. It should be made clear that the withdrawal of a driving licence in these cases is not to be considered as a punishment, and that cases of this kind are of no further interest in the present context. However, criteria 1-4 and 6 are of interest, since they refer to cases where it is normally presupposed that the licence-holder has committed an offence. According to some of these criteria (1, 2 and 4) – except in the case of petty violations – a driving licence may be withdrawn simply on the grounds that the holder has committed one of the offences set out therein. This applies in the case of gross negligence when driving and drunken driving (criterion 1), in cases where the driver leaves the scene of an accident (criterion 2) and in the event of a violation of a rule that is essential from the point of view of traffic safety (criterion 4). In other cases (criteria 3 and 6), certain other conditions must be met in addition to an offence having been committed. According to criterion 3, the driving licence is withdrawn if the licenceholder, through repeated offences, has shown a considerable lack of willingness or ability to comply with the regulations that apply in the interests of traffic or traffic safety for drivers of motor vehicles. According to criterion 6, the driving licence is withdrawn if it can be assumed – in the light of another offence which the holder has committed – that he or she will fail to respect traffic regulations or show consideration, judgement or responsibility on the road, or if he or she, on account of other personal circumstances, cannot be considered suitable to be a driver of a vehicle requiring a driving licence. Under criteria 1, 2 and 4, therefore, a driving licence is withdrawn, in principle, as the direct result of an offence. As regards criteria 3 (repeated offences) and 6 (other offences), however, it is not the criminal act alone, but the act taken in combination with other factors – willingness and ability to comply with existing regulations, to show respect for traffic regulations, judgement and responsibility on the road, or suitability with regard to personal circumstances – which constitutes the grounds for revoking the licence. In the light of the Malige v. France case (judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), for example, the withdrawal of a driving licence under criteria 1, 2 or 4 can be said to be closer in character to a punishment than withdrawal under criteria 3 or 6. At the same time, the basic rationale for withdrawal is that a driving licence should be withdrawn if the holder is deemed unsuitable to hold a licence. Hence, the fact that the legislator has singled out certain offences as constituting grounds for withdrawal in their own right, while further criteria must be fulfilled in the case of other offences, does not mean that the act of revoking a driving licence should be characterised in different ways in different cases. A withdrawal under criteria 3 or 6 does not refer to a single offence but to several different offences or other circumstances. However, the same can also apply to withdrawals under criteria 1, 2 and 4. Of greater importance is the fact that the withdrawal is not an automatic consequence of the offence in question in any of these cases. Under Chapter 5, section 9 – and with the exception of certain drunkdriving offences – the licenceholder should be issued instead with a warning, if there are specific reasons to assume that a warning can be regarded as sufficient. Under Chapter 5, section 10, subsection 2, if exceptional circumstances exist which warrant departing from the Act, withdrawal can be avoided or the suspension period reduced if this can be done without jeopardising road safety. If the driving licence is not withdrawn, a warning may be issued instead. The regulation therefore means that, when examining a case of driving licencerelated measures under criteria 1, 2 and 4, other circumstances besides the actual offence need to be taken into account. This applies with regard both to the question of whether any action should be taken and – where applicable – to the question of the scope of such action, e .g. the suspension period. This suggests that, in assessing whether the withdrawal of a driving licence as a consequence of an offence is to be regarded as a punishment or a safety measure, no distinction should be made between the different cases dealt with here (criteria 1-4 and 6) on the basis of the grounds for withdrawal. Comparison of the Swedish system of driving licence-related measures described above and the system that was assessed in the Malige case reveals a clear difference, in that action under the Swedish system is, in principle, not an automatic consequence of a conviction by the criminal court. However, the Swedish system is also based largely on standard calculations, and driving licencerelated measures are consequently to a very great extent directly related to the degree of seriousness of the violation. The fact that a driving licencerelated measure, according to Swedish legislation, is not an automatic consequence of a conviction by the criminal court cannot therefore be said to distinguish the Swedish system from the one assessed in the Malige case in any decisive way. In assessing whether the driving licencerelated measure is to be regarded as a punishment, account should also be taken of the fact that, under the Swedish system – as with the French system – the action taken may, to a certain degree, be considered to have a punitive and deterrent purpose. Before determining whether the withdrawal of a driving licence is to be regarded as a punishment, the Escoubet v. Belgium judgment ([GC], no. 26780/95, ECHR 1999VII) should also be examined. In the Escoubet case, the Court found that the temporary withdrawal of the applicant’s driving licence for six days on account of a suspected offence of drunken driving did not concern a criminal charge. Temporary withdrawals can also be effected under Swedish driving-licence legislation. In fact, the legislation stipulates that the withdrawal of a driving licence in connection with an offence is to take place as soon as possible after the offence, and on the basis of a provisional decision. According to Chapter 5, section 7 of the Driving Licence Act, a driving licence should be confiscated by the police or a prosecutor, inter alia, if there is good reason to suppose that the driving licence will be withdrawn under Chapter 5, section 3 (1) or (4). According to Chapter 5, section 5 of the Driving Licence Act, a driving licence is to be withdrawn until further notice pending a final decision on withdrawal, if there is good reason to believe that the driving licence will ultimately be withdrawn on any of the grounds set forth in Chapter 5, section 3 (1) to (7). In the present case, the Supreme Administrative Court is not called upon to determine to what extent a provisional decision regarding a driving licencerelated measure represents a punishment or a safety measure. However, the fact that cases could arise under the Swedish system which should be dealt with in the same way as the Escoubet case in the above-mentioned respect should not affect the assessment of how to characterise the final withdrawal of a driving licence. In view of this, the Supreme Administrative Court finds that the withdrawal of a driving licence in the cases referred to under criteria 1-4 and 6 should be regarded as a punishment within the meaning of Article 4 § 1. As is clear from the above, the fact that someone is punished again for an offence does not constitute sufficient grounds for the application of Article 4 § 1. Other conditions must also be met; for instance, the penalty must have been imposed (or the case have been conducted) in the context of ‘criminal proceedings’ and the person in question must already have been ‘finally acquitted or convicted in accordance with the law and penal procedure of that State’. First, as regards the term ‘criminal proceedings’ (French ‘pénalement’), it would seem most logical at first sight to consider as criminal proceedings any proceedings which could lead to a sanction constituting a punishment. However, it is questionable whether such a far-reaching interpretation of Article 4 § 1 is intended. To begin with, it appears strange – if the above-mentioned interpretation were intended – to have included the term ‘criminal proceedings’ at all in the provision ; its inclusion suggests that a limitation of its scope was intended (see Johan Munck, Tidskrift för Sveriges Domareforbund (Journal of the Swedish Society of Judges), no.1/2000, p . 18). It should be recalled at this point that the court, in proceedings concerning driving licencerelated measures implemented for a traffic offence, makes no fresh examination of the offence. In other words, these are not criminal proceedings in the sense that the actual offence is examined. This suggests that the term ‘criminal proceedings’ should be reserved for proceedings of the latter kind, that is, proceedings in which the offence is examined. Of interest in this context is the Explanatory Report to Protocol No. 7, paragraph 32 of which states: ‘Article 4, since it only applies to trial and conviction of a person in criminal proceedings, does not prevent him from being made subject, for the same act, to action of a different character (for example, disciplinary action in the case of an official) as well as to criminal proceedings.’ It is therefore clear that disciplinary action, for instance against government officials, can fall outside the scope of Article 4 § 1. However, the report does not provide any clear guidance on the question of how to distinguish between ‘criminal proceedings’ and proceedings occasioned by an offence and which involve a sanction, but which nevertheless fall outside the scope of Article 4 § 1. It should be stressed that the fact that disciplinary action is mentioned does not necessarily conflict with the view that legal proceedings are to be seen as criminal proceedings as soon as the sanction constitutes a punishment since, according to the caselaw of the European Court of Human Rights, depending on the circumstances, disciplinary action can fall outside what is to be considered as a punishment for the purposes of Article 6. At the same time, it should be noted that the report does not present any obstacles to an interpretation to the effect that the Swedish procedure concerning driving licence related measures falls outside the scope of Article 4 § 1 as an ‘action of a different character’. As to the condition that the person in question must already have been ‘finally acquitted or convicted in accordance with the law and penal procedure of that State’ the following should be emphasised. The Explanatory Report (paragraph 29 compared with paragraph 22) makes it clear that this means first and foremost that there must be a legally binding judgment on the matter. Looking at the wording of the Article, however, it would seem logical to conclude that – in cases where the legislation in a country prescribes that an offence gives rise to sanctions under two separate procedures – the person in question is finally convicted in accordance with national legislation only when both procedures have been completed. Hence, in this respect too, the provisions leave room for different interpretations (see also the Supreme Court judgment of 29 November 2000 in case no. B 868-99). As regards the European Court’s position on these issues, the abovementioned Malige case, inter alia, is of some interest. First, it should be pointed out that the action brought by Malige was based on the fact that the system of automatic deduction of points – which did not allow him as a licence-holder to appeal to a court of law – had deprived him of his right of access to a court of law under Article 6 § 1. As mentioned, the Court found that the case did concern a criminal charge – and also a punishment – and that Article 6 § 1 was applicable. It is of particular interest in this context that the Court found that the conditions laid down by Article 6 § 1 had been met by the judicial review which preceded the conviction by the court and that the Convention could not be considered to require a further examination by a court regarding the deduction of points. There was no statement to the effect that the French system – with its partly separate systems for ordinary penalties and driving licencerelated measures – might be incompatible with Article 4 § 1. Also of interest is the European Court’s decision on admissibility of 30 May 2000 in R.T. v. Switzerland (application no. 31982/96). The applicant (R .T.) had, in connection with a drunkdriving offence, first had his driving licence withdrawn by an administrative authority and then been sentenced to prison and a fine by another authority. After R.T. lodged an appeal against the decision to withdraw his licence, the decision was confirmed by an administrative court. The Court found that there had been no repetition of criminal proceedings in breach of Article 4 § 1, and stressed, inter alia, that the various sanctions – imprisonment, a fine and withdrawal of the applicant’s driving licence – were envisaged by the national legislation. The withdrawal of a driving licence for a criminal offence should be regarded as a punishment within the meaning of Article 4 § 1 [of the Protocol]. Neither the wording of the provision nor the Explanatory Report gives any clear answer to the question whether Swedish proceedings relating to the withdrawal of a driving licence are covered by the expression ‘criminal proceedings’. Nor does it give a clear indication as to whether the holder of the driving licence should be regarded as having already been ‘finally ... convicted’ of the traffic offence by virtue of a legally enforceable judgment by an ordinary court. In the Supreme Court’s view, the wording of both expressions suggests that both questions ought to be answered in the negative. In interpreting this Article, one might also have regard to its purpose. It could be argued that an important safeguard for a person who is finally acquitted or convicted is that he or she should feel secure, in the sense that he or she should not be charged or punished again for the same offence. The Swedish system implies that a person who is charged with a traffic offence is aware – or ought to be aware – from the outset that an enforceable judgment convicting him or her would normally be followed by measures with regard to his or her driving licence. The fact that the measure is taken in separate proceedings should not mean that considerations of security and legal safeguards are set aside. In other words, the Swedish system does not appear to conflict with the purpose of Article 4 § 1. A strong argument for considering that the Swedish system of withdrawal of a person’s driving licence for a traffic offence does not conflict with Article 4 § 1 may be found in the Court’s judgment in Malige v. France and the above-mentioned admissibility decision in R.T. v. Switzerland. The European Court’s reasoning and conclusion in these cases – notwithstanding the fact that Malige did not directly concern the application of Article 4 § 1 – can only be interpreted to mean that the committing of a criminal offence can lead to different sanctions imposed by separate authorities and courts, if so provided by statute. Against this background, the Supreme Administrative Court concludes that Article 4 § 1 does not constitute an obstacle to applying the provisions of the Driving Licence Act. Like the lower courts, the Supreme Administrative Court finds that Chapter 30, Article 9 (1) of the Code of Judicial Procedure – on which [the applicant] also relies – is not applicable to drivinglicence cases.”

train

001-82079

ENG

DEU

ADMISSIBILITY

BORGMANN v. GERMANY

Inadmissible

Peer Lorenzen

The applicant, Mr Matthias Borgmann, is a German national who was born in 1948 and lives in Berlin. He was represented before the Court by Mr Kaleck, a lawyer practising in Berlin. On 17 March 2000, the Federal Court of Justice issued an arrest warrant in respect of the applicant, who had been employed with the Technical University in Berlin, on the ground that he was strongly suspected of being member of a terrorist group called the Revolutionäre Zellen and that he had participated in various terrorist attacks during the period between 1985 and 1994. The Revolutionäre Zellen, which dissolved itself in 1995, was responsible for at least 186 terrorist attacks. Its regional branch in Berlin, the Berliner Zelle, was responsible for at least forty terrorist attacks, inter alia for attempts to explode the Wedding Social Welfare Office for Asylum Seekers and the victory column in Berlin as well as for attempted assassinations of the chief of the Aliens Office and a presiding judge of the Federal Administrative Court. On 19 April 2000, the applicant was put on detention on remand. On 30 October 2000, the Federal Prosecutor filed the bill of indictment against the applicant and three other indicted persons for membership of a terrorist organisation and the causing of an explosion in two instances. The bill of indictment was based on various items of evidence, among them the testimony of a privileged prosecution witness (Kronzeuge), the results of the preliminary investigations, the preliminary investigation against the above witness for the prosecution and subsequent measures under the Code of Criminal Procedure as well as further seized evidence. The main proceedings regarding the above charges commenced on 22 March 2001, but were subsequently adjourned until 17 May 2001 in order to join them to the proceedings against a further person. On 12 April 2001, the Berlin Regional Court dismissed the applicant’s motion to quash or set aside the arrest warrant of 17 March 2000. It found that there existed a strong suspicion that the applicant had committed the crimes of which he was accused and that he was likely to abscond if released, given the sentence which he risked incurring if found guilty as charged. The Berlin Regional Court noted that the applicant had stable social ties as he had been married since 1997, he was frequently in touch with his daughter who lived in England, and the dismissal from his job at the Technical University in Berlin had not yet become final. However, the Berlin Regional Court took the view that there was concern that the applicant could vanish abroad as he owned with his wife an estate in France where he could travel uncontrolled. His various skills could earn him a living there, and his extradition to Germany could not be taken for granted given the practice of the French authorities. Moreover, the current length of the detention on remand was not disproportionate to the expected prison sentence. On 23 May 2001, the Federal Court of Justice dismissed the applicant’s motion against the decision of the Berlin Regional Court of 12 April 2001. It found that neither the manner in which the proceedings had so far been conducted nor the adjournment until 17 May 2001 had been in violation of the obligation to proceed speedily (Beschleunigungsgrundsatz). The reasons given by the Federal Prosecutor for the adjournment were plausible, and the delay of the proceedings was still proportionate to the length of the applicant’s detention on remand. On 20 July 2001, the Berlin Regional Court ordered the continuation of the applicant’s detention on remand because both the strong suspicion and the reasons for detention persisted. On 23 August 2001, the Federal Court of Justice dismissed the applicant’s appeal against the decision of the Berlin Regional Court of 20 July 2001. It considered that there persisted strong suspicion which had not been dissipated by the evidence gathered during the main proceedings. The period of one year and four months which the applicant had so far spent in detention on remand had not eliminated the danger of the applicant’s absconding, nor had it made that detention disproportionate. Despite the considerable period since the crimes the applicant was charged with had been committed, the applicant’s probable sentence in view of their gravity and the fact that he had played a leading role in the terrorist organisation could justify the assumption that there was significant incentive to escape and that the continuation of the detention on remand was proportionate. On 25 September 2001, the Berlin Regional Court dismissed the applicant’s motion to quash, or alternatively to set aside, the arrest warrant. The Berlin Regional Court took the view that there persisted a strong suspicion that the applicant and four other persons had committed the terrorist attacks, which was supported by evidence collected in the main proceedings. It further held that there was still the danger of him absconding and that it was proportionate to continue the detention on remand given the gravity of the charges and the likely prison sentence. On 20 December 2001, the Federal Court of Justice dismissed the applicant’s appeal against the decision of the Berlin Regional Court of 25 September 2001. It referred to its earlier decision of 23 August 2001 and found that the applicant’s continued detention on remand was justified as the circumstances had not significantly changed since then. The Federal Court of Justice noted that it was not objectionable that the Berlin Regional Court had found that there persisted a strong suspicion of the applicant’s responsibility for the crimes. The Federal Court of Justice also held that the main proceedings had so far been conducted speedily which was appropriate in view of the applicant’s detention on remand. The complexity of the proceedings against several accused persons combined with the difficulty in establishing events planned with conspirative means by a terrorist group in the period between 1985 and 1994 had so far prevented the judgment from being delivered. The assessment of the reason for arrest and the proportionality of the detention on remand had not considerably changed since the Federal Court of Justice’s decision of 23 August 2001. The likely sentence of the applicant still exceeded the period of his detention on remand; hence there remained the danger of his absconding. Therefore, the continuation of the detention on remand was proportionate. On 11 February 2002, the Berlin Regional Court suspended the arrest warrant of 17 March 2000 and ordered the applicant instead to participate in the main proceedings, to submit his passport and not to leave the territory of the Federal Republic of Germany without prior consent by the court. The Berlin Regional Court found that, in view of a serious accident of the applicant’s son-in-law who needed intensive care, the danger of the applicant absconding was reduced to such a degree that the less far-reaching measures which had been ordered instead would satisfy the purpose of the detention on remand. The applicant was released on 12 February 2002. On 4 March 2002, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decisions of the Berlin Regional Court of 25 September 2001 and the decision of the Federal Court of Justice of 20 December 2001. The applicant’s lawyer received the decision on 11 March 2002. On 18 March 2004, the Berlin Regional Court convicted the applicant of ringleadership of a terrorist organisation and of causing an explosion on two occasions and sentenced him to four years and three months’ imprisonment. In determining the sentence, the Berlin Regional Court took into account the length of the detention on remand and the length of the criminal proceedings as mitigating facts. The judgment has since become final. Section 117 of the Code of Criminal Procedure provides, inter alia: “As long as the accused is in detention on remand, he may at any time apply for a court hearing to determine whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance with Section 116.” Section 230 of the Code of Criminal Procedure provides, inter alia: “No trial shall be held in respect of a person who is absent.”

train

001-117876

ENG

ROU

COMMITTEE

CASE OF FLORIN MACOVEI v. ROMANIA

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

Alvina Gyulumyan;Johannes Silvis;Kristina Pardalos

4. The applicant was born in 1969 and lives in Bucharest. 5. On 1 September 1999 the Romanian Copyright Office (“ORDA”) suspended the applicant from work for gross misconduct, that is, suspicion of fraud, malfeasance in public office and document destruction. A criminal complaint was further filed by ORDA with the prosecution authorities on 14 September 1999. 6. On an unspecified date in November 2000 the applicant complained about the protraction of the investigation. His complaint was admitted on 10 November 2000 by the Public Prosecutor’s Office as no procedural act had been carried out until that date. The prosecuting authorities were instructed to deal with the complaint within reasonable delays. 7. On 21 February 2001 the Public Prosecutor’s Office with the Bucharest District Court no. 1 (“the Prosecutor”) decided to initiate the criminal prosecution against the applicant. 8. By a subsequent decision of 31 January 2002 the Prosecutor rejected the initiation of prosecution in respect of the applicant as his conduct did not meet the statutory essential elements of the prosecuted offences. ORDA contested this decision before the Higher Ranking Prosecutor. 9. On 6 March 2002 the contestation was allowed and the criminal prosecution was resumed. 10. Subsequent to the examination of evidence (hearing of four witness testimonies and examination of few documents, without the commission of any expert study), the Prosecutor decided on 8 May 2002 to discontinue the investigation in respect of the applicant. The decision was challenged by ORDA before the Public Prosecutor’s Office with the High Court of Cassation and Justice. 11. On 6 March 2003 the contestation was allowed and the impugned decision was quashed. The case was reopened for further investigation before the prosecuting authorities. 12. On 23 July 2003 the Prosecutor decided to discontinue the investigation against the applicant in respect of the charges of fraud and malfeasance in public office. At the same time, an administrative fine was imposed for charges of document destruction. 13. The decision was upheld before the Higher Ranking Prosecutor and became final on 17 October 2003. 14. Subsequent to the decisions to discontinue the criminal prosecution against him, the applicant requested to resume his work at ORDA. Following the latter’s refusal, the applicant brought two sets of labour litigations against his employer on 22 February 2002 and on an unspecified date in 2003 respectively. 15. On 15 April 2003 the Bucharest County Court dismissed the first action. It ruled that the applicant could not resume work since the decision to discontinue the criminal investigation had not been final at that time. Later on the applicant was reinstated to a different position at ORDA. Shortly afterwards, the employment contract was voluntarily terminated. 16. The second action was allowed by way of a final decision. On 6 July 2006 the Court of Appeal of Bucharest awarded the applicant the retroactive payment of wages he had been entitled to.

train

001-101962

ENG

POL

CHAMBER

CASE OF HENRYK URBAN AND RYSZARD URBAN v. POLAND

Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient

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

5. The applicants were born in 1962 and 1960 respectively and live in Uherce Mineralne. 6. Both applicants were charged with the administrative offence (wykroczenie) of refusing to disclose their identity to the police. Henryk Urban (“the first applicant”) was also charged with using offensive language in a public place. 7. On 13 September 2006 the Lesko District Court, in summary proceedings, convicted the applicants as charged. They lodged an objection to the ruling. Consequently, their case was examined by the District Court in ordinary proceedings. 8. On two occasions the applicants requested the court to admit a certain Z.W. to the proceedings as a representative of a civil society organisation and/or their counsel. The District Court refused their requests as inadmissible in law. The second applicant was represented by legal-aid counsel. 9. On 7 November 2006 the first applicant filed a request for the withdrawal of all judges and “assessors” (junior judges) of the Lesko District Court on the ground that he had lost faith in them. On 21 December 2006 the Krosno Regional Court decided to exclude two Lesko District Court judges, J. Ł. and L. R.-S., from examining the first applicant's case as they had been victims and witnesses in an earlier criminal case against the first applicant. In respect of the other judges and assessors of the Lesko District Court, the applicant's request was dismissed. The Regional Court held that the general dissatisfaction of the first applicant with the decisions given by the District Court in his cases had not undermined the impartiality of those judges and assessors. 10. On 29 December 2006 the District Court decided to examine the two applicants' cases jointly. 11. On 31 August 2007 the first applicant requested that the assessor (asesor sądowy) B. R.-G. withdraw from the case on the ground that she had not accepted a medical certificate excusing his mother from attending a hearing. On 24 September 2007 the Lesko District Court, sitting as a single judge, dismissed the first applicant's request as ill-founded and prompted only by his subjective assessment of the assessor. 12. On 2 October 2007 the Lesko District Court, sitting as an assessor, gave judgment. Both applicants were convicted of failing to disclose their identity to the police and sentenced to a fine of PLN 100. The first applicant was acquitted of the other charge. 13. The applicants appealed. They objected, inter alia, to the fact that their case had been decided by an assessor, alleging that she was not a judge. They referred to the Constitutional Court's judgment of 24 October 2007 and submitted that the assessor could not exercise judicial powers because she did not offer sufficient guarantees of independence. 14. On 10 December 2007 the Krosno Regional Court upheld the District Court's judgment. It considered the applicants' objections to the composition of the first-instance court, based on the Constitutional Court's judgment, unfounded. No further appeal lay against the Regional Court's judgment. 15. According to the Government, the applicants did not question the ability of an assessor to give judgments, but they alleged that the particular assessor who had judged them had not been impartial. The applicants referred to the assessor as an institution only after the Constitutional Court's judgment, in the supplement to their appeal. 16. The Constitution was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997. Article 45 § 1 of the Constitution reads: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Article 190 of the Constitution, regarding the effects of judgments of the Constitutional Court, provides, in so far as relevant: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such a time-limit may not exceed eighteen months in relation to a statute or twelve months in relation to any other normative act. ... 4. A judgment of the Constitutional Court on non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... is given, shall be a basis for reopening the proceedings or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.” 17. The Law of 27 July 2001 (as amended) on the Organisation of Courts (Prawo o ustroju sądów powszechnych; hereinafter “the 2001 Act”) sets out comprehensively all matters related to the organisation and administration of courts of general jurisdiction, the status of judges and their self-governing bodies, and the position of assessors and trainee judges, court employees and officers and lay judges. The 2001 Act stipulates the requirements that have to be fulfilled to assume the office of a district court judge. A candidate for such office is required, among other conditions, to complete a judge's or prosecutor's training (aplikacja) and then pass the relevant examination. Subsequently, he or she has to work a minimum of three years as an assessor in a district court. Sections 134-136 of the 2001 Act regulate the position of assessors. They provide, in so far as relevant: Section 134 “§ 1. The Minister of Justice may appoint as an assessor a person who has completed a judge's or prosecutor's training and passed the judge's or prosecutor's examination and who meets the requirements specified in section 61 § 1 (1-4). [...] § 5. The Minister of Justice may discharge an assessor having given him notice and subject to approval by the board (of judges) of a regional court.” Section 135 “§ 1. The Minister of Justice may, subject to approval by the board (of judges) of a regional court, authorise an assessor to exercise judicial powers in a district court for a specified period of time, not exceeding four years. [...] § 2. While adjudicating, assessors shall be independent and subject only to the Constitution and statutes. [...] § 5. During the period in which an assessor exercises judicial powers he or she remains under the supervision of a judge designated to carry out the function of a consulting judge. [...]” 18. In this decision, following the filing of two constitutional complaints challenging the constitutionality of the status of assessors, the Constitutional Court decided to draw the attention of the Sejm (the lower Chamber of the Parliament) to the need to consider a bill on the system of appointing persons who exercise judicial powers. It noted that both the National Judicial Council and the Ombudsman had shared the main arguments of the claimants as to the unconstitutionality. The Constitutional Court noted that the possible finding of unconstitutionality in respect of the provisions governing the status of assessors could have far-reaching consequences for the whole system of the administration of justice, having regard to the number of assessors adjudicating in the district courts. 19. The proceedings before the Constitutional Court were initiated by two constitutional complaints. The first of them was made by J.W., who complained that his detention had been imposed by an assessor. The second complaint was lodged by a company, AD Drągowski S.A., which complained that a prosecutor's decision discontinuing a criminal investigation had been reviewed by an assessor. Both complainants alleged that various provisions of the 2001 Act which govern the position of assessors were incompatible, inter alia, with Article 45 of the Constitution, providing for the right to have one's case examined by an impartial and independent court. 20. The Constitutional Court heard the case as a full court (fourteen judges). In the first part of the operative part it held that: “Section 135 § 1 of the Law of 27 July 2001 on the Organisation of Courts was incompatible with Article 45 § 1 of the Constitution.” It found that the vesting of judicial powers in assessors by the Minister of Justice (representing the executive) was unconstitutional since the assessors did not enjoy the necessary guarantees of independence which were required of judges. As a preliminary point the Constitutional Court considered that the constitutional requirements of independence were equally relevant for all courts, regardless of their level and scope of jurisdiction. It noted that the lack of independence of the first-instance court would amount to a breach of Article 45 of the Constitution even when the second-instance court examining an appeal complied with the requirements of independence. 21. The Constitutional Court gave, inter alia, the following reasons: “3.4. (...) Since Article 45 of the Constitution explicitly refers to the content of Article 6 of the Convention, being one of the sources of international law binding on our State, it should be added that the European Court of Human Rights does not interpret the concept of “a tribunal” used in the Convention in the formalistic manner and accepts that “a tribunal may be composed fully or partly of persons who are not professional judges” (Ettl v. Austria, judgment of 23 April 1987, no. 9273/81, and Engel and Others v. the Netherlands, judgment of 8 June 1976). (...) 5.4. In accordance with the text of the statute, while adjudicating an assessor shall be independent and subject only to the Constitution and statutes (section 135 § 2). However, ..., such regulation of itself is only a declaration, not ensuring the real and effective independence required by the Constitution, unless the independence is supplemented by concrete guarantees, namely particular legal regulations related to effective securing of the observance of the particular elements of the concept of independence. (...) 5.5. The issue of independence from the Minister of Justice should be seen from the angle of the assessor's appointment, the vesting of judicial powers in an assessor and his or her dismissal. In respect of the appointment, and in particular the vesting of judicial powers, the statute does not precisely specify the time frame in which such appointment should be made. Considered from the functional point of view, independence does not have to mean appointment for life or appointment until retirement age, but it must mean a certain level of stability in employment and in the exercise of judicial powers. It should be indicated here that the Strasbourg case-law underlines precisely that if judges or persons exercising judicial powers are not appointed for life, they could be appointed for a certain term of office, and that they must benefit from a certain stability and must not be dependent on any authority (judgment of the ECHR of 23 October 1985 in the case of Benthem v. the Netherlands, no. 8848/80). It may be indicated here that in attempting to define more closely a certain minimum period which would guarantee professional stability the European Court of Human Rights found three years to be sufficient (judgment of the ECHR of 28 June 1984 in the case of Campbell and Fell v. the United Kingdom, nos. 7819/77 and 7878/77, and the judgment of the ECHR of 22 October 1984 in the case of Sramek v. Austria, no. 8790/79). The regulation of the assessor's status does not contain such guarantees, since there is no minimum period for which such a person is employed and no minimum period for which an assessor is vested with judicial powers. It is undoubtedly a situation which gives rise to significant misgivings as to its compliance with the principle of independence. In this respect the situation would have looked unambiguous if the statute had expressly determined the period for which an assessor was appointed and the period for which the judicial powers were vested. The existing regulation, implying discretion of the minister and the board of judges of the regional court (...) thus amounts to one-sided dependence of the assessor's professional status on those organs. (...) 5.7. The principal argument indicative of the unconstitutionality of the vesting of judicial powers in an assessor is the admissibility of his or her dismissal, including even during the period in which an assessor exercises judicial powers. Even assuming the constitutional admissibility of the institution of temporarily vesting those powers in an assessor within the jurisdictional and temporal limits specified by a statute, then a rudimentary aspect of the principle of independence which must be adhered to also in this case requires that it should be possible to remove an assessor from office only in the same way as judges may be so removed or even only in some of those cases. The existing regulation, firstly, does not contain a proviso that the dismissal of an assessor (at least one who has been vested with judicial powers) is allowed only as an exception to the rule. Secondly, the statute does not precisely set out the factual circumstances serving as justification for dismissal from the office. Thirdly, a decision on dismissal is taken by the Minister of Justice and not by a court. It follows that, regardless of whether dismissal from the office of assessor may be reviewed by a court, the essential requirements of independence from non-judicial authorities stemming from Article 180 § 1 of the Constitution are not met. The obligation [to secure] the approval of the board of judges of a regional court is not a pertinent circumstance, since this body is not a court but an organ of court administration, and moreover its approval is also of a discretionary character as there are no specific legal norms which indicate whether or not a dismissal is justified in a given situation. Consequently, there are no substantive guarantees and no adequate procedural guarantees which would indicate that the assessor's dismissal on the ground of the content of his/her rulings is excluded. (...)” The Constitutional Court also found that: “5.13. The protection of the arbiter's internal independence from outside, including political, pressures is particularly difficult when – as in the case of assessors – it is the Minister of Justice – a political appointee and a member of the executive – who has influence over their promotion and career. (...)” Furthermore, the Constitutional Court found that an assessor was also dependent on a board of judges of the regional court since that body was competent to approve the vesting of judicial powers in him or her and to dismiss him or her. It also played a consultative role in the procedure for an assessor's nomination for the position of district court judge. In addition, the 2001 Act did not prohibit assessors from being members of political parties. 22. In the second part of the operative part of the judgment the Constitutional Court held as follows: “1. The provision mentioned in the first part of the operative part of the judgment (section 135 § 1 of the 2001 Act) will lose its binding force eighteen months after the promulgation of the judgment in the Journal of Laws of the Republic of Poland. 2. The acts of the assessors referred to in section 135 § 1 of the 2001 Act shall not be subject to a challenge on the basis of Article 190 § 4 of the Constitution.” The Constitutional Court ordered that the unconstitutional provision should be repealed eighteen months after the promulgation of the judgment. Its decision was motivated by the fact that assessors constituted nearly 25% of the judicial personnel in the district courts and that their immediate removal would seriously undermine the administration of justice. During the eighteen-month period it was constitutionally admissible for the assessors to continue adjudicating. That period was also necessary for Parliament to enact new legislation dealing with the matter. 23. The Constitutional Court, having regard to the constitutional importance of the finality of rulings, considered the consequences of its judgment for the validity of rulings given in the past by the assessors. It held that there was no possibility of reopening the proceedings in respect of such rulings under Article 190 § 4 of the Constitution. 24. In respect of the consequences of its judgment, the Constitutional Court observed, inter alia, as follows: “6.1. Ruling on the unconstitutionality of section 135 of the 2001 Act, the Constitutional Court did not exclude the possibility of the existence of assessors as an institution. However, it questioned its normative framework, having regard to the vesting of judicial powers in assessors (by the Minister of Justice, a representative of the executive) to carry out the constitutional function of the administration of justice without also [securing] the constitutionally required guarantees of independence which judges enjoy. Nor should the judgment of the Constitutional Court be understood as ruling out, in principle, the possibility to allow adjudication by persons other than judges within the meaning of the Constitution. In this respect also international standards binding on Poland indicate many possible types of solutions [which are] compatible with the rule of law. Those standards should be used by the legislator when considering a solution [to the problem]. In any case solutions to be considered should be such as to guarantee real separation between the judiciary and the other powers (Article 10 of the Constitution), to loosen the bond between the assessors and the Minister of Justice [and] to ensure the influence of the National Judicial Council on the professional career of a judge in spe. Without prejudging the future normative regulation of the institution of assessors, the present judgment of the Constitutional Court should be understood as a negative constitutional assessment of the currently existing normative model of this institution. (...) 6.4 In the present judgment the unconstitutionality concerns the institutional provisions [who may exercise judicial powers]. (...) Thus, the question arises as to the relationship between the unconstitutionality of the said institutional provisions and the validity of the judgments given by the assessors. It should be underlined that the judgments – given [by assessors] during the period in which, in the light of the thenexisting constitutional standard, the vesting of judicial powers in the assessors was not challenged – cannot be questioned. In particular, it would be an error to look for any analogy with a situation in which a ruling was given by a body which was incompetent or (...) incorrectly composed. It was only the ruling of the Constitutional Court which, ratione imperii, rebutted the presumption of constitutionality of the impugned norm [section 135 § 1]. And in order to remove any doubts as to the legal significance of the rulings given so far by the assessors, the Constitutional Court included in the operative part a suitable finding (part II (2) of the operative part). (...) 6.6 The finality of rulings is itself a constitutional value. (...) Thus, in every case the undermining of the finality of rulings has to be subject to the careful balancing of the values. This means that the judgments given by assessors in the period when the constitutionality of vesting judicial powers in them was not challenged cannot be automatically questioned. (...) On the one hand the duly implemented right to a court rules out staffing the independent court with judges who do not possess the guarantees of independence, which is determinative of the finding of unconstitutionality in the present case; on the other hand, were it allowed to challenge the final judgments given by assessors in the period when the possibility of vesting judicial powers in them was not questioned, this would lead to the weakening of the right to a court and undermine the stability of the law and legal certainty. (...) The protection of the finality of rulings is constitutionally embedded in Article 7 of the Constitution, which talks about the functioning of the public authorities (courts in this case) on the basis of, and within the limits of, the law. Thus, the final rulings are backed by the constitutional presumption stemming from this provision. It may be rebutted – when the ruling itself departs from the constitutional standard (the unconstitutionality concerning substantive law or procedure applied in concreto when giving a final ruling). However, it would be disproportionate to undermine final rulings on the basis of the finding of pro futuro unconstitutionality which concerns the composition of a body giving those rulings, which acted in accordance with the Constitution at the time of giving them. (...) 7.5 In the present case the unconstitutionality concerns the institutional provisions, and thus a relationship between a concrete ruling and the unconstitutional norm is much more tenuous than in the case of unconstitutionality of a substantive or procedural provision applied in an individual case. (...) In the Constitutional Court's view it is not, however, possible that the relationship between the unconstitutional institutional provision (as in the present case) and the final ruling justifies the reopening of an individual ruling pursuant to Article 190 § 4 of the Constitution. The unconstitutionality of the rule determining who may be vested with the exercise of judicial powers does not have to mean that the content of the ruling or the procedure applied in reaching it is unconstitutional. (...)” 25. On 23 January 2009 Parliament enacted the Law on the National School for the Judiciary and the Prosecution Service (Ustawa o Krajowej Szkole Sądownictwa i Prokuratury), which entered into force on 4 March 2009. The law establishes a comprehensive and centralised institution responsible for training judges and prosecutors. In response to the Constitutional Court's judgment of 24 October 2007 the Law on the National School abolished the institution of judicial assessors as provided for by the Law of 27 July 2001 on the Organisation of Courts (section 60 (12)). Furthermore, it specifically provided that as from 5 May 2009 assessors ceased to be authorised to exercise judicial powers (section 68 (1)). 26. In the above judgment the Constitutional Court considered the relationship between its jurisdiction and the jurisdiction of the Court. It observed as follows: “6.3. (...), the Constitutional Court draws attention to the fact that the control exercised by the European Court of Human Rights (ECHR) does not as such relate to the assessment of norms of the legal system of a State where the events considered as breaches of human rights occurred. [Its control] concerns concrete facts of breaches of human rights in the activities of public authorities in respect of concrete persons. In principle it is not a control of the provisions (norms) which constitute the legal order of the State, but an examination of a situation concerning potential individual breaches of human rights and freedoms laid down in the Convention. The control exercised in an individual case may occasionally indicate that the domestic legal order also contains norms which, as applied, led in concreto to a breach of human rights in the case examined by the ECHR. This does not automatically amount to the disqualification of a norm in so far as its constitutionality is concerned. The jurisdiction of the Constitutional Court in the constitutional complaint proceedings extends to controlling the constitutionality of legal norms in accordance with the principle adopted in Article 79 § 1 of the Constitution: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or other normative act on the basis of which a court or administrative authority has issued a final decision on his freedoms or rights or his obligations as specified in the Constitution.” The duty to consider the effects of a relevant judgment of the ECHR in the activities of the domestic authorities of the State obliges the Constitutional Court to take into account – in the framework of its control of the constitutionality of norms – the standards elaborated by the ECHR, with a view to eliminating possible conflicts between them. However, the Constitutional Court does not examine whether the impugned provisions were correctly applied in individual cases, as this comes within the jurisdiction of the ordinary and administrative courts. Nor does [The Constitutional Court], in the proceedings initiated by a constitutional complaint, examine the compatibility of the reviewed norms with the international agreements. (...)” 27. Article 540 § 3 of the Code of Criminal Procedure provides for the possibility of reopening the proceedings following a judgment of the European Court of Human Rights. It reads as follows: “The proceedings shall be reopened for the benefit of the accused when such a need results from a decision (rozstrzygnięcie) of an international body acting on the basis of an international agreement ratified by the Republic of Poland.” 28. The applicants argued that the assessor who had heard their case in the first-instance court had not been “an independent tribunal” within the meaning of Article 6 § 1 of the Convention. Article 6 § 1 of the Convention reads, in so far as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 30. The applicants argued that they had been deprived of a fair trial on account of the lack of independence of the trial court. They contended that the relevant legislation on the status of assessors had not met the standard of “independent tribunal” required under Article 6 of the Convention. They supported this contention by the findings of the Constitutional Court in its judgment of 24 October 2007 and the case-law of the Court. 31. Firstly, persons exercising judicial powers had to benefit from certain stability and could not be dependent on any authority, while the regulation concerning assessors fell short of those guarantees. Secondly, the 2001 Act was deficient as regards the possibility of an assessor's dismissal. The guarantee of an “independent tribunal” required that an assessor should be able to be removed from office only in the same way as judges. However, the legislation provided for decisions concerning the dismissal of assessors to be taken by the Minister of Justice and not by a court. Thus, an assessor was not protected against the influence of the executive. Thirdly, as regards the perception of an assessor's independence, the applicants asserted that the administration of justice had to be carried out in an independent and impartial manner. They underlined in this connection that their own negative perception of the assessor's independence was of importance. This had been reinforced by the mistakes made by the assessor in the proceedings against the applicants. Lastly, the applicants submitted that the appellate court had not cured the lack of independence of the trial court. The appellate court, referring to the Constitutional Court's judgment, had simply held that the applicants' misgivings about the trial court's composition had been unfounded. 32. The Government underlined the importance of the principle of subsidiarity. They observed that the Constitutional Court in its judgment of 24 October 2007 had ruled that section 135 § 1 of the 2001 Act was not in conformity with Article 45 § 1 of the Constitution. Subsequently, the Parliament amended the relevant law and as of 9 May 2009 the office of assessor ceased to exist in the Polish legal system. The Government argued that since the source of the alleged violation had already been identified in the Constitutional Court's judgment, there was no need for the Court to deal with the problem of the independence of assessors. 33. The Government commented on the comparison of the level of protection of judicial independence in the Convention and the Polish Constitution. They maintained that up until 2007 the Court and the Polish Constitutional Court had interpreted the requirements of independence and impartiality in a similar manner. In that period, the Constitutional Court had to a large extent been inspired by the Court's decisions and, in consequence, the Polish standard had in principle reflected the Convention standard. 34. However, the Constitutional Court's judgment of 24 October 2007 brought about a fundamental change in this area. It set the constitutional guarantees on a level significantly higher than that existing and accepted before. The Government argued that it seemed virtually impossible for anyone but a professional judge to meet those standards, even though the Constitutional Court had not excluded the possibility of justice being administered by “persons with a status similar to that of judges, officially provided with guarantees of independence in adjudicating”. In reaction to the judgment, Parliament abolished the institution of assessors and decided against introducing any other, similar institution, being aware that in the light of the new standards the task would be virtually impossible. 35. They emphasised that prior to the Constitutional Court's judgment, assessors had been universally considered as an institution that fulfilled the constitutional criteria of independence and impartiality. The situation had changed significantly only after the Constitutional Court's “signal decision” (postanowienie sygnalizacyjne) in which it indicated the need to remedy a legal deficiency in connection with the examination of case no. SK 7/06. Thus, the Constitutional Court's judgment of 24 October 2007 should be assessed in this context as introducing a key modification of the manner of construing previously accepted institutions of the legal system. 36. In addition, the Government argued that there were further reasons which rendered the Constitutional Court's judgment irrelevant to the outcome of the present case. Firstly, the Convention laid down a certain minimum standard to be met, while the Polish Constitution, as the supreme act of domestic law, set out not a minimum but a maximum standard. In consequence, it could be possible for a measure that satisfied the Convention standard to be inconsistent with the constitutional standard. Secondly, the Constitutional Court's review concerned a single, coherent legal system rather that several dozens of different systems, so it was possible to develop the standard further. The Court, on the other hand, had to take into account differences between various European legal systems and could not set too detailed and far-reaching directives in its judgments. Thirdly, the Constitutional Court's review was a formal review of the conformity of lower ranking provisions with the Constitution and, in principle, its jurisdiction did not extend to the issue of the application of a given provision in concreto. In contrast, the subject-matter of the Court's review was not the legal provision itself but the substantive content of the regulation and the effects it produced in an individual case. In conclusion, the Government noted that the constitutional standard of independence as laid down in the Constitutional Court's judgment was stricter than that enshrined in the Convention. Furthermore, the Constitutional Court's judgment did not determine that a court in which an assessor adjudicated lacked independence within the meaning of Article 6 § 1. 37. The Government submitted that the office of an assessor differed from that of a judge. The former had been primarily devised as an intermediate stage between the judicial traineeship and the office of a judge. This resulted in a natural differentiation regarding the appointment procedure, tenure, possibility of dismissal and remuneration, yet the key element was to establish whether the level of safeguards provided for assessors was sufficient under Article 6 § 1. The Government claimed that if the independence of an assessor were to be considered from two perspectives, namely the positive one (the assessor's subordination in administering justice only to legal norms and their own beliefs) and the negative one (third parties' inability to persuade them to decide the case in a given way) then it could be considered that in reality assessors were independent in respect of their adjudicatory role, even though they were not equipped with all the constitutional guarantees. In addition, there were many arguments related to the case-law of the Court which required that the independence of an assessor be assessed in a different way than that expressed in the Constitutional Court's judgment. 38. The Government analysed in detail the provisions of the 2001 Act regulating the status of assessors and, in particular, those related to the exercise of judicial powers by them. In their view, those regulations, which in many respects extended rules applicable to judges to assessors, fulfilled the standard of judicial independence defined in Article 6 § 1 of the Convention. They emphasised that the constitutional guarantees of independence of the courts and professional judges (Articles 178-181 of the Constitution) had materially influenced the status of assessors. An assessor vested with judicial powers was a member of the community of judges and, following the common practice, was treated accordingly. In consequence, any attempt to undermine the actual independence of assessors had to be interpreted in the context of the guarantees enjoyed by judges. In practice, it meant that assessors had been required to comply with those very standards. The judicial community, particularly interested in maintaining the constitutional guarantees of independence and impartiality, had always exerted an extremely strong influence on assessors. The Government further referred to the fact that both society and the legal community had considered assessors independent and equal to professional judges. They also pointed to the existence of institutions similar to that of the assessor in a number of European countries (Germany, Austria, the United Kingdom, the Netherlands, Luxembourg, and Estonia). 39. As regards the possibility of dismissing an assessor provided for in section 134 § 5 of the 2001 Act, the Government argued that this power of the Minister of Justice had not been unrestrained since the necessary condition for dismissal was the prior consent of the board of a Regional Court. That mechanism effectively protected an assessor against the threat of unjustified dismissal by the executive, thereby eliminating the possibility of pressure being brought by the Minister. The Government, basing themselves on the official statistics, emphasised that the Minister of Justice had never exercised the power to dismiss an assessor. Accordingly, the above arrangement had been in compliance with Article 6 § 1 of the Convention. 40. The Government asserted that in the present case there had been no reason to consider that the assessor who had adjudicated in the case had not been objective. The applicants had tried from the outset of the proceedings to exclude all the judges, and they had subsequently done the same in respect of the assessor, using the Constitutional Court's judgment as a pretext. The Government claimed that in their appeal the applicants had not challenged the fact that their case had been decided by an assessor, but they had alleged a lack of impartiality on her part. This had been motivated by the negative outcome of the trial. The applicants had referred to the “assessor” as an institution rather than to the particular assessor only after the delivery of the Constitutional Court's judgment on the sideline of their appeal. Above all, the applicants had been unable to show that the assessor had not been independent. 41. The Government lastly drew the Court's attention to the fact that if all decisions issued by assessors were to be generally challenged by the Court, it would undoubtedly cause legal chaos. Assessors constituted about 30% of the judges adjudicating in District Courts and in 2005 alone about 8,600,000 cases were brought before those courts. Were the Court to find a violation in this and other similar cases, it would affect at least hundreds of thousands of judicial decisions given in the last few years. Such a finding would create a breach of the principle of protection of the citizens' trust in the State and its law. It would further undermine the need to protect the stability of the national legal system, as well as the Convention rights of other participants in those proceedings. Assessors had decided the majority of civil and criminal cases heard in the first instance before District Courts. In most of the cases the effects of the decision made could not be reversed, for example where time spent in detention on remand had been credited towards the sentence, an inheritance had been accepted and disposed of, and so on. 42. Independently of the above arguments, the Government highlighted the negative effect a judgment finding a violation of the Convention in the present case would have. In their view, the Constitutional Court's judgment constituted a pretext for submitting the application to the Court as, prior to its delivery, the independence of assessors had not been called into question. The finding of a violation by the Court would create a chilling effect, discouraging the Constitutional Court from further elevating any constitutional standard. The State should not suffer any negative consequences for elevating the standards of protection of individual rights. The chilling effect would probably affect not only the Polish Constitutional Court but also similar judicial authorities in other European countries. 43. The Government, referring to the Court's case-law, submitted that objections regarding the independence and impartiality of the first-instance court could not be upheld where the case had been examined by the court of second instance fully satisfying, as in the present case, the requirements of Article 6 § 1 of the Convention. They acknowledged that the right to an independent and impartial court guaranteed in the Convention was of a substantive nature. Accordingly, since the assessment was carried out in respect of the result, the legal test was whether a final decision in the proceedings had been rendered by a court satisfying the requirements of independence. 44. In conclusion, the Government submitted that the first-instance court, composed of an assessor, which dealt with the applicants' case had been independent as required by Article 6 § 1 of the Convention. 45. The Court recalls that in determining whether a body can be considered as “independent” – notably of the executive and of the parties to the case – regard must be had, inter alia, to the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 78, Series A no. 80; Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997I; Incal v. Turkey, 9 June 1998, § 65, Reports 1998IV; Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005II; and Luka v. Romania, no. 34197/02, § 37, 21 July 2009). Furthermore, the irremovability of judges by the executive during their term of office must in general be considered as a corollary of their independence and thus included in the guarantees of Article 6 § 1 (see Campbell and Fell, cited above, § 80). What is at stake is the confidence which the courts in a democratic society must inspire in the public (see, amongst many other authorities, Piersack v. Belgium, 1 October 1982, § 30, Series A no. 53, and Micallef v. Malta [GC], no. 17056/06, § 98, ECHR 2009...). The Court further recalls that the requisite guarantees of independence apply not only to a “tribunal” within the meaning of Article 6 § 1 of the Convention, but also extend to “the judge or other officer authorised by law to exercise judicial power” referred to in Article 5 § 3 of the Convention (see McKay v. the United Kingdom [GC], no. 543/03, § 35, ECHR 2006X). 46. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court's case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers' interaction (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 193, ECHR 2003VI, and Sacilor-Lormines v. France, no. 65411/01, § 59, ECHR 2006XIII). The question is always whether, in a given case, the requirements of the Convention are met and in the present case the Court has to determine whether the assessor B.R.-G. who tried the applicants in the first-instance court had the required “appearance” of independence (see McGonnell v. the United Kingdom, no. 28488/95, § 51, ECHR 2000II). 47. Assessors were appointed by the Minister of Justice provided that they met a number of specific conditions stipulated in the 2001 Act (section 134 § 1). The Minister could confer on an assessor the authority to exercise judicial power in a district court, subject to approval by the board of judges of a regional court and for a period not exceeding four years (section 135 § 1). Under section 134 § 5 of the 2001 Act the Minister could remove an assessor, including those who were vested with judicial powers. However, the Minister had no unfettered discretion as to removal since he had to secure the approval of the board of judges of a regional court. 48. The Constitutional Court considered the status of assessors in its leading judgment of 24 October 2007. It held that section 135 § 1 of the 2001 Act, providing that the Minister of Justice could confer the exercise of judicial powers on assessors, fell short of constitutional requirements because assessors did not enjoy the necessary guarantees of independence, notably vis-à-vis the Minister. The Court notes that in its analysis of the question of the independence of assessors the Constitutional Court referred to the Strasbourg case-law and observed that Article 45 of the Constitution was modelled on Article 6 § 1 of the Convention (see paragraph 21 above). 49. The Court reiterates that appointment of judges by the executive is permissible, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (see Campbell and Fell, cited above, § 79, and Flux v. Moldova (no. 2), no. 31001/03, § 27, 3 July 2007). It notes that the principal reason for the Constitutional Court's finding was related to the Minister's power to remove an assessor who exercised judicial powers, and the lack of adequate substantive and procedural safeguards against the discretionary exercise of that power (see paragraph 21 above, point 5.7 of the judgment). The 2001 Act did not specify what factual grounds could serve as the basis for removal of an assessor and provided for the decision on removal to be taken by the Minister and not by a court. The lack of the requisite guarantees prompted the Constitutional Court to note that the removal of an assessor based on the content of his rulings was not excluded. 50. Furthermore, the Constitutional Court found, contrary to what was asserted by the Government, that the requirement to secure the approval of the board of judges was not a sufficient safeguard. The Government's statistics indicating that the Minister of Justice never exercised the power to remove an assessor do not, in the Court's view, invalidate the reasons for the finding of unconstitutionality. In addition, the Constitutional Court was critical of the fact that the 2001 Act did not contain sufficient guarantees as regards the assessors' term of office. The regulation did not specify a minimum period for which an assessor was employed and for which he was vested with judicial powers. 51. The Court reiterates that it is in the first place for the domestic authorities, notably the courts, to interpret and apply the domestic law and to decide on issues of constitutionality (see, among many other authorities, Former King of Greece and Others v. Greece [GC], no. 25701/94, § 82, ECHR 2000XII, and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 86, ECHR 2005VI). The Court notes that the Constitutional Court's findings were made in the context of an abstract review of the constitutionality of statutory provisions but, mindful of the principle of subsidiarity, considers that they may be applied to the facts of the present case, having regard to the similarity between the constitutional and the Convention requirements in so far as judicial independence is concerned and the reliance of the Constitutional Court on the relevant jurisprudence of the Court. The Government argued that the Constitutional Court's judgment did not determine that an assessor lacked independence within the meaning of Article 6 § 1 of the Convention. However, the Court observes that in constitutional complaint proceedings the Constitutional Court has no jurisdiction to review the compatibility of legislation with international agreements, including the Convention (see paragraph 26 above). The important consideration for this Court is that the Constitutional Court found that the manner in which Poland had legislated for the status of assessors was deficient since it lacked the guarantees of independence required under Article 45 § 1 of the Constitution, guarantees which are substantively identical to those under Article 6 § 1 of the Convention. It would be justified for the Court to reach a contrary conclusion only if it was satisfied that the national court had misinterpreted or misapplied the Convention provision or the Court's jurisprudence under that provision or reached a conclusion which was manifestly unreasonable (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 174 in fine, ECHR 2009...). The Court observes that in some earlier cases it had due regard to rulings of the Constitutional Court in which the latter declared domestic legislation unconstitutional and/or incompatible with the Convention (see, inter alia, in respect of the Bug river claims, Broniowski v. Poland [GC], no. 31443/96, § 131, ECHR 2004V; rent-control legislation and Article 1 of Protocol No. 1, Hutten-Czapska v. Poland [GC], no. 35014/97, § 208, ECHR 2006VIII; overcrowding of detention facilities and Article 3 of the Convention, Orchowski v. Poland, no. 17885/04, § 123, ECHR 2009... (extracts); and regulation of prisoners' visiting rights and Article 8 of the Convention, Wegera v. Poland, no. 141/07, § 73-74, 19 January 2010). 52. The Court underlines that the Constitutional Court set aside the regulatory framework governing the institution of assessors as laid down in the 2001 Act. It further stresses that the Constitutional Court did not exclude the possibility that assessors or similar officers could exercise judicial powers provided they had the requisite guarantees of independence (see paragraph 24 above, point 6.1 of the judgment). The Constitutional Court, referring to international standards, pointed to the variety of possible solutions for allowing adjudication by persons other than judges. In this connection, the Court notes that its task in the present case is not to rule in abstracto on the compatibility with the Convention of the institution of assessors or other similar officers which exist in certain Member States of the Council of Europe, but to examine the manner in which Poland regulated the status of assessors. 53. Having regard to the foregoing, the Court considers that the assessor B.R.-G. lacked the independence required by Article 6 § 1 of the Convention, the reason being that she could have been removed by the Minister of Justice at any time during her term of office and that there were no adequate guarantees protecting her against the arbitrary exercise of that power by the Minister (see, by contrast, Stieringer v. Germany, no. 28899/95, Commission decision of 25 November 1996, in which the relevant German regulation provided that dismissal of probationary judges was susceptible to judicial review). It is not necessary to consider other aspects of the status of assessors since their removability by the executive is sufficient to vitiate the independence of the Lesko District Court which was composed of the assessor B.R.-G. 54. It remains to be determined whether the failing in question was rectified on appeal by the Regional Court. This court was composed of a professional judge with tenure and was thus “an independent tribunal” as required under Article 6 § 1 of the Convention. The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for defects that took place in the first-instance proceedings (see De Cubber, cited above, § 33, and Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005XIII). In this connection the Court notes that the Constitutional Court considered that review by the second-instance court could not remedy the initial defect as regards the lack of independence. In the present case, the Regional Court did not have the power to quash the judgment on the ground that the District Court had been composed of the assessor since the assessors vested with judicial powers were – in accordance with the 2001 Act – authorised to hear cases in firstinstance courts. In any event, the applicants raised the issue of the lack of independence of the assessor in their appeal. However, the Regional Court dismissed their objections as unfounded. The Court observes that for the purposes of the Constitutional Court's judgment, any appeal based on the unconstitutional status of assessors was bound to fail as the impugned provisions of the 2001 Act remained legally binding for a period of eighteen months following the promulgation of the judgment. In those circumstances the Court finds that the Regional Court did not remedy the defect in question (see, De Cubber, cited above, § 33, and De Haan v. the Netherlands, 26 August 1997, § 54, Reports of Judgments and Decisions 1997IV). 55. In the light of the foregoing, the Court finds that the Lesko District Court was not independent within the meaning of Article 6 § 1 of the Convention. There has accordingly been a violation of this provision. 56. The Court notes that the domestic law provides for a possibility of reopening of criminal proceedings when such a need results from a judgment of the Court (see paragraph 27 above). However, in light of the reasons underlying the finding of a violation in the present case and having regard to the principle of legal certainty as expounded in the Constitutional Court's judgment and its own case-law (see paragraphs 64-65 below), the Court considers that in the present case there are no grounds which would require it to direct the reopening of the applicants' case (see, mutatis mutandis, Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010). The Court would not exclude that it might take a different approach in a case where, for example, the circumstances of a particular case give rise to legitimate grounds for believing that the Minister had or could reasonably be taken to have an interest in the proceedings. 57. The applicants also complained under Article 6 § 3 (c) of the Convention about the District Court's refusal to admit a representative of a civil society organisation to the proceedings. Relying on Article 14 of the Convention, they alleged that their conviction amounted to discrimination on the ground of their social origin. 58. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 60. The applicants claimed 4,000 euros (EUR) each in respect of nonpecuniary damage. They submitted, inter alia, that their case had been examined by an assessor and not by a judge. 61. The Government argued that the claim was grossly excessive. 62. The Court considers that in the particular circumstances of the instant case the finding of a violation constitutes in itself sufficient just satisfaction for any nonpecuniary damage which may have been sustained by the applicants. It refers in this connection to its conclusions set out in paragraph 56 above regarding reopening. 63. The Court recalls that in the specific context of cases against Turkey concerning the independence and impartiality of the national security courts, the Court has indicated in certain judgments that, in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she so requested (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court adopted a similar stance in cases against other Contracting Parties where the finding of a breach of Article 6 was related to the lack of independence or impartiality of the domestic courts (see, San Leonard Band Club v. Malta, no. 77562/01, § 70, ECHR 2004IX, and Gurov v. Moldova, no. 36455/02, § 43, 11 July 2006). The Grand Chamber has endorsed the general approach adopted in those cases (see, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005IV) and has extended it to cases where a conviction followed proceedings that entailed breaches of the requirements of Article 6 of the Convention (see, Sejdovic v. Italy [GC], no. 56581/00, § 126, ECHR 2006II). 64. However, it is only exceptionally that a violation, by its very nature, does not leave any real choice as to the measures required to remedy it (see, Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004II). In the present case, the Court notes that the judgment of the Constitutional Court identified a structural dysfunction and called for a legislative response. Such response was given by the Parliament which removed the structural dysfunction as of 2009 (see paragraph 25 above). The Court is of the opinion that in this particular context the finding of a violation need not necessarily entail the respondent State's obligation to reopen all proceedings in which assessors participated at the first-instance level. In this regard, the Court notes that the Constitutional Court devoted a substantial part of its judgment to the constitutional importance of the principle of the finality of rulings. In particular, it observed that it would be disproportionate and contrary to legal certainty to allow challenges to final rulings given by assessors in the period when the manner of conferring judicial powers on them had not been constitutionally questioned. Further, it emphasised that the finding of unconstitutionality concerned institutional provisions, that is, provisions regulating the composition of the bodies which gave final rulings. The Constitutional Court considered that the finding of unconstitutionality in respect of such provisions was not determinative of unconstitutionality in respect of the content of a final ruling given by an assessor or the procedure employed to reach it (see paragraph 24 above in fine). Consequently, the Constitutional Court held in the operative part of the judgment that its ruling could not serve as a basis for the reopening of cases decided in the past by assessors (or with their participation). This ruling was even extended to two claimants who successfully challenged the provisions regulating the status of assessors before the Constitutional Court, thus depriving them of the so-called “right of privilege” (przywilej korzyści). 65. In this context, the Court recalls its case-law according to which the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that antedate judgments of the Court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional (see Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31). Moreover, it has also been accepted, in view of the principle of legal certainty, that a constitutional court may set a time-limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period (see Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000). Referring to the Constitutional Court's decision not to allow the reopening of the cases decided in the past by assessors on the ground that it would undermine the principle of legal certainty, the Court does not consider this interpretation to have been arbitrary or manifestly unreasonable. Indeed, the Court in its jurisprudence has underlined the significance of the principle of legal certainty in the context of final judicial rulings (see, mutatis mutandis, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999VII). 66. The Court observes that the domestic law provides for a possibility of reopening of criminal proceedings when such a need results from a judgment of the Court (see paragraph 27 above). However, having regard to the foregoing, the Court reiterates its conclusion that in the instant case the reopening of the applicants' case is not called for (see paragraph 56 above). 67. The Court would further observe that in the view of the Constitutional Court the constitutional deficiency identified in its judgment required the intervention of the legislator to bring the status of assessors into line with the Constitution, but there was no automatic correlation between that deficiency and the validity of each and every ruling given previously by assessors in individual cases. To that end the Constitutional Court ruled that the unconstitutional provision should be repealed eighteen months after the promulgation of its judgment. It is noteworthy that the constitutional and Convention deficiency regarding the status of assessors was remedied by the domestic authorities – which decided to abolish the office of assessor altogether – within the time-frame allotted by the Constitutional Court (see paragraph 25 above). Having regard to the above, it may be noted that the authorities of the respondent State took the requisite remedial measures in order to address and remedy the deficiency underlying the present case. 68. The applicants also claimed EUR 2,000 in legal costs. Their representative claimed to have worked 10 hours on the case with an hourly rate of EUR 200. No receipts or invoices were provided in support of the sum claimed. 69. The Government submitted that any award should be limited to those costs which were actually and necessarily incurred and were reasonable. 70. The Court notes that the applicant received EUR 850 by way of legal aid from the Council of Europe. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the absence of any evidence to support the applicants' claim as to costs and expenses, no award is made under this head. The Court observes that in light of the reasons underlying the finding of a violation in the present case and the fact that the authorities took adequate measures to address the deficiency at issue, the Court considers that there is no justification for awarding legal costs under Article 41.

train

001-83817

ENG

RUS

CHAMBER

CASE OF LIND v. RUSSIA

Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award

Christos Rozakis

7. The applicant was born in 1981 and lives in St Petersburg. 8. The applicant is a member of the National Bolsheviks Party. 9. On 14 December 2004 a group of about forty members of the National Bolsheviks Party occupied the waiting area of the President’s administration building in Moscow and locked themselves in an office on the ground floor. 10. They asked for a meeting with the President, the deputy head of the President’s administration Mr Surkov, and the President’s economic advisor Mr Illarionov. Through the windows they distributed leaflets with a printed letter to the President that listed his ten alleged failures to comply with the Constitution and contained a call for his resignation. 11. The intruders stayed in the office for one hour and a half until the police broke down the blocked door. They did not offer any other resistance to the authorities. 12. On 16 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant’s detention on the ground that he was suspected of a particularly serious criminal offence, had no permanent residence in Moscow and was a Dutch national. It considered that there was a risk of his re-offending, absconding, interfering with the investigation or intimidating witnesses. 13. The applicant appealed, complaining that the District Court had not cited any facts to justify the necessity of ordering his detention. On 3 February 2005 the Moscow City Court upheld the detention order on appeal, finding that it had been lawful and justified. 14. On 21 December 2004 the applicant was charged with an attempted violent overthrow of State power (Article 278 of the Criminal Code) and intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214). 15. On 8 February 2005 the Zamoskvoretskiy District Court of Moscow extended the applicant’s detention until 14 April 2005, referring to the gravity of the charge. The applicant had no permanent residence in Moscow and there were reasons to believe that he might abscond or interfere with the investigation. 16. The applicant’s counsel appealed. He asked the court to release the applicant, taking into account that he had no criminal record, had positive references and was of frail health. On 9 March 2005 the Moscow City Court upheld the extension order on appeal. 17. On 16 February 2005 the applicant’s charge was amended to that of participation in mass disorders, an offence under Article 212 § 2 of the Criminal Code. 18. On an unspecified date the prosecutor requested the court to extend the applicant’s detention until 14 August 2005. On 14 April 2005 the Zamoskvoretskiy District Court of Moscow extended the applicant’s detention until 14 July 2005 for the following reasons: “There are no reasons to vary the preventive measure. Taking into account the gravity of the charges and [the applicant’s] individual situation, the court considers that there are sufficient indications that [the applicant], once released, might abscond. At the same time, bearing in mind that the parties to the criminal proceedings have already started studying the case file, the extension asked for by the prosecution appears to be excessive and must be limited to three months. This period will be sufficient for all parties to the proceedings to study effectively the entire case file.” 19. On 14 April 2005 the applicant’s counsel appealed. He asked the court to apply a more lenient preventive measure, taking into account that the applicant had no criminal record, had a permanent place of residence in Russia, studied at a university and suffered from a kidney disease. He also submitted that the applicant did not need so much time to study the case file. At the appeal hearing before the Moscow City Court the applicant confirmed that he had finished studying the case file. 20. On 11 May 2005 the Moscow City Court upheld the decision of 14 April 2005, finding that it had been lawful, sufficiently reasoned and justified. 21. On 7 June 2005 the investigation was completed and thirty-nine persons, including the applicant, were committed for trial. 22. On 20 June 2005 the Tverskoy District Court of Moscow scheduled the preliminary hearing for 30 June 2005 and held that all the defendants should remain in custody. 23. On 30 June 2005 the Tverskoy District Court held a preliminary hearing. It rejected the defendants’ requests to release them, citing the gravity of the charges against them and the risk of their absconding or obstructing justice. 24. The applicant’s counsel appealed. He repeated the arguments advanced in the grounds of appeal of 14 April 2005 and added that the applicant’s father, Mr Jaap Jan Lind, a Dutch national and the former Governor of the New Guinea, was dying of cancer in the Netherlands. On 17 August 2005 the Moscow City Court upheld the decision of 30 June 2005 on appeal, finding that it had been lawful, well-reasoned and justified. 25. The trial started on 8 July 2005. 26. On 14 July 2005 the applicant lodged an application for release, referring to his frail health and a need for a medical examination. On 27 July 2005 the Tverskoy District Court rejected the request. It held that the applicant’s detention was lawful and justified. The applicant had not submitted medical certificates showing that his state of health was incompatible with custody. On 5 October 2005 the Moscow City Court upheld the decision on appeal. 27. On 10 August 2005 the applicant’s counsel filed a further application for release. He submitted medical certificates, confirming the applicant’s and his father’s diseases. A human-rights activist, Mr Ponomarev, offered his personal guarantee that the applicant would not abscond. The Dutch Embassy asked the court to release the applicant taking into account the precarious state of his health and his father’s terminal illness. Other defendants also lodged applications for release. 28. On 10 August 2005 the Tverskoy District Court rejected the requests. It held: “The court takes into account the defence’s argument that the individual approach to each defendant’s situation is essential when deciding on the preventive measure. Examining the grounds on which ... the court ordered and extended detention in respect of all the defendants without exception ... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all the defendants, and to the personal guarantees offered by certain private individuals and included in the case file, the court concludes that, if released, each of the applicants might abscond or obstruct justice in some other way.” 29. The applicant appealed, complaining that the District Court had disregarded the medical evidence confirming his and his father’s poor state of health. On 2 November 2005 the Moscow City Court upheld the decision of 10 August 2005 on appeal, finding that the applicant had not submitted medical certificates showing that his state of health prevented him from remaining in custody. 30. On 16 September 2005 the Tverskoy District Court rejected a new application for release, repeating verbatim the wording of the decision of 10 August 2005. 31. In September 2005 the applicant asked the domestic courts to release him for a few days so that he could see his father. Mr Jaap Lind had asked for euthanasia which was scheduled for 29 September 2005. The Dutch Ambassador seconded his request. 32. On 27 September 2005 the Tverskoy District Court of Moscow refused to release the applicant. It found that since the applicant was a Dutch national he might abscond or interfere with the proceedings. 33. On 28 September 2005 the applicant was permitted a phone conversation with his father, in Russian only. The Dutch Embassy paid for the call. The conversation was interrupted by the facility administration a minute later. 34. On 29 September 2005 Mr Jaap Lind died by euthanasia. 35. On 27 October 2005 the Moscow City Court upheld the decision of 27 September 2005 on appeal. It held that the information about the deterioration of the applicant’s father’s health and the Dutch Ambassador’s request to release the applicant had been considered. However, the refusal to release the applicant had been justified, given the gravity of the charge against him. The court found that the applicant had been living in Russia since 1989, had visited his father no more than once a year and had mainly communicated with him by mail and phone. He had been given an opportunity to talk to his father over the phone. It further held that the applicant’s state of health was satisfactory, therefore there was no reason to amend the preventive measure. 36. In October 2005 the applicant lodged a new application for release. He submitted that his father had died and he wanted to attend the farewell ceremony. The applicant vouched that he had no intention of absconding and referred to his clean criminal record and positive references. The Dutch Ambassador for a third time asked the court for the applicant’s temporary release so that he could attend the farewell ceremony. 37. On 3 October 2005 the Tverskoy District Court rejected the request. It referred to the gravity of the charge and the applicant’s Dutch nationality which gave reasons to believe that he might abscond. 38. The applicant appealed. He again asked the court to release him so that he could attend a farewell ceremony for his father. He also contended that he suffered from a chronic kidney disease and required constant medical supervision and treatment. He complained that his applications to the detention facility doctor had remained unanswered and that he had not been provided with any treatment for his disease. 39. On 27 October 2005 the Moscow City Court upheld the decision on appeal. It found that the applicant’s father had donated his body to science, therefore there had been no funeral. The farewell ceremony was scheduled for 30 October 2005 in The Hague. Taking into account the gravity of the charge and the applicant’s previously rare contact with his father, it was inopportune to release him. 40. On 8 December 2005 the Tverskoy District Court convicted the applicant of participation in mass disorders and sentenced him to three years’ imprisonment conditional on two years’ probation. The applicant was immediately released. 41. The applicant was held in detention facility no. IZ-77/2 in Moscow. 42. According to a certificate of 23 November 2005 issued by the facility administration, produced by the Government, from 16 to 17 December 2004 and from 9 to 10 February 2005 the applicant was kept in cell no. 511. The cell measured 9.7 sq. m, was equipped with five bunks and accommodated three or four inmates. Cell no. 100 – where the applicant was held from 17 December 2004 to 9 February 2005 and from 10 February to 29 April 2005 – measured 54.7 sq. m, was equipped with twenty-two bunks and housed twenty inmates on average. From 29 April to 8 December 2005 the applicant was detained in cell no. 13 measuring 8.4 sq. m, containing four bunks and accommodating four inmates on average. The Government submitted that the applicant had at all times had a separate bunk and had been provided with bedding. 43. The Government contended that the cells were naturally illuminated through the windows and were also equipped with fluorescent lamps which functioned during the day and at night. On 12 July and 18 October 2005 cells nos. 2, 85, 101, 121, 159, 144, 148, 160, 163, and 236 were examined by a sanitary officer who found the sanitary conditions satisfactory. No traces of insects or rodents were discovered. Relying on a certificate of 12 November 2005 from the facility administration, the Government further submitted that all cells were equipped with a lavatory pan. It was separated from the living area by a brick partition of 1.3 or 2.5 metres in height. 44. The Government affirmed that inmates were provided with food three times a day. They had an hour-long walk daily. The detention facility housed a medical unit which was open twenty-four hours and had all the necessary equipment for high-standard medical assistance. However, the applicant never applied for medical aid. 45. The applicant did not dispute the cell measurements, the number of bunks and the number of inmates per cell. He disagreed, however, with the Government’s description of the sanitary conditions. The cells swarmed with cockroaches, crickets and lice. There was no ventilation and it was stifling and smoky inside. The partition separating the toilet facilities from the living area did not offer sufficient privacy and the person using the toilet was in view of the other inmates. The artificial light was never switched off disturbing the applicant’s sleep. The applicant conceded that an hour-long walk was organised every day. However, the exercise yard was covered and measured no more than 15 sq. m. Food was scarce. Inmates were allowed to take a shower for ten minutes once a week. 46. The applicant suffered from chronic glomerulonephritis (a kidney disease) and required constant medical supervision and treatment. He received no treatment. On 18 and 25 July 2005 he complained of an aching kidney and asked the facility doctor to examine him and prescribe medication. His request remained unanswered. 47. Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001). 48. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112). 49. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). 50. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 51. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated to the day when the prosecutor sends the case to the trial court (Article 109 § 9). 52. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 53. A Russian national has to produce a travel passport to cross the Russian border (section 7 of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996). The travel passport of an accused can be retained by a court, a prosecutor or a policeman until the termination of the criminal proceedings (sections 6.1 § 3 and 6.7 of the Instruction on issuance of travel passports, approved by the Order of the Ministry of Internal Affairs, no. 310 of 26 May 1997).

train

001-95323

ENG

MKD

CHAMBER

CASE OF TRAJCE STOJANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 5-1-e;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

6. The applicant was born in 1973 and lives in Štip. 7. On 10 July 1998 the Štip Court of First Instance (“the trial court”) ordered an indefinite security measure against the applicant, who was a deaf mute, of “compulsory psychiatric treatment and confinement in a medical institution of a closed type” (задолжително психијатриско лекување и чување во здравствена установа од затворен тип) (“the confinement order”) for causing “serious bodily injury” and “endangering another with a dangerous implement in a fight or quarrel”. The court established that on 23 October 1995 an incident had taken place in the court building between Mr I., the applicant's father, and Mr D., as parties summoned to attend a hearing scheduled for that day. The applicant intervened in the quarrel and knocked Mr D. down. Mr D. sustained severe head injuries and a brain haemorrhage as a result of the fall and died seven days later. The applicant also hit a judge several times. He was subsequently prevented from assaulting a third person. The court found that the applicant was “slightly mentally retarded” and considered aggressive and a danger to the public, in particular villagers whom he had allegedly often assaulted. Two medical reports drawn up by three psychiatric experts confirmed that the applicant was mentally ill, and needed medical treatment in a specialised psychiatric hospital. 8. The confinement order was enforced immediately. The applicant was placed in the Negorci Hospital for Mental Diseases (hereafter “the hospital”). 9. On 28 October 1999 the hospital requested the trial court to amend the confinement order and release the applicant on condition that he undergoes compulsory psychiatric treatment. It based its proposal on the applicant's good behaviour in the past, the good relations he had established with the staff and other patients and the absence of any neurotic or psychiatric disorder since his confinement. The hospital noted that the applicant was mentally ill, which was a permanent state that could not be regarded as a disease. The public prosecutor supported the hospital's proposal. 10. In submissions of 16 June 2000, the applicant's sister requested that the trial court decide on the hospital's proposal. A petition signed by over seventy villagers, indicating that the applicant had been never dangerous and had been accepted in the village, was also attached to the request. 11. The trial court, in a decision confirmed on appeal, dismissed the hospital's proposal relying on a notification by police, according to which the applicant had left the hospital several times and his visits to the village had been perceived as a threat and a danger by the local inhabitants. The police also referred to an incident of 1 January 2001 involving the applicant and Mr D.'s son. In a court decision of 11 February 2002, confirmed on appeal, Mr D.'s son was acquitted, as having acted in self-defence, of causing grievous bodily injury to the applicant. The court also referred to another petition signed by many villagers, which allegedly had been attached to the notification. 12. On 3 April 2003 the hospital lodged with the trial court a fresh proposal for the applicant's conditional release, which was based on similar grounds to those of the previous review: good relations with the staff and other patients; no disturbance of order; mild drug therapy. The proposal was made with the stated aim of a faster and more efficient re-socialisation and reintegration of the applicant. The applicant was transferred to an open ward of the hospital. The public prosecutor supported the hospital's proposal. 13. In submissions of 25 April 2003, the applicant, who was represented by Mr Garazov, informed the court that his father intended to change residence and had consequently bought an apartment elsewhere. 14. On 24 September 2003 the trial court requested the police to make an inquiry into whether the applicant had caused problems during his stay in the village and whether he had been a danger to the local inhabitants. 15. On 20 November 2003 the trial court dismissed the hospital's proposal, relying on a police report of 13 October 2003. It stated, inter alia, that: “...the applicant left the hospital several times and went to stay with his father...the last visit was in August 2003...after his arrival in the village, he started shouting out some indistinct words...although he was noticed by the inhabitants, there were no attacks on other persons...during the four-day stay in the village, he was always with his father. His presence in the village frightened, in particular, the immediate neighbours, who protected themselves by shutting up their houses and barring them from inside. Many inhabitants said that the applicant was under the psychological influence of his father, who – when intoxicated – had often provoked him by telling lies about the death of his mother and had thus made him aggressive towards some people. Local inhabitants therefore still feared the applicant's aggression...” 16. On 6 January 2004 the applicant left the hospital without consent and remained at large until 8 June 2004, when the police returned him. 17. On 9 February 2004 the applicant complained that the trial court had not based its decision on relevant facts, arguing that the expert opinions of the hospital and the responsible medical officer who had treated him were the only evidence relevant for the court. He maintained that in case of misgivings as to the validity of the hospital's opinion, the court should have obtained an alternative medical expertise. In submissions of 31 March 2004, the public prosecutor supported the applicant's appeal and his request that the case be remitted for fresh consideration. 18. On 13 April 2004 the Štip Court of Appeal dismissed the applicant's appeal and stated that the hospital's proposal was irrelevant since it was not binding on the court. It ruled that on the basis of the results of the medical treatment it was free to decide whether the applicant was fit to be discharged from the hospital and treated on release. Lastly, it concluded that the applicant had escaped from the hospital several times and had presented a threat to the public. It was therefore too early to consider him fit for release. 19. No further annual reviews were carried out until the hospital's fresh proposal of 7 November 2008 (see paragraph 21 below). 20. Since 14 February 2007 the applicant has been placed in a semi-open ward of the hospital, where he is responsible for the maintenance and hygiene of the ward. He cannot leave the hospital at will, unless authorised by a doctor. His last unauthorised leave from the hospital dates back to 11 September 2007. The police returned him after 13 days. After that incident, a decision was taken that the applicant be allowed to leave the hospital. Between October 2007 and September 2008 the applicant was given leave on four occasions, each time lasting not more than a month. During this so-called “therapy probationary leave”, the applicant received the prescribed therapy and his father took care of him. His mental health was stable and required no special supervision. 21. On 7 November 2008 the hospital unsuccessfully applied for replacement of the confinement order with the applicant's conditional release, which was now to be accompanied by removal of his legal capacity and appointment of a guardian (старател). The latter was based on the hospital's view that the applicant's father was unfit to take proper care of him. At a public hearing held on 27 November 2008, and after consulting two doctors from the hospital and a Social Care Centre representative, the trial court found no one suitable to be appointed as the applicant's guardian, if released. No information was provided as to whether the applicant appealed against this decision. 22. The relevant provision of the Criminal Proceedings Act (“the Act”) reads as follows: Section 483 A court which at first instance has ordered compulsory psychiatric treatment and confinement in a medical institution may discontinue the order and release the perpetrator from the medical institution of its own motion or upon a proposal lodged by the medical institution or the custodial institution and after hearing the public prosecutor. It shall so decide if, after consulting the medical officer, it finds that there is no need for medical treatment and confinement of the perpetrator in the institution. It can order his or her release on condition that he or she undergoes compulsory psychiatric treatment. 23. The relevant provisions of the Criminal Code read as follows: Article 63 Compulsory psychiatric treatment and confinement in a medical institution “(1) The court shall order the compulsory psychiatric treatment and confinement in a medical institution of a perpetrator who has committed an offence while of unsound mind or with a substantial mental deficiency if it finds that, due to that condition, he or she may reoffend and that medical treatment and confinement in such an institution is warranted to prevent him or her from doing so. (2) The court shall discontinue the measure set forth in paragraph 1 when it finds that there is no need for medical treatment and confinement of the perpetrator in the medical institution. ... (4) The court shall review the need for medical treatment and confinement in a medical institution every year.” Article 64 Compulsory psychiatric treatment on release “(1) The court shall order compulsory psychiatric treatment on release of a perpetrator who has committed an offence while of unsound mind if it finds that, due to that condition, he or she may reoffend and that medical treatment on release would be sufficient to prevent him or her from doing so. (2) The measure set forth in paragraph 1 may be imposed on an offender who has already undergone compulsory psychiatric treatment and confinement in a medical institution when, on the basis of the results of the medical treatment, the court determines that his or her treatment and confinement in a medical institution is no longer necessary...”

train

001-91413

ENG

TUR

GRANDCHAMBER

CASE OF KOZACIOĞLU v. TURKEY

Preliminary objections dismissed (non-exhaustion of domestic remedies, six-month period);Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - finding of a violation sufficient

Antonella Mularoni;Christos Rozakis;Dean Spielmann;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mihai Poalelungi;Mindia Ugrekhelidze;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky

9. The applicant, a Turkish national who was born in 1903 and died in 2005, was resident in Adana at the relevant time. 10. During the 1930s he acquired for value a two-floor freestone building, constructed in 1906, in the sub-prefecture of Tarsus, İçel province. The building, which had a total floor space of 516.34 m², was of architectural interest in its own right. 11. On 1 November 1990 the Committee for the Protection of Adana's Cultural and Natural Heritage decided to classify the property as a “cultural asset” within the meaning of the Cultural and Natural Heritage (Protection) Act (Law no. 2863 of 21 July 1983). On 23 November 1998 it was included in the project for protection of the urban environment. It was also included on the Council of Europe's inventory for the protection of the cultural and natural heritage. 12. On 4 April 2000 the executive council of İçel province issued an expropriation order in respect of the property in the context of the “Project for the environmental rehabilitation and regeneration of the streets around St Paul's Well”. On the basis of a valuation report submitted on 21 March 2000 by a panel of experts (hereafter “panel no. 1”) made up of three representatives of the authorities and two representatives of property owners, and in line with the “high-grade building” category in the construction price index published by the Ministry of Urban Planning, the council determined the building's value at 36,856,865,000 Turkish liras (TRL) (about 65,326 euros (EUR)). This amount was paid to the applicant on the date of transfer of ownership. 13. On 12 October 2000 the applicant lodged an application for increased compensation for the expropriated building with the Tarsus District Court. He requested that a new panel of experts, to include a qualified art historian, re-assess the property, taking into account its historical and architectural value. He claimed TRL 1,000,000,000,000 (about EUR 1,728,750) in additional compensation. 14. On 26 February 2001 the court held a hearing and dismissed the applicant's request for re-valuation of the building on the ground of its historical value. The court held, inter alia, that under section 11 (1) of the Expropriation Act (Law no. 2942) (see paragraph 29 below), the panel of experts responsible for the building's valuation could only determine its value on the basis of clearly defined objective data. At the same time, it agreed to the appointment of a new panel of experts, to be made up of a civil engineer, an architect and a representative of property owners. 15. On 10 May 2001, after visiting the site, the court-appointed panel of experts (hereafter panel no. 2) submitted its report. With regard to those features and factors which had a bearing on the property's value, it reached the following conclusions: “The property in question is located in the Camicedit neighbourhood, within the territory of Tarsus, in the Mersin District. It is recorded in the land register as a solid structure house with a courtyard. Situated in an urban area, it is classed as a listed building in the project for protection of the urban heritage. The decision to classify the building was adopted by the Committee for the Protection of Adana's Cultural and Natural Heritage on 1 November 1990... The property under dispute... is located ... in the town centre, at the corner of two streets, and its south- and east-facing façades give onto the road.. It is situated in a high-density business and retail area... It borders the north side of the plot of land on which St Paul's well is located. The latter, a site of considerable importance in terms of history and tourism, has long been considered sacred, and visited, by Christians. Thus, before its expropriation, the property was at the centre of “religious tourism”. Archaeological research indicates that the district of Tarsus is an area that was settled in the period 10,000–4,000 B.C. It is therefore of historical and cultural value. In addition to the historical monuments which are visible above ground, the ruins of an ancient town have been discovered in the course of excavation works alongside the law courts..., and the area has been placed under protection.” 16. In determining the value of the building, panel no. 2 based its findings primarily on the construction price index published by the Ministry of Urban Planning, specifically the category “buildings requiring restoration”. It stated its findings as follows: “The building which is located on the disputed land is composed of two floors, each with a living floor space of 258.17 m², its total living floor space being therefore 516.34 m². It has been constructed from dressed stone and the architecture of the linking pieces is in the Baghdad style. It was designed as a residential building. The ground floor is in a simple [architectural] style, and the first floor has the features of dressed stone buildings. There is a balcony ... on the first floor. The dressed stone of the window arches and balcony is highly embellished. Thus, the disputed property has the features of buildings... constructed in line with the Mediterranean tradition, known as 'Tarsus houses' (Tarsus evleri). It has also been included in the Council of Europe's inventory for the protection of the cultural and natural heritage. It was in this building that Ataturk stayed during his visit to Tarsus in the 1930s. In spite of its age, and having regard to the above-mentioned features, the building has been protected and maintained in good condition by its owners. In those circumstances, a depreciation rate of 50 % has been decided on. As the building comes within class V, group D (buildings requiring restoration) under the Ministry of Urban Planning's circular of 2000..., the approximate cost of construction per square metre ... has been set at TRL 351,413,000.” 17. Panel no. 2 concluded that panel no. 1 (see paragraph 12 above) had valued the disputed building as an ordinary dressed-stone building, without taking account of its architectural features. It decided not to adopt those valuation criteria and assessed the building's value at an initial TRL 181,448,588,000. It then reduced this amount to TRL 90,724,294,000, noting that the building's depreciation justified a reduction of 50%. However, it then increased this sum to TRL 181,448,588,000, holding that, in view of the building's architectural, historical and cultural features, its value should be increased by 100 %. After deduction of the expropriation compensation already paid to the applicant, the panel decided that the additional compensation should be TRL 144,591,723,000. 18. A third panel of experts (hereafter “panel no. 3”) submitted a report on 12 June 2001, confirming all of the conclusions in the second expert report. 19. On 14 June 2001 the applicant requested a further expert report, on the ground that the two previous reports had failed to take sufficient account of the building's architectural and historical features in assessing its value. 20. On 15 June 2001 the court, after dismissing the request for an additional expert report, allowed part of the applicant's claim and instructed the authorities to pay him TRL 144,591,723,000 (about EUR 139,728) in additional compensation, with interest at the statutory rate, to be calculated from 3 October 2000. 21. On 19 November 2001 the Court of Cassation set aside that judgment. It held that under section 15 (d) of the Cultural and Natural Heritage (Protection) Act (Law no. 2863), neither a building's architectural or historical features nor those resulting from its rarity could enter into play in the assessment of its value. Consequently, a 100 % increase in the amount of additional compensation could not be considered justified. 22. On 4 December 2001 the applicant petitioned for rectification of the Court of Cassation's judgment. He contested the amount of expropriation compensation and emphasised, inter alia, the absence of a legal criterion that would enable the value of buildings making up the country's cultural and historical heritage to be calculated. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1. 23. On 21 January 2002 the Court of Cassation dismissed the applicant's request for rectification. 24. On 15 February 2002 the District Court complied with the Court of Cassation's judgment and fixed the amount of additional compensation at TRL 53,867,429,000 (about EUR 45,980), with interest, to be calculated from 3 October 2000. 25. On 27 May 2002 the Court of Cassation upheld the judgment of the first-instance court. 26. On 23 December 2002 the Ministry of Finance issued a payment order for TRL 124,807,810,000 (about EUR 91,905), broken down as TRL 53,867,429,000 in respect of additional compensation and TRL 70,940,390,000 in respect of interest. 27. The case file shows that, following judicial proceedings which ended in 2005, the applicant received separate compensation for the land on which the building was constructed. According to information submitted by the Government and uncontested by the applicant's representatives, the compensation received following the expropriation of the land was 145,460 new Turkish liras (TRY) (about EUR 87,101). 28. Section 15 of the Cultural and Natural Heritage (Protection) Act provides: “Real property which forms part of the cultural heritage may be expropriated in accordance with the principles set out below: ... (d) in calculating the compensation to be awarded for expropriation, the value resulting from a property's age, rarity and artistic features shall not be taken into consideration.” 29. Section 11 of the Expropriation Act provides: “The criteria for determining expropriation compensation After having visited, with the judges, the site on which the property to be expropriated is situated... and having obtained the opinion of the interested parties, the panel of experts formed in accordance with section 15 shall draw up a report, taking into account: (a) the type and nature of the property under consideration; (b) its area; (c) the features and factors likely to influence its value, and the valuation of each factor; (d) the tax declaration in respect of the property, where one exists; (e) the values determined by the authorities at the date of expropriation; (f) for farmland, the potential profit on the date of expropriation if account is taken of the existing land-use and the site; (g) for construction land, the market value as determined by comparison with that of other equivalent plots of land sold under normal conditions prior to the date of expropriation; (h) for buildings, the official unit amount, the construction costs and the depreciation rate; (i) all other objective criteria likely to influence the value ... of the property to be expropriated. The panel shall determine the value of the property by mentioning in its report its finding in respect of each of the above-mentioned criteria, taking account of the statements of the interested parties and basing its findings on a reasoned valuation report. In determining the value of the property, no account shall be taken of the added value created by the initiative of the urban-planning or other department which lay behind the expropriation, nor of future profits arising from the various uses envisaged for it. ...” 30. In numerous cases the 18th Civil Division of the Court of Cassation has quashed judgments delivered by lower courts which did not take account of the depreciation that the properties in question might have incurred as a result of their status as listed buildings (see, for example, the judgments of 30 November 2004 -2004/8082 E., 2004/8946 K.-, 20 December 2004 -2004/9692 E., 2004/9893 K.-, 5 May 2006 -2005/3263 E., 2005/4696 K.- and 16 June 2006 -2005/3064 E., 2005/6355 K.-). “Each Party undertakes: 1. to take statutory measures to protect the architectural heritage; 2. within the framework of such measures and by means specific to each State or region, to make provision for the protection of monuments, groups of buildings and sites.” “Each Party undertakes: ... 2. to prevent the disfigurement, dilapidation or demolition of protected properties. To this end, each Party undertakes to introduce, if it has not already done so, legislation which: ... (d) allows compulsory purchase of a protected property.” 32. To date, thirteen countries have signed this convention, and only three countries have ratified it. Turkey has not signed it. The text includes the following provisions: “The Parties to this Convention agree to: (a) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life, as defined in the Universal Declaration of Human Rights; ... (c) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal; ...” “The Parties recognise that: ... (c) exercise of the right to cultural heritage may be subject only to those restrictions which are necessary in a democratic society for the protection of the public interest and the rights and freedoms of others.” “No provision of this Convention shall be interpreted so as to: (a) limit or undermine the human rights and fundamental freedoms which may be safeguarded by international instruments, in particular, the Universal Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms; (b) affect more favourable provisions concerning cultural heritage and environment contained in other national or international legal instruments; (c) create enforceable rights.” “Article 4 deals with the rights and responsibilities of individuals in respect of cultural heritage. ... (c) The clause approving a restriction on the exercise of rights and corresponding freedoms relies for its interpretation clearly upon the spirit and arrangements of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Public interest considerations (see Article 5 (a)), for example to protect important elements of the cultural heritage, must always be balanced against the need to protect individual property rights.” 34. In the Council of Europe's member States, it is accepted in principle that, in order to satisfy the requirements of the principle of proportionality, an amount of compensation that is “fair and just” (Cyprus), “fair and payable in advance” (France), “fair and payable immediately” (Estonia), “adequate” (Slovakia) or “appropriate” (Germany and Austria), or that is based on the “value” (Lithuania), “full value” (Albania), “current value” (Finland), “market value” (Sweden) or the “fair price” (Italy) of the expropriated property must be determined. In the United Kingdom, a property's historical value is held to be one of the criteria used in assessing its “intrinsic qualities” (see Tadcaster Tower Brewery Co v. Wilson [1897] 1 Ch 705, and Belton v. LCC (1893) 68 LT 411). In Greece, the State must take account of the building's possible historical status in assessing the level of compensation. In Latvia, the expropriation legislation provides that the public authorities must take account of any particular feature of the building in determining the level of compensation. In Spain, the expropriation of buildings that are of artistic, archaeological or historical value is subject to a special procedure, and the amount of compensation cannot be fixed at an amount lower than that which would result from application of the general procedure set out in the legislation on expropriation. None of the above States, nor Belgium or the Netherlands, specifically rules out taking an expropriated property's architectural and historical features into account when determining the compensation to be awarded.

train

001-68476

ENG

POL

ADMISSIBILITY

CHARZYNSKI v. POLAND

Inadmissible

Nicolas Bratza

1. The applicant, Mr Piotr Charzyński, is a Polish national who was born in 1967 and lives in Warsaw, Poland. He was represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of the Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 9 May 1996 the applicant was detained on remand on suspicion of fraud and forgery. He was released on bail on 13 September 1996. 4. On 22 November 1996 a bill of indictment against the applicant and his coaccused was lodged with the Warsaw Regional Court (Sąd Okręgowy). The applicant was charged with several counts of fraud and forgery, allegedly committed between February and May 1996. 5. The first hearing was scheduled for 28 June 2000 but it was adjourned due to the applicant’s absence. Subsequently, the trial court held hearings on 8 November and 6 December 2000 and on 10 January, 8 February, 24 April, 26 June and 8 August 2001. In October 2001 the court held three hearings. 6. On 30 October 2001 the Warsaw Regional Court gave judgment. The applicant and the co-accused were convicted as charged. The applicant was sentenced to three years’ imprisonment and a fine. The applicant appealed. 7. On 4 December 2002 the Warsaw Court of Appeal (Sąd Apelacyjny) heard the appeal. It partly quashed the impugned judgment in so far as it concerned the conviction of the applicant and remitted the case. The remainder of the Regional Court’s judgment, concerning the coaccused, was upheld. 8. On 24 April 2003 the Warsaw District Court held a hearing at which it dismissed an application by the applicant for the bail conditions imposed on him to be lifted. 9. The applicant appealed against this decision. On 10 July 2003 the Warsaw Regional Court dismissed his appeal. 10. The next hearing was scheduled for 1 February 2005. 11. The proceedings are pending before the Warsaw District Court. 12. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to prevent and/or provide redress for the undue length of judicial proceedings. 13. Section 2 of the 2004 Act reads, in so far as relevant: “1. Parties to proceedings may complain Pursuant to section 3: “A complaint may be lodged: ... (4) in criminal proceedings – by a party or a victim even if he is not a party; (5) in civil proceedings – by a party (strona), an intervener (interwenient uboczny) or a participant (uczestnik postępowania); ...” 14. Section 4 provides, in so far as relevant: “1. The complaint shall be examined by the court immediately above the court conducting the impugned proceedings. 2. If the complaint concerns an unreasonable delay in the proceedings before the Court of Appeal or the Supreme Court it shall be examined by the Supreme Court. ...” 15. Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 16. Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” 17. Section 15 provides for an additional compensatory remedy: “1. Parties whose complaints have been allowed may seek compensation from the State Treasury ... for the damage they suffered as a result of the unreasonable length of the proceedings.” 18. Section 16 further specifies that: “A party who has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may lodge a claim – under Article 417 of the Civil Code ... – after the proceedings concerning the merits of the case have ended, seeking compensation for the damage which resulted from the unreasonable length of the proceedings.” 19. Section 17 concerns court fees for lodging a complaint: “1. The complainant shall pay a court fee in the amount of PLN 100.... 3. If the court considers that the complaint is justified, it shall reimburse the court fee to the complainant.” 20. Section 18 lays down the following transitional rules in relation to the applications already pending before the Court: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. 2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court. 3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.” 21. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.” 22. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. Following the 2004 Amendment, Article 4171 was added, which, in so far as relevant, reads as follows: “3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.” However, the transitional provision in section 5 of the 2004 Amendment, stated that Article 417, as applicable before 1 September 2004 (see paragraph 21 above), was to apply to all events and legal situations that subsisted before that date. 23. On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

train

001-108710

ENG

FRA

CHAMBER

CASE OF POPOV v. FRANCE

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Prevent unauthorised entry into country);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

5. The applicants are Mr Vladimir Popov and Mrs Yekaterina Popov née Yakovenko, nationals of Kazakhstan, born in 1983 and 1982 respectively, and their two minor children, who were born in France on 7 April 2004 and 17 March 2007. 6. The applicants were born in Kazakhstan. They were married on 18 June 2002. In the applicants’ submission they were repeatedly persecuted in their country on account of their Russian origin and their affiliation to the Russian Orthodox Church. On 9 May 2002 the applicant’s father was beaten up in the street and required treatment in hospital. The family filed a complaint and on 5 June 2002 the applicants received, at their house, a visit from unknown individuals of Kazakh origin who asked them to withdraw their complaint and threatened them with reprisals. On 15 July 2002 an incendiary device was thrown into their home through the window, starting a fire, and they were rescued by a neighbour. Following that incident, the applicant’s father left Kazakhstan on 16 August 2002. 7. On 29 September 2002, when the second applicant was returning home, Kazakh police officers stopped her in the street and questioned her about her father. They took her away and she was beaten up. They tried to shut her in a vehicle and threatened to rape and kill her. She managed to escape. The next day, she went to the casualty department in the town of Taraz to have her injuries recorded and treated. On 2 October 2002 her mother came home having also been beaten up by Kazakh policemen who were looking for her husband. After that incident they moved to the country. 8. On 28 November 2002 the second applicant was again assaulted. She had gone shopping and did not return until the next day, covered in bruises and blood. Several days later she lost the child she was carrying. She then decided to leave the country and entered France on 15 December 2002 on a two-week visa. After her departure, the applicant, who had filed a complaint, was assaulted by policemen on 10 March 2003. He spent several months in hiding but the authorities found him, confiscated his papers, and threatened to kill him if he did not withdraw his complaint. He too decided to leave the country and joined his wife in France on 19 June 2003. 9. The applicants each filed an asylum application with the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and obtained residence permits. Their asylum applications were rejected on 20 January 2004 on the ground that their statements were “riddled with inconsistencies”, followed “a stereotyped pattern” and were “unconvincing”. On 31 May 2005 the Refugee Appeals Board dismissed their appeals. 10. On 12 January 2006, having learnt of the murder of the second applicant’s father, after his return to Kazakhstan, the applicants requested a fresh examination of their case by the OFPRA. On 19 January 2006 the OFPRA refused to re-examine the case. On 13 September 2006 the Appeals Board rejected their appeal on the ground that the new fact could not be regarded as established. 11. They subsequently applied for recognition as stateless persons, but the OFPRA rejected their request on 5 April 2007, on the ground, first, that they had not provided evidence that the Kazakh authorities had withdrawn their nationality and they could not lose that nationality purely of their own volition, and, secondly, that they held passports issued by their national authorities that were valid until 2012. On 25 April 2007 the applicants appealed against that rejection before the Nantes Administrative Court. They subsequently dropped their appeal, however, having obtained refugee status in the meantime (see paragraph 27 below). 12. On 21 June 2005 the Ardennes prefecture notified the applicants of its refusal to issue them with residence permits and directed them to leave the country within one month. 13. On 22 November 2005 Mr Popov was arrested during a vehicle check when he was found to be in the country illegally. On the next day he was issued with a removal order and placed in administrative detention in Charleville-Mézières. On 25 November 2005 the liberties and detention judge of the Charleville-Mézières tribunal de grande instance ordered the extension of his detention for fifteen days. On 9 December 2005 the detention was extended for a further fifteen days in order to “enable the enforcement of the removal measure”. 14. On 28 November 2005 the Châlons-en-Champagne Administrative Court rejected Mr Popov’s application for the annulment of the order for his removal to Kazakhstan. On 23 November 2006 the Nancy Administrative Court of Appeal upheld that judgment, finding that he had not adduced any conclusive evidence in support of his allegations that he had been persecuted in his country of origin. 15. The removal order against the first applicant was not enforced, however, and he was released from the detention centre, as no laissez-passer had been issued. 16. On 11 October 2006 it was decided to place the applicants in administrative detention but the prefect of the Ardennes ordered them to reside at a specific address, pursuant to Article L. 513-4 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). Two attempts to remove the applicants failed as a result of the mobilisation of a support group. The family was thus released. 17. On 29 January 2007 the Ardennes prefecture rejected a new request for the issuance of a residence permit to the applicants. On the same day, a further decision was delivered imposing on them an obligation to leave the country. On 31 May 2007 the Châlons-en-Champagne Administrative Court dismissed their appeal against that decision. 18. On 25 June 2008 they again applied for residence permits. As the prefecture failed to respond, the applicants challenged the implicit rejection decision before the Nantes Administrative Court. However, having subsequently obtained refugee status, the applicants withdrew their complaint. 19. On 27 August 2007 the applicants and their children, who were then under six months and three years, respectively, were apprehended at the home of the applicant’s mother, who was accommodating them, and taken into police custody. After a long wait, the Maine-et-Loire prefecture ordered their administrative detention in a hotel in Angers. On 28 August 2007 the applicants and their children were transferred to Charles-de-Gaulle airport pending their removal to Kazakhstan. However, the flight scheduled for the early afternoon was cancelled, without the prefecture having been informed, and the removal could not therefore be carried out. It was only in the evening that the applicants and their children were transferred, in a police van, to the administrative detention centre of RouenOissel. 20. That centre, even though it is mentioned on the list of centres that cater for families, does not have any real leisure or learning area. Whilst one wing is reserved for families and single women, the atmosphere there is distressing and stressful, with a lack of privacy and a high level of tension. Announcements via loud-speakers reverberate throughout the centre and exacerbate the feeling of stress. The Oissel centre, at the time of the applicants’ detention, was not equipped with the basic facilities for the detention of young children (it had metal beds with pointed corners, no cots, just a few toys in the corner of a room, etc.). The only outdoor area is a courtyard, concreted over and with wire netting over the top, and the bedroom windows are covered with a tight grill obscuring the view to the outside ... The eldest child refused to eat in the centre and showed signs of anxiety and stress. The parents had to negotiate with the police to recover their personal belongings, including the milk they had brought for the infant. They were only able to receive one short visit during their detention, as it was not easy to gain access to the centre. 21. On 29 August 2007 the liberties and detention judge of the Rouen tribunal de grande instance ordered the extension of the detention measure for fifteen days, after observing that the maintaining of a family in detention was not in breach of the decree of 30 May 2005 on administrative detention and holding areas and that their transfer to RouenOissel was not vitiated by any defect. The decision also mentioned the loss of the second applicant’s Kazakh nationality but it was found that this could not justify release, as the Administrative Court alone had jurisdiction to decide if that situation would have any consequences. On 30 August 2007 the Rouen Court of Appeal upheld the extension decision. 22. Having been held in the detention centre since 28 August 2007, the applicants were again transferred to Roissy Charles-de-Gaulle airport pending their removal on 11 September 2007, the flight being scheduled for the early afternoon. It did not go ahead, however. The applicants were not taken back to the Rouen-Oissel centre until the evening, without any measure of placement in a detention facility being decided at Roissy during that period. The prefect then applied to the Rouen liberties and detention judge to have the applicants’ detention extended for a further fifteen days, relying solely on the argument that the non-enforcement of the removal order could be attributed to the applicants themselves (CESEDA, Article L. 552-7). The applicants complained about the conditions of their detention and its length, arguing that the authorities had failed to prove that the length of the measure was strictly necessary. 23. On the same day the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the removal measure. The Court declined to indicate an interim measure in response to that request. 24. On 12 September 2007 the liberties and detention judge found that there was no evidence to show that the applicants had deliberately impeded their removal, because the documents concerning the circumstances of the attempt expressly stated that “no refusal to board the plane was recorded on 11 September 2007”, and he ordered their release, with the obligation to leave France being maintained. The prefect appealed against that decision but without seeking suspensive effect. The applicants were thus released from the detention centre. 25. On 14 September 2007 the Rouen Court of Appeal set aside the liberties and detention judge’s decision and extended the administrative detention measure for fifteen days, finding that it could be seen from certain documents in the file that the applicants had indeed prevented their removal (an e-mail from one of the border police officers mentioning the need for an escort to carry out the removal the next time, in view of Mrs Popov’s reaction). It had been found that the next flight with an escort for the applicants’ removal would not be available before 18 September 2007, and the prefect had not therefore shown a lack of diligence in organising the departure and limiting the length of the detention. He had thus been justified in seeking an extension of the administrative detention pending the organisation of a fresh removal. That decision was not enforced. 26. Before their arrest the applicants had filed a fresh request to be granted refugee status. In a decision of 6 September 2007 the OFPRA rejected the request on account of the very general nature of the alleged facts, finding that this, together with the unlikely claim of blackmail on the part of the Kazakh authorities, precluded the establishment of their veracity. The OFPRA further stated that as the allegation that the applicants had lost their nationality had not been corroborated, the request for re-examination had to be rejected. The applicants appealed against that decision. 27. On 16 July 2009 the National Asylum Tribunal granted the applicants refugee status, finding that the enquiries made by the Ardennes prefecture vis-à-vis the Kazakh authorities, in breach of the confidentiality of asylum applications, had exposed the applicants to danger in the event of their return to Kazakhstan, and that their loss of Kazakh nationality, in August 2007 and April 2008 respectively, whilst not per se constituting persecution, did not, however, preclude the granting of refugee status. 28. The detention of aliens pending their removal is mainly governed, in French domestic law, by the provisions of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). ... ... 31. The practice of detaining children accompanying their parents is governed by decree no. 2005617 of 30 May 2005 concerning administrative detention and holding areas, which amended the CESEDA provision as follows: “Administrative detention centres, which are not entitled to accommodate over 140 residents, shall provide detained aliens with hotel-type facilities and collective catering services. They shall comply with the following standards: 1. A minimum usable surface area of 10 square metres per detainee consisting of a bedroom and areas freely accessible during opening hours; 2. Non-mixed shared rooms, housing a maximum of six; 3. Personal hygiene facilities, consisting of washbasins, showers and toilets, freely accessible and in sufficient numbers, representing one washroom for every ten detainees; 4. A telephone freely accessible for every fifty detainees; 5. Premises and facilities necessary for catering, in compliance with standards laid down in a joint decision of the Agriculture Minister, the Defence Minister, the Health Minister and the Minister for SMEs, trade and crafts; 6. For more than forty detainees, a leisure room separate from the canteen, with a surface area of at least 50 square metres, plus 10 square metres for every fifteen additional detainees; 7. One or more rooms containing medical equipment, reserved for medical personnel; 8. A room for visits by family members and consular staff; 9. The room mentioned in Article R. 553-7, reserved for lawyers; 10. A room assigned to the organisation mentioned in Article R. 553-13; 11. A room, containing furniture and a telephone, assigned to the association mentioned in the first paragraph of Article R. 553-14; 12. An area for open-air exercise; 13. A luggage room. Administrative detention centres catering for families shall also contain bedrooms that are specially adapted, in particular for childcare.” “By way of exception, the court may order aliens to reside at a specific address when they can provide effective guarantees that they will not abscond, after surrendering to the police or gendarmerie their original passport and any identity document, in exchange for an acknowledgment of receipt constituting proof of the person’s identity and indicating the removal measure that is pending. Where an order to reside at a specific address is made in respect of an alien who has previously absconded from the execution of an applicable removal or deportation measure, or has breached a ban on re-entry that has not been lifted, the order shall give specific reasoning.” 32. The Court notes that French law precludes the placement of minors in administrative detention: “An obligation to leave French territory or a removal measure, pursuant to the present chapter, cannot be decided in respect of: 1o An alien who is under eighteen years of age; ...” “Deportation cannot be ordered in respect of an alien under eighteen years of age.” 33. The Cimade, an ecumenical non-governmental organisation providing assistance to immigrants, in its report “Administrative detention centres and facilities” (“Centres et locaux de rétention administrative”), published in 2010, pointed out that even though the law did not permit the detention of minors, 318 children “accompanying” their parents had been deprived of their liberty in 2009. Their average age was eight. The Cimade emphasised that administrative measures of placement in detention could not be taken against children, so their detention was devoid of legal basis. 34. As a result, the administrative detention centres of Lille-Lesquin 2, Coquelles, Lyon, Rouen-Oissel, Marseille, Metz-Queuleu, Nîmes, Saint-Jacques de la Lande (Rennes), Perpignan, Hendaye, Le Mesnil-Amelot 2 and Toulouse-Cornebarrieu were thus “authorised to receive families”. The Cimade observed that there were flagrant discrepancies between the various administrative detention centres in terms of how families were actually catered for. The total lack of guidelines as to what was indispensable for a child precluded any harmonisation of the conditions of detention for families in the centres. The task was left to each centre’s director, whose responsibility it was to adapt the day-to-day management of the centre to the particular needs of a family with children, without having the support of staff specifically trained in education. ... 42. The domestic courts have given a number of rulings on the practice of placing children accompanying their parents in administrative detention pending removal. 43. In an order of 23 October 2007 (no. 87/2007) the President of the Rennes Court of Appeal ruled on an appeal by the public prosecutor with a view to the annulment of an order by the liberties and detention judge concerning the release of a family with an infant. The public prosecutor had argued that the fact of holding them “on premises that were specially adapted to receive families did not constitute inhuman treatment”. The Court of Appeal upheld the first-instance order with the following reasoning: “even though it provides an area reserved for the ‘reception’ of families, the detention centre remains a place where aliens are detained pending their removal from France, for a maximum period of thirty-two days; in the present case, the fact of holding in such a place a young mother, her husband and their three-week-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, and secondly, of the great emotional and mental distress inflicted on the mother and father by detaining them with the infant, a distress which, by its nature and duration ..., exceeds the threshold of seriousness required for the above-mentioned provision to be engaged, and which, moreover, is manifestly disproportionate to the aim pursued, namely the couple’s removal ...” 44. In another order, this time of 29 September 2008 (no. 271/2008), the same Court of Appeal took the view that “even though it provides an area reserved for the reception of families, the detention centre remains a place of seclusion [and] the fact of holding in such a place a very young mother, her husband and their one-year-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights”. That court further noted in particular that, for a family, such seclusion caused “great emotional and mental suffering” which “exceeded the threshold of seriousness for the purposes of the Convention”. In a decision of 10 December 2009 (Bulletin 2009, I, no. 250), the Court of Cassation quashed that order. . 45. In an order of 21 February 2008, the Toulouse Court of Appeal (no. 08/00088) ordered the immediate release of the appellants on the following grounds: “the fact of holding in such a place a young mother, her husband and their two-month-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, having been held in police custody with its mother, and secondly, of the great emotional and mental distress inflicted on the mother and father by the detention measure, a distress that is manifestly disproportionate to the aim pursued, namely the execution of the removal order ...” That decision was quashed by the Court of Cassation, which decided in a judgment of 10 December 2009 (Bulletin 2009, I, no. 249) as follows: “inhuman or degrading treatment is not constituted by the provisional holding in administrative detention of a family, made up of a man, a woman and their child of a few months’ old, pending the execution of an enforceable removal measure, where such deprivation of liberty has been lawfully ordered by a judicial authority, under its supervision, and is carried out in an area of the detention centre specially reserved for families, unless it is shown that the area is not adapted to the needs of family life or of human dignity.” 46. The GISTI and the Cimade applied to the Conseil d’Etat seeking the annulment of the decree of 30 May 2005 “in so far as it organised the placement in administrative detention of families, including minors, but their applications were rejected in a judgment of 12 June 2006 (no. 282275). Concerning the detention of families, it took the view that Article 14 of the decree in question did not have the purpose or effect of permitting the administrative authorities to decide on the deprivation of liberty of the families of individuals placed in detention, but that it sought only to provide for the reception of such families. The Conseil d’Etat thus concluded that the administrative authority was competent to make such arrangements, which were not in breach either of the CESEDA or of the New York Convention on the Rights of the Child. ... ... ... 56. Following his visit from 5 to 21 September 2005, the Commissioner for Human Rights published, on 15 February 2006, a report on “the effective respect for human rights in France” (CommDH(2006)2). He observed, concerning the detention of minors, that children should not be kept in an enclosed facility, offering little in the way of activities and few, if any, outings, and where conditions were precarious and their safety could not be guaranteed. He recommended that an alternative solution be proposed to families with children (§ 196). He noted in this connection that compulsory residence orders, which were provided for by law, were “little used” (§ 257). The Commissioner further observed that the placement of children in a detention centre was incompatible with the New York Convention and French law, which precluded the use of removal orders against minors. He found, however, that a legal vacuum made it possible to place children in detention centres and remove them, on the grounds of concern not to separate them from their families. In his view, the French authorities appeared to completely underestimate the legal and humanitarian problems posed by the presence of children in such centres (§ 255). He added, lastly, that in any event, no children should be detained on the grounds that their parents did not have the necessary papers to remain in France, especially “in places marked by overcrowding, dilapidation, promiscuity (sic) and very strong tensions” (§ 257). 57. In his report of 20 November 2008 (CommDH2008(34)) the Commissioner noted that “[n]otwithstanding the recommendation made in the 2006 report, an increasing number of children [were] placed in administrative holding centres with their parents”. He added that it was regrettable that such holding centres and waiting zones at the border were the only places in France where minors under the age of 13 were deprived of their liberty. He found, lastly, that the French authorities continued to underestimate the problems posed by the presence of children in holding centres and invited the authorities to place families in administrative detention only in cases of extreme necessity, so as to avoid causing children irreparable trauma. 58. Following its visit to numerous administrative detention centres in France (Palaiseau, Vincennes 1 and 2, Marseille, Toulouse-Blagnac 2 and Cornebarrieu), in 2006, the CPT raised with the Government the question of detaining families, and in particular any “accompanying” children, in such centres. It noted that this type of situation was not exceptional. In response to concerns about the conditions of accommodation, the French authorities acknowledged that “the current furnishings in the bedrooms [were] not always fully adapted to small children ...”. 59. On 16 December 2008 the Parliament and the Council of the European Union adopted Directive 2008/115/EC, known as the “Return Directive”, on common standards and procedures in Member States for returning illegally staying third-country nationals (Official Journal L. 348, 24 December 2008, pp. 00980107). The relevant provision reads as follows: “(13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued ...” 60. In Council Directive 2003/9/EC, the “Reception Directive”, adopted on 27 January 2003, the European Union gave the following definition of vulnerable persons particularly requiring the authorities’ attention: “General principle 1. ... minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence ...” “Minors 1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. ...” 61. The European Union Charter of Fundamental Rights became binding with the entry into force of the Lisbon Treaty on 1 December 2009. Article 24 reads as follows: “... 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. ...” 62. In December 2007 the LIBE Committee published a study entitled: “The conditions in centres for third country national (detention camps, open centres as well as transit centres and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states” (PE 393.275) analysing the implementation of the “reception” directive. The report’s authors found that minors were detained in the vast majority of EU States (France, Germany, Belgium, the United Kingdom, the Czech Republic, Slovakia, Portugal, Luxembourg, Spain, Latvia, Estonia, Ireland, Greece, Malta and Cyprus). The report presents an exhaustive study of the conditions of reception of vulnerable persons in EU member States. Austria appears to be the only State that never has recourse to detention for minors and Sweden limits it to seventy-two hours. Countries such as Belgium, France and the United Kingdom, however, have recourse to detention almost systematically for accompanied children. The report further shows that in spite of the existence of separate sections reserved for families with children and improved conditions (game rooms, toys, etc.), the fact remains that the lack of privacy, stressful living conditions, food, daily routine, negation of intimacy and the human and material environment are not adapted to children. The detention centre staff interviewed all felt that children should not be imprisoned in detention centres for the short or long term, because of the negative impact this traumatic experience could have on the children’s psychological balance, on their relations with their parents and on the image the children had of their parents whilst in detention. 63. In the part concerning France, the report noted a deterioration in the atmosphere in these secure centres and in particular a rise in the number of desperate acts committed, including physical assaults. It was also suggested that the improvement in physical conditions for families had the perverse effect of making this type of detention seem banal when the very principle of detaining them in this position could be questioned. The report’s authors added: “The presence of children in these places where they are deprived of their freedom, even if these are ‘family zones’ and they are kept here in order to keep families together, was particularly shocking for the study team”. 64. According to the non-governmental organisation “International Detention Coalition”, the alternative of compulsory residence orders is used in France in only 5% of cases (see the report: “Survey on Alternatives to Detention of Asylum Seekers in EU Member States”). Many organisations, both governmental and non-governmental, advocate alternatives to detention. ...

train

001-61294

ENG

TUR

CHAMBER

CASE OF HANSEN v. TURKEY

Violation of Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

10. The applicant was born in 1959 and lives in Iceland. She is the mother of two daughters, V.A, who was born in 1981, and A.A, who was born in 1982. At the time of their births the applicant was living in Reykjavik with Mr Halil Al, a Turkish citizen. The children were born out of wedlock. 11. On 13 April 1984 the couple married in Iceland. Halil Al obtained Icelandic citizenship three years later. 12. The applicant and Halil Al separated in November 1989 and Halil Al moved from the house they shared in February 1990. 13. In June 1990 Halil Al went to Turkey with the two girls for a holiday. The applicant gave her consent to allow her daughters to accompany their father to Turkey. In August 1990 the applicant received a telephone call from Halil Al, who told her that her daughters would not be returning to Iceland. From that point on Halil Al refused to communicate with the applicant. Over the following months the applicant received no information about the children or their condition in Turkey. 14. The applicant applied to the Icelandic authorities for a decree of divorce and custody of her two daughters. 15. On 11 January 1991 the Ministry of Justice issued a separation licence and provisionally granted custody of the children to the applicant. 16. On 10 April 1992 the Ministry of Justice decided that the applicant should be granted custody of the children in view of the fact that they had been living with their mother since their parents separated and that Iceland had always been their home. The Ministry based its decision on the opinion of the Reykjavik Child Welfare Committee, which made an overall assessment of the applicant’s and Halil Al’s financial situation and living conditions. 17. On the same date the Ministry of Justice issued a divorce decree, under which Halil Al was to pay the applicant maintenance for each child until the age of eighteen and the children were to have access to their father under arrangements to be determined by mutual agreement between the parents. 18. On 25 October 1991 the applicant brought an action before the Bakırköy Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) in Istanbul in which she sought a divorce and custody of her daughters. 19. At a hearing held on 12 March 1992 V.A and A.A appeared before the court. V.A stated as follows: “I want to remain in the custody of my father. Sophia was my mother once upon a time. She is not my mother anymore. She was bad to me. She has left us alone. She was going out with other men. I love my father.” A.A stated: “I want to remain in the custody of my father. Sophia was my mother once upon a time. I do not want her anymore. She has left us alone. We were frightened. She was always going somewhere. I love my father.” 20. On 12 November 1992 the Bakırköy Civil Court of General Jurisdiction declared the applicant and Halil Al divorced and granted custody of the children to the father. It considered in accordance with Law no. 2675 that the applicable law in the case was Turkish law. 21. The Civil Court considered that the children had expressed the wish to stay with their father, who tended to their emotional needs and gave them a decent education. The children had adjusted to their life in Istanbul and to their father’s environment. If they were removed from their surroundings, they would suffer psychologically and emotionally. It was therefore in the children’s best interest to remain with their father, who had sufficient income to support them and pay for their education. The Civil Court also granted the applicant visiting rights allowing her to see the children every July for thirty days. 22. The case attracted the attention of the media and the general public and a group of Turkish and Icelandic reporters were in court when it gave its decision. 23. The applicant appealed. On 23 February 1993 the Court of Cassation quashed the decision of the Civil Court on the grounds that it had failed to clarify whether the applicant had obtained Turkish citizenship and whether Halil Al had obtained Icelandic citizenship as a consequence of their marriage. It had also failed to establish whether the couple’s marriage had been recognised and certified in Turkey. 24. On 7 October 1993 the Civil Court decided not to follow the Court of Cassation’s decision. In its opinion the nationality of the couple bore no relevance to the case before it. Furthermore, the case-file revealed that the couple had been married in accordance with Icelandic law and, therefore, it was unnecessary to consider whether the marriage had been certified by the Turkish authorities. 25. On 30 March 1994 the Joint Civil Divisions of the Court of Cassation (Yargıtay Hukuk Dairesi Genel Kurulu) quashed the decision of 7 October 1993. It held that the couple’s nationality and the question whether their marriage had been recognised in Turkey were the main issues in the case. The Civil Court’s task was to clarify those facts so that it could decide on the applicable law in the light of the rules governing conflicts of laws and the provisions of Law no. 2675. 26. The case was remitted to the Bakırköy Civil Court of General Jurisdiction. 27. In a letter dated 8 February 1995 the Civil Court requested the Ministry of Foreign Affairs to inform it whether the marriage certificate issued by the Icelandic authorities on 13 December 1984 had been certified by the Turkish authorities. 28. In a letter of 18 April 1995 the Ministry of Foreign Affairs informed the Civil Court that the marriage certificate issued on 13 April 1984 by the Register of Births, Marriages and Deaths in Iceland and the divorce decree issued on 10 April 1992 by the Ministry of Justice had been certified by the Turkish Embassy in Oslo. 29. At a hearing on 20 April 1995 the applicant withdrew her divorce petition and asked the Civil Court to rule on the issue of custody. 30. In its decision of the same date the Civil Court referred to its correspondence with the Ministry of Foreign Affairs, which confirmed that Halil Al had both Turkish and Icelandic citizenship and that the applicant had not obtained Turkish citizenship as a consequence of their marriage. It dismissed the divorce petition. It held that it did not, therefore, have jurisdiction to decide the issue of custody. 31. On 28 November 1995 the Court of Cassation quashed the decision of 20 April 1995. In the opinion of the Court of Cassation, the first instance court should have decided which parent would be granted the custody of the children pursuant to the provisions of Law no. 2675 and Article 312 of Civil Code. It was necessary to determine who would have the parental authority over the children because they had been registered as “children born out of wedlock” (gayri sahih nesepli) in the Turkish Register of Births, Marriages and Deaths. 32. The case was once again remitted to the Bakırköy Civil Court of General Jurisdiction. 33. On 13 June 1996 the children were brought to the courthouse for a hearing along with fifteen other girls all wearing the same headscarves and black sunglasses as the applicant’s daughters. A group of people gathered in front of the courthouse chanting slogans and waving banners calling for the children to be allowed to remain with their father in Turkey. The applicant and her lawyers were harassed by the crowd. 34 35. At the hearing V.A stated as follows: “I have been staying with my father for almost six years. I am happy with my father. I do not want to stay with my mother. I want to enjoy the Islamic way of life. That’s why I want to stay with my father. My mother tried to kidnap me. That’s why I do not want her. I do not want to stay with her. I am having an Islamic education. At the same time I go to a public school. I cannot say the name of the school for security reasons. I am not under the pressure of my father.” A.A stated: “I have been staying with my father for six years. I am happy with him. I am happy being with him. I have no worries. My stepmother Mülkiye Al is staying with us. My father takes care of us. My stepmother helps him. I do not want to see my mother. I do not want to say the name of my school. I am afraid that my mother will intervene.” 36. The applicant’s lawyer alleged that the children were under the influence of their father and not giving testimony of their own free will. He submitted that the children should undergo a psychological examination by child therapists. The court did not rule on that request. 37. Having regard to the statements of the children and other evidence before it, the Civil Court decided to award custody of the children to their father and granted the applicant visiting rights. It reached the following conclusions: 38. During the proceedings the children had stated on several occasions that they had been living with their father for six years and were happy being with him. They did not want to see their mother and feared that she might kidnap them. The case-file showed that the children had no psychological, mental or physical problems. Their father had given them sufficient financial support, they had adjusted to their father’s environment and were happy to live with him. In the light of those facts the children’s interest would best be served by their remaining with their father. However, it was also necessary to satisfy the children’s maternal needs. Therefore, having regard to the distance between Turkey and Iceland and the children’s summer holidays, the applicant should be granted visiting rights every July and August for sixty days. 39. On 18 November 1996 the Court of Cassation upheld that decision. 40. The Court of Cassation rejected an application by the applicant for rectification of the judgment on 31 March 1997. 41. The applicant brought civil proceedings against Halil Al claiming that he had abused his authority as the children’s guardian (velayetin nezi davası). 42. At a hearing held on 5 May 1998 the children appeared before the Bakırköy Civil Court of General Jurisdiction. 43. V.A stated: “I am living with my father. He takes care of my sister and me. I do not agree to seeing my mother because I do not want to see her. I do not sympathise with my mother because she did not show any interest or concern during my childhood. I am studying at a private school. I do not want to disclose its name for security reasons. I want to remain in the custody of my father. I do not agree to my mother’s request [to see us]. I am aware that it is a criminal offence to refuse to see my mother. In 1997, I met my mother at the request of police officers. I do not have any involvement in the Kadri cult.” A.A stated: “I have been living with my father for eight years. My sister is also living with us. My father has always fulfilled his parental duties. My sister and I did not want to live with our mother because we were not happy with her. She never took care of us. I want to stay with my father. I am continuing my studies at a private school. I am not going to tell the school’s name. If I do, my mother might follow us. I met my mother in 1992 and 1997 because I wanted to see her. My mother forced me to testify against my father in the proceedings before the Bakırköy 8th Civil Court of General Jurisdiction.” 44. On 12 March 1992 the Bakırköy Civil Court of General Jurisdiction provisionally granted the applicant access to her children on the first and third Saturday of every month. However, she was able to see her children on only two occasions. Her subsequent attempts to have access were unsuccessful. 45. On 4 June 1992 Halil Al informed the Bakırköy Enforcement Officer (İcra Müdürü) that his daughters would be staying in Sivas between 6 June 1992 and 6 September 1992 for their summer holidays. He also communicated his addresses in Istanbul and in Sivas. 46. While staying in Sivas, Halil Al informed the Enforcement Officer that the family had prolonged their stay because V.A. was ill and that they would now be staying in Sivas until 4 October 1992. 47. In the meantime, the Magistrate’s Court (Sulh Ceza Mahkemesi) in Bakırköy acquitted the applicant, on 6 October 1992, of a charge of attempted kidnapping of the children on 17 October 1991, following a complaint by Halil Al. 48. On 12 November 1992 the Bakırköy Civil Court of General Jurisdiction dissolved the applicant’s marriage and granted custody of the children to their father and access to the applicant. Having regard to the need to satisfy the children’s maternal needs, the distance between Turkey and Iceland and the children’s summer holidays, the court held that the applicant should be granted visiting rights every July for thirty days (see, paragraph 21 above). 49. Subsequently, Halil Al requested the office of the Bakırköy Enforcement Judge (İcra Tetkik Mercii Hakimliği) to stay the execution of that decision. He submitted that the Court of Cassation had quashed the decision of the first-instance court and that, therefore, the execution proceedings should be halted. In the meantime, the applicant applied to the Bakırköy Civil Court of General Jurisdiction for access to her children since the Court of Cassation had quashed the decision of the first-instance court (see, paragraph 23 above). 50. On 30 June 1993 the Bakırköy Civil Court of General Jurisdiction provisionally granted the applicant visiting rights from 5.00 p.m. on every Friday to 5.00 p.m. on every Sunday. The court noted that the children could visit their mother in the apartment that she had rented in Istanbul. 51. Between 2 July and 10 September 1993 the enforcement officers went to Halil Al’s home eleven times. However, on none of these occasions did they manage to find him or the children. On two occasions the doorkeeper of the building told the officers that Halil Al had gone to Sivas with his daughters for a holiday. 52. The applicant filed several complaints. The Bakırköy Public Prosecutor instituted criminal proceedings against Halil Al on the ground that he had failed to comply with court orders. 53. On 19 January 1994 the Bakırköy Criminal Court of First Instance (Asliye Ceza Mahkemesi) sentenced Halil Al to three months and ten days’ imprisonment. The penalty was converted into a fine of 500,000 Turkish Liras. 54. Attempts by the applicant to see her children on 15 July 1994, 22 July 1994, 29 July 1994, 5 August 1994, 19 August 1994, 26 August 1994, 2 September 1994 and 9 September 1994 all failed. The officers did not find the children at their home on any of those dates. 55. On 16 September 1994 the enforcement officers forcibly entered Halil Al’s house and found the children’s stepmother. Halil Al arrived later. He told the officers that only V.A was at home. The officers left without taking V.A with them since A.A was not there. 56. When the officers returned to Halil Al’s house on 23 September 1994 they again found the children’s stepmother. The children and their father were absent. Halil Al again refused to comply with the access arrangements on 30 September 1994, 14 October 1994, 21 October 1994 and 25 November 1994. 57. On 10 October 1994 the Court of Cassation upheld the decision of the Bakırköy Criminal Court of First Instance of 19 January 1994 (see, paragraph 53 above). 58. On 6 January 1995, 20 January 1995, 3 February 1995, 10 March 1995, 24 March 1995 and 7 April 1995 Halil Al again failed to comply with the access arrangements. He was not found at his home on any of those dates. 59. On 14 April 1995 the applicant arrived at Halil Al’s house accompanied by enforcement officers. The children’s grandfather, who was at home, said that the children were at school but he did not know which school. The enforcement officers searched the house but could not find the children. 60. On 13 June 1996 the Bakırköy Civil Court of General Jurisdiction granted the applicant visiting rights every July and August for sixty days (see, paragraph 38 above). 61. The Bakırköy Enforcement Officer sent an official letter to Halil Al on 10 July 1996 inviting him to be present at his home on 12 July 1996 at 5.00 p.m. 62. On 11 July 1996 Halil Al requested the office of the Bakırköy Enforcement Judge to set aside the order for enforcement of access rights. On 12 July 1996 the judge rejected that request. However, the officers who visited Halil Al’s home did not manage to find the children or Halil Al. 63. In a letter of the same day Halil Al informed the Enforcement Office that V.A was in Erzurum and A.A was in Sivas for a holiday and that the applicant could visit the children in those cities. 64. On 19 July 1996 the enforcement officers were again unable to find Halil Al at his home. The doorkeeper of the building told them that the children had left home early in that morning. 65. The applicant lodged three complaints with the office of the Bakırköy Public Prosecutor on 12 July 1996, 20 August 1996 and 11 September 1996. 66. On 24 July 1996 the Bakırköy Public Prosecutor filed a bill of indictment with the Bakırköy Criminal Court of First Instance, accusing Halil Al of non-compliance with court orders. 67. In a letter of 26 July 1996 the Bakırköy Enforcement Officer informed the local police station of a visit planned on the same date and requested a policeman to accompany the officers. In their subsequent visits a policeman accompanied the enforcement officers. 68. On 4 September 1996 the Bakırköy Public Prosecutor filed a further bill of indictment with the Bakırköy Criminal Court of First Instance, again accusing Halil Al of non-compliance with court orders. 69. When they attended the premises on 13 September 1996 the children’s grandfather told the officers that the children had not come back from Sivas. The officers noted that the children’s beds were made. 70. On 20 September 1996 the enforcement officers did not find anyone at Halil Al’s home. A neighbour told them that she had not seen anyone come in or out of the house for a long time. 71. The applicant’s subsequent visits on 5 October 1996, 18 October 1996, 26 October 1996, 1 November 1996, 8 November 1996, 15 November 1996, 22 November 1996 and 29 November 1996 were also in vain. The children were not at their father’s home on any of those dates. 72. According to the Icelandic Government, an exceptional meeting had been arranged between the applicant and her children on 1 December 1996 following previous discussions between the Turkish and Icelandic authorities and pressure imposed on the Turkish authorities by the Icelandic Foreign Ministry and the Ambassador of Iceland to Turkey who was also present at the meeting. 73. On 7 March 1997 the Bakırköy Criminal Court of First Instance convicted Halil Al of non-compliance with court orders and sentenced him to three months and 26 days’ imprisonment. 74. In a letter of 27 March 1997 the Turkish Ministry of Foreign Affairs informed the Ministry of Justice that the applicant would be coming to Turkey on 29 or 30 March 1997 and requested it to take the necessary steps so that she could exercise her access rights without hindrance. 75. On 10 April 1997 the applicant urged the office of the Bakırköy Public Prosecutor to have Halil Al arrested. 76. On 21 August 1997 the applicant’s lawyer travelled to Divriği in the province of Sivas in order to meet the applicant’s daughters. Halil Al arrived at the meeting point with his daughters. When the children left their father they started shouting and were reluctant to travel with the applicant’s lawyer. They said that they did not want to see their mother anymore because she had never been a real mother to them. They refused to get into the car when the applicant’s lawyer told them to do so. He requested assistance from the police officers and asked if they would accompany them to Ankara. However, the police officers refused, saying that they would only escort him to the boundaries of Sivas province. The applicant’s lawyer declined to travel with the children, as he feared for their safety owing to terrorist activity in the region. 77. The applicant lodged another criminal complaint with the office of the Bakırköy Public Prosecutor. On 24 September 1997 the Bakırköy Criminal Court of First Instance dismissed the applicant’s claims and acquitted Halil Al. It noted that the children had repeatedly expressed their reluctance to see their mother and stayed in friends’ houses just before the scheduled visits in order to avoid seeing her. They were not under the influence of their father and genuinely did not want to see their mother. The court held that there was no evidence on which to convict Halil Al. 78. On an unspecified date the Ministry of Justice notified the Ministry of Foreign Affairs that the applicant had been informed that she could see her children in Sivas, Ankara or Kayseri and that it would be more appropriate for her to go to one of these cities in order to satisfy the children’s maternal needs. However, the applicant had not considered visiting her children in those cities. The Ministry of Justice further emphasised that, as a general rule, a claimant should make use of the relevant legal procedures and apply to the competent authorities in order to exercise his or her access rights. In the present case, however, the applicant had not made use of the legal procedures that were available to everyone. 79. The Bakırköy Criminal Court of First Instance brought the criminal proceedings that had begun on 4 September 1996 (see, paragraph 68 above) to an end. In a decision of 13 January 1998 it convicted Halil Al of non-compliance with court orders and sentenced him to four-months’ imprisonment. The penalty was converted into a fine of 1,200,000 Turkish Liras. 80. By letters of 8 June 1998 and 8 July 1998 the Ministry of Justice requested the public prosecutors in Sivas and Divriği to take the necessary measures to facilitate the access arrangements specified in the order of the Bakırköy Civil Court of General Jurisdiction. The Ministry of Justice also informed the Ministry of the Interior that the applicant’s lawyer’s efforts to have access to her children had been hampered during the meeting of 21 April 1997 because of security concerns. It was suggested that the Ministry of the Interior take the necessary measures in order to facilitate the applicant’s meeting with her daughters the following July. 81. On 15 July 1998 the Bakırköy Criminal Court of First Instance again sentenced Halil Al to one month and five days’ imprisonment. The penalty was converted into a fine of 350,000 Turkish Liras. 82. The applicant met her daughters on 8 July 1998 for four days in Divriği. However, Halil Al did not allow his daughters to see their mother for any longer period. The applicant returned to Iceland. 83. On 27 August 1998 the applicant arrived in Divriği in order to meet her daughters. However, she was not able to see them. 84. The access rights became unenforceable when V.A reached the age of eighteen in June 1999 and A.A in October 2000, as the children were considered adults under Turkish law. 85. The relevant provisions of Law no. 2675 (Law on Private International Law and Procedural Law - Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun) “The capacity to marry and conditions for the validity of marriage shall be governed by the legislation in force in each party’s country of origin at the time of the marriage. A marriage celebrated in the form prescribed by the legislation in force in the country where the marriage takes place shall be valid. A marriage celebrated in a consulate in accordance with the provisions of an international agreement shall be valid. The general provisions relating to contracts of marriage shall be governed by the spouses’ national law. If the spouses have different nationalities, the legislation in force in the place where they are domiciled shall apply. If the spouses are not domiciled in the same place Turkish law shall apply.” “The grounds for divorce and judicial separation shall be determined by the spouses’ national law. If the spouses have different nationalities, the legislation in force where they are domiciled shall apply. If the spouses are not domiciled in the same place, the legislation in force where they reside shall apply. If the spouses do not reside in the same place, Turkish law shall apply. ” “Affiliation proceedings shall be governed by the national law of the father. If it is not possible to determine the legislation in force under the father’s national law, the affiliation proceedings shall be governed by the national law of the mother. If it is not possible to determine the legislation in force under the mother’s national law, the affiliation proceedings shall be governed by the national law of the child.” “The rights and duties of the mother and of a child born out of wedlock shall be governed by the legislation in force under the mother’s country of origin. The rights and duties of a father and of a child born out of wedlock shall be governed by the legislation in force in the father’s country of origin.” “The law governing custody of the children shall be the law under which the divorce was obtained.” 86. At the material time Turkey was not a party to the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (the Convention came into force in respect of Iceland on 1 November 1996 and in respect of Turkey on 1 June 2000) or to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention came into force in respect of Iceland on 1 November 1996 and in respect of Turkey on 1 August 2000). 87. At the material time Article 137 of the Civil Code provided: “The judge shall take the necessary provisional measures concerning, in particular, ... the protection of the children ... in a pending divorce or judicial separation case.” 88. At the material time Article 148 of the Civil Code provided: “When issuing a decree of divorce or judicial separation the judge shall decide at the same time which parent will have custody of the children and which parent will be granted access rights. The parent to whom custody is not given shall pay allowances for the maintenance and support of the children and exercise his or her access rights without any hindrance.” 89. Article 25 (a) of the Enforcement and Execution of Court Decisions and Bankruptcy Procedures Code (İcra ve İflas Kanunu) provides: “The enforcement officer shall issue an enforcement order requiring access to be given as specified in the court order. In the enforcement order the enforcement officer shall specify that access must not be hindered and that a failure to comply will constitute a criminal offence under Article 341. A person who fails to comply with access arrangements specified in the enforcement order shall be liable to prosecution under Article 341.” 90. Article 341 of the Enforcement and Execution of Court Decisions and Bankruptcy Procedures Code provides: “A person against whom an enforcement order has been issued hides the child when required to give access or abducts the child following the enforcement of access rights shall be liable on conviction to between one and three months’ imprisonment on a complaint by the person entitled to access.”

train

001-57999

ENG

DEU

GRANDCHAMBER

CASE OF SÜSSMANN v. GERMANY

No violation of Art. 6-1

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

7. Mr Süßmann, a German national born in 1916, worked as a physicist in research institutes whose remuneration and pension system was the same as that of the civil service. 8. The applicant retired in 1980 and receives, in addition to the statutory pension, a supplementary pension (Versorgungsrente) paid to him by the Supplementary Pensions Fund of the Federation and the Länder (Versorgungsanstalt des Bundes und der Länder - VBL - "the Fund"). The Fund administers a supplementary old-age pensions scheme, which enables German civil servants or persons with an equivalent status to receive a progressive supplementary pension. 9. As the total of the sums paid under the general old-age pensions scheme and the civil service supplementary scheme regularly exceeded the last net civil service salary, employers’ and employees’ representatives reached an agreement to amend the rules governing the Fund. These amendments, which came into force in March 1982 and March 1984, also concerned persons who were already affiliated to the supplementary scheme or in receipt of a pension thereunder. On 16 March 1988, giving judgment in a series of test cases, the Federal Court (Bundesgerichtshof) upheld the validity of these amendments. 10. On 30 April and 31 May 1985 the Fund calculated the sum payable to the applicant under the amended scheme with the result that his supplementary pension was reduced. 11. The applicant appealed to the Arbitration Tribunal of the Supplementary Pensions Fund (Schiedsgericht der VBL), challenging, inter alia, the legality of the amendments made to the rules governing the scheme. 12. Under an arbitration agreement of 3 and 18 September 1985 Mr Süßmann and the Fund had recognised the jurisdiction of the Fund’s arbitration tribunals. 13. On 20 February 1987 the Arbitration Tribunal dismissed the applicant’s appeal. 14. On 11 May 1987 Mr Süßmann appealed from that decision to the Arbitration Appeals Tribunal of the Supplementary Pensions Fund (Oberschiedsgericht der VBL). 15. On 10 March 1989 the Appeals Tribunal likewise dismissed the applicant’s appeal finding that the reduction in his supplementary pension resulting from the amendment of the rules governing the Fund was not unlawful. 16. On 11 July 1988 the applicant lodged an appeal in the Federal Constitutional Court (Bundesverfassungsgericht) concerning the amendments to the Fund’s rules made in 1982 and 1984. Subsequently he also invoked other grounds. On 4 April 1989 he extended the scope of his appeal to cover the decision of the Arbitration Appeals Tribunal of 10 March 1989. 17. Sitting as a panel of three members, on 6 November 1991 the Second Section of the First Division (zweite Kammer des ersten Senats) of the Federal Constitutional Court declined to accept the case for adjudication on the ground that the prospects of its succeeding were insufficient. The Federal Constitutional Court noted that the appeal was inadmissible in so far as it raised for the first time issues of fact or of law that could have been pleaded in the ordinary courts. However, it found the remaining complaints admissible, in particular those relating to the unfair character of the proceedings in the Federal Court and the interference with the applicant’s right of property. As the Federal Court had ruled on the issues of fact and law at last instance in its judgments in the test cases of 16 March 1988, it was not necessary to file further appeals to exhaust the remedies in the ordinary courts. However, even in regard to the complaints declared admissible, the Federal Constitutional Court considered that the constitutional appeal lacked sufficient prospects of success. It gave the following reasons: 1. There had been no violation of the applicant’s right to be heard in a court (Recht auf Gewährung rechtlichen Gehörs). In particular there was nothing to suggest that the tribunals had not taken due account of evidence concerning the amendment of the Fund’s rules. The decisions were essentially based on two reports drawn up by expert commissions in September 1975 and November 1983. It had not been necessary to take additional evidence. 2. Even if it were accepted that pension rights came within the ambit of the constitutional right of property, there was nothing to indicate that there had been an infringement of that right. It was lawful to reduce pension rights by amending the rules which were of a private-law character. The Federal Court had held that the pensions under the scheme administered by the Fund were a matter of private law and this view had not been contested by the applicant. The Federal Court had moreover regarded the old-age pensions scheme in question as a collective insurance scheme (Gruppenversicherung), under which only the employers were considered to be insured, the employees (Arbeitnehmer) remaining mere beneficiaries (Bezugsberechtigte). Finally, the Federal Court had examined whether the amendment of the Fund’s rules had respected the interests of the employees and the principle of "good faith" (Treu und Glauben) and had taken the view that the measure in question had checked a development that was unacceptable socially and politically and had put an end to a situation that represented a considerable departure from the aims of the supplementary pensions scheme. In its opinion, the amendment of the rules was intended to consolidate all the old-age pensions schemes in order to meet the problems arising from economic and demographical changes and was based on a decision of principle taken by the employers’ and employees’ representatives. The Federal Constitutional Court concluded its reasoning in the following terms: "This application of the civil law does not infringe any fundamental right. The objective protection afforded by the right of property is not undermined by the classification of the insurance contract as group insurance, in which the employees are mere beneficiaries, or in the assessment of their individual interests. The argument that the public interest, and notably the interest of all employees in the consolidation of their pensions schemes, called for a reform of those schemes is plausible and is in any event not open to criticism from the point of view of constitutional law. The interests of employees regarded as beneficiaries may be adequately protected by the organisations that represent them. In view of the superior interest of all civil service employees in having a sound and affordable pensions scheme, a collective defence of those interests would seem objectively appropriate, as it is the sole means of ensuring the necessary balancing of interests within the group. Whatever the case may be, the objective substance of the right of property does not require additional protection of the individual beneficiary. The same applies to the assessment of the merits of the new rules. This is based on both the principle of proportionality and the need to protect confidence in the preservation of acquired pension rights." Nor, it added, did the reversal of case-law by the Federal Court, which had previously considered employees to be insured under the rules in question, interfere with the right of property, because case-law had no legislative force and could evolve. Finally, the Federal Constitutional Court observed that the amendment of the Fund’s rules did not breach the principle of equality before the law or that of the freedom of association. The applicant’s doubts as to the impartiality of the arbitrators were not relevant as the latter were not members of the judiciary, but sat on private-law arbitration tribunals. 18. The decision was notified to the applicant on 5 December 1991. 19. In the two years that followed the lodging of the applicant’s appeal in July 1988, the Second Section of the First Division dealt with twenty-four cases concerning the compatibility of the new rules of the Supplementary Pensions Fund with the Basic Law (Grundgesetz). Other appeals were lodged with it relating, inter alia, to redundancy notices served on employees (decision of 30 May 1991), an employer’s right to lock out strikers (decision of 26 June 1991) and the appeals filed by former civil servants of the German Democratic Republic challenging a provision of the Treaty on German Unification which terminated the employment contract of some 300,000 persons (decision of 24 April 1991). 20. Article 93 para. 1 of the Basic Law (Grundgesetz) provides as follows: "The Federal Constitutional Court shall rule: ... 4. (a) on constitutional appeals 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]." 21. The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht). 22. Sections 90 to 96 of that Act concern constitutional appeals lodged by individuals (see paragraph 20 above). At the material time the version adopted in 1985 (applicable with effect from 1 January 1986) was in force . "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." "A complaint of unconstitutionality shall require acceptance prior to a decision (Annahme zur Entscheidung)." "(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." Section 94 provides for the right of third parties to be heard in appeal proceedings in the Federal Constitutional Court. "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 ..." 23. The Federal Constitutional Court Act was subsequently amended with a view to reducing the court’s workload. The amendments adopted in 1993 (which entered into force on 11 August 1993), among other things, reorganised the procedure for individual appeals (section 93a-93d of the 1993 Federal Constitutional Court Act).

train

001-61661

ENG

SVK

CHAMBER

CASE OF KACMAR v. SLOVAKIA

No violation of Art. 6-1;No violation of Art. 13;No violation of P1-1

Nicolas Bratza

9. The applicant leased premises in a house owned by Kovospracujúci podnik, a State owned company with registered office in Prešov. He ran his business there. In April and May 1991 the applicant claimed that the relevant provisions of the State Property Transfer Act of 1990 (Act No. 427/1990) entitled him to purchase the part of the house which he leased. 10. On 12 June 1991 the Prešov District Commission for Denationalisation of State-Owned Property decided that the applicant was not entitled, under the State Property Transfer Act of 1990, to be given priority in purchasing the premises leased by him. 11. On 6 June 1991 the applicant filed an arbitration request claiming tht Kovospracujúci podnik should be ordered to conclude a purchase contract with him under Act No. 427/1990 in respect of the two premises leased by him and having the surface of 47.7 and 34.9 square metres respectively. The applicant further claimed that the purchase contract was to be determined pursuant to Section 8 of Act No. 427/1990. 12. On 16 July 1991 the Regional Arbitration Court (Krajská štátna arbitráž) in Košice delivered a decision the operative part of which reads: “The defendant – Kovospracujúci podnik, a State owned enterprise in Prešov is obliged to conclude a purchase contract with [the applicant] who has leased two premises situated ... in the building located in Prešov, Hlavná ulica 79 and having a surface area of 47.7 and 34.9 square metres respectively. The purchase contract shall concern the above premises and is to be concluded under Section 16(2) of Act No. 427/1990 within ten days from the final effect of this decision, it being understood that the purchase price will be determined pursuant to Section 8 of Act No. 427/1990.” The decision acquired final binding effect on 8 August 1991. 13. On 9 October 1991 the applicant concluded a purchase contract with Kovospracujúci podnik and paid the purchase price. The contract comprised several premises the total surface area of which was 145 square metres and also real estate with a surface area of 883 square metres. Subsequently Kovospracujúci podnik was placed in liquidation. 14. On 23 July 1992 the liquidator claimed that the proceedings leading to the decision of the Regional Arbitration Court of 16 July 1991 be re-opened. The liquidator argued that the requirements of the State Property Transfer Act of 1990 had not been met. On 25 February 1994 the Košice Regional Court dismissed the request. The decision stated that the liquidator had submitted no new relevant facts which could not have been invoked in the original proceedings and that, accordingly, the statutory requirements for re-opening the proceedings had not been met. 15. On 31 January 1995 the Prešov District Court declared the purchase contract of 9 October 1991 void ex tunc at the initiative of the Prešov District Prosecutor. The District Court found that in the contract the parties had not explicitly agreed on the date of transfer of the ownership as required by the relevant law and that the lawyer of Kovospracujúci podnik had exceeded his power in that he had also included in the contract premises which had not been leased by the applicant. 16. On 20 December 1995 the Košice Regional Court upheld the District Court’s judgment. The Regional Court found that the contract did not specify the property in question with sufficient certainty and that this resulted in conflicts between the applicant and another person who had purchased the remaining part of the house from Kovospracujúci podnik. With the consent of the parties the Košice Regional Court discontinued the proceedings in respect of the claim that Kovospracujúci podnik and the applicant should restore to each other everything which had been the subject of the contract of 9 October 1991. 17. On 19 December 1995 the applicant requested the Prešov District Court to enforce the decision delivered by the Regional Arbitration Court in Košice on 16 July 1991. He relied on Article III (7)(a) of Act No. 519/1991, Section 763(1) of the Business Code and Section 42a(6) of the Arbitration Act. 18. In December 1995 and in March 1996 the applicant submitted a new draft purchase contract for signature to the liquidator of Kovospracujúci podnik with reference to the arbitration court’s decision of 1991. On 22 April 1996 the liquidator asked the applicant in writing to submit a supplement to the draft contract as well as an expert opinion. 19. On 9 April 1996 the person who had purchased the other part of the house claimed that the co-ownership of the house be dissolved and that the share owned by Kovospracujúci podnik be transferred to his ownership. On 22 April 1996 the Prešov District Court granted the claim with reference to Article 142(1) of the Civil Code and ordered the plaintiff to pay 188,496.61 Slovakian korunas (SKK) to Kovospracujúci podnik. The liquidator of the latter waived his right to appeal and the judgment became final on 2 May 1996. It was not served on the applicant as he was not a party to the proceedings. 20. On 17 May 1996 the applicant requested the grant of an interim measure prohibiting Kovospracujúci podnik from concluding any contracts for the transfer of the property in question. On the same day the Prešov District Court granted the request. On 7 February 1997 the Košice Regional Court reversed the first instance decision as, at the time of its delivery, Kovospracujúci podnik no longer owned the property. 21. On 23 May 1997 the applicant complained about a violation of his property rights to the Constitutional Court. On 1 July 1997 the latter rejected the petition for lack of jurisdiction. 22. On 26 May 1997 the applicant requested the Prešov District Court to consider the new owner of the house as defendant in the enforcement proceedings brought on 19 December 1995. 23. On 4 June 1997 the Prešov District Court, responding to the applicant’s above request of 19 December 1995, ordered the enforcement of the decision of the Regional Arbitration Court of 16 July 1991 in that it imposed a fine of SKK 5,000 on the owner of the house with reference to Article 351 of the Code of Civil Procedure. The District Court expressed the view that the obligation to conclude a purchase contract had passed ex lege to the new owner of the house following the transfer of ownership to him. The proceedings were discontinued so far as they concerned Kovospracujúci podnik, as the latter no longer owned the property. The owner of the house appealed. 24. On 15 August 1997 the Prešov Regional Court quashed the District Court’s decision of 4 June 1997. The Regional Court did not find it established that the obligation imposed by the arbitration court in 1991 had been transferred to the new owner of the house. It therefore instructed the first instance court to ask the applicant and the liquidator of Kovospracujúci podnik whether they agreed to a change of defendant. Failing such an agreement, there could be no change of defendant. 25. As to the merits of the applicant’s claim for enforcement, the Regional Court’s decision stated: “... it is not possible to proceed pursuant to Article 351 of the Code of Civil Procedure or by any other means of enforcement of a decision where the decision to be executed imposes an obligation to make a certain declaration of intent [prejav vôle] within the meaning of Article 80(b) of the Code of Civil Procedure (for example to conclude a purchase contract). In such a case Section 161(1) of the Code of Civil Procedure is not applicable ... but Article 161(3) is to be applied, according to which final judgments imposing the declaration of intent replace such a declaration of intent. Accordingly, on the basis of such a judgment it is not possible to claim its judicial enforcement where the person concerned fails to comply with the obligation imposed, and it is not possible to have recourse to Article 351 of the Code of Civil Procedure...” 26. On 6 November 1997 the Prešov District Court dismissed the applicant’s request for change of defendant as the liquidator of Kovospracujúci podnik disagreed with the proposal. The statutory requirements for granting the applicant’s request had thus not been met. 27. In a separate decision delivered on 6 November 1997 the Prešov District Court dismissed the applicant’s request for enforcement of the Košice Regional Arbitration Court’s decision of 16 July 1991. In particular, the District Court’s decision stated: “...a decision relating to a declaration of intent may be relied on by the person at whose request it is made and is given effect to as a document reflecting a legal act, in accordance with the legal rules in force. The decision is submitted to the competent legal authority, where necessary, with a view to registering or making public the intent of the person against whom the proceedings have been brought. Such a decision may not be the subject either of judicial enforcement or of execution by an execution officer. The Košice Arbitration Court’s decision of 16 July 1991 ... cannot be enforced as it lacks a material element of enforceability. Where proceedings concern a declaration of intent in respect of a contract, the operative part of the decision on the merits of the case must contain all essential elements of such a contract ... Where one of such elements is omitted, the decision on the merits cannot be enforced pursuant to Article 161(3) and such a shortcoming cannot be remedied by any other means of enforcement. In the present case [the dispute concerns] a purchase contract. The definition of the purchase price is, along with its object, one of the essential elements of such a contract. Reference [in the Arbitration Court’s decision of 16 July 1991] to Section 16 of Act No. 427/1990 does not mean that the [vendor’s] declaration of intent which was to be replaced was sufficiently certain as required by Section 37 of the Code of Civil Procedure. In the case under consideration it is Article 161(3) and not Article 161(1) of the Code of Civil Procedure which is applicable... This means that on the basis of a judgment [replacing the declaration of intent of a party] ... it is not possible to claim judicial enforcement and it is not possible to proceed pursuant to Section 351 of the Code of Civil Procedure.” 28. The applicant appealed. He argued, inter alia, that the arbitration court’s decision of 16 July 1991 had not replaced the declaration of intent of the defendant company but had obliged its representatives to conclude a contract with the applicant. 29. On 18 December 1997 the Prešov Regional Court upheld the District Court’s decisions of 6 November 1997. The Regional Court noted that it was not possible to change defendants in the context of enforcement proceedings as a decision could be enforced only in respect of the person against whom it was delivered. The new owner of the house did not become the general successor to Kovospracujúci podnik which still existed. By purchasing the house the new owner was not, therefore, liable for the original owner’s contractual obligations. 30. As regards the applicant’s request for enforcement of the arbitration court’s decision of 16 July 1991, the Prešov Regional Court fully subscribed to the views expressed by the first instance court. In particular, the Regional Court’s decision stated that a decision ordering a party to conclude a purchase contract replaced the intent of the vendor to do so. In respect of such decisions, Article 161(3) was relevant, according to which, once they were of binding and final effect, such decisions replaced the intent of the party concerned. Enforcement of such decisions under Articles 161(1) and 351 of the Code of Civil Procedure was excluded. 31. In 1998 the applicant was ordered to move his business out of the premises in question. On 26 April 1999 the Prešov District Court ordered the applicant to pay SKK 513,187 plus default interest to the owner of the premises as compensation for their prior use. 32. Pursuant to Article 142(1), courts may terminate co-ownership of property at the request of one of the co-owners. When it is not practicable to divide the property, its ownership shall be transferred to one or several co-owners for appropriate compensation. Practical use of the property should be borne in mind. 33. Article 142(2) provides, inter alia 34. Under Article 142(3), the termination of co-ownership may not be detrimental to persons possessing rights attached to the real property concerned. 35. Under Article 80(b), a claim by way of judicial proceedings may concern the fulfilment of an obligation resulting from the law, from a legal relationship or from a violation of law. 36. Article 161(1) and (2) provides that a judgment is enforceable after the expiry of the time-limit set for complying with the obligation imposed by it or, when it does not impose an obligation, after it becomes final. 37. Under Article 161(3), final judgments ordering a party to make a declaration of intent have the effect of such a declaration. 38. Article 351(1) provides that courts may, in the context of enforcement proceedings, fine parties who fail to comply with obligations imposed by a decision which is to be enforced. 39. Pursuant to Article 351(2), the payment of a fine under the first paragraph of Article 351 does not exempt the party concerned from liability for damage. 40. Under Article 351(3), courts shall allow the party concerned to take steps with a view to restoring the previously existing conditions at the cost of the other party when the latter fails to comply with the obligation imposed by the decision to be enforced and thereby brings about a change in the situation. Courts may take appropriate measures with a view to assisting the party concerned in having the original situation restored. 41. Act No. 519/1991 of 18 December 1991 amends the Code of Civil Procedure. Article III(7)(a) provides that arbitration courts’ decisions remain enforceable unless the rights in question have lapsed. 42. Section 42a(6) provides that a decision imposing an obligation other than the payment of a sum of money can be enforced by means of a fine of up to 100,000 korunas. Such fines can be imposed repeatedly. 43. The Business Code entered into force on 1 January 1992. Section 763(1) provides that legal relations which came into being prior to its entry into force and the rights resulting there from are governed by legal rules existing prior to the entry into force of the Business Code. 44. Section 8 provides that real estate and buildings the ownership of which is to be transferred under this Act are to be valued in accordance with the relevant price regulations. 45. Under Section 16(1) and (2), persons who, by 1 October 1990, leased premises the ownership of which is to be transferred have the right to purchase those premises. In such a case, no public sale is to be held and the State organisation concerned shall conclude a purchase contract with the tenant. 46. Section 16(3) provides that the purchase price is to be determined pursuant to Section 8 of Act No. 427/1990. 47. Act No. 111/1990 on State-owned company (Zákon o štátnom podniku) was adopted on 19 April 1990. Under Section 2(1), State-owned companies carry out their activities autonomously and on their own account. Section 5(1) provides that State-owned companies are legal persons which take legal actions on their own behalf and incur liability for such actions. Under paragraph 2 of Section 5, State-owned companies do not assume liability for obligations of the State or of other persons. The State does not assume liability for obligations of a State-owned company unless the law otherwise provides. 48. In accordance with the Supreme Court’s case-law, judgments imposing an obligation to conclude a purchase contract replace the vendor’s declaration of intent to conclude such a contract. There is, therefore, no reason for applying Article 351 of the Code of Civil Procedure in proceedings concerning the enforcement of such judgments (Collection of opinions, conclusions, analyses and assessments of judicial practice, No. IV, p. 796). 49. Where a court’s judgment is to replace the declaration of intent of a party to a purchase contract concerning real property, the contents of the contract has to be specified in the operative part of the judgment or a reference must be made therein to an attached written version of such a contract. Such contract thus becomes a part of the operative part of the judgment. Where the real property is not sufficiently specified and where the operative part of a judgment does not contain information about the purchase price, the judgment cannot replace the declaration of intent of a party to conclude a purchase contract (Collection of Judicial Decisions and Standpoints of the Supreme Court, No. 53/1991).

train

001-68321

ENG

ITA

ADMISSIBILITY

TUFANO v. ITALY**

Inadmissible

David Thór Björgvinsson

The applicant, Mrs Maria Luisa Tufano, is an Italian national who was born in 1948 and lives in Naples. She was represented before the Court by Mr F. Catapano, a lawyer practising in Naples. The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli. The facts of the cases, as submitted by the parties, may be summarised as follows. The applicant is the owner of three flats in Naples, which she had let respectively to F.T., A.S. and G.M., and V.R. In a writ served on the tenant on 26 May 1983, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 31 December 1983 and summoned her to appear before the Naples Magistrate. By a decision of 30 April 1985, which was made enforceable on 18 May 1985, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1985. On 26 January 1990, the applicant served notice on the tenant requiring her to vacate the premises. On 19 February 1990, she informed the tenant that the order for possession would be enforced by a bailiff on 29 March 1990. Between 29 March 1990 and 1 September 2000, the bailiff made eight attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. In the meanwhile, on 9 June 1998, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter as her residence. On 1 September 2000, the applicant recovered possession of the flat. In a writ served on the tenant on 26 April 1986, the applicant informed the tenants of her intention to terminate the lease and summoned them to appear before the Naples Magistrate. By a decision of 13 February 1987, which was made enforceable on the same day, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 14 May 1987. On 26 January 1990, the applicant served notice on the tenants requiring them to vacate the premises. On 19 February 1990, she informed the tenants that the order for possession would be enforced by a bailiff on 29 March 1990. Between 23 March 1990 and 1 September 2000, the bailiff made eight attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. In the meanwhile, on 9 June 1998, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter as her office. On 1 September 2000, the applicant recovered possession of the flat. In a writ served on the tenant on 26 April 1986, the applicant informed the tenant of her intention to terminate the lease and summoned him to appear before the Naples Magistrate. The tenant told the applicant that he would not leave the premises. By a decision of 16 May 1988, which was made enforceable on 30 July 1988, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 4 March 1989. On 26 January 1990, the applicant served notice on the tenant requiring him to vacate the premises. On 19 February 1990, she informed the tenant that the order for possession would be enforced by a bailiff on 29 March 1990. Between 29 March 1990 and 25 May 2001, the bailiff made sixteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. In the meanwhile, on 29 September 1997, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself. On 20 July 2001, the applicant recovered possession of the flat. On an unspecified date, the applicant applied to the Rome Court of Appeal, claiming compensation under the Pinto Act for the length of the three eviction proceedings. She sought redress for non-pecuniary and pecuniary damage. In three decisions of 12 April 2002, filed with the registry on 26 June 2002, the Rome Court of Appeal rejected the claims on the ground that the delay in the eviction was due either to legislative choices or to the lack of police assistance and therefore the administration of justice could not be held responsible. The applicant did not appeal to the Court of Cassation. The decisions became final, at the latest, on 15 September 2003. The relevant domestic law and practice is described in the decision Provvedi c. Italie (no 66644/01, of 2 December 2004).

train

001-102268

ENG

POL

COMMITTEE

CASE OF ZJEDNOCZONE BROWARY WARSZAWSKIE HABERBUSCH I SCHIELE S.A. v. POLAND

Violation of Art. 6-1

Ján Šikuta;Lech Garlicki

5. The applicant is a join-stock company with its registered seat in Warszawa. 6. By way of an administrative decision of 29 November 1948 a property owned by the applicant and located in Warsaw was expropriated pursuant to provisions of the 1946 Law on transfer to the State of the ownership of the main branches of the national economy (Ustawa z 3 stycznia 1946 r. o przejęciu na wlasność Państwa podstawowych gałęzi gospodarki narodowej). 7. On 12 June 1991 the applicant lodged with the Ministry of Industry and Agriculture an application to have the expropriation decision declared null and void. The proceedings were subsequently conducted before the Minister of Finance. 8. On 30 October 2000 the Minister of Finance gave a decision and refused to declare the expropriation decision null and void. 9. On 17 November 2000 the applicant's lawyer requested the Minister of Finance to re-examine the case. 10. On 9 January 2001 the Minister of Finance upheld his own decision of 30 October 2000. 11. On 12 February 2001 the applicant lodged a complaint with the Supreme Administrative Court. 12. On 18 November 2002 the Supreme Administrative Court quashed both decisions of the Minister of Finance. 13. On 27 March 2003 the Minister of Finance gave a decision and stayed the proceedings finding that the examination of the case was dependent on the establishment of the components of the applicant's enterprise (ustalenie składników przedsiębiorstwa skarżącego), which fell within the competence of the Minister of Agriculture. On the same day the Minister of Finance requested the Minister of Agriculture to resolve the preliminary issue (zagadnienie wstępne) referred to above. Since then, the proceedings have been pending before the Minister of Finance. 14. On an unspecified date the applicant appealed against the decision to stay the proceedings. 15. On 30 April 2003 the Minister of Finance upheld the challenged decision. Since that date the proceedings have been stayed before the Minister of Finance. 16. On 2 February 2005 the Minister of Agriculture gave a decision and stayed the proceedings. 17. The applicant requested a re-examination of the case. 18. On 18 April 2007 the Minister of Agriculture upheld his decision. 19. The applicant lodged a complaint with the Regional Administrative Court. 20. On 25 September 2007 the Warsaw Regional Administrative Court found the complaint well-founded and quashed both decisions of the Minister of Agriculture. 21. Subsequently, on 20 March 2008 the Minister of Agriculture gave a decision and discontinued the proceedings. 22. The applicant again requested a re-examination of the case. 23. On 5 February 2009 the Minister of Agriculture upheld his decision. 24. The applicant lodged a complaint with the Regional Administrative Court. 25. On 17 July 2009 the Warsaw Regional Administrative Court quashed both decisions of the Minister of Agriculture. 26. The proceedings are pending before the Minister of Agriculture. 27. On an unspecified date in 2004 the applicant lodged a complaint about the inactivity on the part of the Minister of Agriculture. 28. On 19 October 2004 the Warsaw Regional Administrative Court found the complaint well-founded and ordered that the Minister of Agriculture give a decision on the preliminary issue within one month of the court's judgment. 29. The Minister failed to comply with the court's order and therefore, on 3 August 2005, the applicant requested the Warsaw Regional Administrative Court to impose a fine on him. 30. On 9 March 2006 the Warsaw Regional Administrative Court dismissed the complaint finding that on 4 February 2005 the Minister had given a decision and stayed the relevant proceedings. Therefore, although he did not give a decision on the merits, it could not be said that the Minister was completely inactive. 31. The applicant lodged a cassation appeal with the Supreme Administrative Court, which was dismissed on 14 November 2006. 32. Subsequently, on 20 March 2007, the applicant again complained to the Warsaw Regional Administrative Court about the inactivity on the part of the Minister of Agriculture. 33. On 13 July 2007 the Warsaw Regional Administrative Court discontinued the proceedings as being pointless finding that, on 18 April 2007, the Minister of Agriculture had given a decision and upheld his own decision to stay the proceedings. 34. The relevant domestic law on remedies for inaction on the part of the administrative authorities is set out in the Court's judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 6065, 17 October 2006.

train

001-81230

ENG

UKR

ADMISSIBILITY

SHAPOVAL v. UKRAINE

Inadmissible

Peer Lorenzen

The applicant, Mrs Melaniya Danylivna Shapoval, is a Ukrainian national, who was born in 1936 and currently resides in the village of Kniazhychi, Cherkassy region. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Valeriya Lutkovska and Mr Yuriy Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a former member and employee of “Knyazhyky”, an agricultural production co-operative (hereinafter “the APC”). In February 2000, upon the Decree of the President of Ukraine “On immediate measures for acceleration of reform in agriculture” of 3 December 1999, the members of the APC decided to divide it into property and land shares (земельні і майнові паї), following which in March 2000 the applicant received a land ownership certificate (land certificate, transformed on 31 May 2002 into the State act on land ownership). On 27 July 2000 the applicant instituted proceedings in the Monastyryshchensky District Court of Cherkassy Region (“the Monastyryshchensky Court”) against the APC seeking to receive compensation for unpaid salary and to be paid the value of her property share. On 9 November 2000 the Monastyryshchensky Court allowed her claims and ordered the APC to pay her UAH 13,855 in compensation for salary arrears and for her property share. The execution proceedings were initiated on 1 December 2000. On 10 April 2001 the APC was re-organised in a joint stock company “Knyazhyky”. In January 2002 the applicant instituted proceedings in the Monastyryshchensky Court against the Monastyryshchensky District Department of Justice, seeking compensation for damage caused by its failure to execute the judgment of 9 November 2000, and requesting the court to oblige the Department to execute that judgment. On 5 February 2002 the Monastyryshchensky Court rejected her claims as being unsubstantiated. The applicant did not appeal against this decision. On 23 July 2002 the Cherkassy Regional Department of Justice informed the applicant that the judgment of 9 November 2000 could not be executed due to the debtor’s lack of funds. On 25 July 2003 the Bailiffs’ Service seized from the debtor UAH 500, and on 30 July 2003 the applicant was paid UAH 495. On 24 May 2005 the Bailiffs’ Service discontinued the enforcement proceedings due to the debtor’s lack of funds. The applicant did not challenge that decision before the domestic courts. The Law of Ukraine of 10 June 1996 “On privatisation of property in agriculture” provided for privatisation of the State-owned collective farms and enterprises through their transformation into collective agricultural companies or joint stock companies. The Decree of the President of Ukraine 3 December 1999 “On immediate measures for acceleration of reform in agriculture” provided for a possibility for members of collective agricultural companies to receive in kind their land and property shares and to establish private farms or other privately owned agricultural enterprises.

train

001-88521

ENG

UKR

ADMISSIBILITY

LEBEDEV v. UKRAINE

Inadmissible

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant, Mr Aleksandr Sergeyevich Lebedev, is a Ukrainian national who was born in 1975 and is currently serving his sentence in the Perekrestovka, the Romenska Correctional Colony no. 56 of the Sumy Region. The applicant was apprehended on 9 December 1999 and held in detention on suspicion of being involved in murder and theft of private property. In October 2000 the investigator remitted the case-file to the Cherkassy Regional Court, which on 2 October 2000 remitted the case for additional investigation to the Cherkassy Regional prosecutor. On 25 December 2001 the Cherkassy Regional Court of Appeal, in the presence of the applicant and his representative, following examination of a wide range of documentary and oral evidence, sentenced the applicant to life imprisonment and confiscation of all of his personal property following his conviction for murder and theft of private property committed as a member of an organised criminal group. On 16 July 2002 the Supreme Court, sitting in a chamber composed of three judges and in the presence of the applicant and his two representatives, rejected the cassation appeals lodged against the judgment of 25 December 2001 as they were unsubstantiated. It confirmed the applicant’s conviction, having examined a wide range of documentary and oral evidence. On 16 October 2002, 7 July and 24 October 2003 the Supreme Court refused to re-examine the applicant’s case in the course of extraordinary review proceedings, finding no grounds for it. Following the applicant’s conviction, in 2002-2004, he unsuccessfully complained to the General Prosecutor’s Office and the Regional Prosecutor’s Office, various other state institutions, about the unlawfulness of his conviction and various procedural irregularities that from his point of view occurred in the course of examination of his case. According to a letter of 21 March 2003 from the Cherkassy Regional Court of Appeal, on 2 October 2000 the applicant requested the Cherkassy Regional Court, which was examining his criminal case, to allow him to marry K.O.G. However, this request was not examined and no answer was given to the applicant as on the same date the Cherkassy Regional Court remitted the case for additional investigation and the applicant did not repeat his request for permission to marry K.O.G. The letter also stated that the applicant’s passport had remained with the prosecutor’s office throughout the proceedings, including the period when the case-file had been remitted for additional investigation, and after the applicant’s conviction became final it was sent to the court for enforcement of the sentence imposed on the applicant. In May 2003 the applicant requested the Cherkassy Regional Prosecutor’s Office to provide him with his passport so that he could marry. On 26 May 2003 the Prosecutor’s Office replied that his passport was at the court of appeal and thus he had to address his request to that court. On 30 October 2003 the Cherkassy Regional Court of Appeal informed the applicant that his request lodged with the court on 2 October 2000 to allow him to marry K.O.G. had not been examined by that court because the case had been remitted for additional investigation to the prosecutor’s office. Thus, he should have addressed the prosecutor office as it was from then on responsible for processing his criminal case. Also, when the case arrived at the court in 2001 he had not requested anew permission to marry. On 10 December 2003 the Cherkassy Regional Prosecutor’s Office informed the applicant that his passport was part of his personal file and had been archived at the penitentiary institution where he was serving his sentence. They also informed him that it was being exchanged for a new Ukrainian ordinary citizen’s passport (in exchange for the invalid Soviet passport he had). On 20 January 2004 the applicant received an internal Ukrainian passport in exchange for the Soviet passport issued to him in 1991. On 4 February 2004 the applicant requested the Cherkassy City Department of Registration of Civil Status to inform him about the procedure for registration of marriages. On 27 February 2004 the applicant received detailed explanations as to how registration of marriages for convicts could be effectuated. In accordance with Article 8 of the Code, convicted persons had the same rights and duties as other citizens of Ukraine, with restrictions provided by the law, resulting from the judgments of the court and the regime of serving their sentence, as provided by these judgments. Marriages are registered in accordance with the general rules of Articles 173 – 178 of the Code on Marriage and Family. According to Article 177 of the Code the presence of the couple is obligatory for registration of marriages. However, if a person is unable to attend registration of marriage at the civil acts registration department, marriage can be registered at other premises. Article 17 of the Code established a limited list of circumstances that would preclude a person from getting married, however, conviction of a person or his detention were not seen as an obstacle for registration of a marriage. By virtue of Rule 4.17-4.18 registration of marriage with convicts shall be conducted on the general grounds referred to in the Code on Marriage and Family. A marriage can be registered on the basis of a request from a person who is not serving the sentence as well as a convict himself. The completed documents are then sent to the penitentiary for transfer to the convict (Rule 4.19), who is to fill out his part of the application for marriage and after that the documents and the convict’s signature are certified and sent to the appropriate civil acts registration department (Rule 4.20). If a convict is the person who initiates the marriage, then he requests the relevant documents from the penitentiary (including a special application form), fill them out and send them to the person he intends to marry, who shall then also fill them out. The completed documents are then transferred to the civil acts registration department (Rules 4.21 and 4.22). The persons concerned are then informed (the respective penitentiary institution shall inform the convict) by the civil acts registration department of the date and time of the marriage (Rule 4.23). The registration of marriage takes place in the premises designated by the penitentiary institution (Rule 4.24). The relevant remarks as to registration of marriage are put into the ordinary national passport of the married couple (Rule 4.25). Registration of marriage for persons who are detained pending trial is conducted by the relevant civil acts registration departments at the Pre-Trial Detention Centres (SIZO or prisons), only upon written permission of the body, which is responsible for the case, in accordance with the procedure and rules established for the penitentiary institutions.

train

001-75788

ENG

LTU

ADMISSIBILITY

LIEKIS v. LITHUANIA

Inadmissible

The applicant, Mr Kęstutis Liekis, is a Lithuanian national who was born in 1970 and lives in Kaunas. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 May 2000 the applicant was arrested and questioned as a suspect in the context of criminal proceedings for robbery. Another person, LJ, was suspected of being his accomplice. On 4 May 2000 the Kaunas City District Court ordered the applicant’s detention on remand for 10 days. On 11 May 2000 the court extended the term of his remand in custody for two months. On 24 May 2000 the applicant’s remand was varied by the decision of a prosecutor, and he was placed under house arrest. On 8 August 2000 the bill of indictment was confirmed, and the case was transmitted for trial. On 31 May 2001 the Kaunas City District Court adjourned the trial as LJ had absconded. On the same date the court ordered the applicant’s bail - with the written obligation not to leave. It was indicated in the bail decision that appeal lay to the Kaunas Regional Court against that order, but the applicant did not appeal. On 7 March 2003 the court renewed the examination of the case against the applicant. On 16 May 2003 he was acquitted. On 12 August 2003 the Kaunas Regional Court dismissed the prosecutors’ appeal challenging the acquittal. On 24 February 2004 the Supreme Court rejected the prosecutors’ cassation appeal. That decision was final.

train

001-70965

ENG

AUT

CHAMBER

CASE OF SCHELLING v. AUSTRIA

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

Christos Rozakis

8. The applicant is a farmer and lives in Langenegg. 9. On 16 August 1988 the applicant requested permissions under the Water Act (Wasserrechtsgesetz) and the Landscape Protection Act (Landschaftsschutzgesetz) which were necessary for putting a culvert through a drain on agricultural land owned by him. 10. Thereupon, on 14 September 1988 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) conducted an oral hearing on the applicant’s requests and inspected his land. 11. On 21 June 1990 the District Administrative Authority refused the requested permissions. The applicant appealed. 12. On 12 December 1990 the Vorarlberg Regional Governor (Landeshauptmann) granted the requested permission under the Water Act. 13. The Vorarlberg Regional Government (Landesregierung), on 2 April 1991, dismissed the applicant’s appeal insofar as it concerned the request for permission under the Landscape Protection Act. 14. On 28 May 1991 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the Regional Government’s decision. 15. The Administrative Court quashed the Regional Government’s decision on the ground of procedural deficiencies on 6 May 1996 and remitted the case to the latter. It found that the authorities had failed to obtain detailed information concerning nature conservancy issues which were raised by the applicant’s project. 16. On 16 January 1997 the Regional Government invited the applicant to comment on the additional expert opinion on nature conservancy issues of the expert A. On 31 January 1997 the applicant submitted his comments, following which A. amended the expert opinion on 5 May 1997. 17. Subsequently, on 26 May 1997, the applicant lodged an application with the Administrative Court against the administrative authorities’ failure to decide (Säumnisbeschwerde). 18. On 10 July 1997 the Administrative Court ordered the Regional Government to issue a decision within three months. Subsequently, the Regional Government appointed an expert on agriculture and forestry issues, who, after inspecting the applicant’s land on 19 August 1997, delivered his opinion on 22 August 1997. 19. On 4 November 1998 the Administrative Court requested the Regional Government to order expert A. to submit an additional expert opinion on nature conservancy issues, which A. delivered on 12 January 1999. 20. Subsequently, on 25 January 1999, the Regional Government invited the applicant to submit comments on the expert opinions on nature conservancy issues and on agriculture and forestry issues within two weeks. 21. On 24 February 1999 the applicant submitted comments on these opinions and requested an oral hearing. He also requested that the experts be summoned to the hearing and that the land be inspected by the court. He stressed that the project would improve the productivity of the agricultural land and that therefore public interest existed in the realisation of his project as required under the applicable law. He also challenged the expert A. for bias as he had already delivered an opinion upon a request by the Regional Government and that his independence was doubtful as he was a civil servant bound by instructions. 22. On 6 July 1999 the Administrative Court dismissed the applicant’s appeal against the District Authority’s decision of 21 June 1990 concerning the request for permission under the Landscape Protection Act. It found that the competence to decide on the merits had passed over to it as the Regional Government had failed to decide within the three-month time-limit set. 23. Further it found, in view of the expert opinions, that the applicant’s project interfered with the objects of the Landscape Protection Act as it would spoil the character of the landscape and that there existed no public interest which would justify the measure. Moreover, the applicant had not disproved the expert’s conclusion. 24. As regards the alleged bias of A., it found that the mere fact that the expert had already delivered an opinion at an earlier stage of the proceedings and that he was a civil servant was not in itself sufficient to raise doubts as to his independence and impartiality and that the applicant had failed to put forward any specific argument to cast doubt upon A.’s independence or impartiality. 25. Finally, the court held that it could abstain from an oral hearing and an inspection of the applicant’s land since the proceedings had been carried out correctly and the facts, insofar as relevant in view of the applicable law, were undisputed. This decision was served on the applicant’s counsel on 12 August 1999.

train

001-109791

ENG

DEU

CHAMBER

CASE OF RANGELOV v. GERMANY

Violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security;Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

André Potocki;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger

6. The applicant was born in 1961. When lodging his application, he was detained in Straubing Prison (Germany). He is currently detained in Grad Vraca (Bulgaria). 7. The applicant entered Germany in 1979. He has been convicted some fifteen times since 1980, notably of theft and burglary. In particular, on 1 March 1984 the Kempten District Court convicted him of three counts of joint theft as a member of a gang and sentenced him to three years’ imprisonment. On 7 October 1988 the Munich I Regional Court convicted the applicant of six counts of burglary and one count of attempted burglary and sentenced him to five years’ imprisonment. On 1 October 1993 the Munich District Court convicted the applicant of joint attempted burglary, committed approximately one month after his release from prison, and sentenced him to one year and six months’ imprisonment. 8. On 21 December 1994 the applicant was arrested and remanded in detention. 9. On 26 January 1996 the Munich I Regional Court convicted the applicant of eight counts of burglary and attempted burglary, committed only a few months after his release from prison, and sentenced him to eight years and six months’ imprisonment. It found that by breaking into different shops, the applicant had stolen goods worth some 140,000 Deutschmarks (approximately 71,581 euros). It further ordered the applicant’s preventive detention pursuant to Article 66 § 1 of the Criminal Code (see paragraphs 40-41 below). Having regard to an expert report, the court found that the applicant had a propensity to commit offences by which serious economic damage was caused and was therefore dangerous to the public. 10. By a decision of 16 April 1997, supplemented on 29 October 1997, the city of Munich ordered the applicant’s expulsion to Bulgaria and prohibited him to re-enter Germany for an indefinite duration in view of his criminal convictions. It authorised the applicant’s expulsion directly from prison as soon as he had served his sentence. The expulsion order became final on 30 December 1997, the regional government of Upper Bavaria having dismissed the applicant’s appeal on 25 November 1997. 11. In the plan governing the execution of the applicant’s sentence, drawn up by the Straubing Prison authorities and presented to the applicant on 9 October 1997, it is noted that the applicant’s transfer to a social therapeutic institution, relaxations in the conditions of his detention and preparations for his release were not envisaged as the city of Munich had issued a deportation order against him. 12. On 7 January 2002 the Erlangen Prison authorities informed the applicant, who was at that time detained in Straubing Prison, that it was not possible to transfer him to Erlangen in order to enable him to participate in a social therapy because he was liable to be expelled after having served his prison sentence. 13. The applicant served his full prison sentence until 19 June 2003. Since then, he was remanded in preventive detention. 14. On 21 August 2003 the Regensburg Regional Court, in review proceedings pursuant to Article 67c § 1 of the Criminal Code (see paragraph 42 below), decided that the execution of the applicant’s preventive detention was still necessary in view of its objective. 15. On 1 December 2003 the Nuremberg Court of Appeal, allowing the applicant’s appeal, quashed the decision of 21 August 2003 and remitted the case to the Regional Court. It found that the Regional Court had not been entitled to authorise one of its judges to hear the applicant alone instead of hearing him in its full composition without giving reasons for doing so. Moreover, the refusal of the Straubing Prison authorities to allow the applicant’s defence counsel to inspect his personal files had violated the right to a fair trial. 16. The applicant’s counsel was subsequently granted access to the applicant’s personal files at Straubing Prison. 17. On 26 February 2004 the Regensburg Regional Court, having heard the applicant on 15 January 2004 and the applicant and the two experts W. and T. on 19 February 2004, again decided that the execution of the applicant’s preventive detention was necessary in view of its objective (Article 67c § 1 of the Criminal Code). It therefore refused to suspend the execution of the applicant’s preventive detention and to grant probation. 18. Having regard to the report submitted by the expert for forensic psychiatry W., the Regional Court found that it was very likely that the applicant would reoffend if released. He had been convicted of burglary on numerous occasions and had reoffended shortly after having served long prison sentences. As confirmed by a report submitted by the Straubing Prison authorities dated 17 January 2003 and by the applicant’s statements at the hearing, the applicant continuously refused critically to reflect on his offences and felt persecuted and wrongfully convicted by the German courts. 19. The Regional Court considered that there were also no other elements indicating that the applicant was no longer inclined to reoffend. It noted that according to expert W., it was advisable for the applicant to participate in a social therapy. It conceded that the applicant had not been admitted to a social therapy in Erlangen Prison he had applied for in 2002. The conditions of his detention had also not been relaxed (Vollzugslockerungen). Both of these measures were important conditions for arriving at a prognosis that he was no longer dangerous to the public. However, this did not alter the fact that the applicant kept posing a risk to the public. 20. According to the Regional Court, the applicant’s preventive detention was also not disproportionate. As the applicant was not a German national it was unlikely that the prison authorities, having regard to the usual practice, would relax his conditions of detention. He had further been refused a social therapy in view of his imminent expulsion. The court considered that it was illegal to retain a convicted person in preventive detention for an indefinite period of time only as a consequence of his foreign nationality and the resulting refusal of relaxed conditions of imprisonment. The Public Prosecutor’s Office would have to consider this issue when deciding on a fresh motion lodged by the applicant to suspend his preventive detention pursuant to Article 456a of the Code of Criminal Procedure (see paragraph 45 below). Otherwise, a suspension of the preventive detention order against the applicant on probation could have to be ordered in the future for reasons of proportionality even without the conditions of his detention having previously been relaxed. 21. On 23 April 2004 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 26 February 2004. 22. Endorsing the reasons given by the Regional Court, the Court of Appeal found that the applicant was still dangerous to the public. He had also proved obstinate in prison and had to be punished three times in 2003 for having insulted the prison staff. Due to the fact that the applicant, as confirmed by expert W., refused to take responsibility for his past offences, there were no suitable measures to prepare the applicant adequately for his release. As the applicant was in preventive detention only since 20 June 2003, the execution of this measure was still proportionate. 23. On 27 May 2004 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He notably argued that his right to freedom as guaranteed by Article 2 § 2 of the Basic Law was violated because his preventive detention was disproportionate. Moreover, he claimed that the refusal to admit him to a social therapy due to his imminent expulsion discriminated him because of his Bulgarian nationality and therefore disregarded his right to equality under Article 3 of the Basic Law. 24. On 28 September 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint and to grant him legal aid (no. 2 BvR 1079/04). It found that his complaint had no prospects of success. There was nothing to indicate that the criminal courts, in reaching their decision under Article 67c § 1 of the Criminal Code, notably in finding that the applicant was still dangerous, had failed duly to consider human dignity and the right to freedom as guaranteed by the Basic Law. 25. The Federal Constitutional Court confirmed that measures relaxing the conditions of detention were a decisive factor for the prognosis of a convicted person’s dangerousness. However, the applicant neither claimed to have applied for such measures in the course of his preventive detention nor to have been unlawfully refused such measures. The decisions of the criminal courts were also not based on the fact that until then, no such measures had been granted. As regards therapeutic measures, the criminal courts had rightly pointed out that due to the applicant’s persistent refusal to accept responsibility for his offences there were no suitable measures to prepare him adequately for his release. 26. On 25 November 2004 the Straubing District Court dismissed the applicant’s request for measures relaxing the conditions of his preventive detention, notably leave under escort for one day under the supervision of two prison officers. It argued that he might abscond on that occasion. The applicant’s appeal on points of law against this decision to the Nuremberg Court of Appeal was to no avail. On 14 March 2006 the Straubing Prison authorities dismissed another request made by the applicant to relax his conditions of preventive detention on the same grounds. 27. On 17 December 2004 the Erlangen Prison again declared not to consent to a transfer of the applicant from Straubing Prison to it in order to admit the applicant to a social therapy. It argued that it was not in a position to prepare the applicant, who was liable to be expelled, for a life without offences in Bulgaria. The living conditions in that country were not known to the therapists. On 31 January 2005 the Nuremberg-Fürth Regional Court dismissed as inadmissible the applicant’s request to declare that refusal unlawful. It found that it were the Straubing Prison authorities which were competent to decide on the applicant’s transfer to a different prison. 28. On 21 December 2006 the Regensburg Regional Court, reviewing the necessity of the applicant’s preventive detention under Articles 67d § 2 and 67e of the Criminal Code (see paragraphs 43-44 below), refused to suspend the execution of the applicant’s preventive detention order on probation. Having regard to the report of psychiatric expert A. it had consulted, it found that there was still a risk that the applicant would commit further serious offences against the property of others (but no violent offences) if released. 29. The Regional Court considered that the applicant’s continued preventive detention was still proportionate. It conceded that it was problematic that no measures at all were planned by the prison authorities to further the applicant’s reintegration into society. Moreover, owing to, in particular, his foreign nationality, the applicant could not expect any relaxations in the conditions of his detention. In practice, the latter were a precondition for coming to an assessment that a detainee was no longer dangerous to the public. Therefore, the court would have to decide at the next periodic review of the applicant’s preventive detention whether the applicant was to be released for reasons of proportionality, despite the fact that he had not previously been granted relaxations in the conditions of his detention and had not been considered as no longer posing a threat to the public. 30. On 12 March 2007 the Nuremberg Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. It noted, in particular, that expert A. had considered that there was no starting point for beginning with measures preparing the applicant’s conditional release. As he contested having committed the property offences he had been found guilt of, he could not critically reflect on his criminal behaviour. Therefore, relaxations in the conditions of the applicant’s detention, which were very important to arrive at a prognosis that a person was no longer dangerous to the public, had not been refused without good cause. 31. On 16 February 2005 the Munich I Public Prosecutor’s Office dismissed the applicant’s request to suspend the execution of his preventive detention in view of his imminent expulsion under Article 456a of the Code of Criminal Procedure. On 25 April 2005 the General Public Prosecutor dismissed the applicant’s appeal. 32. On 12 July 2005 the Munich Court of Appeal dismissed the applicant’s request for judicial review. Endorsing the reasons given by the prosecution authorities, it found that there was still a risk that the applicant reoffended and that he was still was not conscious of his guilt. In these circumstances, a therapeutic treatment was without prospects of success. 33. On 19 June 2007 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1676/05). It found that the decision of the Court of Appeal to consider as lawful the prosecution’s balancing between the public interest in the continuation of the applicant’s preventive detention and the applicant’s interest in his personal liberty had – at least at that time – not been unconstitutional. 34. On 7 November 2005 the Munich I Public Prosecutor’s Office dismissed another request made by the applicant to suspend the execution of his preventive detention under Article 456a of the Code of Criminal Procedure on the same grounds. 35. The applicant’s appeals were to no avail. In its decision of 16 May 2006 the Munich Court of Appeal noted, in particular, that it might appear contradictory to the applicant that measures aiming at his reintegration into society, such as a social therapy, were refused to him because of the deportation order against him, but that the authorities nevertheless refused to suspend the execution of his preventive detention under Article 456a of the Code of Criminal Procedure. However, the refusal of the said measures alone did not mean that the prosecution authorities could only exercise their discretion in a lawful manner by granting his request under the said provision. 36. On 7 September 2007 the Munich I Public Prosecutor’s Office decided to suspend the execution of the applicant’s preventive detention at the date of his expulsion to Bulgaria, and on 1 November 2007 at the earliest, under Article 456a of the Code of Criminal Procedure. 37. On 13 December 2007 the applicant was expelled to Bulgaria in accordance with the deportation order issued by the city of Munich on 16 April 1997. 38. On 30 November 2009 the Korneuburg Regional Court (Austria) convicted the applicant of two counts of murder, one count of attempted murder and robbery with firearms, committed on 1 June 2009 in Austria and sentenced him to life imprisonment. The judgment was upheld on appeal. The applicant was subsequently transferred to Bulgaria in order to serve his sentence. 39. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows: 40. The sentencing court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code). 41. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time). 42. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b (1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends the execution of the preventive detention order and places the person on probation with supervision of their conduct which commences with the suspension. 43. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article, in its version in force at the relevant time, provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release. 44. Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time-limit is two years (paragraph 2 of Article 67e). 45. Pursuant to Article 456a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may dispense with the execution of a prison sentence or a measure of correction and prevention if the convicted person is expelled from German territory. The execution of the sentence or measure may be continued if the expelled person returns to Germany territory (Article 456a § 2 of the Code of Criminal Procedure). 46. Section 9 § 2 of the Execution of Sentences Act provides that prisoners may be transferred to a socio-therapeutic institution with their consent if the special therapeutic measures and social aids of the institution are advisable for their rehabilitation. The transfer is conditional upon the consent of the head of the socio-therapeutic institution concerned. 47. Under section 11 § 1 of the Execution of Sentences Act, the conditions of detention may be relaxed by making an order permitting the prisoner to perform regular work outside prison either under the supervision of a member of the prison staff (outside work) or without such supervision (work release). The prisoner may further be permitted to leave the prison for a certain time during the day either under the supervision of the prison staff (short leave under escort) or without such supervision (short leave). Under section 11 § 2 of the said Act, these measures may only be ordered with the prisoner’s consent and if there is no risk that the prisoner might seek to abscond or commit offences during the relaxation of the conditions of his detention. 48. Under section 6 § 1 (c) of the Federal Administrative Rules relating to Article 11 of the Execution of Sentences Act, which seek to ensure the uniform application of the law by the authorities, external work, work release and short leave may, as a rule, not be permitted to prisoners against whom a final expulsion order is in force and who are to be deported directly from prison. Exceptions may be granted in agreement with the competent aliens’ authority. Short leave under escort may be authorised. 49. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for the complainants’ preventive detention (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 50. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003. 51. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. The provisions on the imposition and duration of preventive detention which did not concern the retrospective ordering or prolongation of preventive detention could only continue to be applied in the transitional period subject to a strict review of proportionality. As a general rule, proportionality was only observed where there was a danger of the person concerned committing serious violent crimes or sexual offences if released. 52. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).

train

001-82962

ENG

NLD

CHAMBER

CASE OF VAN VONDEL v. THE NETHERLANDS

Violation of Art. 8

David Thór Björgvinsson;Elisabeth Palm;Wilhelmina Thomassen

5. The applicant was born in 1954 and lives in Leeds. 6. Between 1 January 1989 and 1 August 1994, he worked as a police officer and, in this capacity, acted as a “runner” for the Kennemerland Regional Criminal Intelligence Service (Regionale Criminele Inlichtingendienst; “RCID”). 7. On 26 January 1994 the Minister of Justice (Minister van Justitie) and the Minister of the Interior (Minister van Binnenlandse Zaken) informed the Lower House of Parliament (Tweede Kamer der Staten-Generaal) of the disbandment in December 1993 of the North-Holland/Utrecht Interregional Criminal Investigation Team (Interregionaal Recherche Team; “IRT”) on account of deployment of controversial criminal investigation methods in the fight against organised crime (for further details, see Van Vondel v. the Netherlands (dec.), no. 38258/03, ECHR 2006). This triggered off a parliamentary inquiry (parlementaire enquête) into criminal investigation methods used in the Netherlands and the control exercised over such methods. 8. On 6 December 1994 the parliamentary commission of inquiry on criminal investigation methods (parlementaire enquêtecommissie opsporingsmethoden; “PEC”) was instituted. It was composed of nine Lower House parliamentarians. 9. The PEC conducted an extensive inquiry, which lasted for about one year. Between January and May 1995 documents were collected and examined and preliminary interviews with more than 300 persons were held. The PEC had subsequent informal, confidential “private conversations” (besloten gesprekken) with a total of 139 persons – of which verbatim records were drawn up – in order to broaden its understanding of the issues involved, to select the persons and experts to be heard in public, and to prepare these public hearings. On the basis of these documents, interviews and conversations, the PEC made a selection of persons whom it wished to hear. Those interviews and “private conversations”, which were all held on a voluntary basis, were of a confidential nature and the PEC gave an undertaking that, unless consent was given by the person concerned, it would not use any direct citations. 10. Between 6 September and 9 November 1995, the PEC held 93 public hearings during which 88 persons gave evidence, including the applicant who was heard twice. These public hearings were directly broadcast on national television. It did not hold any witness or expert hearings in camera. 11. The PEC presented its final report containing its findings and recommendations on 1 February 1996. It concluded that there was a crisis in the field of criminal investigation which comprised three main elements, namely the absence of adequate legal norms for investigating methods used in respect of organised crime, a criminal investigation system that was not functioning properly in that it involved too many separate organisations with little or no co-ordination of their activities, resulting in unclear decision-making as regards competences and responsibilities, and problems with power structures in that the prosecution department did not always have or exercise sufficient authority over the police. 12. The PEC report has had a great impact on the organisation of criminal investigation in the Netherlands and has formed the basis of a number of changes to the Netherlands Code of Criminal Procedure, including the Preliminary Judicial Investigations (Review) Act (Wet herziening gerechtelijk vooronderzoek) and the Special Investigative Powers Act (Wet bijzondere opsporingsbevoegdheden) which entered into force on 1 February 2000, amending the legal rules on investigative powers and coercive measures in criminal investigations. 13. In April 1995, with the permission of the Minister of Justice and under the responsibility and direction of the public prosecution service (Openbaar Ministerie), a special team of the National Police Internal Investigation Department (rijksrecherche), the so-called “Fort-team”, started a broad factfinding inquiry into the manner in which the Kennemerland Regional Criminal Intelligence Service (Regionale Criminele Inlichtingendienst; ”RCID”) operated between 1990 and 1995, in particular its use of special investigation methods which were not dissimilar to those having been used by the disbanded North-Holland/Utrecht IRT. 14. The mission of the Fort-team was: “To carry out, as thoroughly as possible, a fact-finding inquiry into the activities, functioning and working methods of the Kennemerland RCID from 1990 to date. In so doing, particular attention must be paid to the use of special investigation methods. In addition, the responsibilities of both the police and the public prosecution service for the RCID and RCID operations must be mapped out. The inquiry is to result in a report containing findings and recommendations.” 15. It was agreed with the Minister of Justice and the Minister of the Interior that the Chair and Vice-Chair of the PEC would be kept informed from the outset of this inquiry of the findings of the Fort-team. It was to be a fact-finding exercise, primarily aimed at drawing lessons from facts found. 16. The functioning of the Kennemerland RCID during the period under investigation by the Fort-team had already been the subject of a number of previous inquiries by the Kennemerland regional police force as well as by the National Police Internal Investigation Department. The results of the previous inquiries were incorporated into those of the Fort-team inquiry, which covered a multitude of aspects related to the practical functioning of the Kennemerland RCID, including its involvement in a number of specific activities, such as a “fruit-juice channel” – a controlled-delivery channel involving the transport of narcotics concealed in fruit-juice concentrates. 17. In the course of its inquiry, 250 persons gave evidence, 40 of whom more than once. The persons heard included higher officials of the police and public prosecution department, police officers involved in criminal investigations, police informers and other civilians. The applicant and his former superior Mr L. also gave evidence to the Fort-team. All persons heard by the Fort-team were given an undertaking that their statements would not be used, without their consent, in any criminal investigation. 18. According to the final report issued by the Fort-team on 29 March 1996, it had had contacts – from the start of its inquiry – with Mr R., a Belgian fruit-juice producer who during the relevant period had acted as an informer for the Kennemerland RCID and who had been “run” by the applicant. Mr R. had contacted the National Criminal Intelligence Service (Centrale Criminele Inlichtingendienst; “CRI”) in April 1995 and had declared that, since the end of 1991, he had been in contact with the applicant and subsequently with the latter's colleague Mr L. From the end of 1991 Mr R. had provided the applicant with information about the production of fruit-juice concentrates in Morocco and their transport to the Netherlands. After Mr R. had set up a fruit-juice factory in Belgium in 1992, he had met Mr L., whom he initially knew under a pseudonym. At the request of the applicant and Mr L., Mr R. had set up the fruit-juice factory Delta Rio in Ecuador. Although the applicant and Mr L. had invested millions of Netherlands guilders in both the Belgian and Delta Rio factories, they decided in September 1994 that the Delta Rio factory was to be closed down and sold. Mr R., who did not understand this decision, started to distrust the applicant and Mr L. and decided to inform the CRI about the matter. The CRI subsequently brought Mr R. into contact with the National Police Internal Investigation Department. 19. The final report of the Fort-team further states that, during its inquiry, the statements given by Mr R. had as far as possible been verified by the use of observations, audio devices and documents and that inquiries had been made as to whether and, if so, why the applicant and Mr L. had financially supported the factory in Belgium and had the Delta Rio factory in Ecuador set up. 20. Although reports by the National Police Internal Investigation Department are generally not public, the report of the Fort-team was rendered public given the attention this inquiry, against the background of the PEC inquiry, had attracted. Its main conclusions comprised, inter alia, the following elements: - the Kennemerland RCID was to be characterised as a disorganised service, in which no direction was given and where no substantive control whatsoever was exercised; - in the Kennemerland RCID, basic rules on the “running” of informers and infiltrators had been breached frequently and on a large scale; - the police force command had seriously fallen short in the exercise of its responsibility over the RCID in that the commander, his deputy and the head of the criminal investigation division were not or hardly aware of the particulars of RCID activities; - the scope of the CID work had for a long time been seriously underestimated by the Haarlem public prosecution department; - between 1991 and 1995 the RCID chief L. and his (ex)collaborator [the applicant] had, with a high degree of probability, spent over five million Netherlands guilders from an undocumented source, thus giving rise to the impression that the money had criminal origins; - the spending of this money had not been subjected to any form of control; - the RCID chief L. had consequently disregarded his duty to inform and give explanations to his superiors and the public prosecution department on essential points, and he had intentionally misinformed his superiors as well as the National Criminal Investigation Department; - since at least 1991 the Kennemerland RCID had used the method of controlled drug deliveries; - the relevant police commanders and public prosecutors had only controlled the application of this method by the Kennemerland RCID to a limited extent; - Mr L. and the applicant had set up a CID operation in Ecuador wholly independently (without informing their superiors or the public prosecution department) and in this so-called “fruit-juice channel” all rules applicable to CID activities had been breached; - the most plausible explanation for the “fruit-juice channel” was the wish to set up an infrastructure for controlled narcotics shipments and it had remained unclear what purpose this channel still served after the IRT had been disbanded and for what purposes major investments were still being made; - the statements given by Mr L. and the applicant before the PEC about the funds invested in the “fruit-juice channel” were, on important points, in contradiction with the findings made in the inquiry of the National Criminal Investigation Department; - the conducting of CID operations abroad (Morocco, Ecuador, the United Kingdom, Belgium), without informing the foreign authorities, had violated the sovereignty of these countries, making it subservient to domestic investigation interests; - it had not appeared that killings in the criminal world could be attributed to the Kennemerland RCID's practice of “running” informers or to the targeting of such informers; - after the IRT's disbandment, on several occasions serious threats against Mr L. had formed the topic of conversation, but it had appeared after investigation that there was nothing concrete behind these threats; yet it was noteworthy that these threats coincided with moments when Mr L. was called to account explicitly for far-reaching CID activities; - moreover, after having left the police force, the applicant had maintained contacts with at least four informers and had – in cooperation with former colleagues – transported drugs through police-controlled channels and accepted money of criminal origin; and - no explanation had been found for a number of actions by Mr L. and the applicant and they themselves had never given a reasonable explanation; the question whether they had been active, within the limits of the rule of law, in fighting crime or, whether, intentionally or unintentionally, they had participated in that same criminal activity could not be answered. 21. On 9 October 1995, immediately after Mr L.'s appearance, the applicant gave evidence under oath at a public hearing before the PEC. 22. On 30 October 1995, the PEC had a “private conversation” with Mr R., who was referred to in the verbatim record of this conversation as “Juice-man” (“Sapman”). On 2 November 1995, directly after Mr L.'s second appearance, the PEC also took evidence from the applicant in public for a second time. 23. Although, in the course of its inquiry, the Fort-team had requested the applicant to give a statement on a number of occasions, he did so only once, namely shortly before his second PEC hearing, and briefly in the context of the inquiry into the “fruit-juice channel”, and refused further cooperation. 24. On 31 January 1996 the PEC transmitted to the chief public prosecutor of The Hague a formal record of perjury (proces-verbaal van meineed) in relation to the applicant and his former superior Mr L. concerning various parts of their statements before the PEC, in particular those parts concerning the question of payments to Mr R. 25. On an unspecified date, the applicant was ordered to appear before the Regional Court (arrondissementsrechtbank) of The Hague to stand trial on charges of repeated perjury before the PEC and of repeatedly, that is to say, on different occasions between 25 April 1996 and 11 June 1996, having sought to intimidate Mr R. when the applicant knew or had serious reason to assume that a statement from him would be sought in the context of the PEC inquiry. 26. In its judgment of 8 April 1998, following hearings on 24 and 25 March 1998, the Regional Court convicted the applicant as charged and sentenced him to six months' imprisonment. Both the applicant and the prosecution lodged an appeal with the Court of Appeal (gerechtshof) of The Hague. 27. In a judgment of 5 March 2002, following nine hearings held between 14 November 2000 and 19 February 2002 and in the course of which Mr R. had given evidence to the Court of Appeal on 17 January 2001, the Court of Appeal quashed the judgment of 8 April 1998, convicted the applicant of repeated perjury before the PEC (in respect of three parts of the statements he had made at hearings before the PEC) and of repeatedly having sought to intimidate the (potential) witness Mr R. It acquitted the applicant of the remaining charges and sentenced him to three months' imprisonment, suspended pending a two-year probationary period. 28. The Court of Appeal rejected the applicant's argument that the evidence in his case had been unlawfully obtained. As regards the inquiry by the Fort-team, the Court of Appeal noted that the tasks of the National Police Internal Investigation Department included carrying out inquiries into the manner in which police officers used their statutory powers, and that, in accordance with section 19 § 3 of the 1993 Police Act (Politiewet) in conjunction with section 2 of the Order on the functions of special-duty police officers (Taakbeschikking bijzondere ambtenaren van politie) of 25 March 1994 (Official Gazette (Staatscourant) 1994, no. 64), the prosecutorgeneral (Procureur-Generaal) can instruct the National Police Internal Investigation Department to carry out an inquiry, which may concern acts of an individual police officer or the functioning of a particular police force unit. After an extensive analysis of the mission of the Fort-team and the manner in which its inquiry had evolved, the Court of Appeal found no reasons for holding that this inquiry should be regarded as a covert criminal investigation or that, in the course of this inquiry, the applicant should have been regarded as a criminal suspect in connection with the “fruit-juice channel”. 29. The Court of Appeal also rejected the applicant's argument that the recording by Mr R. of his (telephone) conversations with the applicant with technical equipment made available by the National Police Internal Investigation Department had infringed his right to privacy under Article 8 of the Convention. It found it established that, in the course of nine hearing sessions between 2 June 1995 and 7 March 1996, Mr R. had made statements to the Fort-team about the “fruit-juice channel”, that four facetoface conversations (between April and August 1995) and four telephone conversations (between July and August 1995) between the applicant and Mr R. had been recorded by Mr R., that he had done so on a voluntary basis and with the aid of devices provided by the Fort-team at Mr R.'s own request as he was initially disbelieved and as he also wished this for personal safety considerations, that one of the four recorded telephone conversations only consisted of a recording of what Mr R. had said, and that only in respect of one particular conversation had Mr R. received specific instructions as to what information should be obtained from the applicant, namely an admission of payments by him to Mr R. 30. The Court of Appeal held that, according to domestic case-law, the mere tape-recording of a (telephone) conversation without the permission (or knowledge) of the conversation partner did not, in itself, entail a violation of that conversation partner's right to respect for privacy; for that to be the case, additional circumstances were required. In the instant case, the additional circumstances were that a number of conversations had been recorded, including the applicant's contributions to those conversations. Furthermore, the (telephone) conversations had been conducted by the applicant as the former “runner” of a (former) police informer about matters having occurred during the period in which the applicant “ran” Mr R. as informer and the winding-up of that relationship. As these conversations – in any event on the part of the applicant – were of an exclusively professional nature and content, the Court of Appeal held that, in view of domestic case-law on this point, this allowed no other conclusion than that the applicant's private life did not come into play in respect of the recorded (telephone) conversations at issue. It further held that Mr R.'s recourse to a recording device – and Mr R. had been entirely free to decide whether or not to activate it as well as to make the recordings available to the Fort-team – had mainly been prompted by Mr R.'s need to substantiate his account of the “fruit-juice channel” in order to be believed. The Court of Appeal therefore considered that it could not be said that there had been interference on the part of the authorities in respect of the recording. It only accepted the existence of such interference in breach of Article 8 § 1 in respect of the one recorded conversation for which Mr R. had received explicit instructions, to the extent that this conversation related to matters falling within the applicant's sphere of privacy. It did not use that particular statement in evidence. 31. In the opinion of the Court of Appeal, these findings were not altered by the fact that the Fort-team, for its part, had an interest in recording the conversations for the purposes of verifying information relevant to its factfinding inquiry, provided by Mr R., about the involvement in the “fruitjuice channel” of staff attached to the Kennemerland RCID, the unit forming the object of the Fort-team inquiry. The Court of Appeal found it relatively obvious that this verification, in view of the accounts of the inquiry in subsequent reports, had taken place in the form of tape-recordings and the preparation of transcripts and, in this connection, recalled its finding that the inquiry was not to be regarded as a (covert) criminal investigation. 32. The applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad) in which he raised a total of 15 grievances, including a complaint – in which he relied inter alia on Article 8 of the Convention – that the Court of Appeal had unjustly rejected his argument that his right to privacy had been violated on account of the recording of his (telephone) conversations with Mr R. 33. The applicant's appeal in cassation was rejected by the Supreme Court on 8 July 2003. It dismissed the alleged violation of the applicant's right to privacy, holding: “The complaint does not provide grounds for overturning the ruling of the Court of Appeal (kan niet tot cassatie leiden). Having regard to section 81 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since the complaint does not give rise to a need for a determination of legal issues in the interest of legal unity or legal development.” 34. Article 10 of the Constitution (Grondwet) of the Kingdom of the Netherlands provides as follows: “1. Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to Act of Parliament. 2. Rules to protect privacy shall be laid down by Act of Parliament in connection with the recording and dissemination of personal data. 3. Rules concerning the rights of persons to be informed of data recorded concerning them and of the use that is made thereof, and to have such data corrected shall be laid down by Act of Parliament.” Article 13 of the Constitution reads: “1. The privacy of correspondence shall not be violated except in the cases laid down by Act of Parliament, by order of the courts. 2. The privacy of the telephone and telegraph shall not be violated except, in the cases laid down by Act of Parliament, by or with the authorisation of those designated for the purpose by Act of Parliament.” According to the relevant provisions of the Netherlands Criminal Code (Wetboek van Strafrecht) as in force at the material time (section 139a-e), it is not a criminal offence when a conversation partner taps or records a (telephone) conversation with a technical device or when a conversation partner passes a recording of such a conversation on to another person. It is further not a criminal offence when a person makes available to another person a recording device, unless the former is aware or in all reasonableness should be aware that the device concerned contains unlawfully made recordings or unlawfully obtained and stored data. 35. Pursuant to section 3 § 2 of the 1850 Parliamentary Inquiries Act (Wet op de Parlementaire Enquête – “the Act”), all persons residing in the Netherlands are obliged to comply with a summons to appear before a parliamentary commission of inquiry in order to be heard as a witness or expert. In case a person fails to comply with a summons to appear, the commission may issue an order for the person concerned to be brought before it (bevel tot medebrenging) within the meaning of section 13 of the Act. The commission may require such witnesses to take the oath or make a solemn affirmation that they will state the whole truth and nothing but the truth (section 8 §§ 1 and 2 of the Act). 36. Unlike the situation in criminal proceedings, persons heard by a parliamentary commission of inquiry do not have the right to remain silent. The only persons who enjoy the privilege of non-disclosure before a parliamentary commission of inquiry are those who – by virtue of their office, their profession or their position – are bound to secrecy, but only in relation to matters the knowledge of which has been entrusted to them in that capacity (section 19 of the Act) or in case disclosure of secret information would entail disproportionate damage to the exercise of the profession of the person concerned or to the interest of his or her company or the company for which he or she works or has worked (section 18 of the Act). 37. Section 24 of the Act provides that, with the exception of the situation referred to in section 25, statements given to a parliamentary commission of inquiry can never be used in evidence in judicial proceedings against the person having given such statements or against any third party. This reflects the principle that the purpose of a parliamentary inquiry is to find out the truth about facts and events having taken place in the past and not to determine personal liabilities under civil or criminal law. 38. Section 25 of the Act provides, inter alia, that perjury (meineed) on the part of a witness heard by a parliamentary commission of inquiry attracts the penalties provided for in the Criminal Code for giving false testimony in civil proceedings. It further provides that the written record of the hearing concerned constitutes legal evidence. Section 43 of the 1993 Police Act (Politiewet) provides: “1. For tasks determined by the Minister of Justice, after consultation with the Minister of Internal Affairs, the Procurator General shall have at his disposal specialduty police officers (bijzondere ambtenaren van politie). 2. The special-duty police officers shall ... be appointed, promoted, suspended and dismissed by the Minister of Justice.” 39. The main task of the National Police Internal Investigation Department is to investigate (purported) punishable behaviour of civil servants which affects the integrity of the administration of justice and/or that of the public administration. It exercises this task by conducting either a fact-finding inquiry or a criminal investigation, depending on the mission given. As a fact-finding inquiry is solely aimed at obtaining factual clarification, the National Police Internal Investigation Department cannot avail itself of any investigative powers (opsporingsbevoegdheden) or coercive measures (dwangmiddelen) in conducting such an inquiry. On the other hand, when conducting a criminal investigation, it can use such powers and measures and a criminal investigation may follow a fact-finding inquiry. 40. The rules, as in force at the material time, concerning the interception and recording of telecommunications by the investigation authorities in criminal proceedings are set out in the Court's judgment in the case of M.M. v. the Netherlands, (no. 39339/98, §§ 22-28, 8 April 2003) and in its decision on admissibility in the case of Aalmoes and Others v. the Netherlands (no. 16269/02, 25 November 2004).

train

001-72664

ENG

GBR

CHAMBER

CASE OF YASSAR HUSSAIN v. THE UNITED KINGDOM

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed

Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Rait Maruste

4. The applicant was born in 1981 and lives in Stoke-on-Trent. 5. The applicant was arrested on 14 May 2002 on suspicion of having intimidated witnesses. In an identity parade held the same afternoon, he was positively identified by one of the two witnesses. The applicant states that this witness accepted in her original statement of evidence to the police that she was a heroin user and an inherently unreliable witness. The applicant was subsequently charged with five counts of doing acts tending and intended to pervert the course of public justice. 6. The applicant pleaded not guilty on 2 August 2002 and the trial was adjourned to the Stoke-on-Trent Crown Court on 7 October 2002. On that date no judge was available and the trial was moved to 3 February 2003. On the second day of the trial the witness who had identified the applicant did not attend and the trial had to be aborted. At the re-listed trial on 15 September 2003, Counsel for the Crown addressed the court in the following terms: “When this matter was listed for trial in February, [L.] attended on the first day. She wasn't called to give evidence and didn't come back on the second day. Certainly, that caused some concern. I think it is fair to say, at different stages of the entire case, she has blown slightly hot and cold. [L.] indicated to the police when they contacted her recently and, in fact, again yesterday, that she was reluctant to give evidence. She has attended court today and with my learned friend's permission, I have had the chance to sit down and have a chat to her. Your Honour, the reality is that she does not want to give evidence. She has personal reasons I don't propose to divulge in open court. She has formed a new relationship. She has moved on. She is trying very hard to put the events of this entire case behind her. She has satisfied the police who spoke to her yesterday and satisfied those who instruct me that no threats have been made toward her in relation to today's proceedings. She insists that there has been no contact from [the applicant] or others acting on his behalf. We don't feel that, due to the nature of this allegation, she ought to be compelled to give evidence in this case. Your Honour, there has been a very full discussion and the view we have taken is that without her evidence, plainly, we can't proceed. I offer no evidence. Verdicts must follow.” 7. The applicant was duly acquitted. On his counsel's application for a defendant's costs order, the judge refused to make an order and stated: “That order will be refused. There is clear evidence on the court papers. The Crown have taken the view that they are not going to compel this witness although there is compelling evidence in respect of those matters. It is a discretion which I am afraid I am not going to exercise in your favour.” 8. The applicant's attempted appeal was dismissed on 14 November 2003 as “to be appealable as a sentence, the order must be contingent upon conviction. As the defendant's costs order only arises when a prosecution is unsuccessful, it cannot be a sentence and cannot be appealed at the Court of Appeal Criminal Division”. 9. Section 16(2)(b) of the Prosecution of Offences Act 1985 provides that where “... any person is tried on indictment and acquitted on any count in the indictment the Crown Court may make a defendant's costs order in favour of the accused”. 10. Practice Direction (Crime: Defence Costs) [1999] 1 WLR 1832, which was in force at the time of the applicant's trial, provided that: “Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant's costs order. Such an order should normally be made whether or not an order for costs inter partes is made, unless there are positive reasons for not doing so, as where, for example, the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is.” 11. As noted above, no appeal lies to the Court of Appeal against a refusal of a defendant's costs order. 12. By virtue of section 29(3) of the Supreme Court Act 1981, the High Court may not exercise its power of judicial review over the Crown Court in matters relating to “trial on indictment”. 13. An argument that the incorporation of the Convention into United Kingdom law required a remedy against a refusal of a defendant's costs order was rejected in R (Shields) v. Liverpool Crown Court [2001] EWHC Admin 90, in which Lord Justice Brooke stated that “... unless and until Parliament decides to remove the anomaly, that an acquitted defendant has no right of appeal against the refusal of a defendant's costs order, however unjust the refusal may be, he has no Convention right of challenge to his decision in an English court and he is still bound to go to Strasbourg if he wishes to make the assertions he sought to raise unsuccessfully in the Administrative Court”.

train

001-5583

ENG

TUR

ADMISSIBILITY

CAKIROGLU v. TURKEY

Inadmissible

Gaukur Jörundsson;Wilhelmina Thomassen

The applicant is a Turkish national, born in 1918 and living in Ankara, Turkey. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1995 the Turkish Telecommunications General Directorate (Telekom) notified the applicant that he had to pay interest on his telephone bill on account of his delay in paying the bill. The bill related to use of a telephone line registered in his firm’s name and installed in the firm’s premises. On 23 June 1995 the applicant applied to the Ankara Magistrates’ Court No. 13 for Civil Affairs. He claimed that, according to his firm’s contract with Telekom, interest could not be imposed for late payment of the telephone bill. Also on 23 June 1995, and at the applicant’s request, the Ankara Magistrates’ Court No. 13 for Civil Affairs requested Telekom not to cut off the telephone line pending the outcome of the proceedings. On 28 February 1996 the Ankara Magistrates’ Court No.13 for Civil Affairs ruled in favour of the applicant. On 8 April 1996, following an appeal by Telekom, the Civil Chamber No. 3 of the Court of Cassation quashed the Magistrates’ Court No. 13’s decision on the ground inter alia that Telekom could oblige the applicant to pay interest for late payment of the telephone bill pursuant to clause 23 of the contract between Telekom and the applicant’s firm. When the case was referred back to it, the Ankara Magistrates’ Court No. 13 for Civil Affairs, on 27 June 1996, insisted on upholding its initial decision in favour of the applicant. Telekom appealed. On 4 December 1996 the General Council of the Court of Cassation for Civil Affairs quashed the Magistrates’ Court’s decision with reference to its earlier decision of 8 April 1996. On 9 April 1997 the General Council of the Court of Cassation for Civil Affairs, on the applicant’s request for rectification of its decision of 4 December 1996, quashed the Magistrates’ Court’s decision of 27 June 1996 on the ground that it lacked jurisdiction in the matter. In the course of the civil proceedings, the applicant was again notified by Telekom that he had to pay two telephone bills together with interest on account of late payment. The bills and the interest thereon related to two telephone lines installed in his firm’s premises, both of which were registered in the applicant’s name. On 19 August 1996 the Ankara Magistrates’ Court No. 6 for Civil Affairs, at the applicant’s request, ordered Telekom not to cut off the applicant’s telephone lines pending the outcome of the proceedings which the applicant intended to take. On 29 August 1996 the applicant applied to the Ankara Magistrates’ Court No. 5 for Civil Affairs. He claimed that, according to his contract with Telekom, interest could not be imposed for late payment of the telephone bills. On 6 May 1997 the Ankara Magistrates’ Court No. 5 for Civil Affairs declined to hear the case on the ground that it lacked jurisdiction in the matter. The applicant then instituted two set of proceedings against Telekom. The first set of proceedings was introduced on this occasion before the Ankara First Instance Court No. 16 on behalf of his firm in whose name one telephone line was registered. The date of re-introduction of the claim was taken to be 23 June 1995 in order to prevent the applicant’s action from being time-barred. The applicant claimed in these proceedings that his firm was not liable to pay interest on account of late payment of telephone charges in respect of this one telephone line. The second set of proceedings was introduced on his own behalf on 29 August 1996 before the Ankara First Instance Court No. 9 in respect of his liability to pay interest on account of late payment of telephone charges in respect of two lines registered in his name and installed in his firm. On 16 July 1997 the Ankara First Instance Court No. 16 ruled that interest on late payment could not be demanded from the applicant’s firm. In its decision the First Instance Court No. 16 pointed out that its judgment was final in view of the subject matter of the case under Article 427 of the Civil Procedural Law. Telekom sought to appeal the decision of 16 July 1997. On 18 September 1997, in a separate decision, the First Instance Court No. 16 rejected Telekom’s application for appeal. Telekom then appealed against the First Instance Court No. 16’s decision of 18 September 1997. The Civil Chamber No. 13 of the Court of Cassation transferred the file to the Civil Chamber No. 11 since it lacked jurisdiction to hear the appeal under the law governing the procedure before the Court of Cassation (Law No. 2797). The Civil Chamber No. 11 in turn transferred the case file to the Civil Chamber No. 19 on the same ground. On 10 March 1998 the Civil Chamber No. 19 of the Court of Cassation ruled in favour of Telekom and quashed the First Instance Court No. 16’s decisions of 16 July 1997 and 18 September 1997. The applicant applied for rectification of the decision of 10 March 1998. On 12 June 1998, at the rectification stage, the Civil Chamber No. 19 reversed its decision of 10 March 1998 and upheld the First Instance Court No. 16’s judgment of 18 September 1997 in which it rejected Telekom’s application for appeal. On 30 September 1997 the Ankara First Instance Court No. 9 also ruled that interest on late payment could not be demanded from the applicant. On Telekom’s appeal the Civil Chamber No.13 of the Court of Cassation, on 19 January 1998, quashed the First Instance Court No. 9’s judgment of 30 September 1997. The case was remitted to the First Instance Court No. 9. In a judgment dated 17 July 1998 the First Instance Court No. 9 complied with the judgment of the Court of Cassation and ruled in favour of Telekom. The applicant appealed against the First Instance Court No. 9’s judgment of 17 July 1998. On 1 October 1998 the Civil Chamber No.13 of the Court of Cassation upheld the First Instance Court No. 9’s judgment of 17 July 1998. On 10 December 1998 the applicant’s request for rectification was further rejected.

train

001-75840

ENG

RUS

CHAMBER

CASE OF BAKIYEVETS v. RUSSIA

Violation of Art. 6-1 (length);Violation of Art. 13;Remainder inadmissible

Christos Rozakis

4. The applicant was born in 1955 and lives in Belogorsk in the Amur Region. She was a shareholder of a private company 5. In August 1998 the company’s board initiated bankruptcy proceedings in respect of the company and sold the company’s property. 6. On 4 December 1998 the applicant lodged an action before the Belogorsk Town Court against the company’s receiver seeking payment of the value of her share. 7. The first hearing was listed for 6 May 1999 because the courthouse of the Belogorsk Town Court was not heated. 8. On 22 March 1999 the bankruptcy proceedings in respect of the company were closed and the company wound up. 9. In May 1999 the Belogorsk Town Court adjourned the hearing because the parties did not attend. 10. The next hearing listed for 22 July 1999 was adjourned upon the applicant’s request because she had to leave Belogorsk. She asked to schedule the hearing for 3 August 1999. The Town Court listed the hearing for 6 April 2000. However, it was also adjourned because the applicant was ill. 11. In November 2000 the applicant amended her claims and asked the court to annul the sale contract in respect of the company’s property and the decision of 22 March 1999. 12. On 27 November 2001 the Belogorsk Town Court dismissed the applicant’s claim. 13. The Amur Regional Court quashed that judgment on 30 January 2002. The case was remitted for a new examination. 14. Between February and October 2002, the Town Court listed three hearings of which two were adjourned because the defendant did not attend or the judge was involved in other proceedings. 15. On 28 October 2002 the Belogorsk Town Court transferred the applicant’s case to the Commercial Court of the Amur Region. 16. On 10 December 2002 the Commercial Court of the Amur Region discontinued the proceedings because it did not have subject-matter jurisdiction over the applicant’s claim. 17. The decision of 10 December 2002 was upheld on appeal on 23 March 2003 by the Appeals Division of the Commercial Court of the Amur Region. 18. On 28 July 2003 the Presidium of the Amur Regional Court, by way of supervisory-review proceedings, quashed the decision of 28 October 2002 and remitted the case for a new examination to the Belogorsk Town Court. 19. In November 2003 the applicant withdrew her claims, save for one concerning the annulment of the decision of 22 March 1999. She argued that the decision of 22 March 1999 should be quashed because the company still had assets to pay her the value of her share. 20. On 1 December 2003 the Belogorsk Town Court discontinued the proceedings in respect of the withdrawn claims and on 24 December 2003 it discontinued the proceedings in respect of the claim for annulment of the decision of 22 March 1999. The court held that the claim should be examined by a commercial court. 21. On 9 April 2004 the Amur Regional Court quashed the decision of 24 December 2003 and referred the case for a new examination by the Town Court. The Regional Court also issued a “special finding” concerning the excessive length of the proceedings in the applicant’s case. It found that the case had not been dealt with diligently. In particular, it noted the delays between December 1998 and 27 November 2001, between 18 February and 28 October 2002 and after 19 August 2003. The appeal court also held that transfer of the case to the commercial court amounted to “unjustified delays and postponement of hearings on various pretexts, as well as to the [presiding] judge’s reluctance to examine the claims”. 22. The Belogorsk Town Court received the case-file on 26 April 2004 and listed a hearing for 9 June 2004. 23. All of the hearings listed in June 2004 were postponed upon the applicant’s request because she wanted to obtain additional evidence. The next hearing was scheduled for 17 August 2004. 24. Between 1 September and 9 November 2004 the proceedings were stayed because the judge was on leave. 25. On 2 December 2004 the Belogorsk Town Court dismissed the applicant’s claim. 26. On 25 January 2005 the Amur Regional Court upheld the judgment on appeal. 27. In 1998-2003 the applicant was a party to a labour dispute. She sought reinstatement and payment of wage arrears. 28. On 30 December 2003 the Belogorsk Town Court dismissed the applicant’s claim because the employer company had been declared bankrupt and had wounded up. 29. The applicant did not appeal against the judgment of 30 December 2003.

train

001-60803

ENG

ROU

CHAMBER

CASE OF SMOLEANU v. ROMANIA

Violation of Art. 6-1;No violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Gaukur Jörundsson

9. The applicant was born in 1922 and lives in Ploieşti. 10. On 20 January 1944 the applicant received as a dowry from her father a house situated in Ploieşti (hereafter called “the house”), composed of two flats and a garage plus the adjoining land. 11. In 1950 the State took possession of the property, allegedly under Decree no. 92/1950 on nationalisation. The applicant was never informed of the grounds or legal basis for that deprivation of property. She was, however, allowed to use one of the flats in the house as a tenant of the State. 12. Between 1950 and 1955 the applicant made several complaints to the authorities, arguing that the provisions of Decree no. 92/1950 were inapplicable to her case and requesting that the house be returned to her. She did not receive any reply. 13. In 1954 the State demolished the garage. 14. In 1994 the applicant brought an action in the Ploieşti Court of First Instance for recovery of possession of the house. She submitted that she belonged to the category of persons whose property Decree no. 92/1950 exempted from nationalisation and requested that the State-owned company, R.P., which managed State-owned housing, be ordered to return her property. On 3 May 1994 the court dismissed her claim on the ground that she had not proved her allegations. 15. The applicant appealed against that judgment to the Prahova County Court. In a decision of 13 January 1995 the court allowed the appeal, declared the action to recover possession admissible and ordered the house to be returned. It found that, as a nurse and a war widow since 1941, the applicant belonged to the category of persons whose property the decree exempted from nationalisation. 16. R.P. appealed against that decision. In a judgment of 13 June 1995 the Ploieşti Court of Appeal allowed the appeal, quashed the judgment of 13 January 1995 and dismissed the applicant's claim on the ground that the house had become State property pursuant to Decree no. 92/1950 and that the courts did not have jurisdiction to review whether the decree had been properly applied to her. The court added that provision as to redress for any wrongful seizure of property by the State would have to be made in new legislation. 17. On 26 July 1995 the applicant requested the Procurator-General of Romania to lodge an application to have that final judgment set aside, submitting that it was unfair because the court had refused to examine whether Decree no. 92/1950 was applicable to her. 18. The Procurator-General replied on 8 August 1995, informing her that an application to have a final court judgment set aside could be made only, inter alia, where the decision was ultra vires, which had not been the case here. He added that final decisions could not be challenged on grounds of lawfulness or on the merits. 19. On 6 March 1996 the applicant lodged an application for restitution of the house with the administrative board established to deal with applications lodged in Ploieşti pursuant to Law no. 112/1995 (“the Administrative Board”). She submitted that she had been dispossessed of her property in breach of Decree no. 92/1950 on nationalisation, and that the Ploieşti County Court, in its decision of 13 January 1995, had held that the deprivation of property had been unlawful but that the Ploieşti Court of Appeal had refused to entertain her claim and had indicated that she should bring administrative proceedings. 20. In a decision of 17 July 1996 the Administrative Board vested ownership of the flat rented by the applicant in her and awarded her financial compensation for the rest of the house and the land. Having regard to section 12 of Law no. 112/1995, which put a ceiling on compensation, the Administrative Board awarded the applicant 11,581,867 Romanian lei (ROL) for the second flat and ROL 19,156,500 for the adjoining land that had not been returned and rejected her claim for compensation for the garage. According to the applicant, the amount she had received was substantially less than the value of the property. 21. On an unknown date the applicant challenged that decision in the Ploieşti Court of First Instance, arguing that she was claiming restitution of the actual house. 22. The proceedings were adjourned pending the outcome of the second action for recovery of possession, which the applicant had lodged concurrently. 23. The proceedings were resumed on an unknown date and ended on 23 April 1999 with a judgment of the Ploieşti Court of Appeal upholding the decision of the Administrative Board. 24. In the meantime, on 10 September 1996, the State sold one of the flats in the house to the former tenants. 25. On an unknown date the applicant lodged a further action for recovery of possession with the Ploieşti Court of First Instance. 26. In a judgment of 10 June 1997 the court dismissed the action on the ground that, by deciding to bring administrative proceedings, the applicant had acknowledged that the property had been nationalised with valid legal title and was consequently debarred from bringing an action for recovery of possession. 27. The applicant appealed. She stressed that she had consistently argued before the Board that her house had been wrongfully nationalised and that she had brought administrative proceedings under Law no. 112/1995 because the Ploieşti Court of Appeal had refused to examine her first action for recovery of possession. The County Court dismissed her claim on 27 November 1997 on the same ground as the Court of First Instance. 28. The applicant appealed. On 30 March 1998 the Ploieşti Court of Appeal dismissed her appeal in a final decision. It noted that the applicant had applied concurrently to the Board and the courts for restitution of the house and noted that the administrative proceedings had been adjourned. It concluded that the applicant, having chosen the remedy provided for in Law no. 112/1995, was now debarred from bringing an action for recovery of possession in the ordinary courts because that choice amounted to an implicit acknowledgment on her part that the nationalisation had been lawful. 29. On an unknown date the applicant applied for the judgment of the Ploieşti Court of Appeal to be set aside on the ground that the Court of Appeal had denied her access to a tribunal for the determination of her action for recovery of possession. Her application was dismissed on 16 December 1998 by the Braşov Court of Appeal. 30. The relevant domestic legislation and case-law are set out in the Brumărescu v. Romania judgment ([GC], no. 28342/95, ECHR 1999-VII, pp. 250-56, §§ 31-44).

train

001-85850

ENG

DEU

ADMISSIBILITY

ADAMEK v. GERMANY

Inadmissible

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

The applicant, Mr Sascha Adamek, is a German national who was born in 1968 and lives in Berlin. He was represented before the Court by Mr K. Baumeister, a lawyer practising in Berlin. The applicant is a journalist who worked as a freelance with the Eastern German Broadcasting Service (Brandenburg), which broadcasted in May 1998 a television programme to which the applicant contributed as the author of a report. His contribution concerned allegations that the police in Potsdam, when calling towing services, gave preference to certain enterprises. In the report, the applicant filmed an entrepreneur who parked his towing service car near the motorway to wait for a message from the police radio in order to be able to get to the scene of an accident or breakdown in time. The report then referred to a recording from the police radio (Polizeifunk) from which it could be understood that the police gave preference to a certain towing service. The phrases “I have now talked to the citizen. He would be willing to become a member of [the towing service association] at the scene of the accident” were broadcasted and referred to in the report as a recording from the police radio. On 11 October 1999, the Potsdam District Court convicted the applicant of a violation of section 95 read in conjunction with section 86 of the Telecommunications Act (see “Relevant domestic law” below) and sentenced him to a fine of approx. 450 Euros (EUR). The District Court found that the applicant had unlawfully communicated the excerpts which he had intercepted from the police radio. Section 95 of the Telecommunications Act served to protect radio emissions of public authorities which were not intended for the general public in order to preserve the functioning of those authorities. It was compatible with the purpose of that provision that it did not provide for any exceptions, and that the provision did not limit the protection to only those messages which were transmitted by the authorities in the course of the lawful exercise of their powers. The District Court also considered the possibility of applying the defences to the charge provided for by Articles 193 and 201 of the Criminal Code (see “Relevant domestic law” below). However, it reasoned that there had been no loophole in the regulations of the Telecommunications Act which would justify the analogous application of those provisions, in particular because the Telecommunications Act had been enacted after the Criminal Code had entered into force. It could therefore be assumed that the legislator had intentionally refrained from including similar provisions in that Act. When assessing the applicant’s sentence, the District Court took into account that the applicant had felt obliged as a journalist to report to the public illegal conduct by the police. On 25 January 2000, the Potsdam Regional Court declared the applicant’s appeal inadmissible as manifestly ill-founded. The District Court had correctly decided that the applicant’s conduct had not been justified by a privilege in the Criminal Code. The Regional Court found that it had not been necessary to reproduce the excerpts from the police radio message in order to report on the shortcomings in question. On 11 December 2004, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It reasoned that there had been interference with the applicant’s freedom to report by means of broadcasting (Article 5 § 1 of the Basic Law, see “Relevant domestic law” below), despite the fact that the applicant had unlawfully intercepted the police radio. Article 5 of the Basic Law also protected the communication of unlawfully obtained information which could be of significant interest to the general public, for example in cases of shortcomings on the part of the authorities. The interference was however justified under Article 5 § 2 of the Basic Law. Article 95 read in conjunction with section 86 of the Telecommunications Act laid down with sufficient precision the conditions for the applicant’s conviction. These norms were not rendered disproportionate by the fact that the protection of the information could have been achieved by less severe means (such as coding the police radio messages) than a general prohibition on their communication. The Federal Constitutional Court considered such technical means to be less efficient because their effect was more limited. The application of those norms and the balancing of the competing interests in the present case by the ordinary courts were not objectionable from a constitutional point of view. The Regional Court had considered the importance of the secrecy of the police radio communications and decided that that deserved priority over the interest of the general public in the present case, in particular because the applicant could have reported on the shortcomings in a different manner. The freedom of the press included the right of journalists to decide in which manner information was presented to the public. However, if that manner was in conflict with other interests protected by the law, the ordinary courts could legitimately balance the consequences of the communication of secret information on the one hand, and the consequences of the prohibition for journalists to communicate such information on the other. The Federal Constitutional Court stressed that the Regional Court’s interpretation of the Telecommunications Act was not that the information should have been suppressed, but that restrictions applied to the manner in which it could be presented. Therefore, the norms in the Telecommunications Act did not prevent journalists from reporting shortcomings to the public as such. (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. (...) Interception by means of radio equipment of messages not intended for the radio equipment shall not be permitted. The content of such messages and the fact of their reception may not, even where reception has been unintentional, be communicated to other parties, even by persons who are not already committed to secrecy under section 85 of this Act. (...) The right to receive radio emissions intended for the general public or an unspecified group of persons as well as the interception and retransmission of messages by virtue of special legal authorisation shall remain unaffected. A person who, in contravention of section 86 of this Act, intercepts a message or communicates to a third party any message content or the fact of reception thereof shall be liable to a term of imprisonment not exceeding two years or to a fine. Article 193 of the Criminal Code provides for a defence (Rechtfertigungsgrund) to a charge of insult. According to that provision, critical judgments about scientific, artistic or commercial achievements, similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests as well as official reports or judgments by civil servants and similar cases are only punishable to the extent that the existence of an insult results from the form of the utterance or the circumstances under which it occurred. Article 201 of the Criminal Code provides for the offence of the violation of the confidentiality of the spoken word, but makes an exception if the public communication was made for the purpose of safeguarding preeminent public interests.

train

001-93716

ENG

TUR

ADMISSIBILITY

SÖKMEN v. TURKEY

Inadmissible

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

The applicant, Mr Şinasi Sökmen, is a Turkish national who was born in 1949 and lives in Adana. He was represented before the Court by Mr İ. Gül, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 February 1993 the General Directorate of National Roads and Highways decided to expropriate the applicant’s land in Gölbaşı, Ankara. The applicant brought an action in the Gölbaşı Civil Court on 20 December 2001, seeking increased compensation. On 7 April 2004 the Gölbaşı Civil Court awarded the applicant 891,192,000 Turkish liras (TRL) by way of additional compensation, plus interest at the statutory rate. Both parties appealed. In the meantime the applicant initiated execution proceedings through the Ankara Enforcement Office on 1 July 2004. The Court of Cassation upheld the first-instance court’s decision on 14 September 2004. The authorities paid a total of 3,565.07 new Turkish liras (TRY) to the Enforcement Office on 5 May 2005. The applicant withdrew the payment on 15 February 2006.

train

001-110255

ENG

ROU

CHAMBER

CASE OF PANAITESCU v. ROMANIA

Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Procedural aspect);Pecuniary and non-pecuniary damage - award

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

7. Mr Ştefan Panaitescu (“the applicant”) was a Romanian national, born in 1944, who lived in Alejd, Bihor County. On 3 December 2006, he died and the application was continued by his son Mr Alexandru Leonard Panaitescu. 8. On 8 May 2002, the applicant filed an action against the Bihor County Pensions Office seeking the annulment of a decision denying him the benefit of Law no. 189/2000, which provided for damages and certain facilities for persons persecuted by the Romanian authorities between 6 September 1940 and 6 March 1945 on ethnic grounds. By a decision of 3 June 2002, the Oradea Appeal Court found for the applicant, ordering the defendant to award him the benefits provided for in the above-mentioned Law. The decision became final on 28 January 2003. Accordingly, on 2 April 2003 the commission responsible for the enforcement of Law no. 189/2000 issued a new decision confirming the applicant’s status as a refugee and consequently as a beneficiary of that Law from 1 April 2001; the decision confirmed that, inter alia, the applicant was entitled to obtain priority free medical assistance and medicines, both when hospitalised and as an outpatient. 9. On 20 April 2005, the applicant was diagnosed with cancer and on 4 May 2005, he underwent surgery at Oradea State Hospital for the removal of a tumour on the right kidney. Following medical tests, it was established that the tumour had reached stage III and that the lung was also affected. According to the applicant, although he was hospitalised in the oncology ward, the medical staff failed to administer him specific oncological treatment and he was administered only perfusions with vitamins and normal saline solution. 10. In these circumstances, the applicant approached the Cluj Napoca Oncological Institute. On 16 September 2005, by a letter addressed to Oradea Hospital, Dr A.U., an oncologist from the Cluj Napoca Oncological Institute, confirmed a partial remission of the illness in the applicant’s case, and therefore recommended that he continue being treated with Avastin and Roferon, which he had started at his own expense in July 2005. This recommendation was later reiterated in a letter of 12 January 2006, in which Dr. A.U also acknowledged that the Avastin medicine, which had been administered to the patient twice a week from 1 July 2005, had been “procured and paid for in full by Mr. Panaitescu during the entire period of treatment”. 11. However, as he could not afford to continue indefinitely bearing the costs of the treatment, which was financially burdensome, the applicant notified the Bihor Health Insurance Service (Casa Judeţeană de Asigurări de Sănătate Bihor – “the CAS”) and the Bihor Public Health Office (Direcţia de Sănătate Publică Bihor) accordingly on 22 and 18 August 2005 respectively and sent numerous requests to the National Health Insurance Service (Casa Naţională de Asigurări de Sănătate - “the CNAS”), seeking to be granted the recommended drugs free of charge. On 27 September 2005, through a local bailiff, he filed a notification with the CNAS requesting, on the basis of the relevant legislation and supporting documents, that funds be made available for the drugs recommended by his oncologist, namely Roferon and Avastin. The notification read as follows in its relevant part: “I ask you to take into consideration that in case of failure to grant my request, you will incur civil and criminal liability for causing my death .... The director of the Bihor Public Health Office, Dr M.A., has confirmed to me that you have rejected my request. This fact is irrefutable proof of your guilt. ... Considering the urgent nature of the case, I request a solution within a maximum of ten days, any delay causing irreversible trauma, and after the expiry of that term, I shall be obliged to apply for an injunction in this regard and to initiate criminal proceedings because any refusal is tantamount to murder. I enclose the documents certifying my right and your obligation according to the Law governing the organisation of CNAS, the sole institution able to guarantee my right to life on the State’s behalf.” The applicant addressed numerous other petitions to the relevant institutions, including the Government of Romania, but to no avail. 12. In addition, “in order to illustrate the distress he was suffering” the applicant informed the Court that since he was unable to pay for the drugs, he had applied to the Hamburg University Clinic, on the basis of a recommendation made by Dr A.U., to be included in the experimental trials of Bayer Concern for a new drug called Nexavar. On 18 May 2006, the applicant signed a contract with the aforesaid institution and started receiving treatment with Nexavar, which obliged him to be present at the clinic once every two months. No other information regarding the execution of that contract was submitted. 13. On 10 November 2005 the applicant brought a liability action against the CNAS and the CAS, requesting the Oradea Court of Appeal to order the defendants to provide him with the medicines Roferon and Avastin free of charge and with priority for the period recommended by his doctors, as well as with any other drugs prescribed by his doctors; he also asked to be reimbursed the cost of the drugs already paid for by him from July 2005 to date. He requested the court to notify the relevant institutions that their failure to do so would have the civil and criminal consequences of putting his life at risk. By a judgment of 12 December 2005, the Oradea Appeal Court allowed the applicant’s claims. On the basis of medical documents and an opinion which attested to a remission of the illness after the use of the drugs Avastin and Roferon taken together, the court ordered the CNAS and the CAS to provide the applicant with the two requested drugs free of charge and with priority for the period recommended by the doctors, together with any other medicines prescribed by the doctors; it also ordered them to reimburse the applicant the cost of the medicines prescribed by the doctors borne so far by the applicant himself. The court dismissed the CNAS’s defence that according to Government Decision no. 235/2005 the applicant could not be provided with Avastin free of charge, in so far as the drug Avastin was not on the list of drugs available to outpatients and therefore could not be subsidised from the National Health Insurance Fund (“the FNUASS”). The court argued that any list of medicines is susceptible of being amended all the time; otherwise, the use of any new drug proved to have positive effects on the evolution of cancer would be impossible for at least one or two years after it became available owing to administrative barriers and logistical formalities meant to ensure that its cost could be reimbursed by the FNUASS; this delay would have only negative repercussions for the health of the population. Furthermore, the court held that in so far as in the applicant’s case there was no other drug available as a replacement for Avastin, and considering that failure to use it would have repercussions for the evolution of his illness, the State authorities should have made it possible to have Avastin rapidly included on the list of reimbursable drugs. 14. The CNAS and the CAS contested that judgment before the High Court of Cassation and Justice, mainly arguing that the first-instance court was asking them to reimburse the applicant the cost of medicines that were not included on the list of reimbursable drugs. For the same reason, Avastin could not be provided free to the applicant. On 19 April 2006, the High Court of Cassation and Justice dismissed the appeal and upheld the first-instance court’s judgment. The court held that the appellants’ contention that the applicant had been treated free of charge with Intron A (the equivalent of Roferon) from November 2005 until April 2006 was not supported by evidence and, in any event, that period did not cover the entire time during which the applicant should have been provided with medication free of charge. At the same time, noting that the Avastin had already been approved by the National Medicines Agency in June 2005, the court considered that nothing prevented the appellants to have initiated legal procedures to have Avastin included on the list of reimbursable medicines starting with that moment, especially having in mind that no other equivalent of Avastin with similar therapeutical effects was included on that list. 15. On 23 May 2006 the applicant wrote to the CAS requesting the urgent enforcement of that final judgment, arguing that the remission of the illness had ceased and the illness had even worsened on account of the delays caused by the passivity of the State authorities. He also invoked Article 2 of the Convention, requesting the protection of his right to life. 16. By a letter of 5 September 2006 the applicant informed the Court that the judgment had not been enforced; moreover, he submitted that the CAS had no intention of complying with the final judgment, as proved by the fact that they had contested its enforcement and also lodged an extraordinary appeal, requesting that it be set aside (see paragraphs 17-18 below). He further stated that the drug Roferon had been replaced by Intron, which he had stopped taking in September 2006 as it caused side effects and because the medical tests showed that the cancer had spread since he had been taking that drug. The applicant also informed the Court that on 1 August 2006 the ordinary treatment with cytostatics had been stopped with no explanation. The applicant also submitted the results of medical tests carried out during his treatment with Avastin and Roferon, dated 16 September 2005, which confirmed that the disease was in partial remission, and blood test results dated 3 March 2006, after the treatment had ceased, which allegedly attested to an aggravation of the illness. 17. On 6 June 2006, the CAS contested the enforcement of the judgment of 12 December 2005, which had become final on 19 April 2006, alleging that the institution could not provide the applicant with the requested medicine, since it was not entitled to buy and sell drugs and medicine. Moreover, their relationship with pharmacies was one of cooperation, and not one of subordination, consequently they could not oblige them to provide the requested medicines to the applicant free of charge. Concerning the applicant’s pecuniary claims, the CAS considered that although the evidence submitted by the applicant proved that some medication had been bought from abroad, the amounts of money paid were unspecified, and thus they were not able to make any payment in that regard. The CAS also asked that the enforcement of the disputed judgment be suspended pending the contestation proceedings. 18. The applicant’s son informed the Court that those proceedings had ended on 22 March 2010, when the contestation was dismissed in a final judgment; the CAS submitted that the pecuniary claims had become time-barred, while the obligation to provide the applicant with the medicine in question had been left without any object following the applicant’s death. The CAS also informed that their extraordinary appeal against the disputed judgment (see paragraph 16 above) had also been dismissed by the High Court of Cassation and Justice No copy of any judgment allegedly given in these proceedings was submitted. 19. Law no. 189/2000 provides for damages for persons persecuted on ethnic grounds who are refugees from the territories occupied during the Second World War. Section 5 (a) provides that persons whose cases are regulated by sections 1 and 3 “shall benefit from priority free medical care and drugs, both as outpatients and when hospitalised.” 20. Government decision no. 627/2005 amends decision no. 235/2005 regarding the approval for the year 2005 of the list of drugs from which insured persons being treated as outpatients, with or without a personal contribution, could benefit on the basis of a medical prescription. The persons concerned by the special laws, who were entitled to free medication paid for by the National Health Insurance Fund, were entitled to full reimbursement of the cost of all the medicines included on the list. Avastin was not included on the list.

train

001-61017

ENG

AUT

CHAMBER

CASE OF BAKKER v. AUSTRIA

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

Christos Rozakis

9. The applicant is a Dutch national, born in 1957 and living in Bregenz (Austria). 10. The applicant is a physiotherapist who completed his professional training in Belgium and received his diploma in 1986. From 1987 to 1993 he worked as a physiotherapist in Austria during which time he was employed by an association working in that field. 11. On 19 February 1992 the Vorarlberg Regional Governor (Landeshauptmann) recognised his diploma with suspensive effect until he accomplished two additional exams. On 11 January 1995 the Regional Governor completed the decree of recognition upon the applicant’s submission of the required certificates. 12. On 4 April 1995 the applicant filed a request with the Vorarlberg Regional Governor for the authorisation to work as a self-employed physiotherapist. He further submitted an employment certificate dated 4 January 1994, which had been issued by the association he had worked for. 13. On 26 July 1995 the Regional Governor refused to grant the applicant’s request. It found that the applicant did not comply with the requirements set out in section 7 § 3 of the Act on Medico-Technical Services (Bundesgesetz über die Regelung der gehobenen medizinisch-technischen Dienste, MTD-Gesetz). According to this provision the right to work as a self-employed physiotherapist may only be granted after three years of authorised professional practice within the last ten years. 14. On 31 January 1996 the Ministry for Health and Consumer Protection (Ministerium für Gesundheit und Konsumentenschutz) partly granted the applicant’s appeal. It found that the Regional Governor should have based its decision on section 68 § 6 of the Nursing Act (Krankenpflegegesetz) according to which the right to work as a self-employed physiotherapist may already be granted after two years of authorised professional practice within the last ten years. It held that, as regards the content, the Regional Government had decided correctly, however, it had based its decision on the wrong legal provision. 15. On 11 April 1996 the applicant filed a complaint with the Administrative Court. He requested an oral hearing and asked the court to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty. 16. On 23 August 1996 the applicant filed another request with the Regional Governor in order to be granted the right to work as a self-employed physiotherapist. 17. On 28 November 1996 the Regional Governor also rejected this request. He held that the applicant was authorised to work as physiotherapist in Austria since 11 January 1995 following recognition of his foreign diploma. His employment at the association had been before that time and could not be considered as “authorised” professional practice within the meaning of section 68 § 6 of the Nursing Act. 18. On 28 February 1997 the Ministry for Health and Consumer Protection rejected the applicant’s appeal on formal grounds, applying the principle of res iudicata. 19. On 22 May 1997 the applicant filed a complaint with the Constitutional Court, requested an oral hearing and asked the court to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty. 20. On 10 June 1997 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It found that his case did not raise serious questions of constitutional law or of the application of Community law and that the matter was not excluded from the competence of the Administrative Court. 21. On 22 June 1997 the applicant filed a complaint with the Administrative Court against the Ministry’s decision of 28 February 1997, requesting, inter alia, an oral hearing. He further asked the court to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty on the question whether the refusal to exercise his profession as a self-employed physiotherapist in Austria was in accordance with Community law. 22. On 4 December 1997 the Feldkirch Regional Court, in the course of official liability proceedings instituted by the applicant, also requested the Administrative Court to decide upon the lawfulness of the decision by the Ministry for Health and Consumer Protection of 31 January 1996. 23. On 20 January 1998 the Administrative Court, in a joint decision, dismissed the applicant’s complaints of 11 April 1996 and 22 June 1997 and the request by the Regional Court without holding an oral hearing, relying on section 39 § 2 (6) of the Administrative Court Act. It confirmed the decisions by the Ministry for Health and Consumer Protection as being lawful. It further held that there was no issue that would require a preliminary ruling by the European Court of Justice, since the applicant’s requests did not concern the interpretation of a specific provision of Community law but rather challenged the implementation of national law exercised by Austrian authorities. The decision was served on the applicant’s counsel on 23 February 1998. 24. On 4 June 1998 the Feldkirch Regional Court, dismissed the applicant’s claim relating to official liability proceedings. It found that there was no legal basis in national or Community law, which could support the applicant’s claim. Section 39 § 1 of the Administrative Court Act (Verwaltungsgerichtshof-gesetz) provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 § 2 (6) provides however: "Notwithstanding a party’s application, the Administrative Court may decide not to hold a hearing when (...) 6. It is apparent to the Court from the written pleadings of the parties to the proceedings before the Administrative Court and from the files relating to the prior proceedings that an oral hearing is not likely to contribute to clarifying the case, and if this is not against Article 6 § 1 of the European Convention on Human Rights." Article 144 § 2 of the Federal Constitution reads as follows: "The Constitutional Court may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."

train

001-58742

ENG

AUT

CHAMBER

CASE OF ASAN RUSHITI v. AUSTRIA

Violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

Nicolas Bratza

7. On 1 April 1993 the Graz Regional Criminal Court (Landesgericht für Strafsachen) took the applicant into detention on remand (Untersuchungs-haft) on charges of attempted murder. He was suspected of having, together with an accomplice, tried to kill M.R. in that his accomplice attacked M.R. with a knife, while the applicant prevented him from fleeing. In these and the following proceedings the applicant was represented by counsel. 8. On 1 September 1993 the Graz Regional Criminal Court, sitting as an Assize Court (Geschwornengericht), acquitted the applicant. The jury answered the main question as to attempted murder and the alternative question as to aggravated assault with seven votes "no" to one vote "yes". According to the record of its deliberations (Niederschrift), the jury had answered both questions in the negative as “the evidentiary basis was insufficient”. Following his acquittal, the applicant was released. 9. On 2 September 1993 the applicant, relying on the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz 1969, hereinafter “the 1969 Act”), filed a compensation claim relating to his detention on remand. 10. On 25 November 1993, the Graz Regional Criminal Court, after a first decision had been quashed on appeal, dismissed the applicant's compensation claim. The court was sitting in camera. 11. The court noted that it had heard the applicant on 12 November 1993. It also noted the submissions of the Public Prosecutor's Office of 16 September 1993, proposing that the compensation claim be dismissed. The court, referring to section 2 (1) (b) of the 1969 Act, found that there had been a reasonable suspicion against the applicant, which had not been dissipated, particularly in view of the statement made by the victim at the hearing of 1 September 1993, which was not entirely without credibility. 12. On 3 December 1993 the applicant filed an appeal. He submitted in particular that the Regional Court's reasoning violated the presumption of innocence guaranteed by Article 6 § 2 of the Convention. For the same reason, section 2 (1) (b) of the 1969 Act was unconstitutional. It put the onus of proof as regards the dissipation of the suspicion on the person claiming compensation, even if that person had been acquitted. Further, the applicant claimed that Article 6 of the Convention applied to the compensation proceedings at issue, as they related to a pecuniary claim. He was, thus, entitled to a public hearing and a public pronouncement of the decisions. As there had not been a public hearing at first instance, he requested that such a hearing be held before the court of appeal. 13. On 30 December 1993 the Graz Court of Appeal (Oberlandesgerich) adjourned the proceedings and requested the Constitutional Court (Verfassungsgerichtshof) to give a ruling that section 2 (1) (b) of the 1969 Act was unconstitutional. 14. On 29 September 1994 the Constitutional Court dismissed the request of the Graz Court of Appeal (see below, § 19). 15. On 15 December 1994 the Graz Court of Appeal, sitting in camera, dismissed the applicant's appeal. The court, referring to the decision of the Constitutional Court, found that in order to determine whether the suspicion against the applicant had been dissipated it was not entitled to examine the statements of the witnesses heard or other results of the taking of evidence in the criminal proceedings, but had to limit itself to the reasons which the jury gave for its finding. The court also referred to case-law according to which the suspicion was only dissipated if either the claimant's innocence had been proven, or if all arguments supporting the suspicion against him had been refuted. An acquittal for lack of evidence did not give an entitlement to compensation unless the innocence of the person concerned had at least become probable. Applying these principles to the facts of the case the court continued as follows: “It can be concluded here - from the above-mentioned questions which were put to the jury and from the record of that jury’s deliberations - that both the main and the alternative question were answered with seven ‘no’ votes and one ‘yes’ vote and that seven jurors therefore cast a ‘no’ vote in response to the main and the alternative question ‘because the evidence was insufficient’. This means that on the one hand one juror in any case found the applicant guilty, whereas on the other hand the other jurors answered the questions addressed to them in the negative only because they considered the evidence insufficient, in other words, they were of the opinion that the evidence did not suffice to find Asan Rushiti guilty of the charges brought against him. By no means can one draw the conclusion that, as a result of these considerations, the suspicion has been dispelled or Rushiti’s innocence has at least become probable!” It concluded that the suspicion against the applicant had not been dissipated. 16. This decision was served on the applicant's counsel on 5 January 1995. 17. The relevant provisions of the Compensation (Criminal Proceedings) Act 1969 read as follows: “(1) A right to compensation arises:... (b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria … and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...” “... (2) A court which acquits a person or otherwise frees him from prosecution … (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions of compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3 ... If the investigating judge decides to discontinue the proceedings, the Review Division concerned shall rule. (3) Before ruling, the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ... (4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and on the public prosecutor ... (5) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within two weeks. (6) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision. If the court which has to rule is the court of first instance, the investigations shall be carried out by the investigating judge. (7) Once the decision has become final, it is binding on the courts in subsequent proceedings.” 18. As a general rule, there is no public hearing in the Court of Appeal. The Court of Appeal rules after sitting in private. 19. In its judgment of 29 September 1994 (VfSlg 13879) the Constitutional Court dismissed the application filed by the Graz Court of Appeal to have section 2 (1) (b) of the 1969 Act annulled as being unconstitutional. It found that section 2 (1) (b) as such did not violate Article 6 § 2 of the Convention which, under Austrian law, has the force of constitutional law. In the light of the Sekanina v. Austria case (judgment of 25 August 1993, Series A no. 266-A), it held that it was not the refusal of a claim for compensation which was contrary to the Convention, but the re-examination of the question of guilt after a final acquittal. In the Constitutional Court’s view only the separate re-assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence. Nevertheless, the Constitutional Court observed that it would be desirable to amend section 2 (1) (b) of the 1969 Act in order to clarify the law.

train

001-108931

ENG

RUS

ADMISSIBILITY

PANOV v. RUSSIA

Inadmissible

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

The applicant, Mr Yuriy Nikolayevich Panov, is a Russian national who was born in 1958 and lives in Sankt-Peterburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 May 1998 the Volkhovskiy Town Court of Leningrad Region ordered the applicant’s reinstatement at work as the managing director of a private company OOO “Valgomka” and awarded him payments of lost earnings, arrears on salary, vacation allowance, and compensation for psychological distress. Subsequently, the applicant submitted the writ of execution to the Bailiff’s Service of Volkhov and on 13 July 1998 the enforcement proceedings were initiated. On 7 July 2002 the Volkhovskiy Town Court of Leningrad Region acting on the applicant’s complaint against the alleged inaction of the bailiffs ordered the Bailiff’s Service of Volkhov to enforce the abovementioned judgment. On 6 December 2002 he was reinstated at work as the managing director of a private company OOO “Valgomka”. On 13 October 2004 the Federal Bailiff’s Service for the Volkhov District terminated the enforcement proceedings concerning the remainder of the judgment due to bankruptcy of the debtor.

train

001-58844

ENG

FIN

CHAMBER

CASE OF LAUNIKARI v. FINLAND

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

Georg Ress

8. The applicant is a minister of the Evangelical Lutheran Church of Finland. He held office as head of division in the Centre for Foreign Affairs of the Church (kirkon ulkomaanasiain keskus, kyrkans utrikescentral), when the National Church Board (kirkkohallitus, kyrkostyrelsen) began disciplinary proceedings and, on 19 February 1987, dismissed him from his office for having acted in breach of his official duties. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) which, on 21 September 1987, rejected the appeal. 9. The applicant was impeached before the Helsinki City Court (raastuvanoikeus, rådstuvurätt) for an offence in office concerning the events that had been the grounds for his dismissal. The City Court and the Helsinki Court of Appeal (hovioikeus, hovrätt) rejected the charges on 15 December 1988 and 2 October 1990, respectively. None of the parties sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). 10. On 17 October 1991, the applicant requested the Supreme Administrative Court to annul its decision of 21 September 1987 and to quash his dismissal from office. On 29 January 1993, the Supreme Court annulled its aforementioned decision, annulled the decision of the National Church Board of 19 February 1987 and returned the matter to the National Church Board. 11. On 1 April 1993 the National Church Board began to reconsider the disciplinary case and, on 11 June 1993, after having received a written statement from the applicant, decided as follows: “1. the National Church Board decides that the disciplinary proceedings against [the applicant] will no longer be pursued and, thus, these proceedings expire; 2. the National Church Board finds that the termination of [the applicant’s] service, which became final on 21 September 1987, can no longer be considered as a disciplinary punishment; 3. the National Church Board finds that the office of head of division in the Centre for Foreign Affairs of the Church has been filled and, therefore, [the applicant] can no longer be reinstated in his former office; 4. the National Church Board finds that there is no possibility to offer [the applicant] another equivalent office; 5. the National Church Board finds that when it took its decision on 19 February 1987, there were weighty grounds as regards [the applicant’s] performance of duties for giving him a notice according to Section 14, subsection 2, points 3 and 4, of the Official Regulations Concerning the Officials in Special Duties of the Church (kirkon erityistehtävissä olevien viranhaltijain virkasääntö, tjänstestadga för anställda i specialuppgifter inom kyrkan 6.5.1981); 6. the National Church Board decides to pay [the applicant] compensation equivalent to the salary and other benefits of period of notice at the date of the termination of his service, i.e. 19 February 1987, with sixteen per cent annual interest; 7. the National Church Board finds that there is no need to hold an oral hearing, which [the applicant] had requested, nor to receive further observations from [the applicant].” 12. The above decision did not contain any notice of appeal. On 22 June 1993, the applicant’s lawyer was sent a separate notice of appeal with the instructions referring to the possibility of lodging an appeal with the Supreme Administrative Court. 13. On 16 July 1993, the applicant appealed against the points 2-7 to the Supreme Administrative Court claiming, inter alia, that the continuation of his service as well as his right to be reinstated in his former office or an office equivalent to it be confirmed and that the National Church Board be ordered to indemnify him for his loss of earnings. 14. In its decision of 1 March 1995, the Supreme Administrative Court firstly stated that the National Church Board was not competent to give the applicant notice and, thus, the applicant’s service had not been terminated on the basis of a notice. The Supreme Administrative Court also stated that it lacked competence to decide at first instance questions concerning the applicant’s status and his right to an indemnity. It added that the Cathedral Chapter (tuomiokapituli, domkapitalet) would be the competent body in this respect, dismissing the appeal without considering its merits. 15. On 6 March 1995 the applicant asked the National Church Board for reinstatement in his former office. 16. On 11 April 1995, the applicant filed an application with the Cathedral Chapter of the Helsinki Diocese (hiippakunta, stift) claiming that the National Church Board be ordered to pay him the unpaid salary of a head of division from 1 May 1987 onwards with sixteen per cent annual interest. He asked for the decision to be made urgently. 17. On 30 May 1995, the Board sent a letter to the applicant indicating that the Board’s answer to the applicant’s request for reinstatement in his former office was included in its response to the Cathedral Chapter on the applicant’s above-mentioned application. 18. On 1 August 1995, the Cathedral Chapter ordered the National Church Board to pay the applicant the difference between the salary of a head of division and the salary the applicant had earned as a parish minister between 1 May 1987 and 30 April 1995, and from 1 May 1995 onwards a certain amount per month (with interest) until the applicant recommenced his official duties as head of division or his service was terminated. The Cathedral Chapter also stated that the applicant’s service as head of division must be considered to continue. 19. On 30 August 1995, the National Church Board appealed to the Supreme Administrative Court against the decision of the Cathedral Chapter. On 1 September 1995, the applicant appealed against the same decision, as far as the indemnity for loss of earnings and other compensation were concerned. The Supreme Administrative Court gave its decision on 12 June 1996. It upheld the Cathedral Chapter’s decision, except for the part concerning interest rates and the obligation to pay interest. 20. On 18 January 1996, the applicant appealed to the Supreme Administrative Court against a decision made by the National Church Board on 7 December 1995 by which the applicant was given notice of the termination of his service as head of division with four months’ period of notice. The applicant asked for the decision to be taken urgently. On 12 June 1996 the Supreme Administrative Court gave its decision also in that set of proceedings. The Supreme Administrative Court upheld the national Church Board’s decision. Its reasoning read as follows: “According to Section 14, subsection 3, point 4, of the Official Regulations Concerning the Officials in Special Duties of the Church, a civil servant may be given notice for … particularly weighty grounds concerning his or her performance of official duties. Such grounds may be based on the civil servant’s performance or on other circumstances in relation to performance of official duties. The office of head of division in the Centre for Foreign Affairs of the Church … has been filled while [the applicant] was dismissed. Considering that the National Church Board, at the end of 1995, still was under the impression that [the applicant’s] service as head of division had terminated and considering that the National Church Board cannot be obliged to establish a new office equivalent to [the applicant’s] former office, the Supreme Administrative Court, in these circumstances, finds no reason to change the conclusion reached by the National Church Board.” 21. The Church Act of Finland (kirkkolaki, kyrkolag 635/64, as from 1 January 1994 replaced by Act no. 1054/93) regulates the activities of the Evangelical Lutheran Church of Finland. Regulations concerning the civil servants of the Church are also given in collective agreements on the terms of employment in the civil service (virkaehtosopimus, tjänstekollektivavtal) and in official regulations confirmed by the Church (virkasääntö, tjänstestadga). 22. According to Section 491 of the 1964 Church Act and Chapter 22, Section 2, of the 1993 Church Act, the National Church Board is the general administrative body of the Church. Under Section 494 of the 1964 Church Act and Chapter 24, Section 6 (2), of the 1993 Church Act, a decision of the National Church Board can be appealed against to the Supreme Administrative Court.

train

001-60917

ENG

AUT

CHAMBER

CASE OF JAKUPOVIC v. AUSTRIA

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

Georg Ress

8. The applicant was born in 1979 and lived at the time of the events in Vöcklabruck (Austria). He presently lives in Banova Jaruga (Croatia). 9. In February 1991 the applicant arrived in Austria together with his brother, born in 1985, and joined his mother who had already been living and working there. Subsequently his mother remarried. The applicant's family now consists of his mother, his stepfather, his brother and two half sisters, born in 1993 and 1995. 10. On 14 January 1994 the Police Authorities filed a criminal complaint against the applicant on suspicion of burglary. On 14 March 1994 the Wels Regional Court (Landesgericht) provisionally discontinued the criminal proceedings and ordered the applicant to compensate the victims for the damage caused. On 11 May 1995 the Vöcklabruck District Administrative Authority issued a prohibition to possess arms (Waffenverbot) under the Weapons Act (Waffengesetz) against the applicant as he had, in April 1995, attacked several persons with an electroshock device. On 31 May 1995 the applicant was remanded in custody on suspicion of having committed some fifty burglaries. 11. On 28 August 1995 the Wels Regional Court convicted the applicant of burglary and sentenced him to five months' imprisonment, suspended for a probationary period of three years. On the same day the applicant was released from detention on remand. 12. On 28 September 1995 the Vöcklabruck District Administrative Authority (Bezirkshauptmannschaft) issued a ten year residence prohibition against the applicant. Having regard to the above events and in particular the applicant's conviction, it found that his further stay in Austria was contrary to the public interest. These considerations were not outweighed by his family links in Austria. On 16 October 1995 the applicant, assisted by counsel, appealed against this decision. Relying on Article 8 of the Convention he submitted, inter alia, that the District Administrative Authority had failed to take sufficiently into account his private and family situation. 13. On 18 December 1995 the applicant was again remanded in custody on suspicion of having committed further burglaries in December 1995. On 26 February 1996 the Wels Regional Court again convicted the applicant of burglary and sentenced him to a further term of imprisonment of ten weeks, suspended for a probationary period of three years. On the same day the applicant was released from detention on remand. 14. On 2 May 1996 the Upper Austria Public Security Authority (Sicherheitsdirektion) dismissed the applicant's appeal against the District Administrative Authority's decision of 28 September 1995. As regards the applicant's family situation, the authority noted that the applicant's mother, his brother and two half sisters were living in Austria. However, having regard to the applicant's serious criminal behaviour the issue of a residence prohibition was nevertheless necessary in the public interest. 15. On 21 June 1996 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) against the residence prohibition. On 30 September 1996 the Constitutional Court declined to deal with the matter for lack of prospects of success and remitted the case to the Administrative Court (Verwaltungsgerichtshof). 16. On 9 December 1996 the applicant supplemented his complaint to the Administrative Court which dismissed it on 19 February 1997. It found that the authorities had correctly found that the residence prohibition was necessary in the public interest and did not constitute a disproportionate interference with the applicant's family situation. 17. On 4 April 1997 the applicant was taken into detention with a view to his expulsion and, on 9 April 1997, he was deported to Sarajewo.

train

001-110787

ENG

GBR

ADMISSIBILITY

ELLIS AND SIMMS v. THE UNITED KINGDOM AND MARTIN v. THE UNITED KINGDOM

Inadmissible

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

1. The applicants, Mr Marcus Ellis, Mr Rodrigo Simms and Mr Nathan Antonio Martin, are British nationals who were born in 1980, 1984 and 1978 respectively. Mr Ellis and Mr Martin are currently detained at HM Prison Whitemoor, March, and Mr Simms is currently detained at HM Prison Full Sutton, York. Mr Ellis and Mr Simms were represented before the Court by McGrath & Co., a firm of solicitors based in Birmingham, and Mr Martin was represented by Jonas Roy Bloom, a firm of solicitors also based in Birmingham. 3. On 6 December 2002 Yohanne Martin was shot dead in a car in Birmingham. It appears that he was a member of, or had links with, a gang based in Birmingham called the Burger Bar gang. Those responsible for his shooting were believed to have been members of the Johnson Crew, a rival gang in Birmingham. 4. Shortly after 4 a.m. on 2 January 2003, two young women were shot dead outside a party at Uniseven, a hairdressing salon in Birmingham. Two other young women were injured. The shots were fired from a red Ford Mondeo car, which drove off following the shooting. The red Mondeo was later abandoned and set on fire. 5. There was no dispute that the killings of the young women were gang-related. It was the prosecution case that the shootings were perpetrated by members of the Burger Bar gang and were intended to target members of the Johnson Crew, in revenge for the shooting of Yohanne Martin. The victims were not members of either gang and had been caught in the crossfire. 6. The applicants were charged, together with two other men, B and G., with two counts of murder and two counts of attempted murder in respect of the shootings of the four young women. The prosecution case was that the defendants were all members of the Burger Bar gang and had participated in a joint enterprise to kill using firearms. They alleged that the red Mondeo had been purchased in Roade on 31 December 2002 by G. and Mr Martin for criminal purposes and had been driven to Birmingham. On the evening of 1 January 2002, a member of the Johnson Crew had been boasting about his gang’s superiority in a club called RB’s when Mr Ellis was present. An announcement was made in the club that there would be an “after party” at Uniseven. The prosecution claimed that the defendants had decided to take the opportunity to exact their revenge and arranged the drive-by shooting intended to target members of the Johnson Crew. They alleged that Mr Ellis had been the front seat passenger of the red Mondeo, that Mr Martin had been a rear passenger of the car and that Mr Simms had been at the party at Uniseven, had acted as a “spotter” in informing the car’s occupants of events at the party and had guided in the Mondeo. 7. Although a number of people had witnessed the shooting, few were prepared to make statements because of a fear of retaliation against them and their families by gang members. Five witnesses came forward but were unwilling to have their identities disclosed. Only two of the five purported to be able to identify the occupants of the red Mondeo. They were given the pseudonyms “Mark Brown” and “Jones”. A third witness, “Stacey Francis”, claimed to have seen Mr Ellis at RB’s earlier that evening. The remaining two witnesses had been present during the shooting at Uniseven. 8. Information concerning the evidence and the backgrounds of the five anonymous witnesses was disclosed to the defence. 9. Mark Brown’s evidence was encapsulated in his witness statement of 11 December 2003. In that statement, he said he was outside Uniseven and saw a red car driving down the road. He could see that there were four men in the car and he knew all of them. He identified the front seat passenger of the car from which the shots were fired as Mr Ellis. He said he saw a gun in Mr Ellis’ hand. The man sitting behind Mr Ellis was, he said, Mr Martin. He saw Mr Martin lean over and take the gun from Mr Ellis. He identified the driver as “Michael” and the other passenger as B. He then heard the sound of gunshots. He said that the men in the car were not wearing masks. 10. He said that he had known Mr Martin for a few months and that he had been involved in an incident before the New Year shootings where Mark Brown and his cousin were shot at. Mark Brown stated that he had a grudge against three of the people in the car, which was related to the shooting incident. He also said that he had known Mr Ellis for five or six years, that he had seen him numerous times and that they did not get on because Mr Ellis had previously dated a niece of one of his cousins. 11. A number of disclosures regarding Mark Brown’s previous comments to the police and in prison, his background and his criminal antecedents were made by the prosecution to the defendants. These disclosures were taken from prison and police records. In particular, it was disclosed that Mark Brown had links to the Cash for Money Crew, the younger arm of the Johnson Crew. He had stated that he was wanted by the Burger Bar gang, that there had been an attack planned on him for New Year’s Eve 2001 and that he had been shot at three times. Finally, it was disclosed that Mark Brown had made three court appearances in respect of robberies. 12. It was also disclosed that Mark Brown refused to participate in an identification procedure to identify those he claimed were in the red Mondeo. 13. Jones’ evidence was set out in his witness statement of 24 March 2004. In his statement, he indicated that before the fatal shootings he had been at a public house and had seen Mr Martin, Mr Ellis and B. standing by a red Mondeo talking. He later went to the party at the hairdresser’s salon where he saw Mr Simms walk by. He claimed that about ten minutes later he saw Mr Simms sitting in the back of the red car, in the middle seat. It was driving slowly, and B. was in the front passenger seat, and Mr Martin and Mr Ellis were in the back with Mr Simms. Ten minutes later the car drove by again, but the occupants had changed positions. Mr B. was leaning out of the back passenger window firing a gun. The other occupants had changed seats but Jones was unsure who was where. 14. It was also disclosed that Jones was an experienced and serious criminal who moved in the same circles as the defendants. His criminality was wider than that revealed by his antecedent history and the trial judge considered that he was plainly very knowledgeable about firearms, their availability and their price. 15. Stacey Francis claimed to have seen Mr Ellis at RB’s at around midnight on 1 January 2002. She was of good character. 16. Disclosures were also made about the evidence of the remaining two anonymous witnesses and their backgrounds. 17. The prosecution relied on telephone call pattern evidence to show that a number of phone calls took place between the defendants at critical times in the lead up to and aftermath of the shootings. There was evidence of calls between the mobile phone of Mr Martin and the mobile phone associated with G., and between the mobile phones of Mr Martin and Mr Ellis, on 31 December 2002, when the Mondeo was purchased and driven to Birmingham. There was evidence of various calls made around 4 a.m. on 2 January 2003 between Mr Simms and the mobile phone associated with G. 18. There was also evidence of a car which was registered in the name of Mr Martin being driven from Birmingham to Roade on 31 December 2002, where the two occupants purchased a red Mondeo. CCTV footage showed the Mondeo being driven from Roade to Birmingham in convoy with Mr Martin’s vehicle. Mr Martin subsequently accepted that he participated in the purchase of the red Mondeo, allegedly for a friend. 19. The prosecution also relied on cell site evidence, which provided information on the locations from which mobile telephone calls were placed and was consistent with Mr Simms, Mr Ellis, Mr Martin and G. being in the area of the killing at the material time and making the movements alleged by the prosecution. It was also consistent with G. and Mr Ellis being in the area where the car was subsequently burnt out. The cell site evidence was also consistent with the prosecution allegation that Mr Ellis’ alibi was false. 20. The prosecution further relied on evidence of firearms residue found on Mr Ellis’ jacket. 21. Finally, the prosecution sought to call the five anonymous witnesses, including Mark Brown and Jones, to give oral evidence of what they saw on the night of the shootings. 22. On 21 October 2004, the trial judge handed down his ruling on the requests for anonymity at a preparatory hearing. He noted at the outset that it was not disputed that the witnesses reasonably feared retribution both personally and for their families if their identities were made known. He further observed that although a number of people must have witnessed the events, Mark Brown and Jones were the only two witnesses who directly implicated some of the defendants. 23. The judge considered the possible support for Mark Brown’s evidence. He noted that the prosecution relied on other evidence, including mobile phone records, evidence linking some of the defendants to the purchase of the red Mondeo and evidence of firearms residue that had been found on a piece of clothing recovered from Mr Ellis (see paragraphs 17-20 above). He then turned to consider what had been disclosed about the anonymous witnesses, summarising the disclosures about the statements they had made and their backgrounds (see paragraphs 8-16 above). He observed that a number of public interest immunity hearings had been held and that a substantial amount of disclosure had taken place. 24. The judge examined the case-law of this Court and the domestic courts on the issue of anonymous witnesses. He summarised the parties’ submissions and set out his conclusions as regards the general position in respect of anonymous witnesses. 25. First, he referred to the “very real problems now encountered in persuading witnesses to come forward and go into the witness box”. He noted that intimidation of witnesses was, or was perceived by witnesses, to be rife. He considered it self-evident that society had an interest in encouraging witnesses to come forward and protecting them if they did. 26. He indicated that the question whether a witness could give evidence anonymously was a matter for the exercise of the trial judge’s discretion. The decisive feature in the exercise of that discretion was whether the ensuing trial could be fair. He noted that whether any given trial was fair was a matter of balancing the different interests involved, which he identified as the interests of society and the victims in allegations of serious crime being tried and the guilty punished, the protection of the witness and the interests of the accused in being able properly to defend himself. The trial judge considered that the defendants had a right to “a fair administration of justice”. However, that right was not absolute and the fact that a defendant would suffer some prejudice did not mean that a fair trial could not take place. 27. The trial judge further considered that a witness whose creditworthiness was in issue could give evidence anonymously, provided that proper caution was exercised, that there had been investigation of the creditworthiness of the witness and that full disclosure had been given. 28. As to the case-law of this Court, the judge was of the view that the observations in Doorson v. the Netherlands, § 76, 26 March 1996, Reports of Judgments and Decisions 1996II, to the effect that a conviction based solely or decisively on anonymous evidence could not be fair, had to be considered in the context of the Dutch procedure which the Court was then considering. In the present case, the witness would be cross-examined in front of the jury on the basis of very substantial information which had been disclosed and which enabled his account to be questioned. He observed that it was part of any assessment of the fairness of the trial to consider the trial process, and more particularly how anonymous evidence was to be given and what the jury would be told. He considered that the trial process could minimise any prejudice to the defendant because, among other things, the jury could be told to take account of the problems that the defence faced when such a witness gave evidence and that they should not hold against the defendant the giving of such evidence. 29. The trial judge concluded that Mark Brown could give evidence anonymously and that the trial would not be unfair as a result. He based his decision on the following considerations: “164. First, he is a witness reasonably in fear. Objectively, if identified, his life or that of his family or friends may be in danger. 165. Second, he has evidence to give which is of the very greatest importance in resolving these serious criminal allegations. 166. Third, if not permitted to give evidence anonymously, it is likely that the prosecution will be unable to adduce his evidence. 167. Fourth ... there has been very extensive disclosure in his case. It permits the defendants very extensive and detailed cross-examination. The limits placed on that cross-examination and on the conduct of defence can be made clear to the jury. While it may be that disclosure of his identity ... might lead to further material for crossexamination going to credit, the present disclosure is in my view sufficient to permit the defence properly to be advanced and a fair trial to take place. Indeed, it may be argued that the defence will be in a particularly strong position without knowing the witness’ identity. They have ample material for cross-examination. In addition, they have the point to make to the jury concerning the difficulties they are under. 168. Fifth, in addition to any attack on the witness’ credibility, the defence have in any event an argument on the difficulty of any identification in the circumstances spoken to by the witness. It may well be ... I shall be obliged to give a ‘Turnbull direction’. If so, the jury will be warned of the dangers in the identification evidence and its weaknesses enumerated. Sixth, ... I am entitled in considering this witness’ creditworthiness, to take into account such support as there apparently is for his account.” 30. In respect of Jones, the judge considered that there were questions raised in respect of his creditworthiness that put him into a different category from Mark Brown. He noted that there was not the extent of apparent support for his evidence which existed in the case of Mark Brown and, despite the fact that the disclosure given would permit a great deal of cross-examination, he concluded that it would not be safe to permit him to give evidence anonymously. 31. The remaining three witnesses were also permitted to give anonymous evidence. In respect of two of them, no objection had been made. 32. Finally, the judge indicated that the question of anonymity was something to be kept continually under review. 33. On 28 October 2004, the judge handed down a further ruling following a submission by the defendants that in the absence of a proper identification procedure by Mark Brown, no fair trial could take place. The defendants argued that his evidence of recognition could only be admitted if there were a proper identification procedure or if Mark Brown’s identity were disclosed. 34. The judge was of the view that even if the submission amounted to an attack on his previous ruling on anonymity, it was nonetheless something he had to consider. He continued: “4. ... In any criminal trial fairness requires that rulings such as these, which are far from straightforward, are continually kept under review. That includes taking account of fresh submissions which may have a bearing on the trial’s fairness. In short, if I conclude that a fair trial required disclosure of Brown’s identity I would review my earlier ruling.” 35. He noted Mark Brown’s explanation for why he did not agree to participate in an identification procedure, namely that he wanted to do it but was afraid of the impact of picking or not picking suspects and his identity becoming known to them if he did not pick them. He analysed Mark Brown’s identification evidence, noting that he set out the basis upon which he knew the defendants, at times in considerable detail. The judge concluded: “In the course of my ruling on anonymity, I referred to the extensive crossexamination available to the defence in the light of the disclosure. It would still be available. Moreover, it seems to me that while cross-examination will, as is inevitable, be to some extent constrained, much can be asked. Whether he may be a fantasist can be investigated. Further, as I have indicated, what Brown says as to the history of his relationships with the defendants can be amplified before he gives evidence ... As I indicated in my previous ruling, it does not end there. There would be a Turnbull direction. The jury would know the limitations under which the defence was acting. The fact Brown did not accept the offer of an identification procedure would be plain. My reading of the material in which he refused such a procedure may provide powerful material for cross-examination.” 36. He therefore ruled Mark Brown’s evidence of recognition to be admissible, subject to the exclusion of hearsay, and considered it unnecessary to reconsider his ruling on anonymity, noting that Mark Brown’s evidence as a whole and his purported recognitions could be questioned, that there was ample cross-examination possible and that the presence of counterbalancing factors depended on each case. He reiterated the need to keep the matter under review. 37. A number of the defendants, including Mr Simms and Mr Ellis, appealed the judge’s ruling on anonymity. The Court of Appeal handed down its judgment on 2 November 2004. It considered that the trial judge had applied his mind impeccably to the law, both in England and under Article 6 of the Convention. The appeals were accordingly dismissed. 38. Subsequently, a number of further disclosures about Mark Brown were made. It was disclosed that he owed money to both gangs and that the police had made certain payments to him. The handwritten police log was disclosed as were the prison notes from institutions where Mark Brown had been detained, which revealed that Mark Brown was awaiting sentence when the police first made contact with him. As a result of the further disclosures, the defence asked the judge to review his ruling on anonymity. It was alleged that the newly-disclosed material undermined Mark Brown’s credibility and creditworthiness and suggested that his information about the shooting may have been hearsay. 39. On 10 January 2005 the trial judge handed down a further ruling. He accepted that further disclosure had revealed more about Mark Brown than had been known at the time of the previous ruling. However, even at that time, Mark Brown’s gang background and his motive for lying were clear. The judge concluded that the order for anonymity should remain. He considered that Mark Brown’s credibility was not so affected that he could only give evidence if his identity were disclosed. He further noted that on the basis of what had now been disclosed the defence could mount a formidable attack on Mark Brown’s credibility. Specifically as to the concerns regarding hearsay evidence, the judge indicated that if Mark Brown was making any assertions on the basis of hearsay, this would become clear in cross-examination whether he was anonymous or not. He reiterated the need for careful directions to the jury in due course. 40. Before Mark Brown took the witness stand, the judge gave the jury certain directions. In particular, he advised them that the fact that Mark Brown was giving evidence anonymously had significant implications for the defence and restricted them in the conduct of their cases. They were not permitted to ask questions which could lead to his identification. Because they did not know who he was they could not put to him any personal reason he might have had for implicating them. Nor could they put to him any general matters going to his credibility. The jury were told that the limitations on the defence were considerable and that the jury had to make allowances for this in its assessment of Mark Brown’s evidence. 41. The judge, the jury, counsel and solicitors could all see and hear Mark Brown give evidence. They was no voice distortion as far as they were concerned, although he was “lightly disguised” in order to boost his confidence. Neither the defendants nor the public were able to see him and his voice was distorted for them. 42. Examination-in-chief of Mark Brown by the prosecution began on 11 January 2005. He gave evidence regarding the events of 2 January 2003. He indicated that he had seen Mr Simms speaking on a mobile telephone outside Uniseven, that he had seen a red car arrive with four occupants, and that three of those occupants were Mr Ellis, Mr Martin and B. Mark Brown was subsequently cross-examined by defence counsel, who sought to undermine his credibility and account of events. 43. Following the conclusion of the prosecution case, all defendants except Mr Martin submitted to the judge that there was insufficient evidence for the jury to convict them. On 17 February 2005 the trial judge handed down his ruling on the defence submission. 44. The judge summarised the prosecution case that there was a joint enterprise to kill using firearms. He noted that the prosecution relied both on circumstantial evidence and on the evidence of Mark Brown. He reviewed in detail the evidence given by Mark Brown. He considered it plain that Mr Brown had lied about many matters but, in the final analysis, concluded that Mark Brown’s credibility was a matter for the jury. He observed that a substantial amount of disclosure had taken place, and that this had formed the basis of sustained and effective cross-examination. He noted: “... in all Mark Brown was cross-examined most effectively for, as I recall, something like 6 days. His credibility was severely dented; he told many lies; had his identity been known it is, of course, possible that further damage might have been done. But, be that as it may, sufficient damage was done to his credibility to found what was not a frivolous submission that his credibility had been destroyed to the extent that I should direct the Jury accordingly, anonymity apart. It has resulted in a document which the Jury has which effectively sets out his lies as I have indicated.” 45. The judge explained that there would be a further direction to the jury in due course regarding their approach to Mark Brown’s evidence, essentially to the effect that they could not rely on that evidence alone. He continued: “Having regard to the features I have set out above, it seems to me, circumscribed as they would be by my directions, the Jury could place reliance upon what Mark Brown says. While any conviction would not then be based solely upon his evidence, I accept that one cannot exclude the possibility that his evidence was decisive. However, given the other contemplated safeguards in the trial process so far, that would not seem to me contrary to Article 6 ...” 46. He indicated that it therefore followed that unless the jury could conclude that there was independent evidence supporting Mark Brown and implicating a particular defendant, there could not be a case left to the jury regarding him. The judge explained that, in the circumstances, such evidence would need to be cogent; tenuous evidence would not be enough. He considered that such evidence existed in the cases of Mr Martin, Mr Ellis and Mr Simms and summarised in some detail what could be inferred by the jury from what they had heard during the evidence led at trial, including the background to the shootings, the association among Mr Martin, Mr Ellis, Mr Simms and G. at the material time as shown by telephone records, and the involvement of Mr Martin, G. and Mr Ellis in the purchase of the vehicle used in the shootings. He further noted that firearms residue had been found on Mr Ellis’ clothing. He concluded: “Putting together the different pieces of evidence I have summarised ... it does seem to me there is circumstantial evidence in the cases of Martin, who ... does not dispute it, [G.], Ellis and Simms, in respect of their participation in this joint enterprise to kill. It would also be sufficient evidence of participation to enable the jury then to consider what Mark Brown had to say ...” 47. However, the judge did not consider there to be cogent independent evidence in respect of B., and accordingly directed the jury to acquit him. 48. In the course of the trial judge’s summing up, he gave the jury a warning about identification evidence, highlighting the weak aspects of Mark Brown’s purported identification evidence. 49. He also gave the jury a number of warnings about Mark Brown. He directed them, first: “... if you are to rely on anything said by Mark Brown, you must be sure he is a credible witness, someone capable of belief. If you’re not sure of that, no amount of other evidence which is said to be consistent with his account can help. If you think he may not be someone upon whom you can place any reliance, you must ignore his evidence. 50. If they were satisfied that he was credible, he directed them to approach his evidence in the following way: “...You must consider whether in respect of the defendant whose case you are considering there is some other evidence of that defendant’s participation in this joint enterprise ... apart from what Mark Brown says. So put Mark Brown to one side and consider if there is some other evidence of that defendant’s participation. If you’re not sure that there is such other evidence, then you must acquit that defendant. If you conclude that there is such other evidence, then you may take Mark Brown’s evidence into account in deciding whether or not you are sure of guilt, bearing in mind the first warning which I just gave you. In other words, first you consider the circumstantial evidence. If you are sure it implicates the defendant in question in this joint enterprise, then but only then may you consider what Mark Brown says. Of course, if you think you cannot rely on Mark Brown at all, then you decide guilt or innocence solely on the basis of the other evidence. You will remember that I told you that the prosecution submit that the other evidence called by them as part of their case proves the defendants Mr Martin, [G.] and Mr Simms are guilty ... The prosecution accept – again, I’ve told you this – that the evidence called by them would not be enough to place Mr Ellis in the Mondeo. To do that, some reliance would have to be placed on Mark Brown. However, the prosecution say that if you are sure that ... the alibi witness called on behalf of Mr Ellis was lying, then, taking into account that false alibi plus the other pieces of the circumstantial evidence called by the prosecution, that would be enough for you to be sure that Mr Ellis was in the Mondeo, Mark Brown apart. ...[D]efence counsel disagreed with that effectively with some force. In the case of [B.], whom you acquitted on my direction, there was nothing capable of amounting to such other evidence and that’s why I directed an acquittal. It underlines ... the importance of these directions when considering your approach to Mark Brown.” 51. In concluding his summing up, the judge reminded the jury of how to approach Mark Brown’s evidence regarding the identities of those in the Mondeo. He emphasised that they had first to consider him a credible witness and also be satisfied that there was other evidence of the applicants’ participation in the joint enterprise before they could rely on his evidence. 52. On 18 March 2005 Mr Ellis, Mr Martin, Mr Simms and G. were convicted of two counts of murder and two counts of attempted murder in respect of the shootings of the four young women. They were sentenced to life imprisonment in respect of the murder convictions. 53. The applicants appealed to the Court of Appeal. Their case was heard together with an appeal in the case of R v. Davis. 54. On 19 May 2006 the Court of Appeal dismissed the appeals. It began by noting that in the context of witness anonymity, three rights protected by the Convention were engaged: Article 2 and Article 8 were closely related to the rights, among others, of witnesses; and Article 6 was concerned with the protection of the defendant’s right to a fair trial. It then went on to review the case-law of this Court on the question of anonymous witnesses, as well as decisions of the domestic court. As to the possibility of permitting the evidence of anonymous witnesses at trial, the court found: “59. ... In our judgment the discretion to permit evidence to be given by witnesses whose identity may not be known to the defendant is now beyond question. The potential disadvantages to the defendant require the court to examine the application for witness anonymity with scrupulous care, to ensure that it is necessary and that the witness is indeed in genuine and justified fear of serious consequences if his true identity became known to the defendant or the defendant’s associates. It is in any event elementary that the court should be alert to potential or actual disadvantages faced by the defendant in consequence of any anonymity ruling, and ensure that necessary and appropriate precautions are taken to ensure that the trial itself will be fair. Provided that appropriate safeguards are applied, and the judge is satisfied that a fair trial can take place, it may proceed. If not, he should not permit anonymity. If he does so, and there is a conviction, it is not to be regarded as unsafe simply because the evidence of anonymous witnesses may have been decisive.” 55. As to the safeguards available in the applicants’ case, the court referred first to the discretion enjoyed by the trial judge to allow some or all witnesses to give their evidence anonymously. It observed that if the only evidence against the defendants consisted of wholly unsupported anonymous witnesses, whose evidence was demonstrably suspect, it was open to the judge to decide that the prosecution should not adduce it. Further, if the decisive evidence came from an unidentified witness who could not be cross-examined (an anonymous absent witness), the judge could decide that the evidence should not be admitted. Moreover, at the end of the prosecution case the judge could decide that it would be unsafe for the evidence of the anonymous witnesses to be considered further by the jury, or indeed, that the case as a whole should be withdrawn from their consideration. Finally, the judge was obliged to give appropriate directions in his summing up, sufficient to identify the particular disadvantages under which the defence might have been labouring, and would probably suggest that the jury should consider whether there was any independent, supporting evidence, tending to confirm the credibility of the anonymous witnesses, and the incriminating evidence they had given. 56. Turning to the facts of the case, the Court of Appeal examined the mobile phone record evidence presented at trial. It noted: “129. This evidence about the use of mobile phones demonstrably belonging to the four appellants at critical times all through the night leading up to and after the shooting, taken as a whole, and when linked with the remaining evidence, provided a formidable case against them.” 57. The court also referred to the evidence of firearms residue found on Mr Ellis’ clothing. 58. As regards the trial judge’s ruling on anonymity (see paragraphs 2229 above), the court observed that it had already been upheld by the Court of Appeal in the context of an interlocutory appeal (see paragraph 37 above). It also noted that the judge kept his ruling under constant review and that there had been no less than thirty-eight public interest immunity hearings during the trial itself. 59. In respect of the evidence given by Mark Brown, the court noted: “135. ... He purported to identify some of those in the red Mondeo, but his evidence was not entirely consistent on the subject, and in any event, faced the major difficulty, that other witnesses had suggested identification was not practicable. 136. By the time Brown gave evidence, there had been full disclosure of all the material available to the Crown. He was cross-examined for five days, by four leading counsel. His credibility was severely damaged.” 60. The court considered that despite the various complaints made by the defendants, the cross-examination of Mark Brown illustrated that notwithstanding his anonymity the process could be and was extremely effective. It observed that so far as Mr Simms was concerned, Mark Brown’s evidence provided no more than a little confirmation of facts already independently demonstrated; and Mr Simms in any event admitted that he had been at Uniseven that night. It further observed that Mr Ellis had chosen not to give evidence and that Mr Martin had given evidence and admitted his involvement in the purchase of the Mondeo and the correctness of the attribution of mobile phone numbers to him. The court continued: “139. The case was summed up to the jury with meticulous care. The directions of law were accurate. Appropriate warnings were given. The evidence was closely analysed. The summing up was comprehensive, balanced and fair.” 61. The Court of Appeal concluded that there was no reason to doubt the integrity of the trial process or the safety of the convictions. 62. The court refused to certify a question on a point of law of general public importance in the applicants’ case which ought to be considered by the House of Lords. However, it certified a question in the case of R v. Davis and the House of Lords handed down its judgment in that case on 18 June 2008 (see paragraphs 65-66 below). 63. Following the House of Lords’ judgment in R v. Davis quashing the conviction of that appellant, the applicants applied to the Criminal Cases Review Commission to have their convictions referred to the Court of Appeal. Their applications were refused on 5 May 2010. 64. At the material time, the relevant factors for a trial judge considering whether to exercise his discretion to allow anonymous evidence were set out by the Court of Appeal in R v. Taylor and Crabb (22 July 1994). First, there had to be real grounds for being fearful of the consequences if the evidence was given and the identity revealed. Second, the evidence had to be sufficiently relevant and important to make it unfair to the prosecution to compel them to proceed without it. Third, the prosecution had to satisfy the court that the creditworthiness of the witness had been fully investigated and that the results of that enquiry had been disclosed to the defence so far as was consistent with the anonymity sought. Fourth, the court had to be satisfied that no undue prejudice was caused to the defendant, “undue” being a necessary qualification because some prejudice was inevitable if the anonymity order was made. Finally, the court could balance the need for protection against the unfairness or appearance of unfairness in the particular case. This reasoning was largely endorsed by the House of Lords in R (Al-Fawwaz) v. Governor of Brixton Prison ([2001] UKHL 69). 65. As noted above, the House of Lords handed down its judgment in the case of R v. Davis ([2008] UKHL 36) on 18 June 2008. The case concerned a fatal shooting at a party in London. Mr Davis admitted attending the party but claimed to have left before the shooting and denied being the gunman. Three witnesses identified Mr Davis as the gunman but all claimed to be in fear for their lives if their identities became known. The judge allowed them to give anonymous evidence at trial. He ordered that they were to give evidence under pseudonyms, that their addresses and personal details were to be withheld from the defendant and his legal advisers, that no question could be asked of them which would permit their identification, that they were to give evidence behind a screen so that they could be seen by the judge and jury only and that their voices were to be distorted for all but the judge and jury. 66. The House of Lords found that the witnesses’ testimony was inconsistent with the long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he might cross-examine them and challenge their evidence. Although this Court had not ruled that anonymous evidence was inadmissible in all circumstances, it had said that a conviction should not be based solely or to a decisive extent on anonymous statements. In any event, their Lordships considered that on the facts of the case before it, this Court would have found a violation of Article 6, as not only was the anonymous witness evidence the sole or decisive basis on which Davis had been convicted but effective cross-examination had also been hampered. 67. Following the House of Lords’ judgment in R v. Davis the Criminal Evidence (Witness Anonymity) Act 2008 (“the 2008 Act”) was enacted as a matter of urgency to permit anonymous witness evidence at trial and to give guidance on the relevant factors to be taken into account, based on the Court’s case-law. 68. The 2008 Act was subsequently replaced by provisions of the Coroners and Justice Act 2009 (“the 2009 Act”), which now regulates the conditions under which witnesses can give evidence anonymously in criminal proceedings. Section 88(2)-(6) lays down the conditions for the making of a witness anonymity order and section 89 sets out a number of relevant considerations to which a court must have regard before permitting anonymous evidence, including whether evidence given by the witness might be the sole or decisive evidence implicating the defendant.

train

001-57701

ENG

SWE

CHAMBER

CASE OF HELMERS v. SWEDEN

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

C. Russo;R. Pekkanen

11. The applicant, Mr Reinhard Helmers, is a German citizen. He is a university lecturer and resides in Lund in Sweden. 12. In 1979 Mr Helmers was not selected for appointment to an academic post at the University of Lund. As he considered that the decision was discriminatory and that the recruitment board had been biased, he appealed to the National Board of Universities and Colleges (universitets- och högskoleämbetet, "UHÄ"), which requested a specially established university committee to submit a written opinion. In this opinion, which was dated 2 October 1980, the committee stated, inter alia, that in his appeal Mr Helmers had accused the person eventually selected for the post, Mr L., of having obtained it by means of secret pressure exercised on one of the members of the recruitment board by a Professor E. (who had also taken part in the recruitment procedure) as a reward for Mr L.’s assistance in a campaign led by Professor E. against Mr Helmers. On 10 December 1981 the Government, at last instance, rejected the applicant’s appeal against the appointment decision. 13. Meanwhile, the applicant, who considered that the university committee’s statement amounted to defamation, had reported the matter to the police. However, the Chief District Prosecutor of Lund chose not to pursue the investigation and his decision was upheld on appeal, ultimately by the Prosecutor General. 14. The applicant then decided to use his entitlement under Chapter 20, section 8, of the Code of Judicial Procedure (rättegångsbalken) to bring a private prosecution for defamation or, alternatively, aggravated defamation (förtal or grovt förtal, Chapter 5, sections 1 and 2, of the Criminal Code, brottsbalken) and for making false statements (osant intygande, Chapter 15, section 11, of the Criminal Code), against one of the members of the special university committee, Mr F., and against its secretary, Ms E. Ms E. was also accused of having incited Mr F. to commit the offences (Chapter 23, section 4, of the Criminal Code). The maximum sentence prescribed by law for aggravated defamation was two years’ imprisonment. Mr Helmers also availed himself of the possibility under Chapter 22, section 1, of the Code of Judicial Procedure of joining an action for damages to the private prosecution, and he sought compensation in the amount of one Swedish krona from each of the accused. 15. The Lund District Court (tingsrätten) held a public hearing on 9 September 1981, at which the applicant and the defendants had the opportunity to address the court. On 19 November 1981 the court delivered its judgment. It noted that the special committee’s summary of Mr Helmers’ appeal satisfied the objective criteria of defamation in that it was likely to discredit the applicant in the eyes of others. However, the court found that neither Ms E. nor Mr F. had incurred any criminal liability: Ms E. could not be held responsible for the committee’s statements as she had only been the rapporteur and not a decision-taking member; it was true that Mr F. had not been under any duty to make a statement as he had not been present when the committee examined Mr Helmers’ appeal, but it had to be considered justifiable for him, as a member of the committee, to join its opinion. After examining the correctness of the summary, the District Court concluded: "It was not an easy task for the committee to summarise Mr Helmers’ long submissions which, in the opinion of the court, were also difficult to interpret. The summary made must therefore, as Mr F. and Ms E. have maintained, be considered as a reasonable interpretation of what Mr Helmers has put forward. In any event, it has not been established that Mr F. knowingly made any untrue statements." The District Court furthermore found no evidence to support the allegation that Ms E. had made a false statement or incited Mr F. to commit a criminal offence. The applicant’s private prosecution was accordingly dismissed and the claim for compensation was also rejected. 16. On 9 December 1981 Mr Helmers appealed to the Court of Appeal (Hovrätten) of Skåne and Blekinge. He submitted, inter alia, the following. The District Court had, contrary to well-established case-law, excluded criminal liability on the part of Ms E. on the ground that she had only been rapporteur and not a decision-taking member of the committee. The summary made by the special committee was untrue as a matter of fact. The fact that one of the professors involved in the recruitment procedure, Professor E., had for a long time led a campaign against Mr Helmers had become a matter of public knowledge throughout the whole of Europe, as could be seen from legal textbooks, parliamentary documents, newspaper articles and radio and television programmes. It was also well-known that Professor E. had sought to have abolished the subject for the teaching of which the impugned appointment procedure took place and this was evidenced by, amongst other things, a complaint to the Chancellor of Justice (justitiekanslern) and an appeal by the students to UHÄ. Mr Helmers claimed that in view of the above facts, his appeal submissions to the UHÄ (see paragraph 12 above) could not possibly be construed as anything more than a challenge, on account of bias, of Professor E.’s involvement in the appointment decision. He stated that this must have been clear both to Ms E. and Mr F. and that they were thus both guilty of defamation because of their libellous statement in the committee’s opinion. He added that, even if the District Court had not found it to be an easy task to summarise his submissions, the same could not hold true for the defendants, who had been in possession of all the documents in the appointment case for four months. In this connection, he also pointed out that his appeal submissions had referred to all the relevant facts and these were well-known to those concerned at the university department in question. Finally, he requested the Court of Appeal to hold an oral hearing. 17. On 11 March 1982 the Court of Appeal received Ms E.’s and Mr F.’s reply to Mr Helmers’ appeal. This reply was sent to Mr Helmers the next day, together with a note indicating that the case could be decided without an oral hearing and that he had 14 days to file his pleadings with the court. Mr Helmers submitted these on 16 April and they were forwarded to the accused the same day, together with a note similar to the one sent to Mr Helmers. Between April and November 1982 the parties lodged a number of further written observations with the court. Mr Helmers claimed that some of the material submitted by the defendants was irrelevant as it was a mere appeal to political prejudices and he asked the court to refuse it. He referred in particular to four newspaper articles written by others and a press release issued by the Secretary to the European Commission of Human Rights on 15 March 1982, all of which material related to a previous application by Mr Helmers to the Commission (no. 8637/79), which had been declared inadmissible on 10 March 1982 (see paragraphs 24-25 below). 18. In a judgment of 28 November 1983 the Court of Appeal decided the case on the basis of the written evidence, without having held any public hearing. It rejected the applicant’s plea that some of the material submitted by the defendants should be ruled inadmissible. As to the merits, the court found both Mr F. and Ms E. responsible for the committee’s opinion of 2 October 1980, which it considered was likely to discredit the applicant in the eyes of others. The judgment went on to state: "The scope of criminal liability for defamation is limited by the provision contained in Chapter 5, section 1, second sub-paragraph, of the Criminal Code. A person who has uttered a defamatory statement is thus free from liability, inter alia, if he was under a duty to make a statement and the information given was true or had a reasonable foundation. The legislature has included appointment cases among those in which there may be a conflict between opposing interests. The circumstances were such that both Mr F. and Ms E. were under a duty to make a statement. The fact that Mr F. gave his opinion only later is of no relevance in this context. The summary must furthermore, just as the District Court found, be considered as a reasonable précis of what Mr Helmers put forward in his memorial supporting his appeal. Mr F. and Ms E. therefore had a reasonable foundation for the information they provided. Accordingly they cannot be convicted of defamation. Nor can the Court uphold the prosecution brought against them on the charge of having made false statements or that brought against Ms E. on the charge of having incited these offences. As a result of this conclusion in respect of the defendants’ criminal liability, Mr Helmers’ claim for damages must be dismissed - just as the District Court found." 19. The applicant appealed to the Supreme Court (högsta domstolen), claiming that a number of serious breaches of procedural law had occurred at first instance and that although he had pointed out these irregularities to the Court of Appeal, it had given a judgment on the merits based on new evidence without having held an oral hearing. In support of his complaints Mr Helmers also invoked Article 6 (art. 6) of the Convention and the serious and far-reaching consequences the outcome of the proceedings would have for him. On 21 December 1984 the Supreme Court refused the applicant leave to appeal. 20. 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 ... " 21. The Court of Appeal has the power to review questions both of law and of fact. However, there are some limits on 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

001-79153

ENG

RUS

CHAMBER

CASE OF KLIMENKO v. RUSSIA

Violation of Art. 6-1

David Thór Björgvinsson

4. The applicant was born in 1967 and lives in the town of Taganrog. 5. On 10 July 2000 the Taganrog Town Court (“the Town Court”, Таганрогский городской суд) granted the applicant's claim for recovery of 42,900 Russian roubles (“RUR”) which he had lent to a private company and awarded him the interest of RUR 50,543. The applicant's action in respect of the second defendant, a private person, was rejected. 6. The judgment, in its part relating to the award of interests, was quashed by the Rostov Regional Court (“The Regional Court”, Ростовский областной суд) on appeal on 27 September 2000 and remitted at first instance. 7. On 14 March 2001 the Town Court rendered a new judgment in the applicant's favour. The court decided that the private company was to pay the applicant RUR 86,937.60 in respect of the accrued interest. In addition the court ruled that the co-defendant, a private person, was to be held vicariously liable for the debts of the private company to the applicant in the total amount of RUR 129,837.60. 8. The judgment was not appealed against and on 25 March 2001 it came into force. 9. On 6 June 2002 the Presidium of the Rostov Regional Court, acting upon the protest lodged by its President, quashed the judgments of 10 July 2000 and 14 March 2001 as well as the decision of 27 September 2000 and remitted the case at first instance. In particular, the court noted that the factual findings of the first-instance court had been erroneous and in breach of the relevant procedural rules. 10. By judgment of 10 November 2002 the Town Court freshly examined the case and granted the applicant's claims in full. The court ruled that the private company was to pay the applicant RUR 42,900 in respect of the principal debt and RUR 86,937.60 in respect of the accrued interest. The court also decided that the co-defendant, the private person, was to be held vicariously liable for the entirety of the debts of the private company to the applicant in the total amount of RUR 129,837.60. 11. The judgment of 10 November 2002 was upheld by the Rostov Regional Court on appeal on 6 February 2003. 12. It appears that the applicant was unsuccessful in a few sets of civil litigation against various third persons who had allegedly failed to re-pay their debts. He also tried unsuccessfully to prosecute these persons.

train

001-67586

ENG

POL

CHAMBER

CASE OF ZASKIEWICZ v. POLAND

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

Nicolas Bratza

8. On 21 February 1994 the applicant filed with the Łódź Regional Court (sąd wojewódzki) an action in which he claimed damages from one of his partners in a partnership allegedly responsible for a sale of the partnership's property without the applicant's prior approval. He sued also a certain company X which had purchased that property. 9. On 10 March 1994 the court exempted the applicant from court fees. 10. On 14 March 1994 it refused the applicant's request for an interim measure. His appeal against that decision was dismissed on 16 May 1994 by the Łódź Court of Appeal (sąd apelacyjny). 11. On 5 May 1994 the applicant submitted pleadings with a ninety-five-page annex. In July and October 1994, as well as in December 1995, he submitted further pleadings and requested the summoning of five witnesses. 12. The Regional Court held a hearing on 11 January 1996. It completed the examination of the case and informed the parties that it would pronounce its judgment on 25 January 1996. Subsequently, the applicant submitted pleadings containing motions concerning evidence. On 25 January 1996 the court resumed the examination of the case. 13. The hearing scheduled for 27 February 1996 was adjourned because of the absence of a lay judge. 14. On 27 March 1996 the court held a hearing. 15. On 10 April 1996 it declared its lack of jurisdiction over the applicant's claims in respect of his partner and transferred that part of the case to the Łódź District Court (sąd rejonowy). 16. The Regional Court held hearings on 26 November 1996, as well as on 29 January, 1 April and 23 July 1997. It ordered an expert opinion. 17. On 15 September 1997 the court refused the applicant's request for an interim measure. 18. The expert opinion was submitted on 5 February 1998. 19. Subsequently, the applicant challenged that opinion. 20. At the hearing held on 11 May 1998 the court ordered a supplementary expert opinion. 21. At the hearing of 25 June 1998 the court completed the examination of the case. 22. Subsequently, the applicant filed a petition in which he complained about certain errors in the minutes from that hearing. On 7 July 1998 the court issued a decision concerning those errors. 23. On 6 July 1998 the applicant submitted pleadings. On 9 July 1998 the court resumed the proceedings and requested the applicant to specify his claim. 24. In September 1998 the applicant requested the court to summon a customs office to join the proceedings as an intervener for the applicant. 25. At the hearing held on 9 November 1998 the court dismissed that request. The applicant requested the written reasoning of that decision. On 18 November 1998 his request was rejected as not provided for by the law. 26. On 19 November 1998 the court gave judgment. It awarded the applicant 32,345.23 Polish zlotys with interest. Both the applicant and the defendant company appealed. 27. The Łódź Court of Appeal held hearings on 9 April and 1 June 1999. 28. On 15 June 1999 it gave judgment. The court amended the judgment of the first-instance court in that it dismissed the action filed by the applicant. He received a copy of the written reasoning of that judgment on 4 April 2000. On 4 May 2000 the applicant lodged with the Supreme Court a cassation appeal against that judgment. 29. On 16 January 2002 the Supreme Court dismissed that appeal.

train

001-86286

ENG

UKR

CHAMBER

CASE OF NATALIYA SHEVCHENKO v. UKRAINE

Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

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

4. The applicant was born in 1965 and lives in Kyiv. 5. Between 1991 and September 1997 the applicant and her minor son born in 1984 were officially registered as residents in a municipal hostel rented by the Municipal Post Office, the applicant’s employer, for its employees. Throughout this period, the Post Office, in fact, never provided the applicant with a room in this hostel, citing lack of available premises. The applicant and her son were allowed to occupy two beds in a hostel for single individuals managed by “D.H.”, another company. After the expiration of the residency registration, in October 1997 the applicant found an unoccupied room in the Post Office’s hostel and moved there with her son. 6. On 28 November 1997 the Post Office brought eviction proceedings against the applicant (and her minor son) before the Starokyivsky District Court of Kyiv (Старокиївський районний суд м. Києва). 7. On 10 December 1997 the Starokyivsky District Court of Kyiv, citing the lack of territorial jurisdiction, referred the case to the Leningradsky District Court of Kyiv (Ленінградський районний суд м. Києва). The latter, in turn, on 22 March 1998, transmitted the case to the Minsky District Court of Kyiv (“the District Court” Мінський районний суд м. Києва). 8. On 4 June 1998 the applicant lodged a counter-claim, asserting her right to occupy the room in the Post Office’s hostel. 9. In 1999 the Kyiv State Administration decided to convert the Post Office’s hostel into a municipal apartment building enabling its occupants to apply for life-long tenancies. 10. On 20 January 2000 the District Court ordered the applicant’s and her son’s removal to the “D.H.’s” hostel and dismissed her counterclaim. The court found, in particular, that the applicant had never obtained proper authorisation to occupy the room in the Post Office’s hostel. On 29 March 2000 the Kyiv City Court (“the City Court”; Київський міський суд) upheld this judgment on the applicant’s appeal in cassation, it became final and enforcement proceedings were instituted. 11. On 25 September 2000 Deputy City Prosecutor ordered suspension of the enforcement proceedings. 12. On 25 December 2000 the Presidium of the Kyiv City Court quashed the previous judgments following the protest introduced by the Deputy City Prosecutor and remitted the case to the District Court for a fresh consideration. The court found, in particular, that “D.H.” should have been summoned to the proceedings, as it was unclear whether the applicant had any right to reside in its hostel. 13. On 25 December 2001 the District Court rejected the Post Office’s eviction claim, at the same time having refused to recognize the applicant’s right to occupy the room in its former hostel. It found that, although the applicant had no proper authorisation to move into the room at issue, she could not be evicted, as her status of a “D.H.” hostel resident had never been regularized and she had no alternative lodging. Both parties appealed. 14. On 2 April 2002 the City Court quashed this judgment and remitted the case for a fresh consideration, having found, in particular, that the first-instance court had failed to instruct the applicant that, in view of the City Administration’s decision to convert the hostel into an apartment building, she could request to be issued with an authorisation for life-long tenancy. 15. On 20 December 2002 the applicant amended her claims, seeking, in particular, to obtain authorisation of tenancy. Her son, having reached the age of majority, joined the proceedings. 16. On 12 March 2003 the District Court dismissed the Post Office’s eviction claim and ordered the City Administration to issue the applicant with tenancy authorisation. The court found, in particular, that, having been registered as a resident in the Post Office’s hostel, the applicant had acquired the right to occupy a room in it as early as in 1991. The Post Office, however, had unlawfully failed to provide her with a room. The Post Office appealed. 17. On 12 June 2003 the City Court quashed this judgment and remitted the case for a fresh consideration. It found, in particular, that the District Court’s conclusions concerning the applicant’s right to reside in the Post Office’s hostel were insufficiently reasoned. The applicant appealed in cassation against this ruling. 18. On 15 September 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. 19. On 26 January 2005 the District Court rejected the Post Office’s eviction claim and upheld the applicant’s right to occupy the room. This judgment was not appealed against. 20. In the course of the proceedings the District Court scheduled some sixty hearings. Some twelve of these hearings were adjourned on account of the applicant’s or her representative’s absences in court; eleven on account of the plaintiff’s absences or requests; and fifteen on account of judges’ vacations and various other court matters. 21. The applicant also maintained, without providing details, that her employer was deliberately processing data on her family life in violation of the law, that the bailiffs had unlawfully interfered with her possessions during the enforcement proceedings and that her son had been unable for a prolonged period of time to receive a passport and to obtain access to professional education on account of lack of residency registration. The applicant did not raise any relevant complaints before the domestic judicial authorities.

train

001-71744

ENG

TUR

CHAMBER

CASE OF ÖZER AND OTHERS v. TURKEY

Violation of P1-1;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

6. In 1993, the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a State body responsible, inter alia, for motorway construction, expropriated a part of a plot of land in Ankara belonging to the applicants and several other persons. A committee of experts assessed the value of the applicants’ land and the sum fixed thereby was paid when the expropriation took place. 7. On 28 December 1993 the applicants, along with twenty-one coowners, lodged a case with the Ankara Civil Court of First Instance, requesting increased compensation. 8. On 14 September 1994 the Ankara Civil Court of First Instance awarded the plaintiffs additional compensation of 5,305,080,000 Turkish liras (TRL) (approximately 126,200 euros (EUR)) plus interest at the statutory rate applicable at the date of the court’s decision, running from 15 February 1993. The amount of compensation that was awarded to the applicants was TRL 2,269,264,010 (approximately EUR 53,980). 9. On 30 January 1995 the Court of Cassation upheld the judgment of the first-instance court. 10. On 17 February 1998 the administration paid the plaintiffs a total of TRL 13,208,453,000 (approximately EUR 53,900). The applicants received TRL 5,649,955,705 (approximately EUR 23,000). 11. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25).

train

001-95797

ENG

ROU

CHAMBER

CASE OF BOLOVAN v. ROMANIA

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

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

6. The applicant was born in 1944 and lives in Cioroiaşi. At the material time he was working as a professional driver. 7. On 21 June 1997, at around 7 p.m., the applicant parked his car at the side of the road, with the intention of spending the night in his outhouse. He was accompanied by his girlfriend, S.U. When they started walking away from the car, two lower ranking police officers (plutonieri) got out of a car and approached them, one in uniform (S.D.) and the other in plain clothes (P.D.). Other police officers were also present at the scene, as traffic controls were being carried out. S.D. asked for the applicant’s identification papers, but the latter could not produce them as he had left them in his other car. S.D. grabbed the car keys from his hand with the intention of searching the car. The applicant told him that he would not find the papers in the car and that, in fact, he had just been fined for the same offence. He put his hand in his pocket to pull out the police report. At that moment, the police officer punched the applicant in the mouth and tried to hit him again. The applicant stepped back and lifted his leg in defence. P.D. intervened and the two police officers threw the applicant face down on his car and searched him and the vehicle. As his lip was bleeding, the applicant shouted at the police, calling them “militia agents” (miliţieni). He told them he would go straight to a forensic doctor and would then press charges against them. 8. On 21 June 1997, at around 7 p.m., the applicant was driving his car while under the influence of alcohol. When he saw the police performing traffic controls, he decided to stop the car and continue on foot, in order to avoid being caught drunk driving. The police officers S.D. and P.D. noticed the applicant and assumed that he was trying to avoid being checked. They approached him in their car. S.D. introduced himself and asked to see the applicant’s identification papers. The applicant turned his back on the police, shouted abuse and told them he did not have the papers on him. He was incoherent and smelled of alcohol. The police asked him to go with them to the hospital for a blood test. The applicant refused to follow them. When S.D. tried to take him by the arm, the applicant became violent and abusive. He kicked S.D. in the leg. He was then immobilised by S.D. and P.D. but managed to tear S.D.’s uniform. 9. After the incident, the applicant was taken straight to hospital to have his blood alcohol content tested. The physician concluded, after carrying out the standard tests, that the applicant was not under the influence of alcohol. She also noted in the clinical evaluation form that the applicant had a small bruise on the left upper lip. Two urine samples were taken and sent to the laboratory for further testing. The results (available on 23 June 1997) showed a blood alcohol content of 1.45g/oo. 10. Later that evening, the applicant was taken from the hospital to the police headquarters. His car was also brought to the police courtyard. His girlfriend was interviewed until 11 p.m., when she was released. 11. On 22 June 1997 the prosecutor ordered the applicant’s arrest. On 23 June 1997 he was remanded in custody for thirty days. He remained in custody until the end of the criminal proceedings against him. 12. A few days after the incident, the police allowed S.U. to take the applicant’s car from the police yard. 13. On 8 July 1997 the Prosecutor’s Office attached to the Dolj County Court indicted the applicant for driving under the influence of alcohol and for insult and violence. It described the incident as follows: “As [the applicant] did not have his identity papers, [S.D.] insisted that they go to the hospital and when he tried to take his arm to lead him to the police car, [the applicant] became violent, tearing himself away and kicking him in the left femur, near the hip. ... During the interview [the applicant] partially admitted the facts; he declared that he had only drunk one bottle of beer at around 11 a.m. and that he had only kicked the police officer after having been slapped by him.” 14. On 8 September 1997 the court heard statements from S.U. and a witness, D.P. They maintained the statements they had made to the prosecutor but the former added that she had seen the police officer hit the applicant and that he had started bleeding, and the latter added that he had seen the applicant bleeding. 15. On 20 October 1997 the Dolj County Court convicted the applicant as charged and sentenced him to three years’ imprisonment. The court upheld the prosecutor’s version of the events. The applicant reiterated that he had been hit by S.D. The court discarded the statements given by S.U. and D.P as follows: “It is true that before the court the witness [S.U.] declared that the applicant had been hit by [S.D.], and witness D.P. had noticed that the applicant had been bleeding, without having seen whether he had been hit. However, these statements will be set aside as insincere in so far as during the criminal prosecution the witnesses did not make such statements and could not justify why they did not do so.” 16. The applicant appealed against the decision. He reiterated that he had been hit first by the police officer and made reference to the clinical evaluation form to prove the violence suffered. The Craiova Court of Appeal based its examination on the statement the applicant made to the prosecutor and considered that his allegations were not supported by evidence. It therefore upheld the county court’s decision, on 12 February 1998. 17. On 19 June 1998 the Supreme Court of Justice dismissed an appeal on points of law lodged by the applicant and upheld his sentence. It held that: “None of the witnesses heard in the case confirmed the applicant’s defence that he had been hit straight after the request to produce his identity papers.” 18. On 7 August 1998 the applicant requested the Procurator General to appeal against the final decision of 19 June 1998. On 30 October 1998, the Procurator General informed him that there were no reasons to request the reopening of the proceedings (recurs în anulare). He received the same answer even after he complained that his intention had been to lodge a request for the annulment of the final decision (contestaţie in anulare). 19. On 26 July 1997 the applicant lodged a criminal complaint against S.D. with the Craiova Military Prosecutor’s Office. He accused the police officer of having punched him in the mouth and in the back of his head. 20. He was interviewed on 14 August 1997 and 8 January 1998. 21. On 12 September 1997 S.D. made a statement. 22. On 23 September 1997 the applicant filed a complaint of theft from his car, apartment and outhouse, all keys being in the set that had been confiscated by the police and then returned to S.U. 23. The police officers who had been witnesses to the incident were interviewed by the prosecutor. They all declared that the applicant had been recalcitrant and had hit S.D. 24. On 30 January 1998 the Craiova Military Prosecutor’s Office decided not to start criminal proceedings against S.D. and the other police officers. It considered that the applicant had behaved aggressively on the evening of 21 June 1997. The decision made no reference to any act of violence having been perpetrated by the police officer. As for the accusations of theft, it noted that: “The car was transported to the Traffic Police headquarters and, as the driver was arrested the same day by the Prosecutor’s Office attached to the Dolj County Court for insult and violence, it was released to [S.U.], the driver’s mistress, and a report was drafted. ... There is no evidence indicating that anything was stolen from the car; the report confirms that it was given [to S.U.] in good condition.” 25. Subsequent complaints lodged by the applicant did not result in the reopening of the case by the military prosecutor, the latest decision not to prosecute being dated 26 August 1999. 26. The relevant provisions of the Code of Criminal Procedure and of the provisions governing the police and military prosecutor are set out in Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 43-46, 26 April 2007) and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004). 27. In paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above, there is a description of the development of the law concerning complaints about decisions by the prosecutor (Article 278 of the Code of Criminal Procedure and Article 2781 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004).

train

001-84717

ENG

DEU

ADMISSIBILITY

KOCH v. GERMANY

Inadmissible

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

The applicant, Mr Ralf Koch, is a German national who was born in 1968 and lives in Nideggen in Germany. In January 1998 police officers searched the applicant’s premises in order to seize evidence relating to an offence of unlawful assumption of authority allegedly committed by the applicant in December 1997. In January 1999 the Aachen Public Prosecutor’s Office preferred an indictment against the applicant with the Aachen District Court (Amtsgericht). In July 1999 police officers once again searched the applicant’s premises in order to seize evidence relating to three counts of falsification of documents allegedly committed by the applicant in December 1998, April 1999 and June 1999. In November 2001 the Aachen Public Prosecutor’s Office preferred an indictment against the applicant with the Aachen District Court. On 14 February 2003 the Aachen District Court, having joined to the proceedings three further indictments relating to criminal offences allegedly committed by the applicant in April 1999, November 2000 and April, May and June 2001, held a hearing during which the applicant was represented by the court-appointed counsel P. Following the hearing, the Aachen District Court convicted the applicant of three counts of falsification of documents, one count of unlawful assumption of authority in conjunction with attempted coercion, falsification of documents, bodily injury and falsely casting suspicion on an innocent person and four counts of insult and sentenced him to one year and eight months’ imprisonment, suspended on probation. The District Court considered as mitigating factors that the applicant had made a confession and that some of the offences had been committed many years ago. Parallel to these proceedings, public prosecution instituted separate proceedings against the applicant before the Düren District Court for falsification of documents allegedly committed by the applicant in 2002. On 14 February 2003 the Düren District Court appointed the lawyer W. to represent the applicant during the proceedings before that court. As W. was unable to attend the hearing scheduled for 18 February 2003, the District Court, on that same date, absolved her from her duties. On 18 February 2003 the District Court convicted the applicant, who was not represented by counsel, of falsification of documents and sentenced him to a fine of 2,000 euros. On 12 May 2003 the Aachen Regional Court (Landgericht), in joint proceedings, rejected the applicant’s appeal against the judgments of 14 and 18 February 2003 as inadmissible on the ground that the applicant had failed to attend the court hearing held on 12 May 2003. On 16 May 2003 the applicant applied for the reinstatement of the proceedings. He alleged that he had been unable to attend the court hearing as he had been admitted to intensive care from 11 to 13 May 2003 due to an emergency. In support of his allegations, he named his brother as a witness. On 23 June 2003 the Aachen Regional Court rejected the applicant’s request. It noted that the applicant had failed to submit sufficient information as to the nature of his illness, the name of the treating practitioner or the hospital he had been admitted to, nor had he submitted sufficient evidence supporting his allegations. On 30 June 2003 the applicant lodged an appeal. In support of his allegations, he submitted a letter by the Aachen University hospital dated 13 May 2003. According to the content of that letter, the applicant had been admitted to intensive surveillance after having complained about having suffered an electric shock while blow-drying his hair. The medical examination did not disclose any abnormalities. On 5 September 2003 the Cologne Court of Appeal rejected the applicant’s appeal. That court considered that the applicant had failed to establish that he had been hindered to attend the court hearing through no fault of his own. The Court of Appeal considered that the hospital letter submitted by the applicant was exclusively based on the applicant’s own statement on the alleged electric shock incident and that the medical examination had not disclosed any abnormalities. On 16 May 2003 the applicant lodged an appeal on points of law against the Regional Court’s judgment of 12 May 2003. On 30 September 2003 the Cologne Court of Appeal (Oberlandesgericht) rejected the applicant’s appeal as inadmissible on the ground that the applicant had failed to submit the grounds for his appeal within the statutory time-limit of one month. This decision was served on the applicant on 8 October 2003. On 9 October 2003 the applicant requested to be reinstated in the proceedings. He alleged that the court appointed counsel P. had promised him during a telephone conversation that he would submit the reasons for the appeal on points of law in due time. As means of evidence, the applicant submitted an affidavit given by his brother. The applicant further requested the court to withdraw the court-appointed counsel P. and to appoint new counsel to submit the reasons for his appeal on points of law. On 4 November 2003 the Court of Appeal informed the applicant that the case-file had been transferred to the Regional Court to rule on his request to appoint fresh counsel. On 26 November 2003 the Aachen Regional Court rejected the applicant’s request to appoint fresh counsel on the ground that the applicant’s appeal on points of law lacked prospect of success. On 8 December 2003 the applicant, represented by counsel W., requested the Court of Appeal to grant him a fair hearing and to re-open the appeal proceedings. On 13 January 2004 the Cologne Court of Appeal rejected the applicant’s request to have the proceedings reinstated as being inadmissible. Having regard to the differing submissions made by counsel P., the Court of Appeal considered that the applicant had failed sufficiently to establish that P. had promised him that he would submit reasons for his appeal. In any event, the applicant’s request was inadmissible as the applicant had failed to submit the grounds for his appeal, either through counsel or personally at the court’s registry, within the time-limit of one week set down in section 45 of the Code of Criminal Procedure (see relevant domestic law, below). The Cologne Court of Appeal further rejected the applicant’s request to re-open the proceedings on the ground that the applicant’s right to a fair hearing had not been violated. On 26 February 2004 the applicant lodged a constitutional complaint in which he complained about the conduct and the length of the proceedings before the criminal courts. On 21 May 2004 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept his complaint for adjudication. Article 2 § 1 of the German Basic Law in conjunction with the principle of the Rule of Law guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Constitutional Court, the courts and the prosecuting authorities are called upon to draw the consequences of the length of proceedings at any stage of the proceedings. Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections 153 and 153a of the Code of Criminal Procedure, the limitation of the proceedings according to sections 154 and 154a of the Code of Criminal Procedure or a reduction of the sentence (see, among others, the decision of 24 December 1983 (no. 2 BvR 121/83); the decision of 19 April 1993 (no. 2 BvR 1487/90); the decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions (BVerfGK) no. 2, pp. 239 et seq.; the decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06). Section 341 [form and time limit] “1. The appeal on points of law shall be filed with the court whose judgment is being contested either orally to be recorded by the registry or in writing within one week after pronouncement of judgment. 2. If pronouncement of judgment did not take place in the defendant’s presence, the time limit in respect of the defendant shall begin to run upon service of the judgment.” Section 345 [time limit for stating grounds] “1. The motions together with the grounds therefor shall be submitted to the court whose judgment is being contested no later than one month after expiry of the time limit for seeking the appellate remedy. If the judgment has not been served by then, the time limit shall commence upon service thereof. 2. The defendant may only do this in the form of a notice signed by defence counsel, or orally to be recorded by the court registry.” Section 45 [request for reinstatement of the proceedings] “1. The request for reinstatement of the proceedings shall be filed...within one week after cessation of the impediment (...). 2. The facts justifying the request shall be substantiated at the time the request is filed or during the proceedings on the request. The omitted act shall be undertaken within the time limit for filing the request (...).”

train

001-77789

ENG

ROU

CHAMBER

CASE OF RADOVICI AND STANESCU v. ROMANIA [Extracts]

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary and non-pecuniary damage - financial award (global);Costs and expenses partial award - domestic proceedings

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;John Hedigan;Vladimiro Zagrebelsky

8. The applicants were born in 1930 and 1933 respectively and live in Bucharest. 9. The facts of the case specific to each application, as submitted by the parties, may be summarised as follows. 10. In 1996 the applicants brought before the Bucharest District Court an action for recovery of possession in respect of property that had been nationalised by Decree no. 92/1950. Situated in Bucharest, at 184-B Calea Griviţei, the property consisted of a house divided into flats and the land on which it was built. At the time, one of the flats was occupied by E.D. under a tenancy agreement entered into with the State in 1986 and extended until 8 April 1999 pursuant to Law no. 17/1994 of 18 April 1994. 11. In a final judgment of 2 April 1997, the court allowed the applicants’ action on the ground that the nationalisation of the property had been illegal and ordered the competent administrative authorities to return the property to them. On that date the applicants began to pay the rates and land taxes levied on their property. 12. On 26 August 1998 the applicants notified E.D. of the judgment of 2 April 1997 through the intermediary of a bailiff and by registered letter with return receipt, in accordance with Law no. 114/1996 of 11 October 1996. In their notice, the applicants requested E.D. to enter into a tenancy agreement with them, as the new owners of the flat that E.D. occupied, and informed her, for the payment of the rent, of the details of a bank account in their names with the Savings Bank. 13. In May 1999, after the entry into force of Government Emergency Ordinance no. 40/1999 of 8 April 1999, the applicants visited E.D., who had declined to respond to their request, with a view to entering into a tenancy agreement with her; they were faced with a categorical refusal on the part of E.D. 14. On 25 August 1999 the applicants brought proceedings for the eviction of E.D. in the Bucharest District Court. They claimed that E.D. was occupying their property without any right of tenancy and had refused to enter into a tenancy agreement with them or to pay them rent in that connection. They further complained that E.D. had been breeding pigs in the basement of the house, thus damaging it and rendering it insalubrious. 15. In a judgment of 9 January 2000, the District Court granted their application and ordered the eviction of E.D. from the disputed property. It found that E.D. had not requested an extension of her tenancy of the flat occupied by her and her family, which she had been entitled to do under Article 2 of Government Emergency Ordinance no. 40/1999 and which would have enabled her to enter into an agreement with the new landlords. The court further observed that the applicants had not complied with the obligation under Article 10 § 1 of the Ordinance to notify the tenant, within a period of thirty days from the entry into force of the Ordinance, through the intermediary of a bailiff and by registered letter with return receipt, of the date and place fixed for the signing of a tenancy agreement. 16. Whilst the court observed that, under Article 11 § 1 of the Ordinance, failure by a landlord to comply with those formalities resulted in the extension of the previous tenancy until the signing of a new agreement, it nevertheless considered that this provision was not applicable in the present case in view of the exception provided for by Article 13 (d) of the Ordinance whereby there was no extension in the event of a dispute arising from a tenant’s refusal to enter into a tenancy agreement with the new landlord. The court thus considered that the applicants had adduced evidence of the refusal by E.D. to enter into such an agreement. Accordingly, it held that that existing tenancy agreement had not been extended and that E.D. was occupying the applicants’ property without any right of tenancy. 17. In a judgment of 11 May 2000, the Bucharest County Court upheld the merits of that judgment on appeal. It considered that the court below had correctly applied Article 13 (d) of the Ordinance, finding that the existing tenancy agreement had not been extended in view of the refusal by E.D., as proven by the applicants, to enter into a new agreement with them as the new landlords. 18. In a final judgment of 26 September 2000, the Bucharest Court of Appeal granted an appeal by the defendant and dismissed the applicants’ action. It found that the applicants had failed to comply, when serving their notice on E.D. requesting her to enter into a tenancy agreement, with the conditions and formalities laid down in Article 10 § 1 of the Ordinance, and accordingly held that the existing tenancy agreement between E.D. and the State had been automatically extended pursuant to Article 11 § 1 of the Ordinance. The reasoning in the judgment made no mention of the applicability in the present case of Article 13 (d) of the Ordinance. 19. On 9 August 2001 the applicants brought proceedings against E.D. seeking from her the payment of compensation for having deprived them of the enjoyment of the flat in their house that the defendant had occupied since 1998 without paying them any rent. 20. In a judgment of 30 November 2001, the Bucharest District Court dismissed their application on the ground that the defendant had a tenancy agreement with the State, which had been extended automatically as the applicants had failed to comply with the formalities provided for in Article 10 § 1 of the Ordinance. That judgment became final on an undetermined date, after being upheld by the Bucharest County Court on an appeal by the applicants. 21. On 8 August 2001 the applicants brought eviction proceedings against E.D. in the Bucharest District Court on the ground that she had been occupying a flat, of which they were the owners, without paying them any rent, and that her conduct was such that her cohabitation with the other occupants of the building had become impossible. The applicants indicated that, after they had been granted the return of their property by the final judgment of 2 April 1997, they had made a number of attempts to enter into a tenancy agreement with the defendant, who had constantly behaved aggressively towards them, but had been unsuccessful. They referred to a number of complaints that they had filed against E.D. with law-enforcement agencies. They relied on section 24(b) of Law no. 114/1996 taken in conjunction with Article 13 (i) of the Ordinance. 22. In a judgment of 14 September 2001, the Bucharest District Court dismissed their action as manifestly ill-founded. It considered that, as it concerned the termination of a tenancy agreement, they should have proved that they had entered into such an agreement with the defendant and that there were circumstances which rendered her cohabitation with the other occupants of the building impossible, but that they had failed to adduce such evidence. The reasoning in this judgment made no reference to the applicants’ complaint concerning E.D.’s failure to pay rent. 23. The applicants appealed against that judgment. In a final judgment of 15 February 2002, the Bucharest County Court granted their application. It held that E.D. had been occupying their property without any right of tenancy, taking into account the fact that the defendant had prevented the connection of the flat to the town gas network and had impeded the use by the other tenants of the common parts of the building, as a result of which her tenancy agreement was not being automatically extended. The court consequently ordered her eviction from the flat that she had been occupying in the applicants’ building. 24. On 13 September 2002 the applicants lodged an action for eviction against the members of E.D.’s family who had been living with her in the flat. Their application was granted by a final judgment of 11 November 2002, which ordered the eviction from the flat of the members of E.D.’s family. 25. On 23 September 2003 a bailiff from the Bucharest District Court’s service for the execution of judgments went to the applicants’ flat and restored possession of the premises to them after breaking the locks on the front door to gain access. The bailiff noted in the record drawn up that day that serious damage had been done to the flat, in which several window panes were missing or broken. 26. The applicants never received any rent for the flat which E.D. had occupied in their building between 2 April 1997 and 23 September 2003. ... 53. The relevant provisions of domestic law read as follows at the material time. 54. Section 24 of Law no. 5/1973 provided: “The tenant shall lose the right to occupy the leased accommodation and shall be evicted in the following cases: ... (d) If, in bad faith, he or she has failed for a period of three consecutive months to pay the rent or the service charges. The tenant’s eviction, in the cases provided for in this section, shall be ordered by a decision of the courts.” 55. Section 1 of Law no. 17/1994 read as follows: “Regardless of the type of landlord, any residential tenancy agreement concerning housing of which the lease is governed by Law no. 5/1973 ... , and which is in progress at the time of the entry into force of the present Law, shall automatically be extended for a period of five years under the same conditions [as those laid down in Law no. 5/1973].” 56. The relevant sections of Law no. 114/1996 read as follows: “The lease of residential premises shall be granted under an agreement between landlord and tenant recorded in writing and registered with the local tax authorities ...” “Should the parties fail to agree on the renewal of the tenancy agreement, the tenant shall be required to vacate the premises on the expiry of his or her tenancy.” “Tenancy agreements shall be terminated prior to their expiry date in the following cases: ... (b) at the request of the landlord, should the tenant fail to pay the rent for three consecutive months; ... (i) when the tenant’s conduct renders impossible his or her cohabitation with the other occupants of the building or prevents the normal use of the premises; ...” 57. The relevant Articles of the Ordinance read as follows: “The term of a residential tenancy agreement ... concerning premises that have been returned to their former owner shall be extended at the request of the tenant for a maximum period of three years from the date on which the present Ordinance comes into force.” “A new tenancy agreement shall be entered into between the landlord and the tenant at the tenant’s request. The private landlord shall register the new tenancy agreement with the local tax authorities. The legal entity that previously possessed or administered the property shall inform the tenant under the existing tenancy agreement, by letter with return receipt, within a period of fifteen days after the return of the property, that he or she may from that date onwards enter into a new tenancy agreement with the landlord to whom the property has been returned.” “The landlord shall notify the tenant, within a period of thirty days following the entry into force of the present Ordinance and through the intermediary of a bailiff, of the date and place fixed for the signing of a new tenancy agreement. The notice shall be served by registered letter with return receipt. ...” “Failure by the landlord to comply with the provisions of Article 10 § 1 shall lead to the automatic extension of the existing tenancy agreement until the parties have entered into a new agreement. Failure by the tenant to pay rent until the signing of the new agreement may not be relied upon by the landlord as a ground for eviction. In the event that, within a period of sixty days following the date of receipt of the notice, the tenant fails to reply in writing or refuses without justification to enter into a new tenancy agreement, the landlord shall be entitled to seek the unconditional eviction of the tenant ... by presidential decree.” “The tenancy agreement shall not be extended: ... (d) in the event of a dispute resulting from the refusal of the tenant, after being notified pursuant to Law nos. 17/1994, 112/1995 or 114/1996, to enter into a new tenancy agreement with the landlord; ... (i) where the tenant renders cohabitation impossible or impedes the normal use of the dwelling; ...” “The amount of the rent shall be fixed by negotiation between the tenant and the landlord at the time they enter into the new tenancy agreement. The rent shall not exceed 25% of the monthly net income of the household if this income does not exceed the average monthly net salary nationwide.” 58. Law no. 241/2001 of 16 May 2001 approved Government Emergency Ordinance no. 40/1999 and amended its Article 2, raising to five years the term of the tenancy agreement extended at the request of the tenant where the property had been returned to its former owner. The Law also amended Article 32 of that Ordinance by providing that the rent to be paid by the tenant could not exceed 15% of the monthly net income of his household. 59. Government Emergency Ordinance no. 40/1999 ceased to be in effect on 8 April 2004. Under Government Emergency Ordinance no. 8/2004, only tenancy agreements concerning premises belonging to the State could be extended by five years, at the request of the tenant.

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001-109140

ENG

POL

CHAMBER

CASE OF GĄSIOR v. POLAND

No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

5. The applicant was born in 1931 and lives in Kraków. 6. The applicant’s son-in-law, J.D., owns a construction company. In 2002 he built a villa for Z.W., a prominent politician, former prosecutor and deputy in the Polish parliament. 7. On 4 April 2003, the applicant wrote a letter to E.J. – the chief editor of a television programme (“Sprawa dla reportera”). She stressed in particular: “For 6 months Z.W. has owed 240,000 Polish zlotys to a small construction company. On 15 November [2002] he moved into a villa built by this company and until today, 4 April 2003, he has not paid a cent. No one can help us. The deputies from the “Law and Justice” Party (Prawo i sprawiedliwość) do not reply to our letters, they are silent because how could they touch the great W. They believe in his lies and fibs, no one is persuaded that he owes 240,000 Polish zlotys (PLN) to poor, hard working people (...). My son-in-law had contacts with different investors, but this is the first time in his life that he met such a greedy and mendacious person. He never expected such dishonesty from a public person – a deputy from the Law and Justice Party. This is why he [Z.W.] managed to trick him out of such a significant sum.” 8. In a second letter, dated 2 June 2004, addressed to the President of the board of the Polish Television, the applicant expressed the view that the media forgot about small enterprises that went bankrupt as they could not afford to pay the costs of civil proceedings. She further stated that: “Z.W. managed to deceive and ruin three [...] Polish companies and to successfully intimidate their owners and employees.” 9. Z.W. was informed about both letters by Polish Television journalists, who asked him for his comments. 10. On 8 July 2004 Z.W. lodged a private bill of indictment against the applicant. He charged the applicant with defamation. In particular, Z.W. submitted that in the letters sent to Polish Television on 4 April and 2 June 2004 the applicant had wrongly alleged that he had not paid J.D.’s company. The applicant had also referred to his using words indicating dishonesty, deceitfulness and fraudulent actions on his part. 11. The applicant was tried by the Kraków District Court. On 31 August 2006 she was convicted of defamation under Article 212 § 1 of the Criminal Code. The criminal proceedings against her were conditionally discontinued and she was ordered to pay PLN 1,000 to Z.W. She was also ordered to publish a written apology. In addition, the applicant was ordered to reimburse PLN 300 to Z.W. for the costs of the proceedings. 12. The trial court held that the content of the letter and in particular the expressions used, such as “liar”, “greedy and mendacious person”, “dishonest” could have resulted in Z.W. losing the public trust necessary for his political career. The background of this case was a civil dispute between Z.W and J.D. over the villa that the latter had built. The court noted that both parties had their arguments, more or less justified, but it was not the court’s role to adjudicate on this conflict, since its final outcome was already before a civil court. The court further referred to expert evidence (several opinions) obtained in the criminal and civil proceedings from which it appeared that indeed part of Z.W.’s allegations against J.D. as regards the quality of the construction works was substantiated. More importantly, the villa was not a faultless construction as claimed by the applicant and her family. 13. The court further held that it was impossible to accept that the words used by the applicant were true. They gave the applicant’s private opinion about Z.W., which had no objective justification in the facts of the case. In addition, the court noted that the applicant could not have been mistaken about the genuineness of her statements as she was well aware of the civil dispute between J.D. and Z.W. The court also observed that the evidence before it had not confirmed in any way that three companies had been ruined. 14. In the court’s opinion the applicant’s letters formed an unjustified personal attack on Z.W. The applicant consciously circulated untrue facts concerning an alleged non-compliance with a financial obligation between Z.W. and J.D. The allegations concerned the private life of Z.W. and therefore could not be protected in the same way as statements concerning his political activities. 15. The applicant appealed against her conviction. On 24 January 2007 the Kraków Regional Court partly upheld the first-instance judgment. However it ordered the applicant only to publish an apology and reimburse Z.W.’s costs. The court referred to the reasons given by the District Court. It considered that the applicant’s allegations were not true and the applicant had been aware of this. Furthermore, she had not acted in the public interest but had presented her personal negative and unsubstantiated opinion of Z.W. 16. On 21 April 2004 J.D. lodged with the Kraków Regional Court a claim against Z.W. and his wife seeking payment of 40,492 Polish zlotys for the works carried out by his company. 17. On 22 June 2004 the Kraków Regional Court in a summary procedure (postepowanie uproszczone) ordered Z.W. and his wife to pay J.D. the requested sum together with interest. 18. On the defendants’ appeal the case was transferred to the ordinary procedure. 19. On 10 June 2008 the Kraków Regional Court gave judgment and dismissed J.D.’s claim. The court held that the plaintiff’s claims were unsubstantiated since, as proved by expert opinions, the construction works carried out by his company had been faulty. In addition Z.W. had had to spend about PLN 100,000 in order to repair the building. The court concluded that Z.W could have requested to have this amount offset against J.D.’s claim. 20. On 28 November 2008 the Kraków Court of Appeal upheld the firstinstance judgment and dismissed J.D.’s claim. 21. Article 212 of the Criminal Code provides in so far as relevant: “§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in public opinion or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year. § 2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.” Article 213 provides as follows: “§ 1. The offence specified in Article 212 § 1 is not committed, if the allegation made in public is true. § 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2; if the allegation regards private or family life evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone’s life or to prevent the demoralisation of a minor.” 22. On 30 October 2006 the Constitutional Court, ruling on a legal question referred to it by the Gdansk District Court, declared Article 212 §§ 1 and 2 of the Polish Criminal Code compatible with Articles 14 and 54 § 1 of the Constitution read in conjunction with Article 31 § 3. The court found that in some circumstances the protection of rights and freedoms like dignity, good name and privacy might prevail over the protection of freedom of expression. The Court further found that there was no basis to assume that protection of personal rights through the civil law alone would be equally effective as criminal law. Protection of personal rights by means of the criminal law did not by itself infringe the relevant provisions of the Constitution.

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001-5499

ENG

POL

ADMISSIBILITY

RUTKOWSKI v. POLAND

Inadmissible

Georg Ress

The applicant is a Polish national, born in 1966. He currently serves a prison sentence in Płock prison. A. The facts of the case, as submitted by the applicant, may be summarised as follows. a) On 13 March 1997 the Toruń District Court convicted the applicant of assault against his brother-in-law and sentenced him to eight months’ imprisonment. When taking the evidence, the court interviewed the applicant and heard at least three other witnesses: his wife, the victim, and the victim’s wife. The court had further regard to a forensic medical opinion. The applicant filed an appeal with the Toruń Regional Court, submitting that the evidence on the case-file did not allow for a conclusion that he was guilty of any criminal offence, and requesting to be acquitted. He submitted in particular that he had been acting in self-defence. On 19 December 1997 the Toruń By a letter of 25 March 1998 the applicant’s officially appointed counsel informed him that his competence to act on the applicant’s behalf had expired on the date on which the appellate court gave its judgment. If the applicant wished to lodge a cassation appeal, it was open to him to hire a lawyer who should draft the appeal and submit it to the Supreme Court within thirty days from the service of the second-instance judgment with its written grounds on the applicant. He also informed the applicant that he was not intending to lodge a cassation appeal with the Supreme Court as his case-load made it impossible for him. On 26 March 1998 the applicant requested the Toruń Regional Court to appoint a counsel under the legal aid scheme, who would prepare a cassation appeal on his behalf. On 28 March 1998 the same counsel refused to accept the applicant’s power of attorney for the purposes of lodging the cassation appeal. He informed the applicant that it was open to him to submit to the court a request to have another lawyer assigned to the case. On 2 April 1998 the court granted the applicant’s request. Subsequently, on 7 April 1998 the Toruń Regional Bar Council, acting at the request of the Toruń District Court, assigned E.Z. as an officially appointed counsel to represent the applicant in the cassation proceedings. By a letter of 26 April 1998 E.Z. informed the applicant that she did not intend to draft a cassation appeal in his case, as she was of the view that no statutory grounds for so doing were available. She considered that the second-instance judgment was not flawed with shortcomings such as to justify lodging a cassation appeal under the applicable provisions of the Code of Criminal Procedure. The analysis of the case-file had not shown that any flagrant breach of law had been committed in the case. The applicant received this letter on 4 May 1998. On 28 July 1998 he renewed his request to have a lawyer assigned in order to represent him further in the proceedings. He also requested to be granted a retrospective leave to appeal out of time. On 20 October 1998 the Toruń Regional Court refused to appoint legal counsel under the legal aid scheme and to grant the applicant a retrospective leave to appeal out of time. The court considered that the objective of appointing a legal counsel was to guarantee to the accused person a right to have effective legal representation in the criminal proceedings. If a lawyer, having analysed the case-file, stated that there were no grounds on which a cassation appeal should be lodged, there was no legal basis on which the court could oblige the lawyer to act further. Moreover, there was no legal basis on which to appoint a new legal counsel to the case. E.Z. had filed her letter of 26 April 1998 with the applicant’s case file. It transpired therefrom that she had analysed the case-file with a view to lodging a cassation appeal, but that she had not found any grounds which would justify it. The court concluded that, in view thereof, there was no legal basis on which another lawyer could be appointed to the case. Subsequently the applicant complained to the Regional Council of the Toruń Bar. In reply, in a letter of 5 November 1998, the Dean of the Council informed him that E.Z. had been requested to explain the grounds on which she had refused to draft the cassation appeal. She had stated that she had examined the applicant’s case-file and had not found any grounds for filing the cassation appeal. The applicant’s attention was drawn to the fact that as the cassation Subsequently, the applicant requested the Minister of Justice to lodge a cassation appeal on his behalf. On 30 June 1999 the Minister of Justice refused to do so, considering that the examination of the case-file had shown that there were no legal grounds for lodging a cassation appeal. b) On 30 April 1998 the Toruń District Court convicted the applicant of attempted theft and sentenced him to one-year imprisonment and a fine. The applicant had committed the offence when being temporarily released from prison. On 5 February 1999 the Toruń Regional Court partly amended the contested judgment in that it quashed the part of the sentence by which the applicant had been ordered to pay a fine, partly amended the legal basis of the conviction and dismissed the remainder of the applicant’s appeal. B. Relevant domestic law 1. Assistance of an officially appointed lawyer On 1 September 1998 the new Code of Criminal Procedure entered into force. Pursuant to Article 84 of the Code, an officially appointed counsel is entitled to act on behalf of the accused throughout the entire proceedings. A counsel appointed to represent an accused in cassation proceedings should draft and sign the cassation appeal, or inform the second-instance court in writing that he has not found grounds for lodging such an appeal against the second-instance judgment. According to Article 78 § 1 of the Code, the accused who does not have a privately hired lawyer to represent him in the proceedings, may require that a counsel be assigned to the case under the legal aid scheme, if he proves that he cannot afford to pay the costs of his defence without entailing a substantial reduction in his and his family’s standard of living. Under Article 79, the accused person must have an officially appointed counsel if he is minor, or deaf, mute or blind, or if there are justified doubts whether he could be held criminally responsible, or if he does not speak Polish. Further, pursuant to the same provision, a lawyer shall be assigned to represent the accused when the court finds it justified due to circumstances which may render the defence particularly difficult. The accused must have an officially appointed lawyer in the case in which a regional court acts as the first - instance court, if he is accused of a crime within the meaning of the Criminal Code, or is detained on remand. 2. Cassation appeal According to Article 519 of the Code of Criminal Procedure, a cassation appeal may be lodged with the Supreme Court against any final decision of an appellate court, which has terminated the criminal proceedings. Pursuant to Article 523, such an appeal can be lodged only on grounds specified in Article 439 of the Code, which include serious procedural errors, or on the ground of another flagrant breach of law, if the contested judicial decision was affected by such breach. A cassation appeal cannot be lodged only against the sentence. Under Article 526 § 2 the cassation appeal must be drafted and signed by a counsel.

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001-22167

ENG

GBR

ADMISSIBILITY

LAWRENCE v. THE UNITED KINGDOM

Inadmissible

Georg Ress;Nicolas Bratza

The applicant, Joseph Dwight Lawrence, is a United Kingdom national, born in the United States of America in 1952 and living in Northwood, Middlesex. The facts of the case, as set out in documents submitted by the applicant, may be summarised as follows. The applicant was involved in a boundary dispute with his neighbours. In March 1997 he had built a brick wall on an area which the neighbours claimed was their land, with the result that the neighbours commenced a civil action in trespass against the applicant in the Watford County Court in June 1997. The neighbours instructed a partner in the litigation department at a local firm of solicitors, Matthew, Arnold and Baldwin (“MAB”), to act for them in connection with the dispute. The firm was the largest in Watford. The case was originally to be heard by a County Court Judge who, following the hearing of a number of preliminary issues on the case, became unavailable and was replaced by another such Judge (“the Deputy Judge”) on 11 August 1999. The applicant disputes the unavailability of the first Judge to preside over the proceedings after that date. The Deputy Judge and his wife had instructed the private client partner at MAB to prepare their wills in November 1995. MAB had thereafter kept custody of the wills and, in late October or early November 1999, the Deputy Judge and his wife instructed the same partner at MAB to amend their wills by way of new codicils. They made an appointment to call in at MAB’s offices on the evening of 11 November 1999 which, as the Deputy Judge was aware, would coincide with his presiding over the trespass proceedings. The trial commenced on 16 August 1999 in order to allow one of the neighbours’ witnesses to give evidence, since he would not be available on the dates listed for trial between 9 and 12 November. On 21 September 1999, the District Judge heard the applicant’s request that he withdraw from the case in favour of the original County Court Judge on the basis that the latter had been involved in the case throughout. The Deputy Judge refused the application. On 28 October 1999, the Deputy Judge heard an application by the applicant for summary judgment on the basis of alleged deliberate failure by the claimants, their expert and MAB to obey Court Orders. At the hearing, the Deputy Judge asked the applicant whether he was making a complaint about the conduct of MAB, to which the applicant responded that he was not. The applicant maintains that the Deputy Judge’s question was aimed only at a specific part of the application for summary judgment, which part concerned failures only on the part of the neighbours’ expert witness. The Deputy Judge informed the applicant upon resumption of the trial on 9 November that MAB had made his will some years previously, and that they still held it, and the applicant took no point on the issue. By the end of that day two of the neighbours’, and one of the applicant’s, witnesses of fact had been examined at length. On the morning of 12 November, the Deputy Judge or one of his assistant staff approached the neighbours’ counsel outside the judges’ robing room and informed him of the Deputy Judge’s intention to impose a timetable for the trial, including a limit on the time to be allowed for examination-in-chief of outstanding witnesses of both parties. The neighbours’ counsel passed on this message to the applicant as requested by the person who had spoken to him, and the Deputy Judge, upon resumption of the hearing, announced a five minute limit upon examination-in-chief of the remaining witnesses. As a result, the applicant decided not to call his second witness of fact, who was to travel to the hearing from Israel to testify, and that witness’s written statement was not admitted into evidence. The hearing ended on the afternoon of 11 November 1999 and the Deputy Judge rose to consider his judgment overnight. He and his wife arrived at the offices of MAB and signed the codicils as previously arranged, meeting a solicitor and a paralegal who each witnessed the signatures. The paralegal had been waiting to meet a colleague in the reception area and was asked to witness the codicil on the spur of the moment. She had worked at MAB since around 1995 in the firm’s debt collection department and had assisted in typing some letters in connection with the neighbours’ case against the applicant in 1997, 1998 and 2000. MAB subsequently wrote to the applicant and named the solicitor as a member of the firm’s tax, trusts and probate department, but this identification is disputed by the applicant. The following morning the Deputy Judge delivered judgement in the County Court proceedings in favour of the neighbours. The applicant was required to remove the wall which he had built on the land at issue, which was held to constitute part of the applicant’s property. The applicant was also made subject to an injunction prohibiting him from entering onto the neighbour’s land or interfering with it. The applicant was ordered to pay GBP 190 in damages to the neighbours and a proportion of their costs. The applicant was granted leave to appeal to the Court of Appeal by that court in March 2000. He raised three grounds of appeal: that the Deputy Judge had misunderstood or misdirected himself with regard to the necessary components of an “adverse possession” claim in that the neighbours had never had the necessary intention to possess; that because the Deputy Judge before and during the trial had dealings with the solicitors acting for the neighbours, there was an appearance of bias; and that the Deputy Judge conducted the hearing in an unfair manner, limiting the applicant’s examination of his witnesses in a way in which the neighbours had not been so limited. Lord Justice Mantell, in granting leave, commented that he considered all three grounds arguable, but that the third was of lesser weight. The applicant found out about the Deputy Judge’s 11 November 1999 meeting at MAB shortly afterwards. At the hearing of the appeal before the Court of Appeal on 25 January 2001, the applicant confined his grounds of appeal to the first two grounds considered at the leave stage, although the court did comment on all three grounds in its judgment. On the first ground, following a fresh examination of the facts, the court concluded that adverse possession had been established in favour of the neighbours, and that such possession had continued for more than twelve years thereby extinguishing the applicant’s predecessor-in-title’s ownership of the land. Lord Justice Gibson went on to comment on the second and third grounds of appeal as follows: “22. It seems to me that the fair-minded and informed observer would recognise that every judge lives in the community and that in his private life, away from his judicial life, he may need to use the services of service providers, including solicitors. That observer would also appreciate that solicitors, by the very nature of their work, have many clients the affairs of each of whom must be kept separate from those of another client. The use by a judge of the services of a firm of solicitors for his personal purposes, such as for drafting his will, would not, I think, give rise to any expectation, or even any suspicion, in the fair-minded and informed observer that the judge in his judicial capacity would, by reason of that connection over his will, be untrue to his judicial oath and favour another client of those solicitors. The observer would take note of the fact that at the time when the Deputy Judge heard the evidence of Mr Moore [the applicant’s predecessor-in-title] he was not aware who were the solicitors of the claimants [ie the applicant’s neighbours] and that, having heard that evidence, the Deputy Judge was the obvious person to complete the hearing of the trial. Indeed, if he had stood down, there would at least have been a risk that Mr Moore’s evidence would have to be taken in front of another judge, thereby adding disproportionately to the costs of what is essentially a very minor dispute. The observer would take note of the fact that the Deputy Judge volunteered the information that the claimants’ solicitors had acted for him in preparing his will and that the Deputy Judge had obtained the express confirmation of the parties that there was no objection to him continuing to preside in the case. The observer would, in my view, have attached particular importance to the fact that the will, as the Deputy Judge told the defendants [ie the applicant] was being kept by the claimants’ solicitors. That in itself would indicate that there was a continuing relationship with the solicitors and that it was possible that the will might need to be altered in some way (and codicils are frequently made after a will has been executed), when probably there would be contact between the Deputy Judge and those solicitors. As the Deputy Judge obtained confirmation from the defendants that despite his connection with the solicitors over his will there was no objection to him continuing to sit, the observer would reasonably regard the completion of a codicil, which the solicitors had been asked by the Deputy Judge to prepare, as within the reasonable scope of what had been cleared with the parties. 23. The witnessing of the signature of the testator on a testamentary document, as the informed observer would know, is a mere ministerial task, and the fact that a secretary in the litigation department of the solicitors happened to be available to be such a witness is in itself neither sinister nor significant. The observer would note that the Deputy Judge as made clear that he did not discuss the claimants’ case against the defendants when he went to complete his codicil. 24. The passing of a message to the claimants’ counsel by the Deputy Judge, or the court usher, or the Deputy Judge’s clerk would not, in my view, be regarded by the observer as of any significance whatsoever. There is no evidence that the Deputy Judge was consulting Mr Cowen in passing that message to Mr Cowen and Mr Lawrence. I have already stated that what Mr Cowen has said occurred. In my judgment, it is impossible to regard that incident as indicating any appearance of bias. 25. ... the mere fact that a witness of the Deputy Judge’s signature to his codicil was a secretary who had some connection with the case, in that her initials appear (with the initials of another) on letters to the defendants in relation to this case, would not appear to the fair-minded observer to be of any importance. Nor, in my judgment, can there possibly be some sort of duty on the Deputy Judge to have investigated precisely what functions were performed in the affairs of the claimants’ solicitors by a mere witness to his signature. 26. Looking at the matter objectively, I am wholly unable to see that the fair-minded and informed observer would conclude from the various matters to which Mr Lawrence has attached importance that this was a case in which there has been an appearance of bias. For this reasons, therefore, I do not accept his arguments on this ground. 27. For completeness I should also deal briefly with Mr Lawrence’s further objection that the Deputy Judge conducted the trial unfairly in imposing a timetable on the trial at the start of the second day, only allowing five minutes for the examination in chief of further witnesses. Mr Lawrence submits that this is quite unfair, because two witnesses for the claimants were examined in chief at greater length on the first day. 28. In my judgment there is nothing in this point either. The chief witness of fact for the defendants was Mr Moore. It is apparent from the transcript of the hearing in August that Mr Moore was examined by Mr Lawrence in chief at some length. The fact that the two sons of the late Mr Griffiths were examined on 9th November for rather longer than five minutes does not, to my mind, lead to the conclusion that on 10th November the Deputy Judge, exercising his case management powers and imposing a rather more rigorous timetable from then on, was showing bias or acting unfairly. The Deputy Judge’s direction also applied to the further witnesses of the claimants. In any event, as I have said, the main witness of the defendants had already given evidence without any time limit. Further the other witnesses had produced witness statements and there was no need for there to be a lengthy examination in chief. (...)” The Court of Appeal therefore dismissed the appeal. The applicant has recently discovered that the Deputy Judge was never charged by MAB for the work done in connection with the codicils signed on 11 November 1999. In this connection, the Deputy Judge wrote to the head of the Civil Appeals Office in November 2001 indicating that the purpose of the codicils was to delete a charitable gift that he and his wife had decided to give instead in celebration of his wife’s seventieth birthday. He attached a letter dated 30 October 2001 from MAB, which explains that the codicil involved the deletion of one clause of the wills of the Deputy Judge and his wife and that, given the simplicity of the work, it would have been uneconomic to render an account for it. The applicant has informed the Court that be a further hearing is listed before the Court of Appeal for mid-December 2001 on the question of whether or not that court has jurisdiction to re-open the matter in light of the recent developments.

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001-69831

ENG

RUS

CHAMBER

CASE OF YAVORIVSKAYA v. RUSSIA

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Christos Rozakis

8. The applicant was born in 1965 and lives in Ternopil, Ukraine. 9. From 1996 to 2000 the applicant and her family lived and worked in the Chukotka Region in the Russian Federation. 10. In the winter of 1998 the applicant was taken to a hospital in the town of Bilibino. According to the applicant, local doctors failed to diagnose her correctly and provide adequate treatment; as a result her health was seriously damaged. 11. In August 1998 the applicant brought a medical malpractice suit against the municipal health protection institution “Bilibino Central District Hospital” (муниципальное учреждение здравоохранения «Билибинская центральная районная больница»). 12. On 21 February 2000 the Bilibinskiy District Court of the Chukotka Region allowed the applicant's action and awarded her RUR 60,000 (EUR 2,109). The judgment was not appealed against and on 1 March 2000 it became final and enforceable. 13. After the hospital had failed to pay the judgment debt for over a year the applicant sent complaints to the President of the Russian Federation, the Minister of Health, the Court Bailiffs' Service and other authorities. 14. On 15 November 2001 the Chukotka Regional Department of the Ministry of Justice (in charge of the court bailiffs) advised the applicant as follows: “...it was established that the debtor had no cash funds in its accounts. According to its founding documents, the debtor is an institution and, pursuant to Article 120 of the Civil Code, an institution is only liable to the extent of its cash funds. Article 298 § 1 of the Civil Code provides that an institution may not alienate or otherwise dispose of the property attached to it or of the property acquired at the expense [of its owner]. In accordance with Information Letter no. 45 of the Presidium of the Supreme Commercial Court of the Russian Federation of 14 July 1999 'On the recovery out of the property of an institution', if the debtor, who is an institution, lacks cash funds, then recovery is not possible out of the other property assigned to the institution by its owner...” 15. The Justice Department further informed the applicant that the enforcement proceedings had been closed on 30 November 2000 because the enforcement had been impossible, but it was open for the applicant to initiate the enforcement proceedings again. 16. On 29 November 2001 the Chukotka Regional Department of the Ministry of Justice forwarded the applicant's complaint to the chief court bailiff of the Bilibino District, for enforcement. 17. On 10 December 2001 the Chukotka Regional Department of the Ministry of Justice responded to the applicant and gave the same explanation as in the letter of 15 November 2001. It also added that in respect of the hospital there were several other enforcement proceedings having the first and second rank, whilst the applicant's claim only had the fifth rank. 18. On 18 January 2002 a court bailiff confirmed again that the hospital had no cash funds and that the recovery could not be made out of its property. 19. On 28 January 2002 the bailiff required the Bilibino clearing centre to seize the cash funds of the hospital. 20. On 6 February 2002 the bailiff determined that the enforcement was not possible due to the debtor's lack of funds. The enforcement proceedings were definitively closed and the writ of execution was returned to the applicant.

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001-98923

ENG

GEO

CHAMBER

CASE OF TCHITCHINADZE v. GEORGIA

Violation of Art. 6-1;Violation of P1-1;Just satisfaction partially reserved;Non-pecuniary damage - award

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

5. The applicant was born in 1952 and currently lives in Belgorod, in the Russian Federation. 6. He owned a house located at 54 Mazniashvili Street in Batumi, in the Ajarian Autonomous Republic (“the AAR”), Georgia. The house and its adjacent premises were located on a plot of land of some 284 square meters. 7. Under a contract of 8 April 1994 (“the contract of sale”), the applicant ceded to Mr G., by then the Ajarian Deputy Minister of the Interior, half of his house (“the Mazniashvili estate”) for the price of 150,000,000 coupons (the provisional Georgian currency introduced at the beginning of the 1990s for purposes of monetary reform). According to the case file, the purchasing power of that sum corresponded to some 300 euros (EUR) at the material time. The contract of sale was certified by a notary. As further disclosed by a written statement of a witness to that transaction, after the signing of the contract Mr G. gave the applicant 3,000 United States dollars (EUR 2,199) in cash. Shortly after the sale of the Mazniashvili estate, the applicant left Batumi and settled, together with his family, in the Russian Federation. Allegedly, a reason for that hasty departure was Mr G.'s continuous pressure on the applicant to cede the remaining part of the house. 8. As a result of tensions between the central and local authorities (see The Georgian Labour Party v. Georgia, no. 9103/04, § 52, 8 July 2008), members of the Ajarian government, including Mr G., fled the country in May 2004. 9. On 7 June 2004 the applicant brought a civil action against Mr G., requesting that the contract of sale be declared null and void for having been entered into under duress (“the civil case”). In particular, the applicant, referring to the relevant factual circumstances, claimed that the respondent, by then an extremely powerful person in the AAR, had forced him to cede the Mazniashvili estate for a ludicrously small price under threats to his person and family. The applicant also sought an injunction to have the estate attached until after the final resolution of the dispute. 10. In a decision of 30 June 2004, the Batumi City Court granted the injunction and ordered the attachment of the Mazniashvili estate. The City Court transmitted its decision, describing the facts of the dispute, to the Chamber of Notaries of the Ajarian Ministry of Justice for enforcement. In the absence of an appeal, the decision became final after five days, and, as disclosed by the case file, the relevant attachment record was duly entered in the Land Register. 11. On 25 August 2004 the Ajarian Public Prosecutor's Office opened a criminal case against Mr G. for various offences committed in public office. On the basis of those criminal proceedings, the prosecutor requested the Ajarian High Court to confiscate the movable and immovable property of the accused, including the Mazniashvili estate, under Article 37(1) of the Code of Criminal Procedure (“the CCP”, “the confiscation proceedings”). According to the prosecutor's submissions, the Mazniashvili estate measured some 68 square meters and was valued at GEL 50,000 (EUR 21,275). 12. On 10 September 2004 the Ajarian Supreme Court partially allowed the prosecutor's request, ordering the confiscation of some of Mr G.'s property, including the Mazniashvili estate. The prosecutor appealed against that partial confiscation to the Supreme Court of Georgia. 13. On 18 November 2004 the Batumi City Court, in the absence of the respondent Mr G., allowed the applicant's action of 7 June 2004. The court annulled the contract of sale, confirmed the applicant's title to the Mazniashvili estate and ordered the Batumi Land Registry, which formed part of the Ajarian Ministry of Justice, to proceed with the necessary registration formalities. The decision further noted that it would become final ten days after being served on the respondent. There being no appeal within that statutory period, the decision became final on an unspecified date. 14. On 7 December 2004 the applicant, relying on the already binding decision of 18 November 2004, requested the Supreme Court of Georgia to discontinue the confiscation proceedings with respect to the Mazniashvili estate. 15. Either on 27 December 2004 or 26 January 2005 the Batumi Land Registry recorded the applicant's title to the Mazniashvili estate, amounting to some 68 square meters, on the basis of the final decision of 18 November 2004 (the case file contains a copy of that official record which bears two different dates). On 18 February 2005 the Registry issued another certificate, confirming the applicant's title to the real estate. 16. On 17 January 2005 the Supreme Court of Georgia, after having conducted a hearing in the presence of representatives of both the Prosecutor General's Office (“the PGO”) and Mr G., overturned the decision of 10 September 2004 in the part concerning the confiscation of the Mazniashvili estate, and upheld the remainder. The court acknowledged that the estate, valued at GEL 50,000 (EUR 21,275), represented the applicant's property by virtue of the binding decision of 18 November 2004. The Supreme Court instructed the Ajarian High Court to examine the issue of discontinuation of the confiscation proceedings concerning the Mazniashvili estate. 17. On 18 March 2005 the Batumi Land Registry addressed a letter to the Ajarian prosecutor, demanding clarification with respect to the situation of the Mazniashvili estate. The Register appeared to be confused by the fact that the estate represented both the applicant's property by virtue of the binding decision of 18 November 2004 and yet was an object of the pending confiscation proceedings. Furthermore, contrary to what had been confirmed by the record of 27 January 2005 and the certificate of 18 February 2005 (see paragraph 15 above), the Registry informed the prosecutor that the applicant's title to the Mazniashvili estate had not yet been formally recorded. 18. In a letter dated 31 March 2005, the Deputy Minister of Justice confirmed that the applicant was the owner of the Mazniashvili estate on the basis of the final decision of 18 November 2004, adding that the process of registration of his property title had been suspended. 19. On 24 March 2005 the Ajarian prosecutor filed with the Batumi City Court a request to quash the final decision of 18 November 2004 and to reopen the civil case, under Article 422 § 1 (b) of the Code of Civil Procedure (“the CCP”). The prosecutor stated that the confiscation of the Mazniashvili estate, indicated by the Ajarian High Court's decision of 10 September 2004, had already been confirmed by the Supreme Court of Georgia. However, the enforcement of the confiscation was impossible owing to the existence of the conflicting decision of 18 November 2004. The prosecutor complained that the Batumi City Court should have involved him as a third party in the civil case which, moreover, should have been suspended pending the outcome of the confiscation proceedings. 20. On 7 April and 18 June 2005, the applicant submitted written comments in reply to the Ajarian prosecutor's request for quashing. He argued that the prosecution authority, being a party to the confiscation proceedings, had learnt of the decision of 18 November 2004 in the course of the Supreme Court's hearing of 17 January 2005 at the latest. Consequently, the Ajarian prosecutor's request for quashing was belated, as provided by Article 426 §§ 1 and 2 of the CCP. He further noted that the Mazniashvili estate had never been State property and, consequently, the Batumi City Court could not have been expected to join the prosecutor as a third party to the civil case. If the Ajarian prosecutor had acted with minimum diligence, by having consulted, for instance, the Batumi Land Registry prior to the institution of the confiscation proceedings against Mr G. on 25 August 2004, he would have learnt that the Mazniashvili estate had already been attached, by virtue of the injunction of 30 June 2004, in the course of the civil case. The applicant also challenged the prosecutor's misleading assertion that the confiscation of the Mazniashvili estate had been confirmed by the Supreme Court of Georgia. 21. Reiterating the above arguments, the applicant also requested the PGO, on 12 September 2005, to open a criminal case against the Ajarian prosecutor for abuse of power. 22. On 23 September 2005 Judge V. of the Batumi City Court summoned the applicant, who was residing in Belgorod, by telegram to appear on 30 September 2005 as a respondent in the quashing proceedings brought by the Ajarian prosecutor. The applicant telegraphed back on 27 September 2005 to request adjournment of the hearing in view of his health problems. 23. On 17 October 2005 Judge V. summoned the applicant by telegram to appear on 27 October 2005 “as a respondent in the proceedings brought by a notary public of Batumi”. The telegram noted that the claimant's submissions were being dispatched by registered post. 24. On 18 October 2005 the Ajarian Prosecutor's Office replied to the applicant's criminal complaint of 12 September 2005 in the following terms: “As you already know, the Batumi City Court has granted the Ajarian prosecutor's request and reopened the case. Consequently, your allegations of abuse of power by the prosecutor are ill-founded, ... and you have the right to plead before the court as a respondent”. 25. On 25 October 2005 the applicant notified Judge V. by telegram of his inability to travel from the Russian Federation to Georgia for the forthcoming hearing on 27 October 2005 in view of his health problems. He noted that he was sending the supporting medical documentation by post and that the notary public's submissions had not reached him so far. 26. On 1 November 2005 the applicant received the Batumi City Court's dispatch of 17 October 2005 (see paragraph 23 above). He learnt that the notary public who had certified the contract of sale on 8 April 1994 had requested, on 10 October 2004, the quashing of the binding decision of 18 November 2004 under Article 422 § 1 (b) of the CCP. The notary complained that she should have been involved in the civil case as a respondent, in so far as, pursuant to the Notaries Public Act of 3 May 1996, she had been personally responsible for the validity of the contract in question. As to compliance with the statutory time-limit of one month, the notary claimed that she had first learnt of the existence of the decision of 18 November 2004 from a local newspaper, Batumelebi, on 28 September 2005. The relevant article, published on the latter date, had described the details of the confiscation proceedings and the civil case, noting the existence of the conflicting interests of the applicant and of the Ajarian prosecutor over the Mazniashvili estate. 27. On 9 November 2005 Judge V. summoned the applicant by telegram to appear on 14 November 2005 as a respondent “in the proceedings brought by the notary public.” The applicant telegraphed back on the following day, requesting an adjournment of the hearing in view of his state of health. He also informed Judge V. that he was dispatching by post his comments on the notary's request for quashing. As disclosed by those comments, received at the City Court on 8 December 2005, the applicant denounced the notary as lacking the requisite locus standi to call into question the outcome of the terminated civil case. 28. On 25 November 2005 the applicant requested the initiation of disciplinary proceedings against Judge V. He complained that, by summoning him by telegraph only a few days before the scheduled hearings, without giving him an opportunity to obtain knowledge of and comment on the claimant's submissions, the judge had breached the principle of the equality of arms. 29. On 30 November 2005 Judge V. once again requested the applicant to appear at a hearing on 6 December 2005 in the reopening proceedings brought by the notary public. Another request for an adjournment followed from the applicant on 5 December 2005. 30. On 14 March 2006 the applicant received by parcel two decisions of the Batumi City Court dated 30 September and 27 October 2005. As shown by the postmark on the envelope, the parcel had been dispatched by Judge V. on 2 March 2006. 31. In a decision of 27 October 2005, Judge V. ruled that the notary public's request for quashing of 10 October 2005 was well-founded and that the decision of 18 November 2004 ought to be annulled and the civil case reopened under Article 422 § 1 (b) of the CCP. The judge based her decision on the notary's written and oral pleadings only and did not explain the reason for having dispensed with the need for submissions from the applicant. Without giving any additional reasons, the judge endorsed the notary's procedural and substantive arguments, in particular that the request for quashing had been lodged in due time and that the notary should indeed have been involved in the civil case. The operative part of the decision noted that no appeal lay against it. 32. As to the decision of 30 September 2005, it concerned the request for quashing of 24 March 2005 from the Ajarian prosecutor. Judge V. first noted that, despite having been properly summoned to the oral hearing, the applicant had failed to appear and that his explanation in that regard – the reference to health problems – was not substantiated by medical documentation. However, the judge took into account the applicant's written submissions (see paragraph 20 above), and concluded that the prosecutor's request for quashing should be rejected as time-barred. 33. On 24 March 2006 Judge V. summoned the applicant by telegram to appear as a claimant in the reopened civil case. The judge specified that Mr G. and the notary were co-respondents in the case, whilst the Ajarian prosecutor had been admitted as a third party. In a telegram dated 28 March 2006, the applicant requested an adjournment in view of his persistent health problems. He noted that the supporting medical documents as well as his request for the replacement of Judge V. were being dispatched by post. 34. On 19 April 2006 the applicant lodged with the Kutaisi Regional Court an appeal against the decision of 27 October 2005. Referring to the fact that Judge V. had summoned him to the relevant quashing proceedings even after 27 October 2005, the applicant accused her of having forged the decision in question by backdating it. On the same day he also requested the Batumi City Court to send him a copy of the ruling by which the notary and the Ajarian prosecutor had been permitted to participate in the reopened civil case. As disclosed by the case file, no reply was forthcoming from either court. 35. Between February and December 2006, the applicant filed numerous letters with the PGO and the judicial and other authorities, complaining that the quashing of the final decision of 18 November 2004 had violated his property rights. He also requested that Judge V. and the notary be prosecuted for abuse of power or that, at least, the judge be removed from further examination of his civil case. Those letters were either left unanswered or, in so far as the criminal complaints were concerned, rejected by the PGO as ill-founded. 36. In February 2007, the applicant learnt from his sister, who lived in Batumi and had frequent contacts with the Registry of the Batumi City Court, that Judge V. had ruled, on an unknown date, to leave his reopened civil case without examination. On 2 February 2007 he requested the Batumi City Court and the Supreme Court of Georgia to provide him with a copy of that ruling. According to the case file, the courts did not reply. 37. In a letter of 7 February 2007, the Batumi Land Registry informed the applicant that the Mazniashvili estate had been registered as State property on the basis of a writ of enforcement issued by the Ajarian High Court on 10 March 2006. The applicant then requested, on 4 March 2007, additional clarification with respect to that writ, but no reply followed. 38. By a letter of 21 April 2008, the Batumi Land Registry, contrary to the information contained in its previous letter (see the preceding paragraph) informed the applicant's sister that, according to the available records, the Mazniashvili estate had been registered as Mr G.'s property on the basis of the contract of sale. 39. The relevant provisions of the Code concerning the quashing of final and enforceable decisions and the reopening of civil cases, read as follows: “Proceedings terminated by a final judgment (decision) may be reopened only if there are grounds for bringing either a request to render the final judgment null and void (Article 422) or a request to reopen the proceedings in view of newly discovered circumstances (Article 423).” “1. A final and binding judgment (decision) may be quashed at the request of the interested party, if: (a) A judge who participated in the deliberations in the case was barred from doing so by operation of law; (b) One of the parties, or its representative in law, had not been invited to participate in the examination of the case. 2. The request to render a final judgment null and void on the above-mentioned grounds shall not be entertained if the requesting party could have referred to those grounds during the proceedings, before the first instance, appeal or cassation courts.” Pursuant to Article 426 §§ 1 and 2 of the CCP, a request for reopening of proceedings should be lodged within one month after the party concerned learns of the grounds which might either render the final decision null and void or represent newly discovered circumstances within the meaning of Article 421 § 1. That period was not extendable. Article 426 § 3 further specified that, in a situation envisaged by Article 422 § 1 (b), the period of one month started to run following the formal notification of the decision to the party to the proceedings or, if appropriate, its representative in law. Article 429 § 2 of the CCP stated that an appeal lay against a decision dismissing a request for quashing. However, neither that Article nor any other provision in the Code provided for the possibility of appealing against a decision granting such a request. Pursuant to Article 430, the merits of a request for quashing must be examined at an oral hearing. 40. Article 37(1), inserted into the Code of Criminal Procedure on 13 February 2004, stated that, if there was a reasonable suspicion about the origins of property of a person charged with misconduct in public office, a prosecutor was entitled to bring an action for confiscation of that property. 41. Pursuant to sections 1 and 5 of the Notaries Public Act, notaries public formed a public-law institution which was directed by the Ministry of Justice. According to section 3 §§ 1 and 6, a notary public, whilst being an independent professional, exercised State authority. However, the State could not be held liable for any harm caused by a notary's actions. Pursuant to sections 4 § 1 and 32-33, all notaries public were obliged to be members of the Chamber of Notaries, a public-law association, created for the purposes of protecting its members' interests and coordinating their activities, and which had its own legal personality. Section 11 described the system of supervision of the professional activities of individual notaries public by the Minister of Justice, through the Chamber of Notaries.

train

001-109221

ENG

AZE

CHAMBER

CASE OF ABIL v. AZERBAIJAN

Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Stand for election);Non-pecuniary damage - award

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

5. The applicant was born in 1952 and lives in Baku. 6. The applicant stood for the elections to the National Assembly of 6 November 2005 as an independent candidate. He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-member Garadagh Electoral Constituency no. 11. 7. On 28 October 2005 the ConEC held a meeting in the applicant’s absence and decided to apply to the Court of Appeal with a request to cancel his registration as a candidate owing to reports of his engaging in activities incompatible with the requirements of the Electoral Code. In particular, the ConEC noted that it had received a number of written statements from voters claiming that the applicant had promised them money in exchange for their promise to vote for him. The ConEC forwarded a total of seventeen such statements to the Court of Appeal, enclosed with its request for the applicant’s disqualification. 8. On 29 October 2005 the applicant and his lawyer attempted to get a copy of the case file from the Court of Appeal, but were not allowed to do so. 9. On 31 October 2005 the Court of Appeal examined the case and cancelled the applicant’s registration as a candidate, in accordance with Articles 88.4 and 113.2.3 of the Electoral Code. During the hearing, the applicant submitted that he had not been informed of the ConEC meeting of 28 October 2005 in advance and, therefore, had not been able to attend it. He denied all the accusations against him and asserted that they had been fabricated. 10. The court heard oral testimonies of eight out of the seventeen persons who had submitted written statements to the ConEC accusing the applicant of attempting to bribe them. One of them, H., testified that the applicant had personally offered him money. The remaining seven testified that they had been approached by some unknown people who had offered them money if they promised to vote for the applicant. When asked in court whether, when offering money, those “unknown people” had inquired from them whether they had been registered as voters in the applicant’s constituency, these witnesses replied in the negative. 11. The Court of Appeal considered the above evidence sufficient to find that the applicant had offered money to voters in exchange for their votes in his favour, thus breaching Article 88.4 of the Electoral Code. 12. After the delivery of the Court of Appeal’s judgment, the applicant carried out an enquiry about the identity of the persons who had testified against him. He found out that four of the eight persons who had testified against him in court were not actually registered as voters in his constituency. Moreover, witness H. was not registered and did not actually reside at the address which, according to his submissions to the court, was his primary residence located in the applicant’s constituency. In the applicant’s opinion, this information gave rise to serious doubts as to the personal integrity of the witnesses and the truthfulness of their statements, because it showed that they had either lied about their personal details or made false accusations against him, as there was no reason or incentive for a candidate in a given constituency to attempt, either by means of legal campaigning or illegal methods, to secure the votes of persons who were registered to vote elsewhere and therefore could not vote for him anyway. 13. The applicant lodged an appeal with the Supreme Court, arguing that the Court of Appeal’s judgment was arbitrary, that the evidence used against him had been fabricated, that the persons who had testified against him were false witnesses and that some of those persons were actually relatives of various officials of the local executive authorities. In support of his arguments, he submitted the information described in the above paragraph. 14. On 3 November 2005 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’ 15. In the meantime, in September and October 2008 the applicant lodged several complaints with the ConEC and the Central Electoral Commission (“the CEC”) concerning various alleged irregularities in the election process in his constituency. However, according to the applicant, he did not receive any replies to his complaints. 16. The applicant lodged an action with the Court of Appeal, complaining about the above-mentioned irregularities and asking the court to hold the Chairman of the CEC liable for the alleged failure to respond to his complaints. On 2 November 2005 the Court of Appeal dismissed the applicant’s claims as unsubstantiated. On 7 November 2005 the Supreme Court upheld that judgment. 17. Article 88.4 of the Electoral Code of 2003 provides as follows: “88.4. Candidates ... are prohibited from gaining the support of voters in the following ways: 88.4.1. giving money, gifts and other valuable items to voters (except for badges, stickers, posters and other campaign materials having nominal value), except for the purposes of organisational work; 88.4.2. giving or promising rewards based on the voting results to voters who were involved in organisational work; 88.4.3. selling goods on privileged terms or providing goods free of charge (except for printed material); 88.4.4. providing services free of charge or on privileged terms; 88.4.5. influencing the voters during the pre-election campaign by promising them securities, money or other material benefits, or providing services that are contrary to the law.” 18. According to Articles 113.1 and 113.2.3 of the Electoral Code, the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by Article 88.4 of the Code. 19. Complaints concerning decisions of electoral commissions must be examined by the courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11). 20. Chapter 25 of the Code of Civil Procedure sets out rules for the examination of applications concerning the protection of electoral rights (or the right to participate in a referendum). According to Article 290, such applications must be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code. 21. Applications concerning the protection of electoral (referendum) rights must be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which must be examined immediately (Article 291.1). The court must hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case (Article 291.2). 22. The appellate court’s decision can be appealed against to the higher court (the court of cassation) within three days. This appeal must be examined within three days, or immediately if submitted on election day or the next day. The decision of the court of cassation is final (Article 292).

train

001-80705

ENG

HRV

CHAMBER

CASE OF BISTROVIC v. CROATIA

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial claim;Costs and expenses partial award - Convention proceedings

Christos Rozakis

4. The applicants were born in 1951 and 1955 respectively and live in Gojanec, Croatia. 5. The applicants, a husband and wife, owned a house and a surrounding plot of land in Gojanec, Croatia. On an unspecified date “Croatian Roads”, a public company based in Zagreb, instituted expropriation proceedings before the Varaždin County State Administration, Office for Urban Planning, Environment, Construction and Property Affairs (Ured državne uprave u Varaždinskoj Županiji, Služba za prostorno uređenje, zaštitu okoliša, graditeljstvo i imovinsko-pravne poslove, hereinafter the “Varaždin County Administration”), requesting that part of the applicants' plot of land be expropriated with a view to building a motorway. The applicants opposed this proposal, asking that their estate, namely the house and the surrounding land, be expropriated in its entirety. The applicants argued that with only partial expropriation they, as farmers, would have no further use for the house and the small area around it, since the house and the agricultural land on which it was built represented an inseparable unity. Furthermore, there would be no vehicle access to the courtyard. As farmers, the applicants could not use their property without access for tractors and other vehicles used in agricultural activity. 6. In addition, the planned motorway would pass in close proximity to the house, thus causing significant noise pollution due to the high traffic frequency. The motorway and the exit road would pass less then twenty metres and five metres respectively from the house. 7. They pointed out that the construction of 4.5-metre plastic noise-protection walls would transform their house and its surroundings into a cage, without efficiently protecting them from noise and pollution. The entire ground floor, the terrace and a part of the attic would be situated only 2 to 3 metres from the protection walls. 8. They argued that the value of the remaining property would significantly decrease, since construction of the motorway would deprive them of the living conditions they hitherto enjoyed, such as direct road access, pleasant surroundings, a huge courtyard and low noise exposure, all of which made the property very suitable for agricultural activity. For these reasons the applicants asserted that they had no economic interest in retaining the house and the surrounding courtyard. 9. The Varaždin County Administration held three hearings and obtained an expert opinion on the effects of the motorway construction on the applicants' living conditions in the remaining house and courtyard, and another expert opinion on the market value of the agricultural land. 10. The applicants contested the proposed level of compensation, asserting that they were entitled to the market value of their expropriated land, and claiming that the market value of land suitable for construction in the area was 180 Croatian Kunas (HRK) per square metre, a figure which was significantly higher than the amount proposed. 11. By a decision of 16 April 2003, Varaždin County Administration ruled that part of the applicants' estate, namely an agricultural plot and three plots of land suitable for construction measuring 795 m², 221m² and 507m² respectively, was expropriated with a view to building a motorway. The applicants retained ownership of the house and a surrounding courtyard. 12. Compensation was fixed at HRK 105,610.00, based on the sum of HRK 22.00 per square metre for agricultural land, assessed on the basis of the report submitted by a court expert for agriculture, and HRK 70.00 per square metre for land suitable for construction, assessed according to the criteria laid down by the Ministry of Finance, Tax Administration, Varaždin Office. The relevant part of the decision reads as follows: “During the expropriation proceedings a representative of “Croatian Roads” limited liability company (d.o.o.), Zagreb, offered the owners compensation in the amount of HRK 22 per square metre for agricultural land, on the basis of its market value as established by an agricultural expert, agricultural engineer Ivan Bašić, ... and HRK 70 per square metre for the land suitable for construction, on the basis of data submitted by the Tax Administration... The owners did not accept the above offer, however, but persisted with their request that parcel no. 9854 in the Varaždin Municipality Land Register be expropriated in its entirety, pursuant to section 7 of the Expropriation Act, claiming that they had no interest in using the remaining parts of their estate. More precisely, they sought expropriation of the entire estate together with the house and all other objects built on the estate... ...this Department has also obtained the expert opinion of a sworn court expert Dragutin Gergely, architecture engineer,... and the submissions of Božidar Jagec, the engineer who drew up the project,... from which it transpires that there is no need for total expropriation and that the remaining property continues to enjoy unhindered road access and that provision has been made for noise-protection walls. ...furthermore, if the owners' request for total expropriation is accepted, all other houses and economic objects which are at an equal or even lesser distance from the motorway... will also [have to] be expropriated... In addition, the owners' argument that the partial expropriation of parcel no. 9854 would significantly deteriorate their housing conditions is unfounded because they ... do not live at that address.” 13. The applicants filed an appeal against that decision, but the second-instance administrative body failed to rule on it. 14. On 16 December 2003 the applicants filed a claim with the Varaždin County Court (Županijski sud u Varaždinu) under Section 42(a) § 3 of the Expropriation Act, seeking expropriation of their entire estate. They reasserted the arguments previously submitted to the administrative authority. The applicants further contended that the expert opinion had been drawn up without the expert ever actually visiting the site and without any study of traffic frequency on the road passing the applicants' house or on the effect of traffic pollution on their quality of life. The expert opinion had been prepared on the basis of a map of the land plot on which the applicants' house had been erroneously drawn. 15. The applicants also complained about the amount of compensation awarded to them and reiterated that the market value of the expropriated plots had not been established. Instead, the amount was fixed according to Varaždin Tax Administration tables. The applicants complained that their objections had not been adequately examined and addressed by the administrative authority. 16. On 30 December 2003 the Varaždin County Court held a hearing at which the applicants' representative repeated their arguments, but no new evidence was presented or requested by the court. On the same day the County Court dismissed the applicants' claim. The relevant part of its judgment reads as follows: “The reasoning of the cited decision clearly indicates that compensation corresponding to the market value of the plaintiffs' (the former owners) estate was determined in the expropriation proceedings. The market value of the agricultural land was assessed by a sworn court expert for agriculture... and the market value of the land suitable for construction was assessed according to the opinion of construction experts and the data submitted by the Tax Administration. Relying on the reasoning in the above-mentioned decision, this court has further established that, ... in respect of the plaintiffs' request for expropriation of their remaining estate and the existence of a road access to the estate, the expert opinion of a sworn court expert for construction ... had been obtained as well as the opinion of a geodesic engineer..., from which it followed that the plaintiffs' request for total expropriation was not founded because there were a number of other houses and other objects in the same area which were at an equal or lesser distance from the motorway and that noise protection had been ensured to all expropriated [properties] and that the remaining plaintiffs' property continued to enjoy road access. It follows that there are no well-founded reasons for the plaintiffs' request for total expropriation of their estate... ... this court has established that no procedural defects, and especially no grave procedural defects, were made in the administrative proceedings and that the substantive law had been correctly applied, both concerning the dismissal of the plaintiffs' request for total expropriation of their estate and in respect of the amount of compensation fixed for agricultural land and the land suitable for construction. As has already been stated, while the plaintiffs are not entitled to bring any new facts in the proceedings before this court, except those presented in the administrative proceedings, they are allowed to bring new evidence in respect of the facts presented in the administrative proceedings. However, the plaintiffs have, neither in their claim nor during the proceedings, presented any evidence concerning their objections and the reasons for which they seek annulment of the Varaždin County State Administration Office... decision of 16 April 2003, which would be capable of calling into question the facts on which the cited decision was based...” 17. The applicants then filed a constitutional complaint, arguing that their right to equality before the law, their right to a fair trial and their right of appeal had been violated in that they had been unable to submit new evidence to the Varaždin County Court and that that court had reached its decision without having any evidence presented to it. Thus, their objections with regard to the expert opinion and their assertions about the effects of the motorway construction on their living conditions and on the value of their remaining property had remained unaddressed. The applicants also argued that their right to compensation for the market value of their expropriated property had been violated. 18. On 16 December 2004 the Constitutional Court dismissed the applicants' complaint as ill-founded. The decision of the Constitutional Court reads as follows: “1. The constitutional complaint is lodged against the Varaždin County Court's judgment no. P-1/03-9 of 30 December 2003, by which the applicants' (plaintiffs') claim, filed against the Ministry of Justice as defendant, Administration and Local Self-government, seeking the annulment of the decision of the Varaždin State Administration, Office for Urban Planning, Environment, Construction and Property Affairs, class: UP/I-943-04/02-01/1936, no. 2186-05-05-03-11 of 16 April 2003, was dismissed. The first instance administrative decision accepted the proposal by “Croatian Roads” d.o.o., Zagreb, for partial expropriation of parcel no. 9854, Varaždin Municipality Land Registry, owned by the applicants, and established the compensation for the expropriated land, for investments in the land and for the agricultural crops at HRK 105,610. 2. The applicants claimed a violation of their constitutional rights under Article 14 § 2, Article 18, Article 29 § 1 and Article 50 § 1 of the Constitution. In their constitutional complaint the applicants argued that, in the preceding proceedings, the facts had been incorrectly established and that their estate should have been expropriated in its entirety. They maintained that the County Court should have obtained the entire administrative case-file and verified the experts' opinions with regard to the finding that there was no need for total expropriation, and the findings with regard to the amount of compensation, which they claimed did not correspond to the market value but had been fixed on the basis of the Tax Administration tables. They further asserted that their right to an appeal had been violated because in the proceedings before the County Court they had not been allowed to present new facts and for that reason the whole proceedings had been arbitrary. They asked the Constitutional Court to quash the impugned judgment. The constitutional complaint is unfounded. 3. Section 62 paragraph 1 of the Constitutional Court Act (Official Gazette no. 49/02) provides that everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act of a state body, a body of local and regional self-government or a legal person invested with public authority, which resulted in a decision on his or her rights and obligations, or on suspicion or accusation of a criminal act, has violated his or her constitutional right. While deciding whether constitutional rights were violated in proceedings concerning the assessment of an individual's rights and obligations, within the scope of the claim contained in the constitutional complaint, the Constitutional Court does not, in principle, consider whether the courts correctly and completely established the facts and assessed the evidence. For the Constitutional Court the only facts to be taken into consideration are those relevant for the assessment of a violation of a constitutional right. 4. The proceedings before the Varaždin County Court were instituted by the applicants pursuant to section 42a § 3 of the Expropriation Act (Official Gazette nos. 9/94, 35/94, 112/00 – the Constitutional Court's decision and 114/01) because the appellate administrative body (the Ministry of Justice) did not decide on their appeal within the fixed time-limit. In such proceedings, a court assesses the legality of the first-instance decision concerning expropriation on the basis of the facts presented in the claim filed with that court and the defendant body's reply (if the reply reaches the court within the fixed time-limit), ... pursuant to section 42e § 3 of the same Act. The proceedings in connection with the applicants' claim were conducted under section 42e §§ 1 and 2 of the Expropriation Act, which provides: The Chamber considers and decides on the basis of the facts presented in the administrative proceedings. A claimant is not allowed to present new facts, but may present new evidence concerning the facts presented in the administrative proceedings. As regards the compensation for the expropriated land, the County Court found that the compensation fixed corresponded to its market value. As regards the agricultural land, the compensation was assessed by a sworn court expert for agriculture, while the compensation for the land suitable for construction was assessed on the basis of an opinion by a construction expert and data provided by the Tax Administration. As regards the applicants' request for total expropriation, the County Court upheld the first instance body's decision finding that there had been no need for expropriation of the applicants' estate in its entirety, in that the evidence presented to that administrative body had clearly demonstrated that there existed a number of other houses and other economic objects in the same area which were at an equal or lesser distance from the corridor of the future motorway and that all expropriated [properties] had been provided with protection against noise. In particular, it was established that the applicants' remaining estate continued to enjoy unhindered road access, and therefore there existed no justification for the expropriation of the applicants' remaining estate within the meaning of section 7 of the Expropriation Act. The Varaždin County Court established that no grave procedural defects had occurred in the expropriation proceedings, nor had the material law been wrongly applied; in particular, it established that the applicants had failed to present any new evidence capable of calling into question the facts on which the impugned decision had been based. 5. The applicants further claimed in their constitutional complaint that the impugned judgment had violated the constitutional guarantee of equality of all before the law, provided for under Article 14 § 2 of the Constitution. Having established that the legal opinions of the Varaždin County Court in the present case did not diverge from the established practice in the application of relevant substantive law, and were not discriminatory on any basis, the Constitutional Court does not accept the applicants' allegations that, in the present case, equality before the law was not secured to them, as guaranteed under Article 14 § 2 of the Constitution. 6. Furthermore, after analysing the constitutional complaint, the findings of the impugned decisions and the case-file, the Constitutional Court has established that the constitutional complaint's allegations about the violation of the applicants' right to an appeal, provided for under Article 18 of the Constitution, are not founded, in that the competent court addressed all of the arguments submitted by the applicants in the appellate proceedings, the competence of which is regulated by section 42a of the Act on Amendments to the Expropriation Act (Official Gazette no. 114/01). 7. The Constitutional Court considers further that the applicants' constitutional right to a fair trial before an independent and impartial tribunal established by law (Article 29 § 1 of the Constitution) has not been violated. The right to a fair trial would have been violated if a party to the proceedings had not been given an opportunity to be heard and to participate in the proceedings within the frames set out by laws; if a party had not been given an opportunity to present facts and evidence and a competent court had failed to rule on those of the party's arguments which were relevant to its decision; if, contrary to law, reasons had not been given for an individual act and if a party had in other way been prevented from having a fair trial before the competent body established by law. Since the Varaždin County Court verified the legality of the impugned decision within the meaning of the Expropriation Act on the basis of the evidence presented to it and by scrutinising the reasoning of the impugned decision on expropriation, it follows that the proceedings were conducted ... in conformity with the relevant provisions of substantive and procedural law; the Constitutional Court therefore considers that the applicants' right to a fair trial was not violated. 8. The applicants' further claimed a violation of their constitutional right contained in Article 50 § 1 of the Constitution, which provides: Any restriction [of property rights] or confiscation of property shall be done by law, in the interest of the Republic of Croatia, and compensation of the market value shall be paid. Since the competent County Court established that the expropriation proceedings had been conducted in accordance with the provisions of the Expropriation Act, with the correct application of substantive law and without grave procedural defects, and since the same court established that the applicants had received compensation for their expropriated estate equal to its market value, the cited constitutional right has not been violated. 9. For these reasons and pursuant to sections 73 and 75 of the Constitutional Court Act it has been so decided.” 19. The relevant parts of the 1994 Expropriation Act (Zakon o izvlaštenju, Official Gazette nos. 9/94, 35/94, 112/00 and 114/01) provide as follows: Section 7 entitles the owner of an estate subject to partial expropriation to request its total expropriation if he or she has no interest in using the remaining property. Sections 8 and 33 require that compensation for expropriated property equals the market value of that property on the date on which the first-instance decision in expropriation proceedings is adopted. Section 42 § 1 enables an action to be brought before the competent county court against a second-instance administrative decision on expropriation. Section 42(a) § 3 provides that such an action may also be brought if the second-instance administrative body fails to decide on appeal against the first-instance administrative decision. Section 42(b) stipulates that, unless otherwise provided, the Administrative Disputes Act is to be applied in expropriation proceedings conducted before the competent county court. Section 42(e) §§ 1 and 2 obliges the competent county court to decide on the basis of the facts presented in the preceding administrative proceedings, and prevents a claimant from presenting any new facts, while at the same time allowing presentation of new evidence before the county court. Section 42(e) § 3 requires that the county court, when dealing with an action brought under Section 42(a) § 3, examines the case on the basis of the facts presented in such an action and of the submissions of the administrative body which issued the impugned decision. 20. Section 60 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides for the application of the Civil Procedure Act to proceedings concerning administrative disputes, in so far as these proceedings are not regulated by the Administrative Disputes Act. 21. Section 428(a) of the Civil Procedure Act enables an applicant in respect of whom the European Court of Human Rights has found a violation of the Convention or its Protocols to request, within 30 days of the Court's judgment becoming final, the re-opening of the domestic proceedings in question. In the new proceedings the domestic courts are obliged to follow the reasons given in the Court's judgment.

train

001-72272

ENG

TUR

CHAMBER

CASE OF TACIROGLU v. TURKEY

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

David Thór Björgvinsson

6. The applicant was born in 1972. She is detained in Gebze Prison. 7. On 17 September 1993 the applicant was arrested by police officers from the anti-terrorism branch of the Istanbul Security Directorate on suspicion of being a member of Dev-Sol (Revolutionary Left), and was taken into custody. During the operation, the police officers gathered guns and illegal documents from the flat where they had captured the applicant. The applicant had also two forged identity cards in her possession. 8. On 1 October 1993 she was brought before the investigating judge at the Istanbul State Security Court. Subsequently, the investigating judge ordered the applicant’s detention on remand. 9. On 31 December 1993 the public prosecutor filed a bill of indictment with the Istanbul State Security Court against twenty-five persons, including the applicant, and requested that the applicant be punished pursuant to Article 146 § 1 of the Criminal Code with the death penalty. 10. Throughout the criminal proceedings, either on its own motion or at the applicant’s request, the Istanbul State Security Court examined and ordered the applicant’s continued detention. The court relied on “the serious nature of the offences with which the applicant had been charged, the state of evidence, the content of the case file, and the duration of the detention” when further detaining the applicant. On two occasions on 3 November 1997 and 5 May 2000, the court also noted that the case was due to be decided soon. 11. On 17 December 2003 the applicant was convicted of the offence as charged and sentenced to life imprisonment. 12. On 1 April 2005 the Court of Cassation quashed the applicant’s conviction, and remitted the case back to the Istanbul State Security Court. 13. The case is still pending before the Istanbul State Security Court.

train

001-72873

ENG

HUN

CHAMBER

CASE OF CSAKY v. HUNGARY

Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

4. The applicant was born in 1977 and lives in Budapest. 5. On 26 February 2002 criminal proceedings were instituted against the applicant, a college student, on a charge of extortion, which had allegedly been committed the day before. On 27 February 2002 he was arrested. 6. On 28 February 2002 the Budapest Police Department heard the applicant, explaining that criminal proceedings were being conducted against him and three other defendants on suspicion of having participated in the sequestration and beating of a certain Mr K., and of having forced him to sign a false statement of debt, conduct punishable under sections 175 and 323 of the Criminal Code. 7. Between 27 February 2002 and 21 March 2003, the defendants were interrogated on several occasions; moreover, several confrontations took place between the defendants themselves and between them and the victim. In particular, the applicant was interrogated on five occasions during this period. Also in the same period, the police heard 17 witnesses and the victim on altogether 14 occasions. Furthermore, experts in toxicology, haemogenetics and dactyloscopy were appointed, along with a forensic medical expert and an expert on physical evidence. The police were collecting evidence from banks, telephone companies, the land registry and the register of passenger cars. 8. Meanwhile, on 2 March 2002 the Pest Central District Court ordered the applicant’s pre-trial detention, referring to the danger of his absconding, in particular in view of the fact that he had not been living at his registered address for more than two years. Additional reference was made to the risk of collusion. On 11 March 2002 the Budapest Regional Court dismissed his appeal. 9. The applicant was assisted by defence counsel of his choice and was initially held at the Gyorskocsi Police Detention Facility. His detention was prolonged on 26 March and 24 May 2002 on the ground of a risk of absconding and collusion. These decisions were confirmed on 30 April and 12 June 2002, respectively. The courts held that the seriousness of the charges against the applicant alone sufficed to establish the risk of absconding. 10. On 9 August 2002 the Regional Court dismissed the applicant’s request for release. On 10 September 2002 that court’s appellate bench rejected his appeal. His further complaint of 15 September 2002 was to no avail. 11. On 27 September 2002 the applicant’s detention was again prolonged, essentially on the ground of a risk of absconding. The court noted that the risk of collusion was diminishing, since the applicant had confessed to his crime. 12. Meanwhile, from July 2002 onwards, the applicant’s behaviour in detention became more and more erratic; in particular, on one occasion he attacked a fellow inmate. In July and October 2002 as well as July, August and September 2003 the applicant was repeatedly committed, for shorter periods, to the Asylum for the Criminally Insane (“IMEI”) with a view to having his mental status observed by expert psychiatrists. Eventually, it was concluded that he suffered from a psychosis. 13. On 18 December 2002 and 17 January 2003, the renewed requests for release of the applicant, who from October 2002 onwards was detained at Budapest Penitentiary, were dismissed. 14. On 27 February and 26 June 2003 the Supreme Court prolonged the applicant’s detention on the basis of the risk of his absconding. 15. Given his increasingly disturbed state of mind, on 14 April 2003 the applicant’s case was disjoined from that against his accomplices. 16. On 24 July 2003 the Budapest Regional Court ordered the applicant’s release on bail. On 11 August 2003 the Budapest Court of Appeal overruled this decision, making reference to the danger of the applicant’s absconding, given the seriousness of the charges against him. 17. On 24 September 2003 the investigation against the applicant was closed. The case-file, communicated to the applicant on 20 October 2003, consisted of some 1,500 pages. 18. From 17 October 2003 onwards, the pre-trial detention of the applicant, by then diagnosed with chronic paranoid schizophrenia, was effected in the IMEI for the treatment of his condition. In response to complaints filed by the applicant’s father, the Penitentiary Supervisory Department of the Attorney General’s Office specified that the applicant had been committed to the IMEI on medical grounds, since he had shown psychotic symptoms at the Budapest Penitentiary; that, after examinations, the IMEI were of the opinion that his further treatment was necessary; and that forensic experts had repeatedly examined him. On 9 December 2003 the Budapest Court of Appeal confirmed the applicant’s committal to the IMEI. 19. On 28 October and 3 December 2003, the applicant’s detention was again prolonged by the Regional Court on the ground of a risk of absconding, given the seriousness of the charges against him. These decisions were upheld on 24 November 2003 and 2 February 2004 by the Court of Appeal. 20. On 1 December 2003 a bill of indictment was preferred. The applicant was charged with complicity in kidnapping and severe bodily assault, offences punishable under sections 170 and 175/A of the Criminal Code, as modified by Act no. 2 of 2003. 21. On 11 February 2004 another expert psychiatrist was appointed. On 4 March 2004 the expert informed the Regional Court that the applicant’s prolonged observation was warranted. 22. On 24 May 2004 the Budapest Regional Court dismissed the applicant’s renewed request for release on bail. On 8 July 2004 the Court of Appeal dismissed his appeal. 23. On 15 July 2004 the IMEI presented its observations on the applicant’s mental state. On 14 September 2004 the forensic psychiatrist submitted his opinion. 24. The applicant was eventually released from the IMEI on 19 October 2004. His pre-trial detention having been lifted, the applicant was ordered not to leave town. 25. The Regional Court ordered further psychiatric examinations of the applicant. Since he did not appear at an examination scheduled in December 2004, it had to be rescheduled for 1 March 2005. 26. Relying on the findings of the forensic psychiatrists, on 14 June 2005 the Regional Court suspended the proceedings in view of the fact that the applicant was not mentally capable of standing trial.

train

001-61703

ENG

TUR

CHAMBER

CASE OF ÖZALP AND OTHERS v. TURKEY

Violation of Art. 2 with regard to death;Violation of Art. 2 with regard to effectiveness of investigation;No violation of Art. 3;Not necessary to examine Art. 6;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

Christos Rozakis;Feyyaz Gölcüklü

9. The applicants (see paragraph 1), who were born in 1955, 1975, 1977, 1979, 1981, 1985, and 1988 respectively, are the wife and children of the deceased, Cavit Özalp, who was killed in 1995 while he was under custody. 10. Until 1994, the Özalp family resided in the Serçeler village in Bismil District in province of Diyarbakır. When the security forces started to pressurise the Özalp family members to become village guards, the family moved to Diyarbakır in the spring of 1994. 11. On 21 August 1995 one of the applicants, Mr Hacı Özalp, went back to Bismil to visit the fields that belonged to his family. When he arrived in Bismil, he was stopped by soldiers and questioned about his father, Cavit Özalp. He was subsequently taken to the gendarme command, where he was further questioned about his father. During the interrogation, Hacı told them where they could find Cavit Özalp. 12. On 24 August 1995 Cavit Özalp was taken into custody in Diyarbakır. On the same day, Hacı saw his father in custody however he was not allowed to speak to him. 13. On 26 August 1995 Hacı was released from custody. On the same day, while he was still in Bismil, he was informed by an acquaintance that an incident had taken place in the Kamberli village and that it concerned his father. Consequently, when Hacı went to the Kamberli village to find out more about this incident, he met a villager, called Vehyettin, who told him that his father was dead. 14. On the same day two police officers visited Cavit's house in Diyarbakır and told Hacı's uncle that Cavit had died. 15. On 5 February 1996 the applicants' representatives filed a petition with the public prosecutor attached to the Diyarbakır State Security Court. Referring to the investigation that had been commenced into the death of Cavit Özalp and the decision of non-prosecution that had been delivered by the Diyarbakır State Security Court public prosecutor, the applicants' representatives requested a copy of the arrest and autopsy reports as well as the public prosecutor's decision of non-prosecution. 16. The public prosecutor refused to give these documents and noted at the bottom of the petition the following: “It has been decided [by this office] that no prosecution should be brought about the death of Cevat Özalp [Note: Cavit's name is spelled out as Cevat in the public prosecutor's note.] pursuant to Article 96 of the Turkish Criminal Code. The investigations in order to apprehend the co-activists of Cevat Özalp are still ongoing. A copy of the investigation file could not have been given [to the representatives] in accordance with the relevant provisions of the Constitution, as it would constitute disclosure of the content and the subject matter of the investigation file.” 17. On 24 August 1995 Cavit Özalp was taken into custody by the gendarmes from the Bismil Gendarme District Command on suspicion of membership of the PKK, proscribed as a terrorist organisation. He was suspected of aiding and abetting the PKK terrorists. 18. On an unspecified date Cavit Özalp gave a statement to the gendarmes. He stated that the PKK terrorists were occasionally staying in his house and that he was providing them with food and military equipment such as weapons, clothes and medicine. He further stated that he had dug a shelter with the terrorists on the slopes of a hill near the Pamuk River in the Sarıhüseyin hamlet attached to the Serçeler village to hide some equipment. 19. On 24 August 1995 Cavit Özalp was taken to the Bismil Health Center for medical examination. According to the medical report, there were no signs of ill-treatment on his body. 20. On 26 August 1995 at 4 a.m. the gendarmes conducted a search to find out the location of the shelter that had been mentioned by Cavit Özalp in his statement. Cavit guided the soldiers to the shelter near the Şedat road in the Kamberli village. While protecting themselves in a secure distance, the soldiers asked him to open the cover of the shelter. As he opened the cover, the soldiers witnessed a big explosion, which tore Cavit's body into pieces. The explosives had been placed in the entrance to the shelter by other members of the PKK and the soldiers found weapons, medical equipment and clothes in the shelter. The incident was further reported to the Bismil public prosecutor. 21. On the same day an on-site examination was conducted by the Bismil public prosecutor together with a doctor. According to an onsite body examination, it was established that both legs were severed as a result of the explosion. No other signs of injury were observed on the dismembered body. The doctor decided that it was unnecessary to conduct a full autopsy on the body. Cavit's corpse was then given to Mr Hasip Yılmaz, a member of the Kamberli village assembly. An incident report was further drafted by the gendarmes and was signed by three non-commissioned officers and the village mayor Mr Kütbettin Altunç. 22. On 24 November 1995 the public prosecutor at the Diyarbakır State Security Court decided that no prosecution should be brought against Cavit Özalp on account of his membership of the PKK on the ground that he had died on 26 August 1995. 23. On 14 November 1995 the Bismil public prosecutor accused the non-commissioned officer, Mr İlhan Yücel, of failing to take the necessary precautions when Cavit Özalp had been asked to open the cover of the shelter and of causing Cavit Özalp's death through negligence. However, as the public prosecutor did not have the jurisdiction to bring proceedings against the non-commissioned officer, he declared lack of jurisdiction and transferred the case file to the Bismil District Administrative Council. 24. Subsequently, the District Administrative Council appointed a major as a rapporteur to conduct further investigations into the killing of Cavit Özalp. On 15 January 1996 the major took statements from the non-commissioned officers, Mr İlhan Yücel, Mr Yılmaz Öztiryaki and Mr Ömer Karabaş, who had been on site during the incident of 26 August 1995. The officers stated that Cavit Özalp had been taken into custody on suspicion of membership of the PKK and had confessed that he had been aiding and abetting the terrorists, providing them with food, clothes, weapons and medical equipment. The soldiers further stated that Cavit had mentioned a shelter which was used by the terrorists and when he was taken to the site to show the place of the shelter, the gendarmes had positioned themselves far from the shelter to prevent any loss of life. The soldiers explained that Cavit was asked to open the shelter, however he had died as a result of the explosion. The officers finally stated that medical equipment and clothes had been found in the shelter. 25. Basing himself on the statements of the three accused non-commissioned soldiers, the incident and the body examination reports, on 23 January 1996 the rapporteur submitted his report to the District Administrative Council. He concluded that the security forces had taken all the necessary precautions before Cavit Özalp was asked to open the cover of the shelter. The report further stated: “Having regard to the fact that Cavit Özalp had confessed that he had dug a shelter [with the other terrorists] it was presumed that he could have known the place of the shelter and that he could have safely opened its cover himself. After the necessary safety measures had been taken, he had been asked to open the cover. However, he had died in an explosion. The explosives had been previously placed there by the terrorists. Neither the security forces nor Cavit Özalp had noticed the explosives.” 26. The report concluded that the security forces had performed their duty with diligence and it was recommended that no prosecution be brought against the members of the security forces. 27. On 28 February 1996 the Bismil District Administrative Council issued a decision stating that no prosecution should be brought against the members of the security forces. The council concluded that Cavit Özalp had died as a result of the explosion and that the accused members of the security forces had performed their duty with diligence. 28. On 2 April 1996 the Diyarbakır Regional Administrative Court, to which the case had been automatically referred to by law, upheld the decision of the Bismil District Administrative Council. (a) Arrest report, dated 24 August 1995, drafted by Bismil District Gendarmerie Command; (b) Custody records, dated 24 August 1995 which indicate that Cavit Özalp was taken into custody on 24 August 1995 at about 11 a.m.; (c) Undated statement of Cavit Özalp; (d) Medical report dated, 24 August 1995; (e) Report of incident, dated 26 August 1995; (f) Sketch map of scene of incident, dated 26 August 1995; (g) Autopsy report dated, 26 August 1995; (h) Non-jurisdiction decision of the Bismil public prosecutor's office, dated 14 November 1995; (i) Statements of the three non-commissioned officers, Mr İlhan Yücel, Mr Yılmaz Öztiryaki and Mr Ömer Karabaş, dated 15 January 1996; (j) Non-prosecution decision of the Diyarbakır State Security Court Public Prosecutor, dated 24 November 1995, delivered against Cavit Özalp; (k) Non-prosecution decision of Bismil District Administrative Council, dated 28 February 1996; (l) Decision of the Diyarbakır Regional Administrative Court, dated 2 April 1996, upholding the decision of Bismil District Administrative Council; (m) Petition of the applicants' representatives to the Diyarbakır State Security Court public prosecutor's office dated 5 February 1996 and the subsequent rejection of the public prosecutor; (n) Undated statement of Hacı and Makbule Özalp concerning the application. 29. In respect of relevant domestic legislation, the Court refers to its case-law in Demiray v. Turkey (no. 27308/95, §§ 26-30, ECHR 2000XII).

train

001-119044

ENG

RUS

CHAMBER

CASE OF SAMARTSEV v. RUSSIA

Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

5. The applicant was born in 1970. He is serving a prison sentence in detention facility no. IK-10, located in the town of Mendeleyevsk, the Republic of Tatarstan. 6. On 1 May 2005 the applicant was arrested by the police of the town of Naberezhnye Chelny on suspicion of having taken part in several robberies and murders. 7. The applicant was detained pending criminal proceedings and on 13 April 2006 the Supreme Court of the Republic of Tatarstan found the applicant guilty of two murders. The judgment was upheld on appeal by the Supreme Court of Russia on 3 October 2006. 8. The applicant alleged that on three separate occasions during the course of criminal proceedings against him police officers ill-treated him. 9. According to the applicant, in the morning of 4 May 2005 police officers B. and N. had taken him to the fourth floor of a police station and put pressure on him to confess. They had put a plastic bag on his head and punched him in the stomach and neck, preventing him from breathing. At around 10 p.m. he had been taken back to his cell. 10. The applicant also submitted that at around 7 a.m. the next morning he had passed out in an interview room as a result of those beatings and stress. On regaining consciousness, he had found a wound on his head. Later he had been provided with first aid, administered by ambulance doctors. 11. On 5 May 2005, having examined the applicant, one of the ambulance doctors made the following entry in the medical record: “... reason for the call [of the ambulance]: epilepsy... Diagnosis [of the applicant]: following a syncope, bruising of the forehead ... measuring around 2 to 0.2 cm. The wound is not bleeding...Complaints [of the applicant]: weakness and vertigo. According to the [applicant’s] statements, he lost consciousness and during the fall, injured himself against a doorpost. He connects this to a stuffy room and three nights of insomnia ...” 12. On 10 May 2005 the applicant asked the Naberezhnye Chelny Town Prosecutor (“the prosecutor’s office”) to institute criminal proceedings in respect of the alleged ill-treatment by the police officers. 13. In response, the prosecutor’s office questioned police officers B. and N., who denied the applicant’s allegations. They referred to the interrogation records in which the applicant had made no complaints of illtreatment. 14. On 20 May 2005 the prosecutor’s office dismissed the applicant’s request, having found as follows: “... The applicant’s allegations are not confirmed by the results of the investigation carried out by the prosecutor’s office ... On 5 May 2005 [the applicant] went to the police voluntarily and submitted statements of confession... During his interrogation he confessed to the crime in the presence of his defence counsel. He confirmed these statements during a reconstruction performed at the crime scene ... On 19 May 2005 during a cross-examination with witness Z., [the applicant] again confirmed his statements of confession in the presence of his defence counsel. No complaints were made by him [at that time]. Police officers ... B. and N. were also questioned in the context of the investigation carried out by the prosecutor’s office. They submitted that during the interview with [the applicant] they had not put pressure on him and had not applied force against him. [The applicant] had confessed to the crime voluntarily. Moreover, in accordance with the interrogation records, [the applicant] had no complaints against the police officers or the prosecutor’s office ...” 15. In June and August 2005 the applicant resubmitted his complaint to the prosecutor’s office. He requested the questioning of five of his cellmates, who he said could confirm his submissions. 16. By decisions of 20 June, 29 July and 4 August 2005 the applicant’s complaints were dismissed. In all three decisions the prosecutor’s office decided not to carry out further investigations, holding that the claims were substantially the same as those which had been previously examined. 17. The decision of 20 June 2005 stated that: “... During the check the arguments of the applicant about the use of physical violence by police officers remain without objective confirmation. In such circumstances the complaint ... cannot be accepted.” 18. The decision of 29 July 2005 stated that: “... An earlier complaint of this kind about the actions of policemen had been examined by the prosecutor’s office of the town of Naberezhnye Chelny. Upon its results, the decision of 20 May 2005 refusing to institute criminal proceedings is taken. The allegations of the [applicant] remained without substance ...” 19. The applicant also raised the complaint about the ill-treatment by police officers before the trial court in his criminal case. 20. By a first instance judgment of 13 April 2006 the Supreme Court of the Republic of Tatarstan found the applicant guilty of having murdered two persons. In respect of his complaint of ill-treatment on 4-5 May 2005, the court noted, among other things, that: “... during the forensic examination of 20 May 2005 [the applicant] did not have any bodily injuries. This expert examination is carried on the next day after the investigation action with the participation of [the applicant] during which he confessed to his involvement in the murder ... and confirmed his earlier confessions ... The medical certificates from the detention ward submitted to the court on request from the defence about the detention of [the applicant] and the fact of a call for the emergency doctors does not confirm that any physical violence has been applied to him. [The applicant] submitted in this connection that ... these injuries he received as a result of the fall in his cell in the state of the loss of consciousness ... In such circumstances the court considers the complaint of [the applicant] in the trial hearing about the use of violence by policemen ... as a way to try to avoid responsibility for the acts committed [by him] ...” 21. The judgment was upheld on appeal by the Supreme Court of Russia on 3 October 2006. 22. In the meantime, on 9 September 2006, the applicant contested the decision of 20 May 2005 before the Naberezhnye Chelny Town Court. He stated that the investigation in respect of his complaint had been seriously deficient. 23. On 5 February 2007 the Town Court disallowed his complaint concerning ill-treatment and the related investigation. It held that the applicant’s submissions had already been examined in the context of the criminal case against him. 24. On 23 March 2007 the Supreme Court of the Republic of Tatarstan upheld that decision on appeal. 25. The applicant also tried to challenge the decision of 29 July 2005 (see paragraphs 16 and 18) in court, but to no avail. The Supreme Court of the Republic of Tatarstan dismissed the applicant’s complaint by a final decision of 17 August 2007. The court noted that: “... The complaint of [the applicant] about the use of inadmissible methods of investigation has already been examined by the courts in two instances... [the relevant decisions being properly reasoned]. In such circumstances, [the court] does not see any grounds for [accepting the applicant’s appeal] ...” 26. The applicant submits that on 28 June 2005 police officers ill-treated him, forcing to acknowledge his involvement in a different criminal episode. He was allegedly hit in the neck and on the head, and later put in a metal cage, where he spent the whole night. 27. The applicant submitted that the next morning he was handcuffed in a remote room of the police station, a plastic bag was placed over his head and he was beaten up again. After being punched in the perineum, he fell on the floor and cut his wrists with a razor. He was then provided with medical aid by doctor G. 28. On 30 June 2005 the applicant was examined by a doctor, who drew up report no. 2647: “... According to [the applicant’s] statements, he has been detained from 1 May 2005. [Allegedly] the police officers did not beat him up. On 29 June 2005 he slashed his wrists with a razor. The wounds were bandaged in a detention facility. Objectively: on the inside of the lower third of the right forearm and around the wrist there are [six] linear transversal wounds with smooth lips and pointed ends, the base of which are covered with dried blood, measuring respectively 3, 3, 3, 4, 2 and 0.5 cm. On the inside of the lower third of the left forearm there is a linear transversal wound with smooth lips, pointed left end and “M”-shaped right end, the base of which is covered with dried blood. The depth of the wound is 0.3 cm. On the upper abdomen there are [four] parallel linear transversal scratches, covered with a brown crust at skin level, measuring respectively 6, 4, 4 and 4 cm. On the forehead there are transversal scratches, covered with an emergent brown crust with disrupted ends and desquamation. The scratches on the left side of the forehead measure respectively 2 and 5 cm. The scratches on the right side of the forehead measure respectively 4 and 2 cm. There is a similar scratch on the cheekbone measuring 7 cm. There is an oval transversal violet bruise on the right side of the tip of the nose. The bruise measures 1 to 0.5 cm. It has blurred borders. On the lower third of the front-left shoulder there is a round violet bruise with blurred borders measuring 6 by 6 cm. On the front right shoulder there is an area of dark-red focal haemorrhage measuring 5 by 5 cm. Conclusions: ...the wounds to the right wrist and left forearm were inflicted by a sharp object from one to three days before the expert examination. The scratches on the stomach were inflicted by being hit with blunt hard objects with a limited rough surface from two to three days before the expert examination. The scratches on the head were inflicted by being hit with blunt hard objects with a limited damagecausing surface from five to seven days before the expert examination. The bruises on the head, left shoulder, and right shoulder were inflicted by being hit with blunt hard objects with a limited damage-causing surface from one to three days before the expert examination ...” 29. After the above-mentioned events, the applicant lodged a complaint with the prosecutor’s office alleging that he had beaten up by police officers on 28-29 June 2005. 30. On 7 July 2005 the prosecutor’s office dismissed the complaint, finding no evidence of ill-treatment. The relevant part of the decision read as follows: “At around 9.30 a.m. on 29 June 2005 in an office of the detention ward, [the applicant] slashed his wrists. In the course of the investigation it was established that [the applicant] had been charged with the murder of L. and that he was being detained pending trial. Y. [apparently a police officer], who was interrogated in connection with these events, stated that no unlawful actions and no physical force or pressure had been used against [the applicant]. F. [possibly one of the doctors], who was interrogated in connection with these events, stated that two wounds had been found on the wrists of [the applicant]. [The applicant], who was interrogated in connection with these events, stated that on 29 June 2005, during his interrogation in an interview room, he had found a paperclip [the applicant previously mentioned a razor] which he had used to slash his wrists as he had not wanted to talk with the police officers. He had made no complaints to anybody. During the expert examination of 30 June 2005 [the applicant] explained that the police officers had not beaten him and that on 29 June 2005 he slashed his veins with a razor. The wounds were bandaged. According to the results of the medical examination of the applicant of 30 June 2005, no. 2647 ... the injuries ... did not damage his health. Taking into account the aforementioned circumstances, there are no grounds for instituting criminal proceeding...” 31. It appears that the same allegations were rejected by the prosecutor’s office also in its decision of 9 February 2006, holding that essentially the same complaint had already been dealt with. That decision was upheld by the Town Court on 3 August 2007 and it does not appear that the applicant brought appeal proceedings against the decision of 3 August 2007. 32. On 4 December 2007 the decision of 7 July 2005 was upheld by the Town Court. The decision stated as follows: “... There was a check into [the applicant’s] allegations ... at the same time eyewitnesses were questioned, including [the applicant himself], who did not make any complaints... The decision itself is reasoned... based on objective data and on the merits is correct ...” 33. This decision was later upheld on appeal by the Supreme Court of the Republic of Tatarstan on 25 December 2007. The court noted that: “...As could be seen from the case file materials, the decision ... is reasoned and ... well-justified in view of the collected objective data ...” 34. In his observations of 9 June 2011, the applicant stated that on 4 August 2005 he had been ill-treated by prison officers in the detention ward. 35. On 11 August 2005 the applicant lodged a complaint about that incident with the prosecutor’s office. 36. The prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s allegations. On 23 March 2007 the refusal was upheld by a final decision of the Supreme Court of the Republic of Tatarstan. 37. Since his arrest on 1 May 2005 the applicant has remained in detention. He was initially held in the temporary detention ward of the Department of the Interior in the town of Naberezhnye Chelny, Republic of Tatarstan (“the detention ward”). 38. The parties agree that the applicant was held in the detention ward on the following dates: 39. It appears from the case file that in the intervals between the abovementioned periods of detention, the applicant took part in various investigative measures carried out in the context of his criminal case. 40. On 27 February 2006 the applicant was transported to another prison facility. 41. The parties presented different accounts of the conditions in the detention ward. 42. The applicant provided the following information concerning the conditions of his detention: 43. The applicant alleged that the conditions of his detention in the cells had not varied. Inmates had taken turns to sleep owing to the shortage of sleeping places. No bedding had been provided. The cells had been infested with insects. There had only been cold water in the showers. It had been difficult to breathe in the cells owing to the smoke and high humidity. Inmates had been provided with food once a day on plastic plates, sent by their relatives. He had had no access to fresh air and exercise. 44. The applicant maintained that each cell had had a window measuring 25 cm by 25 cm, protected by an iron grill. The cell had been lit by a small bulb, which was constantly switched on. In several cells the toilet area had not been partitioned from the living area and had been close to sleeping places and a table. The ventilation had been poor. There had been no heating in winter. In the summer it had been very hot in the cells. Furthermore, some of the applicant’s inmates had been infected by HIV, tuberculosis and hepatitis C. 45. The Government did not dispute that during the relevant time the detention ward, which was designed for 110 detainees, had contained 184 detainees who had had no possibility of taking walks. The Government did not submit information about the cells in which the applicant had been detained and the number of inmates in each of those cells. According to the Government, cell no. 4 had two sleeping places, and cells no. 6, 7, and 22 had four sleeping places. They submitted that at all times the applicant had had an individual sleeping place and bedding. Each cell had had one window measuring 25 cm wide by 25 cm high, and had been equipped with one lamp. The toilets in the cells had been separated from the living area by a 1.2-metre high wall. All cells in the detention ward had been equipped with mandatory ventilation in good working order. The heating system had functioned properly. The temperature in the cells had been between 18ºC and 20ºC in the winter and between 26ºC and 28ºC in the summer. The cells had been disinfected every three months. The applicant had had access to hot water, a laundry and a regular bath service. He had been provided with nutrition and tableware in line with the requirements of the domestic law. 46. In his letters of 23 and 30 May 2006 the applicant complained to the Prosecutor’s office about the conditions in which he had been held in the detention ward. 47. On 26 July 2005 and 6 June 2006 respectively the prosecutor’s office rejected the complaints, having acknowledged the problem of overcrowding, lack of sleeping places and poor sanitation. The decision of 26 July 2005 stated: “... The inquiry established that during June 2005 ... the cells were overcrowded from 1,5 to 2 times. The full capacity [of the facility] is 110 persons, whilst in reality during the inquiry there were 162 persons [in it]. The inmates do not have access to information – there are no means of radio broadcasting. The disinfection of the cells ... does not allow to attend the established norms of hygiene and sanitary norms ...” The decision of 6 June 2006 gave a similar description of the situation in the facility in question and also stated that: “... the prison administration is [objectively] unable to provide each inmate with a sleeping place, as specified in [the relevant rules] ... It follows that there were no breaches of the law in the actions of the [relevant prison officials] and there are no grounds to take any measures [by the prosecutor’s office] in this connection ...” In both decisions the prosecutor drew the attention of the prison authorities to those issues, without taking any other measure in connection with the problem. 48. On 2 November 2006 the applicant and several of his fellow inmates lodged a collective complaint concerning the same grievances. 49. In its reply of 20 November 2006, the prosecutor’s office held that there was no need to intervene, despite the overcrowding of the detention ward. The decision stated: “... in order to bring [the prison] in line with the federal legislation, a complete overhaul of it is required. The maximum capacity is 110, but due to [various reasons it is not rare for it to contain] up to 140 persons... for these reasons the prison administration is unable to provide each inmate with a separate sleeping place ...” 50. In his letter of 15 January 2008 addressed to the prosecutor’s office, the applicant repeated his complaints about the conditions in which he had been held in the detention ward. 51. The prosecutor’s office dismissed his claim on 8 February 2008. 52. On 26 June 2008 the applicant resubmitted the same complaints to the prosecutor’s office. 53. By a decision of 30 June 2008 the claim was again dismissed. The prosecutor’s office noted that the authorities were planning to renovate the detention ward and also stated that: “... The inquiry carried out showed that there were no socio-medical counterindications in respect of the continued detention of inmates in [that facility]. The conditions of detention ... are incompliance with the respective standards, set out for this category of establishments ...” 54. Article 116 § 1 of the Criminal Code of the Russian Federation of 13 June 1996 provides that the application to another person of physical force which has caused physical pain but has not resulted in any health damage is punishable by a fine, compulsory or correctional labour or arrest for a period of up to three months. 55. Article 286 § 3 (a) of the Criminal Code provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, are punishable by three to ten years’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of three years. 56. Under the Detention of Suspects Act 1995, detainees should be kept in conditions that satisfy health and hygiene requirements. They should be provided with an individual sleeping place and be given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell (Section 23). Detainees should be given sufficient free food to keep them in good health, in line with the standards established by the Government of the Russian Federation (Section 22). 57. Article 144 of the Code of Criminal Procedure of the Russian Federation (“the CCP”) provides that prosecutors, investigators and inquiry bodies must consider applications and information about any crime committed or being prepared, and take a decision on that information within three days. In exceptional cases, that time-limit can be extended to ten days. The decision should be one of the following: (a) to institute criminal proceedings; (b) to refuse to institute criminal proceedings; or (c) to transmit the information to another competent authority (Article 145 of the CCP). 58. Article 125 of the CCP provides that the decision of an investigator or a prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a District Court, which is empowered to check the lawfulness and grounds of the impugned decisions. 59. Article 213 of the CCP provides that, in order to terminate the proceedings, the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor’s office. The investigator should also notify the victim and the complainant in writing of the termination of the proceedings. 60. Under Article 221 of the CCP, the prosecutor’s office is responsible for general supervision of the investigation. In particular, the prosecutor’s office may order that specific investigative measures be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies. 61. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation ... 11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate. 14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time. 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ... 19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. 20.(1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. (2) Drinking water shall be available to every prisoner whenever he needs it. 21.(1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. 45 ... (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited ...” 62. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather ... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...” “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis ...” 63. On 30 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation, which provides in particular as follows: “Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions; Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation, priorities in crime control, the range of penalties available on the law books, the severity of the sentences imposed, the frequency of use of community sanctions and measures, the use of pre-trial detention, the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment ... Recommends that governments of member states: - take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the appendix to this recommendation ... I. Basic principles 1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only, where the seriousness of the offence would make any other sanction or measure clearly inadequate. 2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity... II. Coping with a shortage of prison places 6. In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set. 7. Where conditions of overcrowding occur, special emphasis should be placed on the precepts of human dignity, the commitment of prison administrations to apply humane and positive treatment, the full recognition of staff roles and effective modem management approaches. In conformity with the European Prison Rules, particular attention should be paid to the amount of space available to prisoners, to hygiene and sanitation, to the provision of sufficient and suitably prepared and presented food, to prisoners’ health care and to the opportunity for outdoor exercise. 8. In order to counteract some of the negative consequences of prison overcrowding, contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made... III. Measures relating to the pre-trial stage Avoiding criminal proceedings - Reducing recourse to pre-trial detention 10. Appropriate measures should be taken with a view to fully implementing the principles laid down in Recommendation No R (87) 18 concerning the simplification of criminal justice, this would involve in particular that member states, while taking into account their own constitutional principles or legal tradition, resort to the principle of discretionary prosecution (or measures having the same purpose) and make use of simplified procedures and out-of court settlements as alternatives to prosecution in suitable cases, in order to avoid full criminal proceedings. 11. The application of pre-trial detention and its length should be reduced to the minimum compatible with the interests of justice. To this effect, member states should ensure that their law and practice are in conformity with the relevant provisions of the European Convention on Human Rights and the case-law of its control organs, and be guided by the principles set out in Recommendation No R (80) 11 concerning custody pending trial, in particular as regards the grounds on which pre-trial detention can be ordered. 12. The widest possible use should be made of alternatives to pre-trial detention, such as the requirement of the suspected offender to reside at a specified address, a restriction on leaving or entering a specified place without authorisation, the provision of bail or supervision and assistance by an agency specified by the judicial authority. In this connection attention should be paid to the possibilities tor supervising a requirement to remain in a specified place through electronic surveillance devices. 13. In order to assist the efficient and humane use of pre-trial detention, adequate financial and human resources should be made available and appropriate procedural means and managerial techniques be developed, as necessary.” 64. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No. R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules lay down the following guidelines: “1. All persons deprived of their liberty shall be treated with respect for their human rights. 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. 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. ... 10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.” “18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 18.2. In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; and c. there shall be an alarm system that enables prisoners to contact the staff without delay. 18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons. 18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation. 19.3. Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy. 19.4. Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene. 22.1. Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work. 22.4. There shall be three meals a day with reasonable intervals between them. 22.5. Clean drinking water shall be available to prisoners at all times. 27.1. Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. 27.2. When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.”

train

001-112383

ENG

RUS

ADMISSIBILITY

LOLAYEV v. RUSSIA

Inadmissible

Anatoly Kovler;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

1. The applicant, Mr Kazbek Mairbekovich Lolayev, is a Russian national, who was born in 1967 and lives in Ivanteyevka, Republic of North Ossetia-Alania. He is represented before the Court by Ms T.I. Baskayeva, a lawyer practising in Vladikavkaz. 2. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and other claimants served in the law-enforcement agencies of the Ministry of the Interior of the Republic of North OssetiaAlania and were entitled to additional remuneration for service in the conditions of emergency and armed conflict. They brought proceedings against the regional office of the Ministry of the Interior seeking recovery of the additional remuneration which included double salary, special rank salary, non-recurrent monetary allowance, and allowances for length of service, food and sanatorium treatment. 5. By a judgment of 11 June 2002 the Leninskiy District Court of Vladikavkaz (“the Leninskiy District Court”) granted the applicant’s claim and awarded him 553,598 Russian roubles (RUB) against the Ministry of the Interior of the Republic of North Ossetia-Alania. 6. That judgment became final on 21 June 2002. 7. On 23 July 2003 by the Pravoberezhniy District Court of the Republic of North Ossetia-Alania (“the Pravoberezhniy District Court”) delivered a judgment on seemingly identical claims for additional remuneration for service in the conditions of emergency and armed conflict and including a non-recurrent monetary allowance, an allowance for sanatorium treatment, double salary, special rank salary, an allowance for length of service and an allowance for hardship of service. As transpires from the text of the judgment, the applicant and approximately two hundred other claimants were represented by a certain Mr V.A. Em who attended the hearing. Mr Em requested the court to order that the debts be paid from the federal funds specifically allocated for compensation of damage inflicted by unlawful acts or omissions of the executive bodies and their officials, instead of the funds allocated to the Ministry of the Interior. 8. Having taken into account the inflation losses, the court allowed the claims. In particular, it awarded the applicant RUB 721,841 payable by the State Treasury. 9. On 2 December 2005 the Pravoberezhniy District Court examined the application of the claimants in the above proceedings for adjustment of the awards due to inflation losses and recovery of those amounts from the regional Ministry of the Interior. In those proceedings the applicant was represented by a certain Mr A.A. Begletsov. The materials of the case contain a power of attorney signed by the applicant on 26 April 2005 in the name of Mr Begletsov entitling him, inter alia, to bring claims and to receive money on his behalf. 10. The court stated, in particular, the following: “By a judgment of 23 July 2003 in the case no. 3-173 the Pravoberezhniy District court granted the claims of the servicemen of the Ministry of the Interior of the Republic of North Ossetia-Alania and the State Treasury represented by the Ministry of the Interior concerning compensation of damages caused by the failure to pay them allowance for service in the conditions of emergency and armed conflict. That judgment has been enforced. ... As evidence of the time (day) of the transfer of the amounts due in accordance with the writs of enforcement, the applicants submitted certified excerpts from their bank accounts which demonstrate the following: ... The bank account of A.A. Begletsov...was credited by way of bank orders dated 10 and 11 February 2004 with the amounts due to...[the applicant].” 11. The court granted the application for adjustment of the original amount and awarded the applicant RUB 137,149 which on 2 March 2006 was credited to the account of Mr Begletsov per procurationem. 12. By letter of 17 April 2006 the president of the Leninskiy District Court addressed the head of the regional office of the Federal Treasury with the following request: “[Your department] is in possession of the enforcement documents of the employees of the regional law-enforcement agencies issued pursuant to the judgments of the Leninskiy District Court of Vladikavkaz, concerning payment of compensation for participation in the clearing-up of the aftermath of the Ossetian-Ingush conflict, which were subsequently quashed on account of newly discovered circumstances. New court judgments have been delivered and enforced in respect of the above individuals. Therefore, you are requested to return to us the enforcement documents according to the enclosed list, without enforcement.” 13. On 15 May 2006 the enforcement documents, including those concerning the applicant, were returned to the Leninskiy District Court. A letter of 27 October 2010 addressed by the president of the Supreme Court of the Republic of North Ossetia-Alania to the Representative of the Russian Federation at the European Court of Human Rights stated the following: “...The documents concerning enforcement (non-enforcement) of [the judgment of 11 June 2002] were destroyed together with the relevant case-file following expiration of the time-limit for their preservation... As the operative part of the judgment of 11 June 2002 did not authorise recovery of the award from the Ministry of the Interior of the Republic of North Ossetia-Alania at the expense of the State Treasury and following impossibility of enforcement of the judgment concerned, K.M. Lolayev and others sued the State Treasury represented by the Ministry of the Interior and [its regional department], seeking recovery of the same payments... ...[B]y a judgment of the Pravoberezhniy District Court of the Republic of North Ossetia-Alania of 23 July 2003 [the above claims] were granted. Having taken into account the amended claims and inflation losses, that judgment recovered in favour of K.M. Lolayev 721,841 roubles. That judgment was enforced. The documents proving the enforcement were destroyed together with the case-file following expiration of the time-limit for their preservation... It transpires from the correspondence of the president of the Leninskiy District Court of Vladikavkaz of the Republic of North Ossetia-Alania with the head of the [regional office of the Federal Treasury] that the judgment of 11 June 2002 was quashed on account of newly discovered circumstances following adoption of the judgment of 23 July 2003 by the Pravoberezhniy District Court of the Republic of North Ossetia-Alania...” 14. The Government has not been able to provide any direct evidence or a date of the quashing of the judgment of 11 June 2002.

train

001-92451

ENG

HRV

ADMISSIBILITY

RADALJAC v. CROATIA

Inadmissible

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

The applicant, Mrs Senka Radaljac, is a Croatian national who was born in 1945 and lives in Ploče. She was represented before the Court by Mr I. Kotromanović, a lawyer practising in Ploče. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 July 1984 the applicant’s sister, B.R., was granted a specially protected tenancy of a flat in Ploče. The flat was a studio, measuring twenty-six square metres. The applicant, who was at that time employed in Germany, registered her residence in the flat and was recognised as a household member. The applicant’s sister died some time in 1988 and the applicant continued to occupy the flat when she was in Croatia and since 2001, when she retired, she has been living permanently in the flat. On 2 May 1997 the applicant asked the Ploče Municipality, as the owner of the flat, to make a lease agreement on the said flat. The request was refused and on an unspecified date the Ploče Municipality brought a civil action in the Ploče Municipal Court (Općinski sud u Pločama) seeking the applicant’s eviction. On 23 September 2003 the Municipal Court ordered the applicant’s eviction within fifteen days on the ground that the applicant had no legal basis to occupy the flat since she had not lived with her sister in the same household for the last two years preceding her sister’s death, that being a condition of acquiring a specially protected tenancy on a flat. The relevant part of the judgment reads as follows: “Regardless of her possible strong emotional attachment to her late sister and the unselfish assistance that the plaintiff provided to her sister in various forms by caring for her [during] unpaid leaves and holidays, the plaintiff, owing primarily to the distance [of their places of] living, did not live with her sister for the two years preceding the latter’s death, and thus did not acquire a specially protected tenancy on the basis of law.” The judgment was upheld by the Dubrovnik County Court (Županijski sud u Dubrovniku) on 29 July 2004. A subsequent constitutional complaint by the applicant of 23 September 2004 was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 26 February 2007. The relevant provisions of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) read as follows: “(1) Members of the household of the holder of a specially protected tenancy are ... persons who have lived with him or her in the past two years, including: ... [his or her] brothers and sisters ...” The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy on a publicly owned flat to purchase it under favourable conditions of sale. The relevant provision of the Act provides as follows: “Every holder of a specially protected tenancy (hereinafter ‘the tenant’) may submit a written application to purchase a flat to the ... owner (‘the seller’) ... and the seller shall be obliged to sell the flat. ...”

train

001-103206

ENG

AZE

CHAMBER

CASE OF AKHUNDOV v. AZERBAIJAN

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

5. The applicant was born in 1951 and lives in Baku. 6. The applicant worked as an inspector at the Baku Audit Department (Bakı şəhəri üzrə Nəzarət-Təftiş İdarəsi - “the Department”) of the Ministry of Finance (“the Ministry”). On 1 May 1997 the applicant was dismissed from his job by an order of the Ministry for unsatisfactory work performance. 7. The applicant lodged an action against the Ministry, claiming unlawful dismissal. By a judgment of 23 February 1998 the Sabayil District Court allowed the applicant's claim, ordering his reinstatement in his previous job. Moreover, the court ordered the Ministry to pay the applicant his unpaid salary in an unspecified amount for the period from 1 May 1997 (date of dismissal) to 23 February 1998 (date of delivery of the judgment). No appeals were lodged against the judgment of 23 February 1998 within the time-limits specified by law and, pursuant to the domestic law in force at the material time, it entered into legal force ten days after its delivery. 8. Despite the applicant's numerous demands and the fact that the writ of execution had been sent several times to the Ministry for execution, the competent authorities did not take any measures to enforce the judgment. 9. By a letter of 18 January 2000 the Ministry informed the applicant that, upon the reorganisation of the Ministry, the Department had been abolished by an internal order of 28 January 1999 of the Ministry and that therefore it was not possible to reinstate him in his previous job. 10. On 14 November 2002 the applicant lodged an action against the Ministry, seeking compensation for non-execution of the judgment of 23 February 1998. On 17 January 2003 the Nasimi District Court delivered a judgment in the applicant's favour. The court noted that the judgment of 23 February 1998 was still in force and awarded the applicant 4,704,000 Old Azerbaijani manats (AZM, approximately 920 euros (EUR)) as his unpaid salary calculated from 23 February 1998 to 17 January 2003 (date of delivery of this judgment). This amount was calculated on the basis of the applicant's previous average salary. 11. On 17 February 2003 the applicant appealed against the judgment of 17 January 2003, claiming a higher amount of compensation. In the meantime, it appears from the case file that the Ministry requested the Court of Appeal to suspend the proceedings due to the Ministry's cassation appeal lodged with the Supreme Court against the judgment of 23 February 1998. After the Ministry's above-mentioned request, the proceedings before the Court of Appeal were formally suspended. 12. By a judgment of 10 May 2006 the Court of Appeal upheld the firstinstance court's judgment, noting that the amount of compensation had been calculated correctly. On 15 March 2007 the Supreme Court upheld the Court of Appeal's judgment. 13. On 28 January 2009 the judgment of 17 January 2003 was executed and the applicant received the amount awarded by the judgment (approximately EUR 920). 14. On 8 April 2009 the Ministry executed the judgment of 23 February 1998: the applicant was reinstated in his previous post and an amount of AZN 9,155.12 (approximately EUR 9,063) was paid to him as compensation for lost earnings, in addition to compensation awarded by the judgment of 17 January 2003.

train

001-58132

ENG

SWE

CHAMBER

CASE OF PAULSEN-MEDALEN AND SVENSSON v. SWEDEN

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

R. Pekkanen

7. The first applicant, Ms Anne-Marie Paulsen-Medalen, born in 1958 and unmarried, lives at Västra Frölunda, a suburb of Gothenburg. The second applicant, Mr Sven-Erik Svensson, born in 1957, lives at Partille, another suburb of Gothenburg. The first applicant is the mother of two children, P. and J.; the second applicant is J.’s father. 8. The first applicant came into contact with the social authorities in 1984 while expecting her first child P. Following his birth, he and his mother stayed with her parents, then with the second applicant and, as from May 1985, with P.’s father. After the birth of her second son J. in 1986 the first applicant and her sons returned to her parents. In the summer of 1986 she moved to Högsbohöjd. Since 1989 she has been living at Västra Frölunda in order to be closer to her parents. During this period the social authorities provided on a regular basis the first applicant with financial support and assistance in the upbringing of her children. 9. On 8 February 1989, in the light of an investigation by the social authorities, the Chairperson of the Social District Council (sociala distriktsnämnden) in Frölunda-Styrsö decided to take the children immediately into care on a provisional basis. The children were placed at the Bö Children’s Home in Gothenburg. 10. The first applicant appealed against the decision to take the children provisionally into care. However, the County Administrative Court (länsrätten) and the Administrative Court of Appeal (kammarrätten) of Gothenburg upheld the decision and the Supreme Administrative Court (regeringsrätten) refused the applicant leave to appeal. 11. By judgment of 17 March 1989 the County Administrative Court ordered that the children P. and J. be taken into care pursuant to section 1 of the Act containing Special Provisions on the Care of Young Persons 1980 (lag 1980:621 med särskilda bestämmelser om vård av unga – hereinafter “the 1980 Act”) on the ground that there were such deficiencies in the children’s care as to endanger their health and development. 12. The first applicant appealed against the judgment, initially in respect of both P. and J. She later withdrew the appeal in so far as it concerned P. By judgment of 13 February 1990 the Administrative Court of Appeal upheld the care order with respect to J. 13. The first applicant sought to appeal against the above judgment but, on 22 March 1990, the Administrative Court of Appeal refused the appeal as being lodged out of time, which decision was upheld by the Supreme Administrative Court on 3 July 1990. 14. J. and P. were placed with foster parents on 7 March and 18 April 1989 in separate homes. Initially no decision regarding the first applicant’s access to her children was taken but it appears that from March 1989 until March 1990 she was in fact able to visit her children in the foster homes once every second week for 2½ hours. Furthermore, she could see them in her own home twice per year for 2½ hours. The second applicant normally accompanied the first applicant during her visits in the foster homes. 15. On 19 March 1990, after the first applicant had contacted her present representative, Mrs Siv Westerberg, she requested the social authorities to confirm that no decision had been taken to restrict her right of access to her children. 16. On 20 March 1990 the Chairperson of the Social Council (stadsdelsnämnden) of Högsbo decided, pursuant to section 16 of the 1980 Act (see paragraph 29 below), to restrict the first applicant’s access to her children to a 2½ hours’ visit in the foster homes every second week. On 27 March 1990, acting in her own capacity and on behalf of her children, the first applicant appealed against the above decision to the County Administrative Court. She maintained primarily that the decision had been unlawful in that the Chairperson of the Social Council had not been empowered to restrict access. 17. The County Administrative Court quashed the Chairperson’s decision in a judgment of 20 June 1990. On appeal by the Social Council that judgment was overturned on 6 July 1990 by the Administrative Court of Appeal. It considered that the Chairperson had been empowered to restrict access and referred the case back to the County Administrative Court for determination of the merits of the access restrictions. The first applicant appealed against the Administrative Court of Appeal’s judgment to the Supreme Administrative Court which, on 5 November 1990, refused leave to appeal. 18. In the meantime, on 19 June 1990, the social authorities had decided to restrict the first applicant’s right to speak to J. on the telephone to two phone calls per week. Furthermore, on 3 July 1990, it had decided to maintain the restrictions on the first applicant’s access to her two sons to a 2½ hours’ visit every other week in the foster homes. 19. The above decisions were challenged before the County Administrative Court which, after holding a hearing on 28 September 1990, upheld them in a judgment of 3 October 1990. 20. On 8 October 1990 the first applicant appealed on her own and her sons’ behalf to the Administrative Court of Appeal which, following an oral hearing, rejected the appeal on 11 January 1991. 21. On 22 January 1991 the first applicant and the children, represented by their mother, applied for leave to appeal to the Supreme Administrative Court, which was granted on 23 July 1991. 22. On 28 June 1993 the Supreme Administrative Court upheld the lower courts’ judgments as regards the restrictions on access. According to the Government, the Supreme Administrative Court’s delay in giving judgment appeared to have been due to the fact that it was awaiting the Strasbourg Court’s ruling in the case of Margareta and Roger Andersson v. Sweden (judgment of 25 February 1992, Series A no. 226A) which raised similar issues in relation to restrictions on telephone communications between mother and child. 23. On 5 February 1991 Mrs Westerberg submitted the following request to the relevant authority on behalf of the second applicant: “[The second applicant] requests access [to J.] every weekend from Friday 5 p.m. until Sunday 5 p.m. as from 15 February 1991. Access shall take place at [the second applicant’s] home at Partille without the presence of any other persons being required. [The second applicant] will bring and fetch [J.] in the foster home. You are requested to notify me immediately, not later than within a week, of your acceptance of this access arrangement and to inform the foster parents thereof. If you consider that you cannot decide in this matter in your capacity as a civil servant I request that you refer it to the Social Council, to confirm that such a referral has taken place and to inform me when I may expect a decision from the Social Council.” 24. On 11 February 1991 the Chief of the Social Services of District 10, Högsbo, Gothenburg (stadsdelsförvaltningen 10, Högsbo, Göteborgs Stad) informed the second applicant as follows: “... I must point out that the Act containing Special Provisions on the Care of Young Persons applies in respect of children taken into public care. As you are aware, its provisions regarding access apply only in respect of the custody holder or in respect of those who have taken care of the child. Accordingly, it is only the mother [the first applicant] who is covered by these provisions. Of course, a natural father is important for the child who, having regard to what is in his or her best interests, has a right of access to his or her parent. According to section 11 of [the 1990 Act], it is the social authorities, in this case the foster home department at Tynnered District [familjehemsverksamheten i stadsdels-förvaltningen Tynnered], which must decide on [J.’s] personal circumstances in the foster home. [The second applicant] is welcome to discuss the question of access with [the secretary responsible for foster home care]. ... I should like to recall that it concerns a child who, because of his need of care, has been placed in a foster home by court order. It cannot be considered to be in the interest of a child to be removed from his or her home every weekend, especially not in a situation such as that of [J.]. Not even in divorce cases is it normal that access be granted with such short intervals; such cases often do not even concern children with any special need for care being provided in their home. In effect, what you suggest is that a non-custody holder should be granted access going beyond what the custody holder has been granted.” 25. The second applicant did not pursue the matter but appears to have contacted the social authorities at Frölunda to enquire about his access to J. On 6 October 1995 the authorities replied: “A right of access to a child for a person other than the custody holder does not exist under domestic law. It is however appropriate that a child also meets his or her relatives. ... The County Administrative Court has decided that [J.’s] access to his mother should be limited to two visits a year, which may be increased to the extent agreed by [J.]. His access to other relatives should be considered in light of this. As regards [the second applicant’s] request to meet [J.] it could be said that [the second applicant] participates in the regular access arranged every other week. Admittedly, [J.] has not appeared more than a few times during the last year but the aim is that [J.] attend more frequently in the future. This means that [the second applicant] will meet [J.] on the same conditions as the mother [the first applicant].” 26. It does not appear that the second applicant has taken any further initiative to establish access to his son J. 27. On 12 November 1990 Mrs Westerberg had submitted a request by the maternal grandparents to the Högsbo Social District Council for the children P. and J. to stay with them every weekend. On 14 November 1990 the Council informed Mrs Westerberg that the question regarding the grandparents’ access to their grandchildren was not regulated in the law. The request could, nevertheless, be examined in the context of the social authorities’ general powers to decide on the personal conditions of the children. Decisions made under these general powers were not subject to any review. The grandparents were advised to contact the social authority responsible for the foster home to discuss the possibilities of access although the access requested did not appear to be consistent with the children’s needs. By letter of 22 November 1992 the grandparents insisted on having a formal decision on the subject. On 4 December 1992 the Social District Council decided that the request did not call for any further action. 28. During the proceedings in the present case the Act containing Special Provisions on the Care of Young Persons 1980 (the 1980 Act) was replaced by a new Act containing Special Provisions on the Care of Young Persons 1990 (lagen 1990:52 med särskilda bestämmelser om vård av unga – “the 1990 Act”) which entailed certain amendments and additions to the 1980 Act. The 1990 Act entered into force on 1 July 1990. According to the transitional provisions a care order issued under the 1980 Act should be regarded as a care order under the corresponding provision in the 1990 Act. The same applied with respect to decisions on access. 29. Section 16 of the 1980 Act provided: “If it is necessary in order to achieve the purposes of care measures taken under this Act, the Social Council may 1. decide how the right of access to the young person shall be exercised by a parent or other person who has custody of him, or 2. decide that the young person’s place of residence may not be disclosed to the parent or custodian.” 30. Section 14 of the 1990 Act, which replaced section 16 of the 1980 Act, is worded as follows: “The Social Council is responsible for accommodating as far as possible the young person’s needs of contact with his parents or other person who has custody of him. If it is necessary in order to achieve the purposes of care measures taken under this Act, the Social Council may 1. decide how the right of access to the young person shall be exercised by a parent or other person who has custody of him, or 2. decide that the young person’s place of residence may not be disclosed to the parent or custodian. The Social Council shall reconsider at least once every three months whether such decision as referred to in the second paragraph continues to be needed.” 31. As at present there is no authoritative ruling by the Supreme Administrative Court as to whether a parent who is not custodian or does not enjoy access rights by a court order or agreement can request a decision of the Social Council in respect of access. 32. According to section 41 of the 1990 Act an appeal may be lodged with the County Administrative Court against a decision of the Social Council with respect to access. The County Administrative Court may review a decision by the Social Council in so far as its subject matter is covered by section 14 of the 1990 Act (or section 16 of the 1980 Act; see Yearbook of the Supreme Administrative Court, Regeringsrättens Årsbok 1984, 2/38).

train

001-122813

ENG

SVN

ADMISSIBILITY

ŠUŠTERŠIČ v. SLOVENIA

Inadmissible

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant, Mr Matjaž Šušteršič, is a Slovenian national, who was born in 1969 and lives in Kranj. He is represented before the Court by Odvetniška Družba Matoz D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) are represented by their Agent, Mrs T. Mihelič Žitko, State Attorney. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was serving a sentence in the closed section of Dob Prison from 25 July 2007 until 23 July 2010. As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), nos. 5711/10, 5719/10, 5754/10, 5803/10, 5956/10, 5958/10, 5987/10, 6091/10, 6647/10 and 6893/10, 27 September 2011. Between 27 July 2007 and 17 June 2008 the applicant was held in cell no 2, Block 3 which measured 59.89 square metres and held fourteen inmates (4.28 square metres of personal space available to each inmate). He was later transferred several times. From 26 June 2008 to 30 July 2008, from 19 August 2008 to 28 November 2008 and from 10 July 2009 to 17 July 2010 he was held in cell no 3, Block 3 which measured 59.89 square metres and held sixteen inmates (3.74 square metres of personal space available to each inmate). From 30 July 2008 to 19 August 2008 and from 17 July 2009 to 23 July 2010 he was held in cell no 31 – 34, Block 1 which measured 32.22 to 32.39 square metres and held four inmates (8.05 to 8.09 square metres of personal space available to each inmate). From 17 June 2008 to 26 June 2008 and from 28 November 2008 to 9 July 2009 he was in a hospital room which measured 15.83 to 17.96 square metres and held three inmates (5.27 to 5.99 square metres of personal space available to each inmate). According to the Government’s submissions there was a physical conflict on 14 November 2008 between the applicant and another prisoner, who ‘head-butted’ the applicant after the applicant had angered the prisoner by changing a television programme and pushed him away. After the incident the prisoner was transferred, disciplinary proceedings were instituted against him and the District State Prosecutor’s Office was informed of the incident. The applicant sustained a fracture of nasal bones and consequently had difficulties with breathing. He later rejected reposition of the nasal bones and the operation; however after few months he asked for a corrective operation and was referred to a plastic surgeon. Prior to the incident the applicant never informed prison staff about feeling threatened by this prisoner or asked for a transfer due to feeling threatened by this or any other prisoner. The Government submitted the incident was therefore unpredictable for prison staff and that they could not have had prevented it. However, they reacted immediately and took the applicant to health centre for a medical examination and to general hospital for medical treatment. As regards an incident on 9 July 2009 the Government submitted that there was a physical conflict between the applicant and another prisoner. On 5 July 2009 the other prisoner had supposedly provoked the applicant; they ended up in several fights, with the applicant allegedly hitting the other prisoner in the eye, which led to the incident on 9 July. The applicant however never informed prison staff about these fights and never informed them that he felt threatened by this prisoner or asked for a transfer due to feeling threatened by this or any other prisoner, therefore again the incident was unpredictable and unpreventable. After the incident prison staff promptly took the applicant to a health centre for a medical examination and the same day to general hospital, where he was admitted for 24-hour medical monitoring. On the return to prison, the applicant was transferred to another section and on the request of a nurse put under higher supervision of prison guards. The other prisoner was placed in a special room under video surveillance and disciplinary and criminal proceedings were instituted against him. After the two events, no further incidents occurred between the applicant and these two prisoners. According to the Government’s submissions on 16 June 2011 prison staff, when conflicts are detected, conduct a talk with prisoners who have conflicts and makes an official note about it. However, until the incident on 14 November 2008, no conflict between the applicant and a prisoner was detected or recorded by prison staff. According to a doctor’s report dated 13 August 2010 the applicant was treated on seventy-five occasions, mostly for his back pain. For the relevant domestic law and practice, see paragraphs 33-35 and 3847 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), Lalić and Others, cited above, as well as Mešić v. Slovenia (no. 5767/10, 22 November 2011) and Ferenc v. Slovenia (no. 6682/10, 13 March 2012).

train

001-115710

ENG

FIN

ADMISSIBILITY

KAIKKO v. FINLAND

Inadmissible

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

1. The applicant, Mr Pertti Kaikko, is a Finnish national, who was born in 1951 and lives in Kirkkonummi. He was represented before the Court by Mr Esko Sydänmäki who was granted leave to represent the applicant by the President of the Chamber (Rule 36 § 2 of the Rules of Court). 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 June 1970 the applicant became a civil servant employed by the Bank of Finland (Suomen Pankki, Finlands Bank; henceforth “the Bank”) where he worked until his retirement on 1 September 2006. 5. On 3 May 1977 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) introduced an equal retirement age of 60 years for all men and women who entered the service of the Bank on that date or later. The retirement age for women was thereby raised from 55 years to 60 years while for men the retirement age remained unchanged. As the rule was not retroactive, the different retirement ages for men and women still applied to those persons who had started employment before 3 May 1977. 6. On 17 June 1998 the Trustees of the Bank amended the pension rules of the Bank so that men who had joined the Bank prior to 3 May 1977 and who continued their employment until retirement were also granted an opportunity to lower their retirement age from 60 to 55-59. For each month the retirement age was lowered, and the pension accrued prior to 1 January 1994 was reduced by 0.33%. At its highest the early retirement reduction was 19.8% for five years. Under the pension rules of 13 December 1966 the retirement age for women who had joined the Bank prior to 3 May 1977 was 55 and no reductions applied to pension accrual. 7. Since 10 March 1994 the pension rules of the Bank had provided that a civil servant who applied for early retirement, who had been employed by the Bank prior to 3 May 1977 and who had 30 years of service behind him, had a right to a pension guarantee (takuueläke, garantipension) which was 60% of the salary. This pension guarantee was increased by 1.5% for each year the person’s personal retirement age (henkilökohtainen eläkeikä, individuell pensionsålder), which was 60 years for men and 55 years for women, fell short of 63 years (the personal retirement age before 1 December 1993). This guarantee was significantly reduced as from 1 January 2005. 8. On 25 August 2006 the applicant was granted a pension, which was reduced by 19.8%, or 424.54 euros (EUR) per month, on the ground that he had retired at the age of 55. This method of calculation was chosen as it was more beneficial to the applicant than calculating his pension with a 50% pension guarantee which included the increase of 4.5% as his personal retirement age was 60 years. The pension so calculated amounted to EUR 3,015.33 per month, starting from 1 September 2006. 9. On 5 October 2006 the applicant submitted a letter of appeal to the Bank, requesting that his pension be recalculated so that the years 55-63 brought him an additional pension of 1.5% per year, thus altogether 12%. He claimed that the amendments made to the pension guarantee on 1 January 2005 had led to discrimination between men and women due to the fact that the theoretical personal retirement age for men was 60 years, even if they retired earlier, whereas for women it was always 55 years. In the applicant’s situation the percentage for accrued pension was 4.5% while for a woman in the same situation it would be 7.5% higher, at 12%. He also complained about the fact that his pension had been reduced by 19.8%, or EUR 424.54 per month, on the ground that he had retired at the age of 55. As the Bank could not rectify the pension decision, it referred the case on appeal to the Insurance Court (Vakuutusoikeus, Försäkringsdomstolen) on 7 November 2006. 10. On 20 November 2006 the Bank issued a new, interim pension decision to the applicant as the pension decision of 25 August 2006, which had been appealed against to the Insurance Court, was partly rectified. The rectified pension amounted to EUR 3,031.21 per month. The applicant had no right to appeal against this interim pension decision. 11. During the Insurance Court proceedings, the court requested a statement from the Gender Equality Board (tasa-arvolautakunta, jämställdhetsnämnden). In its statement of 8 May 2009 the Board stated that there was a presumption of discrimination in two respects: different personal retirement ages for men (60 years) and for women (55 years) as well as the fact that the reduction was made only in respect of men who retired early, not in respect of women. It further stated that the Bank had not been able to give an acceptable reason for this discrimination. Moreover, the lack of transparency in the calculation of the Bank’s pensions prevented the effective supervision of the principle of equal pay. 12. The State Treasury (Valtiokonttori, Statskontoret) and the Finnish Centre of Pensions (Eläketurvakeskus, Pensionsskyddscentralen) were also asked to submit a statement in the matter. In its statement of 20 January 2009, the State Treasury stated that, had the applicant been subject to the State Pension Act (valtion eläkelaki, lagen om statens pensioner), his pension guarantee would have been calculated in exactly the same manner as in the pension decision of 25 August 2006. In its statement of 19 January 2009, the Finnish Centre of Pensions noted that the central question was whether the applicant’s personal retirement age was interpreted to be 60 or 55 years. Concerning private sector pensions, the Centre noted that there might be situations where a man’s pension remained lower than a woman’s who had a similar work history and who retired at the same age. 13. On 2 March 2010 the Insurance Court partly accepted, partly rejected the applicant’s appeal. As concerned the percentage for accrued pension, the court accepted the applicant’s appeal and ordered that the percentage be 12% instead of 4.5%. It found that in this respect the pension was not calculated in an equitable manner in regard to men and women, and that women were put in a more favourable position than men. The applicant’s personal retirement age should also have been 55 years, as was the case for women in the same position. As this inequality affected also the time after 1 January 1994, the date on which the EU rules on equal pay became applicable in respect of Finland, the applicant’s pension had been calculated in a manner contrary to EU law during the period starting from 1 January 1994 until 31 December 2004. In this respect the case was referred back to the Bank for a new decision. As to the rest of the applicant’s complaints, they were rejected. As concerned the reduction of 19.8% due to early retirement, the court found that as the reduction concerned the time before 1 January 1994, it was not contrary to EU law. 14. On 18 March 2010 the Bank issued a new pension decision to the applicant. The percentage for accrued pension was now 12%, increasing his personal pension guarantee percentage to 57.5%. The pension calculated in this manner amounted thus to EUR 3,281.60 per month. The applicant did not appeal against this decision. 15. By letter dated 5 August 2010 the applicant petitioned the Chancellor of Justice (oikeuskansleri, justitiekanslern), claiming that the Insurance Court decision was illegal as it was not adequately reasoned and thus not transparent in respect of the rejected complaints. Moreover, he complained about the fact that his pension guarantee still remained at 57.5% even though the Insurance Court had, on 25 October 2005, amended a similar pension decision in the case of Mr K.H. and granted him a pension right amounting to 60% on the ground that he fulfilled the pension guarantee requirement as he had completed 30 years of service. 16. It is not known whether the applicant’s petition is still pending before the Chancellor of Justice. 17. On 27 July 2011 the applicant lodged an extraordinary application with the Insurance Court for the reopening of the proceedings as far as they related to the decision of 2 March 2010. These proceedings are still pending before the Insurance Court. 18. Article 6 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that: “No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.” 19. Article 15 of the Constitution provides that the property of everyone is protected. 20. Section 7 of the Act on Equality between Women and Men (laki naisten ja miesten välisestä tasa-arvosta, lagen om jämställdhet mellan kvinnor och män; Act no. 609/1986) prohibits both direct and indirect discrimination based on gender. According to its section 7, subsection 2, direct discrimination means, inter alia, putting women or men in an unequal position on the basis of gender. Section 8, subsection 1, point 3, of the same Act provides that: “An employer’s conduct constitutes discrimination prohibited under the Act if the employer applies the pay or other terms of employment in such a way that one or more employees, because of their gender, find themselves in a less favourable position than one or more other employees performing the same work or work of equal value in the employer’s service.” 21. Section 11 of the Act on the Bank of Finland (laki Suomen Pankista, lagen om Finlands Bank; Act no. 214/1998) provides, inter alia, that: “The Trustees of the Bank shall confirm the Bank of Finland’s Pension and Survivors’ Pension Regulations and issue regulations concerning the management of the Bank’s pension liability, upon proposal of the Directorate.” 22. Section 9 of the Act on Officials of the Bank of Finland (laki Suomen Pankin virkamiehistä, lagen om Finlands Banks tjänstemän; Act no. 1166/1998) provides the following: “The Bank of Finland shall treat all officials in its service equally to ensure that no-one is unjustifiably treated differently because of his origin, citizenship, gender, religion, age, political or union activities, or on other comparable bases. The Bank of Finland shall not forbid an official to join or belong to an association or pressure him to join a particular association, nor forbid him to resign from such.” 23. Section 33, subsections 1-3, of the same Act provide the following: “An official who considers that the Bank of Finland has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to the Board. No request for rectification can be made in a matter that falls within the jurisdiction of the Labour Court, unless the Labour Court has decided not to settle the matter under section 1, subsection 2, of the Act on the Labour Court (646/1974). Rectification of a decision by which the Bank of Finland has issued an official with a warning, laid him off or given him notice, cancelled the service relationship, suspended him from office or decided on a matter concerning his pension contribution or secondary occupation, as well as a decision referred to in paragraph 6 on a request for rectification referred to in paragraph 1 can be requested by appealing to the Supreme Administrative Court in accordance with the provisions of the Administrative Judicial Procedure Act (586/1996). A matter referred to in this paragraph shall be treated as urgent by the Supreme Administrative Court. Decisions of the Board concerning pensions can be appealed against to the Insurance Court. Otherwise, as regards a request for rectification on pension, the applicable provisions of the Act on State Pensions (280/1966) shall apply.” 24. Section 58, subsection 1, of the same Act provides that “[t]he right of an employee of the Bank of Finland to a pension paid from the Bank’s funds is determined, to the extent applicable, on the same grounds as state pension cover. State pension cover refers to the right to pensions, survivors’ pensions and other benefits which are payable from the state’s funds and the content of and eligibility for which are regulated by the State Pensions Act and the related legislation. Pensions and survivors’ pensions are granted by the Directorate of the Bank.” 25. More detailed provisions on the payment of pensions and survivors’ pensions and pension cover in other respects are contained in the Bank’s Pension and Survivors’ Pension Regulations (Suomen Pankin eläke- ja perhe-eläkesäännöt; pensionsstadgan och familjepensionsstadgan för Finlands Bank). The Trustees of the Bank of Finland, elected by the Parliament, adopt the Regulations on the basis of the Directorate of the Bank’s proposals. 26. Section 3, subsection 1, of the Pension Regulations with its earlier wording, as amended on 14 March 1972, read as follows: “Eligibility for old age pension requires that the beneficiary has completed his or her service and reached the age of 65 years, or 60 years if the beneficiary, immediately before retirement, has been serving the Bank of Finland or its Security Printing House for at least one month, and 55 years in the case of a female employee. A beneficiary who retires as a member of the Directorate is entitled to old age pension irrespective of age.” 27. The lower retirement age of 55 years for women was applied until 3 May 1977, when the amendment of section 3, subsection 1, of the Pension Regulations entered into force. With this amendment the retirement age for women was raised from 55 to 60 years but the retirement age for men remained unchanged at 60 years. The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the Bank began on 3 May 1977 or thereafter. 28. For the equalisation of the retirement ages, men were granted the right to opt for a lower retirement age. On 17 June 1998 the Trustees of the Bank amended the entry into force provision of the Pension Regulations in the following manner: “However, as of 1 January 1994, the earlier provision is applicable both to women who entered service in the Bank prior to 3 May 1977 and to men who entered service in the Bank before that date. The beneficiary has the right to choose between the lower retirement age, based on the earlier provision, or the higher retirement age. If a man chooses the lower retirement age, the amount of his pension accrued on the basis of the duration of his service is, in respect of the service prior to 1 January 1994, reduced by 0.33 percentage units per month of earlier retirement.”

train

001-101206

ENG

UKR

CHAMBER

CASE OF ZHUK v. UKRAINE

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

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

5. The applicant was born in 1958 and lives in Kyiv. 6. According to the applicant, on 16 September 2001 he was assaulted by officers of the Anti-Drug Police Unit at the entrance to his apartment. When he lost consciousness the police allegedly planted evidence on him, putting a wrap of heroin into his pocket. Later, the police conducted a search of his apartment. As a result, some more wraps of drugs (allegedly also planted), a gun and chemical equipment were discovered. The applicant alleges that certain property items (for example, money and jewellery) were unlawfully taken during this search. 7. After the search the applicant was taken to the police station, where he remained until 25 September 2001 when the Shevchenkivsky District Court of Kyiv (“the District Court”) remanded him in custody. The applicant further contends that he had no means (namely that he lacked stationery) to appeal against the court detention order and that subsequently, although he sent an appeal, it was not examined and allegedly was lost. 8. The applicant was provided with a lawyer through the legal aid scheme on 21 September 2001 and the latter's performance was allegedly poor and of little help to his defence. In particular, notwithstanding the applicant's requests that the lawyer visit him more frequently and consult on his case, that lawyer allegedly visited him only on 24 September and 12 December 2001; furthermore, the lawyer allegedly did not attend the court hearings on 25 September and 19 November 2001 when the court remanded the applicant in custody. During the trial, the applicant was legally represented but it is not clear whether this representation was undertaken by another lawyer or by the same lawyer that the applicant claims was deficient. 9. According to the applicant, he requested on several occasions that the trial court summon K., his partner, but the court rejected his requests. 10. On 18 November 2003 the District Court found the applicant guilty of drug dealing and sentenced him to six years' imprisonment. In doing so, the court relied on evidence seized during the search on 16 September 2001, forensic examinations and witnesses' testimonies. 11. The applicant appealed, challenging, inter alia, the lawfulness of the search and the evidence produced against him as a result of it. On 11 June 2004, the Kyiv City Court of Appeal allowed the applicant's appeal in part and reduced his sentence to four years. It found that the search was lawful as the applicant had consented to it and that the conviction was not based solely on evidence produced as a result of the search. 12. The applicant, who was no longer legally represented, appealed to the Supreme Court of Ukraine, challenging his conviction on points of law. He also expressed his wish to be present at the hearing. 13. On 5 April 2005, in the presence of the public prosecutor but in the absence of the applicant, a panel of three judges of the Supreme Court of Ukraine considered the appeal on points of law submitted by the applicant. Having heard the prosecutor, who maintained that the appeal was unsubstantiated, the panel found that there were no grounds for the cassation review of the case and dismissed the applicant's appeal. In doing so it nevertheless examined the case on the merits. According to the applicant, he was not informed of the date of the hearing at the Supreme Court of Ukraine. He was notified of the Supreme Court's decision on 2 June 2005. 14. On 29 September 2001 the applicant complained to the local prosecutor about the actions of the police on 16 September 2001. 15. On 29 October 2001 the prosecutor refused to institute criminal proceedings because of the lack of evidence that a crime had been committed. In particular, he found that the applicant had attempted to flee and had resisted the policemen. 16. According to the applicant, he challenged this decision before the District Court, which upheld the initial decision on 26 September 2003. The applicant made a further appeal but, according to him, the court found that the latter decision was not subject to appeal. He also raised this issue during his trial and in appeals against his conviction. In a judgment of 18 November 2003 the District Court upheld the conclusions of the impugned prosecutor's decision; the higher courts did not expressly address this issue. 17. In 2003 the applicant instituted civil proceedings in the District Court seeking return of his property that was allegedly subject to unlawful seizure. By a decision of 23 May 2003, the court rejected the claim as a result of procedural shortcomings (for instance, failure to indicate the defendant, to pay the court fee and so on). It appears that the applicant did not appeal against this decision. 18. The relevant provisions of the Ukraine Code of Criminal Procedure (“the Code”) (as worded at the material time) read as follows: “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 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 court of cassation, which shall be 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. A 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 court of cassation, which shall be 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 court of cassation's judges shall be conducted in accordance with the requirements provided for by Articles 322 and 325 of this Code.” 19. Other provisions of the Code concerning examination of a case by a court of cassation are set out in Arkhipov v. Ukraine ((dec.), no. 25660/02, 18 May 2004). 20. On 12 January 2006 Article 394 § 2 of the Code was amended to remove the prosecutor from involvement in preliminary hearings before a court of cassation.

train

001-113302

ENG

ARM

CHAMBER

CASE OF VIRABYAN v. ARMENIA

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Torture);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

5. The applicant was born in 1958 and lives in Shahumyan Village, Ararat Region of Armenia. 6. The applicant was a member of one of the main opposition parties at the material time in Armenia, the People’s Party of Armenia (PPA). 7. In February and March 2003 a presidential election was held in Armenia. The applicant acted as an authorised election assistant (վստահված անձ) for the PPA candidate who was the main opposition candidate in the election. Following the election, which was won by the incumbent President, the international election observation mission concluded that the overall election process fell short of international standards. It appears that mass protests followed. The PPA candidate challenged the election results in the Constitutional Court, which on 16 April 2003 recommended that a referendum of confidence in the re-elected President be held in Armenia within a year. 8. As the April 2004 one-year deadline approached, the opposition stepped up its campaign to challenge the legitimacy of the re-elected President and began to hold rallies around the country to express its demands. Numerous rallies were held in March and April 2004 and the applicant appears to have participated in them. He alleged that the authorities had retaliated by arresting and harassing opposition supporters, including himself. According to him, during this period the local police officers visited on a daily basis his home in Shahumyan village where his mother lived, with the intention of taking him to the police station. He was forced to stay away from home and to hide in Yerevan. 9. On 12 April 2004 a rally was organised by the opposition parties which took place on Freedom Square in Yerevan and was followed by a march towards the presidential residence. Between 10,000 and 15,000 people attended the rally, including the applicant. It appears that the police eventually dispersed the crowd at around 2 a.m. on 13 April 2004. 10. According to the police materials, on 23 April 2004 at 5.05 p.m. an anonymous telephone call was received at the Artashat Police Department alleging that the applicant, while attending the demonstration of 12 April 2004, had been carrying a firearm which he still had on him. Two police officers, R.S. and A.S., were ordered to bring the applicant to the police station. 11. According to the record of taking the applicant to the Artashat Police Department, the applicant was taken there on 23 April 2004 at 5.40 p.m. on suspicion of carrying a firearm and for using foul language towards police officers and not obeying their lawful orders. It was noted that the applicant refused to sign the record. 12. At 5.50 p.m. the applicant was subjected to a search by the arresting police officer R.S. and another police officer, A.M., in the presence of two witnesses, during which a mobile phone and a lighter were found. The record of the applicant’s search similarly noted that the applicant refused to sign it. 13. Both arresting police officers, R.S. and A.S., reported to the chief of police that the applicant had used foul language during his arrest. In particular, the applicant had said “I have had enough of you! What do you want from me? Why have you come here? Who are you to take me to the police station?” They further reported that he had made a fuss and disobeyed their lawful orders but they had somehow managed to place him in the police car. On the way to the police station he had continued using foul language, saying that he would have them all fired and that they would be held responsible for this. 14. The applicant contests this version of events and alleges that he was stopped near his home by police officers R.S. and A.S. between 2 p.m. and 3 p.m. They asked him to accompany them to the police station, explaining that the chief of police wanted to have a talk with him. He agreed and got into the police car without any resistance. At the police station he was taken to the office of another police officer, H.M., who asked him questions about his participation in demonstrations and about a fellow opposition activist, G.A., who had been arrested some days before. Thereafter he was taken to the office of deputy chief of police G., who said that he was using foul language and ordered that an administrative case be prepared. He was then taken to another office where police officer A.M. started preparing the administrative case. He was never subjected to a search. 15. Police officer A.M. drew up a record of an administrative offence in which it was stated that the applicant had disobeyed the lawful orders of police officers and used foul language, which constituted an offence under Article 182 of the Code of Administrative Offences (CAO). He further drew up a record on taking an explanation which stated that the applicant had refused to make a statement. Both records noted that the applicant had refused to sign them. 16. The applicant alleges that, after police officer A.M. had finished preparing the materials of the administrative case, he said that those materials would be taken to a court and it would be better for somebody to intervene otherwise the applicant risked 15 days in detention. Then the two had a short conversation, during which the applicant said, inter alia, that he had been brought to the police station because of his participation in demonstrations, such arrests being carried out upon the instructions of the President of Armenia. Then police officer A.M. left the office. 17. The applicant further alleges that, some minutes after police officer A.M. had left the office, police officer H.M. entered and started swearing at him. Police officer H.M. then approached him and kicked him on the left side of his chest and punched him in the face. The applicant grabbed the mobile phone charger which was on the desk and hit police officer H.M. Having heard the noise of the scuffle, three other police officers entered the office and took him to another room. About ten minutes later police officer H.M. and another police officer, A.A., came to that room and started brutally beating him. After they left the room, another police officer, A.K., entered the room and started hitting him in the area of his scrotum with a metal object. He was then handcuffed and police officer A.K. continued punching and kicking him below the waist, after which he lost consciousness. 18. It appears that at some point an ambulance was called from Artashat Hospital to have the applicant checked for alcohol intoxication. According to the record of a medical examination, the applicant was examined by the ambulance doctor, A.G., at 7 p.m. and the test results showed that there were signs of alcohol intoxication. The applicant alleges that in reality the ambulance doctor was called to check his level of alcohol intoxication at 3.05 p.m. (see also paragraph 66 below). A police officer, A.H., who assisted in the check-up, punched him four times in the face and once below his waist. 19. At an unspecified hour arresting police officer R.S. reported to the chief of police the following: “During the preparation of materials on an administrative offence in respect of [the applicant] who was brought to the police station on the basis of the information received from an unknown citizen on 23 April 2004 at 5.05 p.m. [the applicant] behaved cynically, obscene and self-confident, using foul language towards the police officers and refusing to sign the prepared documents. And when [the applicant] found out that the materials prepared in his respect would be submitted to a court for examination, he took a mobile phone charger from the desk and hit the head of the criminal investigation unit [H.M.] in the face with it, swearing at him and saying that it was he who had fabricated everything, after which [the applicant] attempted to hit him a second time with a telephone that was on the desk but he was prevented from doing so by me and [police officers A.A. and A.M.].” 20. It appears that police officer A.A. made a similar report. It further appears that police officer H.M. was taken to hospital. 21. At an unspecified hour investigator M. of the Ararat Regional Prosecutor’s Office decided to institute criminal proceedings no. 27203404 under Article 316 § 1 of the Criminal Code (CC) on the ground that the applicant had used force against a public official by hitting police officer H.M. and thereby inflicting injuries not dangerous for health. This decision was taken on the basis of the materials submitted by the Artashat Police Department and contained an account of events similar to that contained in the above police reports. 22. Investigator M. then took witness statements from police officer A.M. and arresting police officers R.S. and A.S. 23. Police officer A.M. stated that, when the applicant refused to make a statement in connection with his administrative case, there were three other police officers present in the office apart from himself and the applicant, namely police officers R.S., A.A. and H.M. Seeing that the applicant was refusing to make a statement, police officer H.M. told him that he would have to be taken to a court. On hearing that, the applicant exclaimed “It is you who have fabricated everything”, grabbed the mobile phone charger from the desk and hit police officer H.M. in the face. Immediately thereafter the applicant reached for the telephone that was on the desk but police officer A.A. managed to grab the telephone from him. Then the applicant went towards police officer H.M., they grasped each other and, while pushing each other, they fell on the chair standing beside the desk, which collapsed. The applicant was lying on the floor and police officer H.M. was lying on him. A.M. – together with police officers A.A. and R.S. – immediately picked them up. The applicant was then taken to another office, while police officer H.M. was taken to hospital. In reply to the investigator’s question, police officer A.M. stated that the police officers had been very polite and to-the-point with the applicant. He had not been made aware of the applicant’s political affiliation and the only thing he had learned from him was that he was a friend of the PPA candidate. In reply to the investigator’s second question, police officer A.M. stated that none of the police officers had hit or beaten the applicant at the police station before or after the incident. 24. Arresting police officer R.S. made a similar statement. In reply to the investigator’s question as to whether any of the police officers had hit or beaten the applicant at the police station or prior to taking him there, police officer R.S. stated that none of the police officers had hit or beaten the applicant. To the contrary, taking into account his behaviour and his statements about changing the government, the police officers had been careful and correct with him in order to avoid any unnecessary conversations. In reply to the investigator’s second question, police officer R.S. stated that he had not been made aware of the applicant’s political affiliation and the only thing he had learned from him was that he was a friend of the PPA candidate. 25. Arresting police officer A.S. stated, inter alia, that he was away at the time of the incident. He further stated that he had found out about the reasons why the applicant had been brought to the police station only after bringing him there. No questions were posed by the investigator. 26. Investigator M. examined the scene of the incident and drew up a relevant record which included photographs of the broken chair. 27. At 9.45 p.m. investigator M. drew up a record of the applicant’s arrest which stated that the applicant had been arrested at that hour on suspicion of having inflicted violence not dangerous for health on police officer H.M. at around 6.30 p.m. at the Artashat Police Department. 28. At 10 p.m. investigator M. questioned the applicant as a suspect. According to the record of the suspect’s questioning, the applicant stated that he was unable to testify at that moment and would make a statement the next morning. It appears from the record that the applicant’s State-appointed lawyer was present at this questioning. 29. According to a record drawn up by another police officer, O.B., at an unspecified hour the applicant felt sick and asked for a doctor. An ambulance was called. The ambulance doctor A.G., having heard the applicant’s complaints, advised an in-patient examination since his complaints could be examined only with special equipment. It appears that this visit took place at 11.20 p.m. It further appears that the applicant was taken to Artashat Hospital by several police officers but was not allowed to stay there despite the doctor’s recommendations. The applicant spent that night in a cell at the police station. 30. On 24 April 2004 at 11.20 a.m. the applicant was taken from the police station to Artashat Hospital, where he underwent a medical examination and was then taken to the surgical unit. 31. According to the surgeon’s certificate dated 24 April 2004, the applicant was brought to the hospital’s surgical unit with the following initial diagnosis: “Post-traumatic hematoma of the scrotum, hematocele of the left testicle, laceration?” Surgery was carried out on the applicant’s scrotum. During the surgery the left testicle was found to be lacerated and crushed with decomposition of tissue and with a large amount of accumulated blood (about 400 mg). The applicant’s left testicle was removed. Following the surgery, in-patient treatment was recommended. The certificate further stated that in the post-surgical period the applicant was not able to testify or to answer questions. 32. It appears that on the same date the applicant’s chest was X-rayed at the hospital. 33. Later that day investigator M. decided to release the applicant from custody. The investigator’s decision described the circumstances of the incident as presented in the above police materials and added that “[the applicant] had also been injured during the incident” and taken to hospital. Taking into account that the applicant needed in-patient treatment, there was no need to keep him in custody. 34. Investigator M. also ordered that both the applicant and police officer H.M. undergo a forensic medical examination. This decision stated, inter alia, that it had been established by the investigation that the applicant, who had been taken to the police station on suspicion of carrying a firearm, had inflicted injuries on police officer H.M. by hitting him with a mobile phone charger. As a result of the incident, the applicant had also been injured. The expert was asked to answer the following questions in respect of the applicant’s injuries: “- What kind of physical injuries are there on [the applicant’s] body[? C]larify their nature, location, method of infliction, age and degree of severity. - Was the injury to [the applicant’s] testicle caused by a blow or by an illness? - If the injury to [the applicant’s] testicle was caused by a blow, was it caused by one or several blows?” 35. On the same date the investigator took a witness statement from police officer H.M. He submitted that following the anonymous telephone call, deputy chief of police G. had immediately called police officers R.S. and A.S. to his office, informed them about the information received and ordered them to bring the applicant immediately to the police station. After about 30 minutes they had returned with the applicant. Police officer R.S. reported that in the village and on the way to the police station the applicant had used foul language, threatened and used insulting expressions towards the police. Police officer H.M. had then spoken to the applicant and asked him to give up voluntarily his firearm. The applicant denied ever having any firearm and said that he had participated and would continue to participate in demonstrations. He had then continued using foul language, saying that the police officers’ days in office were numbered and that the government would be changed soon. Police officer H.M. went on to describe how he and other police officers started preparing an administrative case against the applicant under Article 182 of the CAO and the manner in which the later incident took place, providing an account of events similar to that given by other police officers (see paragraphs 23 and 24 above). No questions were posed by the investigator. 36. On 25 April 2004 the applicant was questioned as a suspect at the hospital by investigator M. and made the following statement: “...I am a member of the PPA party and I have lately participated in demonstrations organised by that party. On 23 April 2004 at around 4 p.m. I was coming home from my aunt’s place when I noticed a car parked next to our house. The car moved and our paths met not far from my house. I saw our [local policeman R.S.] together with one of our district inspectors whom I did not know. They stopped and started talking to me. [R.S.] said that they were coming for me and that the chief (meaning the chief of police) wanted to have a talk with me. I answered that if I came to the police department they would keep me “overnight”, taking into account the fact that the same had happened before to my friends. [R.S.] promised me that no such thing would happen and I agreed to go with them. We went together to the police. I and [R.S.] went up to the second floor. After waiting for a moment next to his office, he took me to the Head of the Criminal Investigation Unit [H.M.]. There [H.M.] started talking and said “Grisha, what is this all about the demonstrations you are holding and the government you are changing? You are upsetting the stability of the country” and things like that[. H]e also said that I had taken people to the demonstrations and added that I had taken with me, for instance, [G.A.]. I asked whether [G.A.] could come and prove that I had taken him to the demonstrations and added that he had his own brain to decide what to do. [H.M.] left the office telling me that he would be back soon. A little while later I was invited to go to the office of the deputy chief of police [G.]. When I entered [G.’s] office he asked me why I was talking loudly in the hallway and why I was organising a demonstration in the building [of the police station]. I answered that I had not been in the hallway and had not organised any demonstration. [G.] said that I was using foul language to him there and then and ordered that a case be prepared on account of my committing an administrative offence. I and [R.S.] came back to his office where he, in the presence of [another police officer, A.M.], said that he would not prepare materials against me and left the room. A little while later [A.M.] was called[. H]e went away, then returned and started preparing some documents. He inquired about my personal details but I refused to say anything and only said that I had higher education. A little while later [H.M.] came. [A.M.] told him that I refused to provide any information about myself. He ordered [A.M.] to go and bring form no. 1. [A.M.] left and came back with a piece of paper on which I could see my photo. [A.M.] filled in some documents and asked me to sign them[. I] answered that I would not sign any documents. At that moment a girl came to [A.M.’s office]. He told the girl to type a court document. [A.M.], apparently having finished filling in the documents, was about to go, probably to fetch the court document. I understood by now that I was going to be taken to a court and sentenced to an “overnight”. Besides, [A.M.] also said that they were about to take me to a court and left the office. At that moment [H.M.] entered the office. I was sitting in front of one of the desks. Upon entering the office he immediately started swearing at me, also saying that it was their country and that they could do anything they wanted to and that what we were trying to do, meaning the change of the government, was all in vain. I answered: “You do what you think is right and we will do what we consider to be right”[. A]t that moment [H.M.] kicked me. The blow fell on the left side of my chest. He kicked me with the sharp tip of his shoe. I felt sharp pain in the area of my ribs. He immediately punched me twice in the face with his left fist. At that moment I lost my temper and to defend myself picked up the mobile phone charger from the desk and hit him with it. The cable stayed in my hand while the charger broke off and hit [H.M.’s] face. I saw him holding his eye and screaming. At that moment [A.M.] entered the office and, seeing the chaotic situation, took me to the nearby office. [H.M. and another police officer, A.A.,] followed me there and started beating me. I fell down but they went on beating me. They were kicking and punching me. Then other officers came and took [H.M. and A.A.] out. I would like to indicate that at the very beginning both [H.M. and A.A.] kicked me on my testicles. Some while after [H.M. and A.A.] had been taken away from the office, [another police officer A.K.] came to the office [(I learned his name and position from other officers after the incident)] and started swearing at me, trying to humiliate me, twice spat on me and punched my testicles[. Then] he kicked my feet several times and left. Before leaving he hit me again on my testicles with his keys. [A.K.], before beating me in the office, ordered everybody to leave, saying that he was going to abuse me. After he left [A.A.] entered the office and started beating me again, demanding that I stand upright. He was hitting and saying “Hit back! Why don’t you hit back now?” Some time later an ambulance doctor came to check whether I was drunk. I told her that I was not drunk. They contacted the chief of traffic inspection and asked for an “ampoule”. [Another police officer, A.H.,] brought the ampoule. The doctor broke the edge of the ampoule and I blew in it. At that time I was asserting again that I was not drunk. [A.H.] hit me on my forehead. He hit me twice on my forehead. It seemed like he wanted to show deliberately that he was defending the honour of the uniform. I was in a terrible condition[. I] asked [another police officer, M.B.,] and he gave me some water, then poured it on my head, back and face for me to regain consciousness. [Another police officer, R.H.,] also helped me; he removed my handcuffs, realising of course that I was in a bad condition...” 37. On 26 April 2004 investigator M. examined the police journal where under entry no. 153 it was stated that an anonymous telephone call had been received on 23 April 2004 at 5.05 p.m. alleging that the applicant had participated in the demonstration of 12 April 2004 with a firearm and was still carrying it. 38. On 27 April 2004 the applicant was again questioned as a suspect at the hospital by investigator M. He was asked about the kind of conversation he had had at the police station before the incident, concerning the fact that he had been carrying a firearm. The applicant replied that none of the police officers had asked him about any firearm. The only thing he had been asked about was why he was attending demonstrations and taking others with him. Such questions were asked by police officer H.M. Furthermore, while police officer A.K. was beating him, he was asking him which of the opposition leaders was encouraging his activity. The applicant also added that police officer A.K. had ordered that he be handcuffed with his hands behind his back, after which he started beating him in that position. 39. Investigator M. also took a witness statement from police officer A.A., who repeated the submissions made in his report of 23 April 2004 (see paragraph 20 above). No questions were posed by the investigator. 40. On the same date expert G. of the Ararat Regional Division of the Republican Forensic Medicine Theoretical and Practical Centre (RFMTPC) of the Ministry of Health received a copy of the investigator’s decision of 24 April 2004 ordering the applicant’s forensic medical examination (see paragraph 34 above). 41. On that day the Ararat Regional Court decided to grant investigator M.’s request to have the applicant’s home searched, finding that there were sufficient grounds to believe that firearms could be hidden there. 42. On 28 April 2004 investigator M. decided to seize the X-ray of the applicant’s chest taken at the hospital on 24 April 2004 (see paragraph 32 above). 43. On 29 April 2004 the applicant’s home was searched and no firearms were found. 44. On the same date investigator M. questioned as a witness police officer H.M. The investigator asked police officer H.M. to comment on the applicant’s allegations that H.M. had attacked him first and that he had been ill-treated after the incident by H.M. and police officer A.A., to which H.M. replied that the applicant was lying and denied having ill-treated him, repeating his earlier submissions (see paragraph 35 above). The investigator then asked police officer H.M. to comment on the applicant’s allegation that the police officers never asked him any questions about a firearm, to which H.M. replied that the applicant had been taken to the police station on the grounds of information that he carried a firearm and the conversation with him concerned that issue. The applicant, however, would constantly change the topic to demonstrations, changing the government, the police officers’ “numbered days” in office and their punishment. 45. On 30 April 2004 the applicant lodged an application with the Prime Minister with copies to the General Prosecutor and the Heads of the National and Regional Police complaining that on 23 April 2004 at around 2 p.m. he had been taken by deception to the Artashat Police Department where he had been beaten and tortured for his participation in demonstrations. He requested that the perpetrators be punished, indicating their names, which included H.M., A.H., A.K. and A.A., and citing his statement of 25 April 2004 for further details (see paragraph 36 above). 46. On the same date the Armenian Ombudsman, who had apparently visited the applicant in hospital and was following his case, wrote to the General Prosecutor’s Office and the Head of the National Police, informing them of the following: “We have carried out an inquiry into possible human rights violations in connection with the incident that happened to [the applicant] in the Artashat Police Department on [23 April 2004]. The data that we have obtained provide grounds for us to assert that acts which are qualified as “cruel, inhuman or degrading treatment” have been committed in respect of [the applicant] at the Police Department. The fact itself that [the applicant] was taken to the Town Police Department in good health then transferred to a hospital where he underwent surgery as a result of the injuries suffered shows that he was subjected to such treatment regardless of his personality and the acts he had committed just before. We are worried by the fact that so far the Armenian Police have not given their report of what has happened. During the conversations we had with [the representatives of] the Regional Prosecutor’s Office and with the Heads of Regional and Town Police opinions were expressed, from which it can be assumed that no appropriate assessment will be given to the lack of grounds for bringing the applicant to the police station, the lack of sufficient grounds for arresting him and the institution of criminal proceedings specifically against [him]. This is especially worrying in the sense that it can lead to a one-sided and non-impartial investigation...” 47. On the same date investigator M. took a witness statement from police officer A.K. who submitted that after the incident he had entered the office where the applicant was and asked everybody else to leave in order to talk to him in private and to find out the whole truth. He then had a chat with the applicant who had expressed remorse for what had happened. The investigator asked A.K. to comment on the applicant’s allegations of ill-treatment, in reply to which A.K. denied having ill-treated the applicant. The investigator then asked A.K. to specify which office he had entered to have a chat with the applicant and who else was in that office, to which A.K. replied that he was new at the police station and he could not indicate with certainty the office in question or the identity of the other police officers who were there. 48. On 3 May 2004 the applicant was formally charged under Article 316 § 3 of the CC (see paragraph 121 below) with inflicting violence dangerous for health on a public official. The decision stated that the applicant had been brought to the police station on suspicion of illegal possession of a firearm. At around 6.30 p.m. in the office of police officer R.S., having been informed by police officer H.M. that an administrative case was to be brought against him, the applicant took a mobile phone charger from the table and intentionally hit the right eye of police officer H.M. with it. 49. On the same date the applicant was discharged from the hospital. His medical card contained information concerning his diagnosis and treatment similar to that given in the surgeon’s certificate of 24 April 2004 (see paragraph 31 above). 50. On the same date investigator M. took a witness statement from police officer A.H., who similarly denied having ill-treated the applicant. Two other police officers, R.H. and M.B., were also questioned as witnesses. Both denied having helped the applicant, namely by taking off his handcuffs and giving him water. Police officer R.H. further stated, in reply to the investigator’s question, that the applicant had never complained to him about his health. 51. On 4 May 2004 investigator M. once again questioned the applicant, who confirmed his earlier allegations. 52. On 5 May 2004 expert G. drew up his report based on the results of the applicant’’s findings: “Results of [the applicant’s] personal observation: [The patient] is lying in bed on his back in a semi-active state ... On the outer surface of the upper third part of the right shin there is a green-yellow-coloured bruise measuring 2.5 cm and having an irregular form. No objective features of other bodily injuries to other parts of the body have been disclosed. On 5 May 2004 [I received the X-ray consultation made on 30 April 2004 by an RFMTPC X-ray specialist, according to which] ‘No bone changes have been disclosed in the X-ray of [the applicant’s] left side of the chest’... Conclusion: [the applicant’s] bodily injuries, namely the post-traumatic hematoma of the scrotum, the hematocele of the left side, the laceration of the left testicle and the bruise on the right shin, were caused by blunt and rough objects, [and] it cannot be ruled out [that they were caused] at the time and in the manner described above. The injury to the left testicle has a traumatic origin and could have been caused by any type of blow. In order to assess the degree of gravity of the bodily injury it is necessary to bring the patient to the forensic medical examination unit for examination on the twenty-first day following the incident.” 53. On 6 May 2004 the applicant complained to the General Prosecutor that the criminal proceedings against him were unfounded. He submitted that investigator M. of the Regional Prosecutor’s Office, due to his official duties, was linked to the police officers of the Regional Police Department and was therefore not impartial. He requested that investigator M. be removed from the case, that the case be transferred to the General Prosecutor’s Office and that criminal proceedings be instituted on account of his torture. 54. On 10 May 2004 the Deputy General Prosecutor decided to dismiss the applicant’s request as unfounded. 55. By a letter of 18 May 2004 the applicant was informed by the General Prosecutor’s Office that his request had been dismissed but for reasons of expediency, upon the instruction of the General Prosecutor, the criminal case had been transferred for further investigation to the Yerevan Prosecutor’s Office. 56. On 18 May 2004 expert G. supplemented his initial expert report by including an assessment of the gravity of the injuries. The conclusion now stated: “Conclusion: [the applicant’s] bodily injuries, namely the post-traumatic hematoma of the scrotum, the hematocele of the left side, the laceration of the left testicle and the bruise on the right shin, were caused by blunt and rough objects, [and] it cannot be ruled out [that they were caused] at the time and in the manner described above; [the injuries] caused damage to health of medium degree with lasting deterioration of health, taking into account that the immediate effects of the injury lasted more than twenty-one days.” 57. On an unspecified date the applicant wrote to the General Prosecutor’s Office, seeking to have a decision taken on his request to have criminal proceedings instituted against the police officers. 58. On 21 May 2004 the applicant’s criminal case was transferred to the Yerevan City Prosecutor’s Office and was taken over by investigator T. of the Erebuni and Nubarashen District Prosecutor’s Office of Yerevan. 59. On 24 May 2004 investigator T. questioned the applicant’s mother, who stated that the applicant had never possessed a gun. She further stated that police officers had previously visited their home on numerous occasions, inquiring about the applicant and saying that they were looking for him because he participated in demonstrations. 60. On 25 May 2004 investigator T. questioned the applicant’s friend, G.A., whom he had allegedly incited to go to demonstrations with him. G.A. stated that he was aware that the applicant had been brutally beaten at the police station and added that this was connected with his participation in demonstrations. He also confirmed that he had never seen the applicant with any firearms. 61. On 2 June 2004 the applicant lodged a complaint (դիմում) with the Erebuni and Nubarashen District Prosecutor, alleging that he had been tortured and ill-treated at the police station by the police officers whose names he had indicated in his statement of 25 April 2004, as a result of which he suffered a grave physical injury. However, charges were brought only against him and no assessment was made of the criminal acts committed by the police officers and of the fact that he had acted in necessary self-defence. Furthermore, he had been brought to the police station without any grounds and the real reason for his arrest was the political persecutions taking place in Armenia. The applicant requested, with reference to, inter alia, Articles 180, 181 and 182 of the Code of Criminal Procedure (CCP) (see paragraphs 108-110 below), that an investigation be carried out, that criminal proceedings be instituted against the police officers of the Artashat Police Department and that they be suspended from their duties during the investigation. 62. On 7 June 2004, in response to this complaint, investigator T. took a decision on dismissing a motion (միջնորդություն) filed by the applicant. The decision stated at the outset that criminal proceedings had been instituted against the applicant on account of his inflicting physical injuries on police officer H.M. and that the applicant had also been injured as a result of the incident. It went on to conclude: “Having examined the materials of the criminal case, it has been established that the investigation has been carried out objectively and all the necessary investigative measures have been taken in the course of the investigation, during which no evidence has been obtained to suggest that the police officers of the Artashat Police Department have exceeded their authority[.H]ence there was no need to institute [a new set of] criminal proceedings and to carry out criminal prosecution.” 63. On 11 June 2004 a confrontation was held between the applicant and one of the arresting police officers, A.S. The applicant submitted that he had been approached by police officers R.S. and A.S. at 3 p.m. on the date of his arrest and that police officer R.S. had invited him to the police station for a talk with the chief in connection with the demonstrations. Police officer A.S. confirmed this submission. He also admitted that he had not been aware that the applicant was being brought to the police station on suspicion of illegal possession of a firearm and had found out about this only upon arrival at the police station. 64. On 14 June 2004 a confrontation was held between the applicant and the second arresting police officer, R.S. The latter submitted, inter alia, that the deputy chief of the police department, G., had ordered him to bring the applicant to the police station for a talk. This order was oral and there was no written decision to arrest the applicant. 65. On 16 June 2004 the applicant requested information from Artashat Hospital concerning the events of 23-24 April 2004. 66. By two letters of 22 June 2004 the Head of Artashat Hospital informed the applicant of the following: “...[O]n 23 and 24 April three ambulance calls were [received] at the Artashat ambulance station from the Artashat Police Department in connection with [the applicant] kept at the police station. First call: ... 23 April 2004 at 3.05 p.m.: the purpose of the call was the determination of the level of drunkenness. - doctor on duty [A.G.] Second call: ... 23 April 2004 at 11.20 p.m.: doctor on duty [A.G.]. Diagnosis: bruising of soft tissues of the left side of the chest, fractured ribs (?) and contusion of testicles. Administration of Analgin, Dimedrol and Diclofenac pills. Third call: ... 24 April 2004 at 11.20 a.m. [the applicant] was brought to the reception room for a surgeon’s consultation; doctor on duty [V.H.]; diagnosis: contusion of ribs and testicles. [The applicant] was transferred to the surgical unit.” “...[The applicant] ... was admitted to the surgical unit of the Artashat Hospital CJSC on 24 April 2004 at 4.40 p.m. upon the referral ... of the hospital’s reception room ... with the following diagnosis: post-traumatic hematoma of the scrotum, hematocele of the left side and laceration of the left testicle. According to the description contained in the medical card the above diagnosis was a result of a trauma...” 67. On 22 June 2004 a confrontation was held between the applicant and police officer A.M. Both presented their version of the events. Similar confrontations were held between the applicant and police officers A.A., H.M., A.H., A.K. and the deputy chief of the police department G., on 7, 8 and 27 July and 5 August 2004 respectively. All the police officers denied having ill-treated him. Police officer A.A. admitted during the confrontation that he was one of the officers who, after the second ambulance call, had accompanied the applicant to the hospital where he had his ribs examined. A.A. stated that the doctors had not detected anything dangerous and the applicant had been taken back to the police station. He further admitted that he had been present during the examination of the applicant’s ribs but not during the examination of his testicles. 68. On the same date the applicant was presented with the forensic medical expert’s report of 5 May 2004 and its supplement of 18 May 2004 (see paragraphs 52 and 56 above). 69. On 28 June 2004 the applicant filed a motion, claiming that the expert’s findings were not objective since the injuries sustained by him had been grave and intentionally inflicted and had resulted in loss of functionality of a vital organ. The applicant sought to have a new forensic medical examination ordered. 70. On 6 July 2004 the applicant lodged an appeal with the Criminal and Military Court of Appeal against the investigator’s decision of 7 June 2004. He once again indicated the names of the alleged perpetrators and complained that the investigation was not impartial and was aimed at misrepresenting the circumstances of the incident in order to cover up for the police officers in question. He argued that there were sufficient reasons to institute criminal proceedings pursuant to Articles 175, 176 and 180 of the CCP (see paragraphs 105, 106 and 108 below), something which the investigating authority had failed to do. 71. On the same date investigator T. questioned doctors A.G. and V.H. Doctor A.G. stated that she had visited the applicant twice at the Artashat Police Department on 23 April 2004. The first call was intended to determine his level of intoxication. When she visited him at the police station following the second call, several hours later, the applicant was pale, in a cold sweat and in sharp pain. After an examination a bruising was disclosed in the lower left side part of the applicant’s chest. He also complained of a sharp pain in the testicle area. First aid was given, after which the applicant was transferred to Artashat Hospital, since there was an urgent need to have his chest and ribs X-rayed and for a surgeon’s consultation. The initial diagnosis was rib fracture and testicle injury. She was not aware of the causes of those injuries, the diagnosis given at the hospital or how long the applicant had stayed there. Doctor V.H. stated that, following the applicant’s examination at the Artashat Police Department, where he and a nurse had gone in response to a call received on 24 April 2004 at around 11 a.m., it was disclosed that he had contusions to his ribs and testicles. No injuries had been discovered on other parts of the body. The applicant had then been transferred to the hospital where surgery was performed. Doctor V.H. added that these injuries, especially the ones in the area of the testicles, could have been caused by a strong or a light blow or as a result of colliding with some object. He was not aware of the causes of those injuries. 72. On 7 July 2004 investigator T. decided to order a new forensic medical examination of the applicant on the ground that the veracity of the expert report of 5 May 2004 and its supplement of 18 May 2004 was open to doubt, referring, inter alia, to the fact that the expert’s findings had been contested by the applicant (see paragraph 69 above). The new examination was to be conducted by the experts of the Yerevan Division of RFMTPC who were asked to answer the following questions: (1) what injuries are there on the applicant’s body, including their location, nature, method of infliction, degree of gravity and age; and (2) whether expert G. had determined the degree of gravity of the applicant’s injuries accurately. 73. On 8 July 2004 investigator T. decided to seize the applicant’s medical card from Artashat Hospital. 74. On 22 July 2004 the Criminal and Military Court of Appeal decided to leave the applicant’s appeal of 6 July 2004 (see paragraph 70 above) unexamined on the ground that the investigator’s decision of 7 June 2004 had been taken in the course of the criminal investigation and was a procedural decision which, according to the relevant criminal procedure rules, did not fall within the scope of judicial control and could not be contested before the courts. 75. On the same date the experts received a copy of the investigator’s decision of 7 July 2004 ordering a new forensic medical examination (see paragraph 72 above). 76. On an unspecified date the applicant lodged an appeal on points of law against the decision of the Court of Appeal of 22 July 2004. He submitted that the Court of Appeal was obliged under Article 278 of the CCP (see paragraph 113 below) to examine his complaint concerning the lawfulness of the investigator’s decision. 77. On 28 July 2004 a new forensic medical expert report was produced which contained a conclusion almost identical to that made in the earlier expert report (see paragraphs 52 and 56 above). The report also stated that the finding concerning the degree of gravity of the applicant’s injuries had been accurate. 78. On 10 August 2004 two confrontations were held between the applicant and police officers R.H. and M.B. Both denied having provided any help to the applicant, either by taking off the handcuffs or giving him water. 79. On 13 August 2004 investigator T. decided to recognise police officer H.M. as a victim. Police officer H.M. was questioned, during which he confirmed his earlier statements. 80. On 17 August 2004 the charge against the applicant was modified by adding the fact of the applicant’s alcohol intoxication. The applicant was again questioned and pleaded not guilty. He submitted once again that he had been brought to the police station for his participation in demonstrations and had been brutally beaten. 81. On the same date the investigator decided to end the investigation since sufficient evidence had been obtained to prepare an indictment. 82. On 30 August 2004 the Erebuni and Nubarashen District Prosecutor decided to stop the prosecution and to terminate the criminal proceedings against the applicant with reference to Article 37 § 2(2) of the CCP (see paragraph 117 below). This decision first recapitulated the investigating authority’s account of events, according to which the applicant was brought to the police station on suspicion of having carried firearms at demonstrations. When being taken to the police station and upon arrival the applicant used foul language, insulted the police officers and disobeyed their lawful orders. Having found out that the administrative case instituted on account of his behaviour would be submitted to a court, the applicant hit the right eye of police officer H.M. with a mobile phone charger, thereby intentionally inflicting injuries of medium gravity. Thereafter the applicant grabbed the telephone from the table and tried to hit H.M. with it, but was prevented by A.A., after which the applicant assaulted H.M. and the latter in self-defence kicked the applicant’s testicles, grasped him and fell together with him on the chair and then on the floor. The decision concluded: “As a result of the incident [the applicant’s] testicle was injured and removed through surgery, [so] damage of medium gravity was caused also to his health. Since [H.M.] acted within the limits of necessary self-defence, no criminal proceedings were instituted against him, while [the applicant] was charged under Article 316 § 3 of [the CC]... Taking into consideration the fact that during the commission of the offence [the applicant] also suffered damage of medium gravity for his health, namely his testicle was injured, underwent surgery and was removed, which is incurable, and that actually by suffering privations he atoned for his guilt and in such circumstances it is not expedient to carry out prosecution against him, I decided ... to stop the prosecution against [the applicant]...” 83. On an unspecified date the applicant contested this decision before a higher prosecutor. 84. On 24 September 2004 the Court of Cassation decided to dismiss the applicant’s appeal on points of law against the decision of the Criminal and Military Court of Appeal of 22 July 2004 (see paragraph 74 above) with the following reasoning: “It follows from the materials of the case that [the applicant] filed a motion seeking to have criminal proceedings instituted against the employees of the Artashat Police Department on 2 June 2004, that is at a time when [a criminal case] had been already instituted on account of the incident on 23 April 2004 and an investigation into that case was already underway. Moreover, both the fact of a physical injury inflicted by [the applicant] on [police officer H.M.] and a physical injury inflicted by the latter on [the applicant] constituted a subject of that investigation. In those circumstances, there was no need to institute a separate criminal case on account of the physical injury inflicted on [the applicant], since the issues raised by [him] already constituted a subject of an investigation in a criminal case. Based on the results of the criminal case on 30 August 2004 the Erebuni and Nubarashen District Prosecutor of Yerevan decided to end criminal prosecution against [the applicant] and to terminate the criminal proceedings. In such circumstances, given that the issues raised by [the applicant] have already been a subject of examination by competent authorities and a final decision has been adopted in that respect, the request to have a new criminal case instituted concerning the same matter is incompatible with the requirements of Article 27 of [the CCP].” 85. By a letter of 24 September 2004 the applicant was informed by the General Prosecutor’s Office that the decision to terminate the criminal proceedings was well-founded and there were no grounds to quash it. 86. On an unspecified date the applicant lodged an appeal with the Erebuni and Nubarashen District Court of Yerevan seeking to quash this decision. He contested the grounds for terminating the criminal proceedings, arguing in detail that the investigation had been flawed for many reasons, including overlooking the fact of his unlawful arrest, which was linked to his participation in demonstrations and political activities, and his ill-treatment by the police officers, which was falsely presented as self-defence on the part of police officer H.M. The testimonies of police officers A.A., R.S., H.M. and A.K. were false and lacked any probative value, since these persons were the perpetrators of his brutal beating. Furthermore, the police officers of the Artashat Police Department had been persecuting him since March 2004 and the anonymous phone call of 23 April 2004 was a mere set-up. Because of a slow and biased investigation the above-mentioned persons had managed to avoid criminal responsibility. In particular, the investigating authority had failed to arrange immediate confrontations and did so only in July 2004, thereby allowing the police officers to coordinate their testimonies, while the conclusions of the forensic medical expert were not impartial. No criminal proceedings had been instituted, while the perpetrators were questioned only two months after the incident, which suggested that the case was of a political nature and enjoyed a high-ranking patronage. The fact of his systematic ill-treatment on the night of 23 April 2004 was confirmed by the relevant hospital papers and there were sufficient grounds to institute criminal proceedings against the police officers as required by Articles 175 and 176 of the CCP (see paragraph 105 and 106 below). The applicant insisted that such proceedings be instituted since the offence committed against him had absolutely not been investigated. In conclusion he requested that the criminal proceedings against him be terminated on exonerating grounds or else he be tried in court where he could prove his innocence. 87. On 12 November 2004 the Erebuni and Nubarashen District Court of Yerevan examined the applicant’s appeal. Both the applicant and a representative of the investigating authority were present at that hearing and made submissions. The District Court found the applicant’s appeal to be unsubstantiated and decided to dismiss it. 88. On 22 November 2004 the applicant lodged an appeal against that decision. In his appeal he argued, inter alia, that the District Court had ignored the numerous circumstances contained in his appeal against the prosecutor’s decision substantiating the one-sided and flawed conduct of the investigation. The applicant requested the Court of Appeal to carry out an objective examination, to quash the decision of the District Court and to order the prosecutor to terminate his case on exonerating grounds or to submit the case to a court for examination on the merits. Attached to this appeal was a copy of the applicant’s appeal lodged with the District Court (see paragraph 86 above). 89. On 24 December 2004 the Criminal and Military Court of Appeal found that the investigation had been carried out in compliance with the requirements of the criminal procedure law and the applicant’s procedural and substantive rights had not been violated. It further found that the Erebuni and Nubarashen District Prosecutor had adopted a lawful and well-founded decision in compliance with the requirements of Article 37 of the CCP (see paragraph 117 below) and there were no grounds to quash the decision of the District Court. 90. On 28 December 2004 the applicant lodged an appeal on points of law. In his appeal he argued, inter alia, that the lower courts had ignored the fact that the investigating authority had violated the requirements of Article 17 of the CCP (see paragraph 102 below) and, having conducted a one-sided investigation, had found him guilty under Article 316 § 3 of the CC (see paragraph 121 below). The courts had overlooked the biased conduct of the investigation, the existence of false documents in the case and the fact that the entire investigation was built upon the events surrounding his unlawful arrest by the police officers. The applicant once again argued that it was not the police officer but he who had acted in necessary self-defence, and requested that he be tried by an independent and impartial court in a public hearing and be allowed to prove his innocence. In conclusion he asked that the prosecutor’s decision of 30 August 2004 and that of the Court of Appeal be quashed. 91. On 4 February 2005 the Court of Cassation examined the applicant’s appeal, finding: “[The applicant], relying on the arguments raised before [the District Court], argued in his appeal [to the Court of Appeal] that the investigation had been flawed and one-sided, he had been accused unfairly, the charges against him had been dropped ... on non-exonerating grounds, the police officers who had ill-treated and injured him had not been subject to criminal responsibility, falsifications had taken place during the investigation, the police officers had given false testimonies, inaccurate forensic medical conclusions had been produced, etc. He also raised in his appeal that the decisions taken by the courts were unreasoned and that no reasoned answers had been given to the issues raised by him... Thus, [the applicant], in his appeals lodged with [the District Court and the Court of Appeal], raised also the questions brought up in [his] appeal on points of law.” 92. The Court of Cassation went on to conclude that the lower courts, ignoring the requirements of Article 17 § 4 of the CCP (see paragraph 102 below) pursuant to which complaints alleging a violation of lawfulness in the course of criminal proceedings were to be thoroughly examined by the authority dealing with the case, had failed to address the arguments raised by the applicant and adopted decisions containing no reasoning. It decided to quash the decision of the Court of Appeal on that ground and to remit the case for a fresh examination. 93. On 3 March 2005 the Criminal and Military Court of Appeal examined the applicant’s application anew and decided to dismiss it. In doing so, the Court of Appeal stated: “[The applicant] has asked for the case to be remitted for further investigation, with the expectation that it will later be brought before a court, arguing that the investigating authority has committed numerous violations of the criminal procedure rules, a number of investigative measures have been falsified and that furthermore he acted in necessary self-defence. The Court of Appeal finds that these arguments are groundless as there is no proof that the investigative measures have been falsified. [The applicant’s] rights envisaged and guaranteed by law have been respected during the investigation of the case, this being reflected in relevant records which have been drawn up, including in the presence of lawyers. The fact that [the applicant] has refused to sign several records of investigative measures does not suggest that these records are unlawful. [The applicant’s] arguments that he was brought to the police department on 23 April 2004 at around 3 p.m. and not 5 p.m. are not supported by the materials of the case and this fact has nothing to do with him being guilty or innocent. [The applicant] admitted that he had inflicted physical injuries on the police officer [H.M.] with a telephone as if in self-defence. This fact has been rebutted by the evidence in the case which is why the proceedings were not terminated by the Erebuni and Nubarashen District Prosecutor on exonerating grounds. The prosecuting authority has taken necessary measures envisaged by law in order to carry out a thorough, complete and objective examination of the case and to clarify both incriminating and exculpatory circumstances. [The applicant’s] declarations concerning his innocence and the alleged violations have been examined in detail during the proceedings, including the proceedings in the Court of Appeal. As a result, [the applicant’s] right to a fair hearing has been guaranteed, including the right to be confronted with witnesses who testified against him and other rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms.” 94. On 11 March 2005 the applicant lodged an appeal on points of law. In his appeal he argued, inter alia, that the Court of Appeal had failed to carry out a proper assessment of the evidence in the case. It had ignored the fact that the charge was based on fabricated evidence and, having failed to examine his allegations of procedural irregularities as required by Article 17 § 4 of the CCP (see paragraph 102 below), agreed with the formulation of the charge against him, according to which he had resisted the police officers and disobeyed their lawful orders. The applicant further claimed that the Court of Appeal, relying solely on the false reports of the police officers, had found his arrest based on an anonymous telephone call and the initiation of an administrative case against an unlawfully arrested person to be lawful. The applicant also argued that the principle of presumption of innocence had been violated and requested that the charge against him be determined through a public hearing, taking into account that the criminal proceedings had been terminated on non-exonerating grounds and that the charge against him had been found to be proved. He asked that the prosecutor’s decision and those of the lower courts be quashed. 95. On 13 May 2005 the Court of Cassation dismissed the applicant’s appeal. In doing so, the Court of Cassation stated: “The arguments raised in [the applicant’s] appeal concerning the violations committed by the prosecuting authority have been examined by the Court of Appeal. The court rightly stated that no evidence had been obtained to suggest that the investigative measures had been falsified or fabricated and that [the applicant] during the preliminary investigation had availed himself of the rights guaranteed by [the CCP]. [The applicant’s] argument that he hit [H.M.] acting in self-defence was rebutted by the evidence collected during the investigation. As regards his argument that the prosecutor groundlessly stopped prosecution against him in the absence of his consent, [it should be noted that the CCP] does not require a person’s consent when stopping prosecution on the grounds envisaged by Article 37 § 2 (2) of [the CCP]. [The applicant] has availed himself of the right of judicial protection of his rights guaranteed by Article 38 of the Armenian Constitution, by contesting before the courts the decision of the investigating authority to stop prosecution and to terminate the criminal proceedings in accordance with the procedure prescribed by Article 263 and 290 of [the CCP]. The Court of Appeal, exercising judicial control over the pre-trial proceedings based on [the applicant’s] application, rightly stated that the prosecutor’s decision of 30 August 2004 was lawful and well-founded and it did not find [the applicant] guilty of commission of the crime as argued in the appeal. The chamber finds that, within the grounds of the appeal, the decision of the Court of Appeal is lawful, well-founded and reasoned and there are no grounds for annulling it, therefore the appeal must be dismissed.” 96. Article 15 provides that citizens shall enjoy all the rights and freedoms and bear all the duties prescribed by the Constitution and laws irrespective of their national origin, race, sex, language, creed, political or other opinion, social origin, property or other status. 97. Articles 19 provides that no one shall be subjected to torture, cruel or degrading treatment and punishment. 98. According to Article 41, a person accused of a crime shall be presumed innocent until proved guilty, in a procedure prescribed by law, by a final court sentence. 99. According to Article 128, arrest is the act of taking a person and keeping him in short-term custody. 100. According to Articles 129 and 130, a person may be arrested (1) on immediate suspicion of having committed an offence; or (2) on the basis of a decision adopted by the prosecuting authority. In both cases an arrest must not exceed 72 hours from the moment of taking a person into custody. 101. According to Article 11 § 7, in the course of criminal proceedings no one shall be subjected to torture and to unlawful physical or mental violence, including such treatment inflicted through the administration of medication, hunger, exhaustion, hypnosis, denial of medical assistance and other cruel treatment. It is prohibited to coerce testimony from a suspect, accused, defendant, victim, witness and other parties to the proceedings by means of violence, threat, trickery, violation of their rights, and through other unlawful actions. 102. According to Article 17 § 4, complaints alleging a violation of lawfulness in the course of criminal proceedings must be thoroughly examined by the authority dealing with the case. 103. According to Article 27, the body of inquiry, the investigator and the prosecutor are obliged, within the scope of their jurisdiction, to institute criminal proceedings in each case when elements of a crime are disclosed, and to undertake all the measures prescribed by law in order to disclose the crimes and to identify the perpetrators. 104. According to Article 41 § 2(4), the court is entitled to request the prosecutor to institute criminal proceedings in cases prescribed by this Code. 105. Article 175 obliges the prosecutor, the investigator or the body of inquiry, within the scope of their jurisdiction, to institute criminal proceedings if there are grounds envisaged by this Code. 106. According to Article 176, the grounds for instituting criminal proceedings include, inter alia, information about crimes received from individuals and discovery of information about a crime or traces and consequences of a crime by the body of inquiry, the investigator, the prosecutor, the court or the judge while performing their functions. 107. According to Article 177, information about crimes received from individuals can be provided orally or in writing. An oral statement about a crime made during an investigative measure or court proceedings shall be entered respectively into the record of the investigative measure or of the court hearing. 108. According to Article 180, information about crimes must be examined and decided upon immediately, or in cases where it is necessary to check whether there are lawful and sufficient grounds to institute proceedings, within ten days following the receipt of such information. Within this period, additional documents, explanations or other materials may be requested, the scene of the incident inspected and examinations ordered. 109. According to Article 181, one of the following decisions must be taken in each case when information about a crime is received: (1) to institute criminal proceedings, (2) to reject the institution of criminal proceedings, or (3) to hand over the information to the authority competent to deal with it. 110. According to Article 182, if there are reasons and grounds to institute criminal proceedings, the prosecutor, the investigator or the body of inquiry shall adopt a decision to institute criminal proceedings. 111. According to Article 184 § 1, the body of inquiry, the investigator or the prosecutor, based on the materials of a criminal case dealt by them, shall adopt a decision to institute a new and separate set of criminal proceedings, while the court shall request the prosecutor to adopt such a decision, if a crime unrelated to the crimes imputed to the accused is disclosed, which has been committed by a third person without the involvement of the accused. 112. According to Article 185 §§ 1, 2, 3 and 5, in the absence of lawful grounds for institution of criminal proceedings, the prosecutor, the investigator or the body of inquiry shall adopt a decision to reject the institution of criminal proceedings. A copy of the decision shall be served on the individual who has reported the crime. This decision may be contested before a higher prosecutor or the court of appeal. The court of appeal shall either quash the decision or uphold it. If the decision is quashed, the prosecutor shall be obliged to institute criminal proceedings. 113. Article 278, entitled “scope of judicial control”, provides that a court, in cases and procedure prescribed by this Code, shall examine complaints about the lawfulness of decisions and actions of the body of inquiry, the investigator, the prosecutor and the bodies carrying out operative and reconnaissance measures. 114. According to Article 290, the suspect and the accused are entitled to lodge complaints with a court against the decisions and actions of the body of inquiry, the investigator, the prosecutor or the bodies carrying out operative and reconnaissance measures, including the refusals of such authorities to receive information about crimes or to institute criminal proceedings and their decisions to suspend or terminate criminal proceedings or to end criminal prosecution, in cases prescribed by this Code. If the complaint is found to be substantiated, the court shall adopt a decision ordering the authority dealing with the case to stop the violation of a person’s rights and freedoms. 115. According to Article 6, which lists the concepts contained in the CCP, “final decision” means any decision of the authority dealing with the case which rules out the institution of proceedings or their continuation, as well as decides on the merits of the case. 116. Article 18 provides that a person suspected or accused of a crime shall be presumed innocent until proved guilty, in a procedure prescribed by law, by a final court sentence. 117. According to Article 37 § 2(2), the prosecutor may decide not to carry out prosecution, if he considers it not to be expedient on the ground that the person has redeemed the committed act through suffering, limitation of rights and other privations which he has suffered in connection with the committed act. 118. On 25 May 2006 Article 37 of the CCP was amended and its sub-paragraph 2(2) was removed. The amended Article 37 prescribes that the court, the prosecutor or, upon the prosecutor’s approval, the investigator may terminate the criminal proceedings in cases prescribed by Articles 72, 73 and 74 of the CC. Article 72 concerns cases in which the accused actively regretted the offence, Article 73 concerns cases in which the accused was reconciled with the victim and Article 74 concerns cases in which, due to a change in the situation, the accused or the act committed by him lost their danger for society. According to the amended Article 37 of the CCP, in cases envisaged by Articles 72 and 74 of the CC criminal proceedings may not be terminated if the accused objects. 119. According to Article 263, an appeal against a decision to terminate criminal proceedings or to end criminal prosecution may be lodged with a higher prosecutor within seven days after the receipt of a copy of the decision. The prosecutor’s refusal to grant the appeal may be contested before a court. 120. According to Article 264, the criminal proceedings shall be resumed if the decision to terminate criminal proceedings or to end criminal prosecution is quashed. 121. According to Article 316 § 3, in force at the material time, inflicting violence, dangerous for life or limb, on a public official or his next-of-kin, shall be punishable with imprisonment for a period of five to ten years. 122’s personality, the application of these measures would be deemed insufficient, of administrative detention not exceeding 15 days. 123. Chapter 3.3 of this Report, which concerned the right to be free from torture and cruel, inhuman and degrading treatment and punishment, included an overview of the applicant’s particular case. The relevant extracts provide: “Violations of this right mainly concerned apprehension of a person by the police or investigative authority, upon suspicion or facts of committing a crime or an administrative infringement, the holding of such persons in custody and their interrogation. In their complaints, the complainants insist that the police have not abolished the practices of groundless apprehension, detention, the use of violence, the extraction of self-incriminating testimony and evidence, and fabricated prosecution evidence regarding the alleged crime. In criminal cases in which the police prepared the file, there are allegations that the concerned persons had to provide self-incriminating testimony in conditions of unlawful custody under the threat and use of violence and intimidation. These persons state such allegations both during pre-trial proceedings, before the investigative authority, and in court. Such statements and allegations are not fully investigated by the authorities; moreover, only superficial investigations are conducted, but only with the aim of refuting such allegations. Cases are not initiated on the basis of complaints addressed to the Prosecutor General of the country or to regional prosecutors. The review of such complaints is mainly assigned to the same investigator who is investigating the case, even when this investigator is the person whose actions are the subject of such allegations. In rare cases, when a different unit of prosecution is instructed to investigate these allegations, there are still no safeguards of an impartial investigation. During the hearing courts tend to ignore these allegations. Grisha Virabyan’s criminal case is a rather typical example of this situation. Virabyan was apprehended and taken to [the Artashat Police Department] from his village, without any grounds, at around [2.30 p.m. on 23 April 2004]. While in the police station, a police officer insulted, degraded, cursed at, and hit Virabyan. Virabyan, who did not tolerate the degrading treatment, in turn hit this police officer. Later, less grave physical injury was inflicted upon Virabyan while he was in police custody. The prosecution initiated a criminal case against Virabyan for inflicting physical injury upon the police officer. In the criminal case, all the acts of the police officer were ruled as lawful, and there was no mention of the fact that Virabyan, who was unlawfully detained by the police, received his physical injury while in police custody. Further, no police officer had been punished for inflicting such injury upon Virabyan. The Defender’s reaction to the case was straightforward: what happened must be characterized as cruel and degrading treatment against Virabyan, because the head of an agency is responsible for the health and security of a person taken or invited to his institution. The person’s behaviour in the institution may not serve as a justification for injuring him, and the staff have the duty to be tolerant. ’s Office] was instructed to investigate the case. However, there was still no progress, and Virabyan was still the only one being charged. By that time his indictment was ready to be sent to court. The Prosecutor General ordered that the charges be dropped only after the Defender intervened.” 124. Chapters 3.4 and 3.5 of this Report, which concerned the right to freedom of movement and the right to conduct assemblies, contained the following extracts: “3.4 Right to Freedom of Movement The early stages of the Defender’s activities coincided with the demonstrations that were held in the country during March and April of 2004. The opposition began to hold demonstrations and meetings with constituents in several regions starting in early February. The authorities did not interfere with these meetings. The first time the authorities interfered with the demonstrations was at the end of March in Gyumri, which involved the arrest of demonstration participants and the commencement of criminal cases against them. ... The Defender found a number of human rights violations in police actions regarding demonstrations held in the capital city in April. On the days of the demonstrations, the police reportedly limited the movement of public transport into the capital city, which violated citizens’ right to freedom of movement within the country. ... During this period, individuals were frequently apprehended for administrative infractions and taken to police stations where administrative detention was ordered against them by the court. A review of these cases shows that the legislation on administrative infractions was abused: “foul language” was cited as a basis for sentencing a person to administrative detention. ... 3.5 Right to Conduct Meetings, Gatherings, Rallies and Protests The Defender took from the courts a number of cases related to administrative infractions and conducted a thorough study. The findings were sent to the Prosecutor General of Armenia and, in light of the apparent abuses of power in such cases, it was recommended that the guilty parties be punished. Some of the Defender’s findings were isolated and sent to the Armavir Region Prosecutor for corroboration and processing. The regional prosecutor later announced that no crime was identified. The police officers in question were given warnings for some of the less significant violations.” 125. The relevant extracts from the Resolution provide: “1. Since the end of March 2004, a series of protests have been organised by the opposition forces in Armenia, calling for a ‘referendum of confidence’ in President Kocharian. The possibility of such a referendum was first mentioned by the Armenian Constitutional Court following the presidential elections in February and March 2003. The Constitutional Court later clarified its proposal and the authorities are calling the opposition demands and protests an attempt to seize power by force. 2. The demonstrations, although announced, were not authorised by the authorities, who have threatened the organisers with criminal prosecution. Following the demonstrations on 5 April, the General Prosecutor opened criminal investigations against several members of the opposition and arrested many more, in connection with the opposition parties’ rally. On the same occasion, several journalists and politicians were beaten up by unknown persons while the police stood by and took no action. 3. New demonstrations took place on 9, 10 and 12 April in Yerevan. In the early morning of 13 April, the security forces violently dispersed some 2,000 to 3,000 protesters who were attempting to march towards the presidential palace, calling for President Kocharian’s resignation. The police reportedly used truncheons, water cannons and tears gas, causing dozens of injuries. A number of protesters were arrested, including members of parliament, some of whom are members of the Assembly, and some were allegedly mistreated by the police while in custody. The security forces also assaulted and arrested several journalists who were covering the opposition rally. 4. Tensions in Armenia continue to run high; new protests are planned for the week of 26 April. For the time-being there seems to be little room for dialogue between the authorities and the opposition, even if some offers have been made and some members of the ruling majority – for example, the Speaker of the Armenian Parliament – have begun criticising the heavy-handed crackdown on demonstrations. 5. With regard to the conduct of the authorities, the Parliamentary Assembly ... is particularly concerned with the fact that: i. arrests, including those carried out on the basis of the Administrative Code, ignored the demand to immediately end the practice of administrative detention and to change the Administrative Code used as a legal basis for this practice; ... 9. The Assembly calls upon the Armenian authorities to: ... iii. immediately investigate – in a transparent and credible manner – the incident and human rights abuses reported during the recent events... iv. immediately release the persons detained for their participation in the demonstrations and immediately end the practice of administrative detention and amend the Administrative Code to this effect...” 126. The Report contains an explanatory memorandum to the draft of the PACE Resolution 1374. The relevant extracts from the explanatory memorandum provide: “Since the end of March, opposition forces in Armenia decided to jointly organise mass protests to force a ‘referendum of confidence’ in President Kocharian. The possibility of such a referendum was first mentioned by the Armenian Constitutional Court following the presidential elections in February and March last year, which were strongly criticised by the international community. ... The Armenian authorities reacted to the opposition call for protests with a campaign of political intimidation and administrative and judicial harassment. Once the protests started, the reaction was even more ruthless. Demonstrations were violently dispersed, journalists were beaten up, a large number of opposition supporters were arrested and premises of the opposition parties were raided by the police. ... In January 2004 the Assembly adopted its second monitoring report since the accession of Armenia to the Council of Europe in January 2001. Resolution 1361, adopted on this occasion, takes note of some encouraging developments that took place in the last two years... However, the Resolution ... sharply criticised the [presidential and parliamentary] elections carried out in 2003. Moreover, it listed a number of serious concerns with regard to the democratic and human rights conduct of the Armenian authorities and expressed its expectations that these issues will be speedily dealt with in accordance with Council of Europe standards and principles. Regrettably, the reaction of the Armenian authorities in the events of March and April [2004] demonstrate that the Assembly’s request for further progress was ignored and that, with regard to some of the Assembly’s key concerns, the situation has even worsened. Administrative detention With regard to the scandalous and continued use of administrative detention, Resolution 1361 urged the authorities to amend the Administrative Code to put an end to this practice which is incompatible with the organisation’s standards. The Assembly also asked the authorities to submit this new draft to Council of Europe expertise by April 2004. Instead of immediately ending this practice and preparing the necessary legislative drafts to this effect, the Armenian authorities resorted to a wide use of administrative detentions during the recent events. While it is difficult to verify the exact number of persons who were arrested and the legal basis used for their detention, most reports indicate that their number was between two and three hundred. The Assembly repeats its demand for an immediate end to the practice of administrative detention. The Administrative Code must be revised without any further delay. ... ... Regrettably, according to Human Rights Watch, several persons arrested during the recent events were subjected to abuse during their detention by the police. These allegations must be investigated, in a speedy, transparent and credible manner, and if their veracity is confirmed, persons responsible should be punished in accordance with the law.” 127. The relevant extracts of the Briefing Paper provide: “Summary At the end of March 2004, Armenia’s political opposition united in mass peaceful protests to force a “referendum of confidence” in President Robert Kocharian and to call for his resignation. In response, the Armenian government embarked on a campaign to break the popular support for the political opposition with mass arrests, violent dispersal of demonstrations, raids on political party headquarters, repression of journalists, and restrictions on travel to prevent people from participating in demonstrations. Hundreds of people were detained, many for up to fifteen days; some were tortured or ill-treated in custody... The origin of the opposition’s demands was the government’s failure to date to redress the deeply flawed 2003 presidential election, which Kocharian, the incumbent, won. Disturbingly, the government is now repeating, with increasing violence, a pattern of repression that surrounded last year’s election. At that time, the international community warned the Armenian government that its intimidation of the opposition through the use of arrests and administrative detentions must stop. However, in March and April 2004, the Armenian government not only began a fresh campaign of detentions, but added to the intimidation with security force violence. ... Human Rights Watch calls on the Armenian authorities to cease intimidating the political opposition, to stop using excessive force against demonstrators and torture and ill treatment in custody, and to hold accountable those responsible for these abuses. We call on the international community to assist the government of Armenia in urgently addressing this situation and to ensure that further acts of repression are not repeated. ... Prelude to April 12-13 At the end of March 2004, two of the main opposition groups, the Artarutiun (Justice) Alliance, which consists of nine parties – including the Republic Party, the People’s Party, and the National Unity Party – joined forces and announced its campaign of action. Following this move, the opposition intensified its efforts, making further announcements and mobilising in Armenia’s provinces. The authorities responded by restricting freedom of movement, carrying out detentions, and threatening criminal charges against opposition campaign organisers. ... From [5 April] the number of rallies in Yerevan steadily increased, as did the number of opposition supporters detained or otherwise intimidated. The Republic Party estimated that from the end of March until [12 April], police had detained, searched, or harassed more than 300 of its supporters. ... Restrictions on Travel to Yerevan From the end of March until mid-April 2004, police restricted the movement of opposition supporters trying to travel to Yerevan to attend rallies by setting up road blocks, stopping cars, questioning the passengers, and denying permission to travel further to those they believed were opposition supporters. ... On the morning of [5 April], between [10.30 a.m. and 12.00 noon], police stopped nine members of the National Unity Party in three cars at a check point as they were leaving Vanadzor, Armenia’s third largest city, on the main road to Yerevan. They were intending to participate in a rally at [3.00 p.m.] in Yerevan. Police held the nine men at the Vanadzor police station, reportedly telling them, ‘we have saved you from being beaten in Yerevan’. Police took three of the men to the local courts, which sentenced them to five days of administrative detention for not following police orders. ... Detentions: Due Process Violations and Torture It is difficult to estimate the total number of opposition supporters detained since the beginning of April 2004. By April 17, the Justice Alliance had documented the detentions of 327 opposition supporters, and the Republic Party estimated that about 300 of its members had been either detained, harassed, or searched... [Some opposition supporters] were detained and held for from several hours to fifteen days. Many were held and then released with no documentation or registration of the arrest ever having occurred. Others were taken to court, and given penalties of up to fifteen days in custody for petty offences under the Administrative Code. ... Torture and ill-treatment in police custody Human Rights Watch documented several cases of torture and ill-treatment in police custody during the government crackdown against the opposition in April 2004. Opposition party officials claim that during this period police regularly beat their supporters in police custody: “There were lots of cases of people being beaten at the police stations after detention, especially those who came from the regions” [said the press secretary of the People’s Party]...” 128. The Report contains a chapter devoted to Armenia whose relevant extracts provide: “Opposition demonstrations in April [2004] were part of a two-month campaign of mass public protests launched by opposition political parties demanding the resignation of President Robert Kocharian. ... During their campaign hundreds of opposition supporters, including prominent opposition party members, were reportedly arbitrarily detained throughout the country and dozens were sentenced to 15 days’ administrative detention after trials that were said to have fallen far short of international fair trial standards...”

train

001-87515

ENG

GBR

CHAMBER

CASE OF JACKSON v. THE UNITED KINGDOM

Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)

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

5. The applicant was born in 1960 and lives in London. 6. His wife died on 12 September 1999 leaving two children, born in 1995 and 1998. 7. On 30 March 2000 the applicant applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled, namely a Widow’s Payment a Widowed Mother’s Allowance and thereafter a Widow’s Pension, payable under the Social Security and Benefits Act 1992 (“the 1992 Act”). On 16 May 2000 the Benefits Agency refused his application because he was not a woman. He was told that he had no right of appeal since his claim had not been considered by a decision-maker. 8. On 5 October 2000 the applicant made a claim for Widow’s Bereavement Tax Allowance to the Inland Revenue for the year 1999-2000. On 12 October 2000 he was informed that his claim could not be accepted because there was no basis in domestic law allowing widowers to claim this benefit. 9. The applicant receives child benefit in the sum of GBP 100 every four weeks. 10. The relevant domestic law and practice are described in the Court’s judgments in the cases of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV; Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, 26 March 2007; and Runkee and White v. the United Kingdom nos. 42949/98 and 53134/99, 25 July 2007.

train

001-22208

ENG

AUT

ADMISSIBILITY

ROSENAUER v. AUSTRIA

Inadmissible

Christos Rozakis

The applicant, Herbert Rosenauer, is a Austrian national, who was born in 1958 and lives in Timelkam. He was represented before the Court by Mr R. Gabl, a lawyer practising in Linz. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 March 1992 the Wels Regional Court (Landesgericht) instituted preliminary investigations against the applicant on suspicion of having committed continuous aggravated fraud (gewerbsmäßiger schwerer Betrug) and illegal gambling (Glücksspiel). He was suspected of having invented, managed and promulgated an “investment-game” called “the Clou”, in which the players had to pay a certain sum to the applicant in order to obtain a place on the list of players. Subsequently, they had to entice other players to join the game, the promise being that each player’s profit would be higher the more players were enlisted thereafter. Furthermore, the applicant was suspected of having raised loans from a number of persons by promising high interest rates, while he only intended to spend the money on gambling. On 22 April 1992 the applicant was questioned for the first time by the investigating judge as regards these charges. In late 1992 an expert in information technology and an expert in mathematics and statistics were appointed. In March 1993 the latter was requested to supplement his opinion. In 1993 numerous witnesses were heard. In January 1994 an expert in bookkeeping and an expert in computer technology were appointed. From 18 March 1994 to 30 December 1994 and from 4 January 1995 to 3 March 1995 the applicant was placed in detention on remand. In May 1995 the Public Prosecutor’s Office requested all four experts to supplement their opinions. On 4 October 1996 the preliminary investigations were concluded. On 20 December 1996 the Public Prosecutor’s Office lodged the bill of indictment. It was served on the applicant’s counsel on 3 February 1997. On 1 October 1998 the trial against the applicant started before the Wels Regional Court. On 19 August 1999, after 101 days of court hearings, the Wels Regional Court convicted the applicant of aggravated fraud (gewerbsmäßiger schwerer Betrug), misappropriation (Veruntreuung) and negligent and fraudulent bankruptcy (fahrlässige und betrügerische Krida). He was sentenced to five years’ imprisonment, forty-five months of which were suspended on probation. When fixing the sentence, the court found mitigating circumstances for the applicant under section 34 § 2 of the Criminal Code (Strafgesetzbuch), namely that “the proceedings against the accused have lasted disproportionately long through no fault of the accused or his counsel”. The judgment was served on the applicant’s counsel in March 2000. Neither the applicant nor the Public Prosecutor appealed. Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows: "(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith. (2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request. (3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision in not subject to appeal.”

train

001-97016

ENG

POL

ADMISSIBILITY

WOJCIECH PIECHOWICZ v. POLAND

Inadmissible

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

The applicant, Mr Wojciech Piechowicz, is a Polish national who was born in 1978 and is currently detained in Włodawa Prison. 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 parties, may be summarised as follows. On 9 February 2005 the applicant was arrested by the police on suspicion of robbery of a jewellery store together with three other persons. On 10 February 2005 the Lublin District Court remanded him in custody. It relied on the reasonable suspicion that he had committed the offence in question and the need to secure the proper conduct of the investigation. It referred to the likelihood of a severe prison sentence being imposed on him. On 5 May 2005 the Lublin Regional Court extended the applicant’s detention until 9 August 2005 relying on the original grounds given. It further made references to the actions already taken in the investigation and indicated the evidence that still had to be taken. The court also found that there were no special grounds, as specified in Article 259 § 1 of the Code of Criminal Procedure, that would justify lifting the detention and imposing a less severe measure. The applicant’s detention was subsequently extended on 2 August and 2 November 2005 and 13 February, 19 April, 29 June, 8 September and 21 November 2006. The court referred to the grounds for detention listed in the previous decisions. The applicant did not appeal against any of the decisions. On 25 November 2005 a bill of indictment was filed with the Lublin Regional Court against the applicant and three accomplices. It comprised of charges of six offences. The prosecutor requested that twenty-two witnesses be heard and statements from 432 witnesses read out. Further, he stressed that an extensive body of evidence consisting, inter alia, of seventy-nine documents, had to be considered. On 7 February 2007 the Lublin Court of Appeal, on an application from the trial court, extended the applicant’s detention until 30 April 2007. The court relied on a strong suspicion that the applicant had committed the offences in question, which was supported by evidence from witnesses and expert reports. It considered that the severity of the anticipated penalty could by itself be a sufficient ground for continuing the detention in order to secure the proper course of the proceedings. Upon an appeal by the applicant, filed on an unspecified date, the Lublin Court of Appeal upheld that decision on 28 February 2007. On 10 March 2007 the Lublin Regional Court convicted the applicant as charged and sentenced him to ten years’ imprisonment. The applicant appealed. His detention was subsequently further extended on 9 March, 29 August, 3 October and 6 December 2007 and 27 February 2008. On 15 May 2008 the Lublin Court of Appeal upheld the first-instance judgment. It appears that the applicant failed to lodge a cassation appeal, despite its availability. On 15 January 2007 the applicant lodged a written complaint concerning the proceedings in question. The court treated it as a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). At a hearing of 26 January 2007 the applicant declared that he did not wish to lodge a complaint about a breach of the right to a trial within a reasonable time but a complaint about alleged shortcomings of the pending proceedings. Hence his complaint was not examined under the 2004 Act. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.

train

001-95138

ENG

NOR

ADMISSIBILITY

GANDRUD v. NORWAY

Inadmissible

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

The applicant, Mr Aron Gandrud, is a Norwegian national who was born in 1970 and lives in Espeland, near Bergen. He is represented before the Court by A. Kayser, a lawyer practising in Bergen. In 1993 the applicant married Ms S.M.L., a national of the United States of America (USA) who was born in 1968. Together the couple got two sons, A. and T., who were born respectively in November 1995 and August 1997. Since the couple separated in 1997 the relation between the applicant and S.M.L. has been characterised by tense conflict, lack of cooperation and mutual distrust which they had sought to have solved by US and Norwegian courts. This involved disputes about such matters as parental responsibilities, daily care and access with respect to the children and prohibition on the parents to travel with the children abroad. In July 1998 the Bergen City Court concluded that, in view of the high level of conflict, S.M.L. should be the sole holder of parental responsibilities. It decided that the children should live permanently with her and granted the applicant certain access rights. In November 1999, while an appeal was pending before the Gulating High Court, the parties concluded a judicial settlement agreement according to which the parents should share the parental responsibilities, the mother should continue to assume the daily care and the father should have certain access rights. Both the applicant and S.M.L. had a difficult upbringing. At the age of 12 the applicant moved from his mother to live with his father. S.M.L. started abusing drugs at the age of 13. In 1998 the applicant met and started cohabiting with Ms K.B. and together they got two children, born respectively in December 1999 and July 2001. He has access to them twice a week. In May 2003 the applicant married Ms H., a marriage that was turbulent and lasted only for a few months. Since 2004 he has been living with Ms M. and her five boys from two earlier relationships. The boys have had access to their respective fathers. Since 1997 the applicant has been occupied full time at home, except for periods when he worked in a support home for mentally disabled persons. He has also worked with computer programming. In 2000 S.M.L. met Mr L. and they married the same year. They got two children, Z. (born in November 2000) and C. (born in July 2005). L. was educated as engineer and was formerly employed in the off shore oil industry. Because of his back problems and S.M.L.’s drugs abuse, he stayed at home as from 2005. They lived together with their two common children and with the applicant’s and S.M.L.’s two children. S.M.L.’s drugs abuse had involved most types of narcotic substances from hashish to heroin. She had been off drugs for shorter and longer periods, notably for several years before Z. was born in 2000. As from March 2003 her drugs abuse resumed, involving injections of heroin. In November 2003 S.M.L. was hospitalised for detoxification but left after five days. After six to seven weeks she continued to intoxicate herself. In April 2004 she was again hospitalised for detoxification, for a period of 10 to 12 days. From September to December 2004 S.M.L. was again hospitalised for the same reason. In the spring of 2004 the police caught S.M.L. in possessing drugs and she was imposed a fine. When she was absent from home it was L. who looked after the children, including A. and T. when they were not with the applicant. At some time during the winter or spring of 2005 S.M.L. found it necessary because of her drugs abuse problem and pregnancy with C. to transfer the daily care of T. and A. to the applicant. The boys then moved to the home of the applicant and M. and her five children. According to the applicant this happened in January 2005; according to S.M.L. it occurred in March 2005. S.M.L. had several relapses with drugs abuse, the latest in May/June 2005. In June 2005 she was compulsorily committed to a detoxification centre for six to seven weeks until she gave birth to C. so that she should avoid taking drugs during the last part of her pregnancy. Thereafter she stayed at home under supervision by the child welfare services, involving two home visits per week by those services and her giving several urine samples per week to them for monitoring. Both A. and T. had special care needs. A. was alert, somewhat serious and pensive, and had over the years experienced difficulties at school in terms of adaptation and social relations with other children. He had been seriously burdened by the parental conflict, disruption in contacts with key persons, his mother’s drugs abuse problem and the negative focusing by one parent on the other. He was struggling with concentration and performance at school. He had a need for security, stability and freedom from involvement in the parental conflict. As from October 2005 A. received regular counselling from a psychologist. T. was a multi handicapped child, who had a brain damage and was diagnosed as suffering from the Lennox-Gastaut Syndrome (one of the most serious forms of epilepsy) and who since the age of one had had epileptic fits. He also suffered from serious mental disability, had great deficiencies in his functional and cognitive development and his mental faculties corresponded to those of a child less than one year of age. He was totally unable to assess the consequences of his acts and therefore had to be followed constantly. At times T. had been attached or tied and equipped with a helmet in order not to cause injury to himself or to others. The support apparatus had provided S.M.L.’s home with a sprinkle bed so that T. needed not be secured or attached. He went to a specialised school and spent forty days and nights every six months at a support centre with specialised personnel. In August 2005 S.M.L. wished to resume the daily care for T. and A. A returned to S.M.L. but T. continued to live with the applicant. On 6 September 2005 the applicant collected A. at his school and objected to them moving back to S.M.L.. From the same date until 20 and 25 October 2005, respectively, the applicant kept A. and T. from going to school and refused S.M.L. to have access to them. In the meantime, on 29 August 2005, the applicant made a request to the Bergen City Court for an interlocutory injunction to the effect that A. and T. should live permanently with him and that S.M.L. should be granted a right of access under supervision. On 27 September 2005 S.M.L. requested an interim decision for the daily care and the parental responsibilities in respect of the children to be granted solely to her and for the applicant to be accorded access rights. On 19 October 2005 the City Court held a preparatory meeting without the parties succeeding in reaching an agreement on temporary arrangements. On 24 October 2005 the applicant claimed the daily care and joint parental responsibilities and suggested that S.M.L. be granted access rights. After several writs had been submitted, S.M.L. filed a new request for an interim decision on 28 October 2005. On 17 November 2005 the City Court issued an interim order that S.M.L. should assume the daily care until a decision had been taken in the main proceedings and that, until such time, the applicant should not have access to A. and T. The City Court held an oral hearing from 5 to 7 December 2005, during which both parties represented by a lawyer and twenty-one witnesses were heard. By a judgment of 22 December 2005 the City Court, sitting with one professional judge and two expert lay judges (both psychologists) ordered that S.M.L. should be the sole holder of parental responsibilities and should assume the daily care in respect of A. and T. It granted the applicant access rights at the ordinary level. By way of introductory note, the City Court remarked that both parties appeared genuinely fond of their children and wishing them well. As a starting point, both parents seemed able to care for the children in a satisfactory manner. The City Court further found it established that on the whole both children had had regular contacts with both parents after their separation except for certain periods when the mother and the father had denied one another access to the children. The children were also well attached to the applicant even though it was mainly the mother who, except for a period in 2005, had assumed the daily care for them since the break-up of the parents’ relationship in 1997. The children were familiar with both parents’ housing environment, their new partners and step brothers and step sisters. A risk of change of environment could therefore not be a decisive consideration. It was difficult to predict who of the parents would contribute to giving the children the greatest possibility to have contact with both parents. Each of them had at periods refused the other to have access to the children. The level of conflict between the parents had made it difficult for them to communicate and cooperate. The conflict, which could be attributed to both parties, had had damaging effects on A., for which they both were responsible, according to Psychologist G.’s witness statement. Both parents were responsible for reducing the level of conflict. The City Court considered that S.M.L. was just as able as the applicant to take care of T.’s special needs resulting from his brain damage and epilepsy. It attached weight to the fact that the children for most of their lives had lived with their mother, expect for a longer period in 2005 when they had lived with their father according to an agreement between the parents. The City Court observed inter alia that witnesses of the child welfare services and the Sudmanske Family and Child Centre had stated that there was no suspicion that S.M.L. currently abused drugs and that it was considered that she was able to assume the care in a satisfactory manner. The City Court found established that her urine samples had proven negative and she had not abused drugs for the last six months. At present it did not appear that S.M.L. had a drug abuse problem that could have a decisive effect on her ability to assume the care. There was however uncertainty as to whether she in future would manage to refrain from taking drugs. Until the summer of 2006 the child welfare services would continue to supervise the conditions in her home. The City Court noted that A. had clearly stated to the presiding judge a wish to live with his mother together with T. Since A. was 10 years old his opinion should carry great weight. T., on the other hand, had a brain damage and it had therefore not been possible to hear his views. The City Court further noted that from 6 September 2005 the applicant had kept the children back from school and their mother for 1½ month. It found it particularly unfortunate that he in this way had interfered with their right and duty to receive education. The City Court did not accept his explanation that he did not want the children to be used as a weapon in the parental conflict; his conduct suggested that he was unable to put his children’s interests before his own interests. Considering the case as a whole, and having regard to the best interests of the children, the City Court held that they should live permanently with S.M.L. In addition to the applicant’s above-mentioned conduct in September 2005, the City Court attached decisive weight to A.’s wish to live with his mother and to the fact that, with the exception of a period in 2005, for most of the time since the couple’s separation in 1997 she had assumed the care for the children. As regards the applicant’s access to the children, the City Court found no special reasons pertaining to the applicant suggesting that he should not have access to them. After conversations with A., witness expert, Psychologist G. had stated that access to the other parent would not be negative for him provided that he had a foreseeable and secure care environment. A. had also said to the presiding judge that he wished to have access to his father. Against this background, the City Court granted the applicant access to A. and T. at the ordinary level from Friday night to Monday morning every other week-end, two weeks every summer, every other Christmas and Easter, every other autumn and winter holiday. It found no grounds for making supervision a condition for access. Finally, the City Court held that it would be in the children’s best interests that S.M.L. be the sole holder of parental responsibilities. In this connection it placed weight on the parents’ inability to communicate and cooperate due to the very tense and deadlocked conflict between them. Such cooperation was absolutely necessary especially in relation to the medical treatment and school education of T., who suffered from severe brain damage. It also had regard to the fact that the applicant as late as August 2005 had changed T.’s school without the mother’s agreement and had kept both children away from school for a longer period in the autumn of 2005. Following the City Court’s judgment, the applicant’s access to A. and T. was implemented accordingly until June 2006. In view of two reports of concern, one made by A.’s school on 1 June 2006 and another by T.’s school on 2 June 2006, S.M.L. and her lawyer asked for a meeting with the applicant and requested an explanation. The applicant responded that he did not wish to have any such meeting before the appeal hearing, whereupon S.M.L. denied him access. No access took place until the High Court’s judgment. The precise contents of these reports of concern have not been disclosed to the European Court. According to the applicant’s appeal submissions to the Supreme Court, S.M.L.’s refusal to let him have access to A. and T. after June 2006 was essentially due to his alleged failure to follow-up adequately an episode concerning damage to one of A.’s teeth during his stay at the applicant’s home. A little corner of the tooth had broken off and this the applicant had incidentally mentioned to S.M.L. once he met her in the local grocery. The applicant appealed against the above judgment to Gulating High Court. After holding an oral hearing from 19 to 22 September 2006, the High Court, sitting with three professional judges and two expert lay judges (one psychologist and one psychologist specialist), by a judgment of 5 October 2006 upheld the City Court’s judgment with regard to daily care and parental responsibilities and reduced the applicant’s access rights (applying the relevant provisions of the Child Act 1981 (barneloven)). The High Court saw no reason to hear anew A.’s views on where he should live and on access while noting that neither of the parties had wished it to do so. In its reasoning, the High Court pointed out that an assessment ought to be made of the best interests of the children in light of the case as a whole. This assessment ought to take into account such factors as who of the parents would be most able to provide the best physical and psychological care for the children, including their following-up in the short term and long term, draw limits, shield them against the parental conflict and contribute to the best possible parental contact. Regard should also be had to any risk of change of environment and the need to ensure stable conditions of upbringing. Since both children had special care needs, especially T. who would need public support measures, it would be of particular importance who of the parties was able to understand the children’s needs, to cover those needs and to do so in cooperation with the public services. Since in the present there was a judicial settlement agreement of 1 November 1999, whereby S.M.L. should assume the daily care, the parents would jointly assume parental responsibilities and the applicant would have access rights basically at an ordinary level, the question was whether concrete and demonstrable reasons for departing from this arrangement. Since they were born, the children had mainly lived with S.M.L., apart from a period in 2005. The High Court found that there were no decisive reasons for altering the children’s place of residence. Since S.M.L. had got her drugs abuse problem under control, her willingness and ability to provide the children with the best possible care and follow-up did not leave much to be desired. She had cooperated well with the social support apparatus and did all she could in order to provide the best possible conditions for the children’s upbringing. An additional positive factor was her husband. As regards the applicant, the High Court had doubts about his abilities to assume the care for the children. There was no doubt that he was very fond of his children and wished to give them the best he could, both emotionally and materially. But it was clear that his cooperation with public institutions had not been of the best and that this had led him to act in a somewhat rash manner. In this connection the High Court referred to the fact that, without having conferred with S.M.L. and without having sought professional advice, he had changed school for T. because of his disagreement with the school. This had been especially unfortunate for T., who due to his handicap had special needs for stability and security. Thereafter, he had kept both children away from school. The applicant’s cohabitation with M. and her children was a positive factor. M. appeared to be a caring person both able and willing to contribute positively to the applicant’s children. However, in view of the historical background, it would be premature to say anything about how stable this relationship was. Both parties had refused one another access to the children and were in this respect on an equal footing. In conferring the daily care of the children to S.M.L., the High Court presupposed that she would actively contribute to the access arrangements being implemented in the best possible manner for the children. In the interest of the children she ought to comment on their access with the applicant in a positive manner in their presence. The level of access fixed below would make it difficult for her to refuse access at her own whim. This was so especially for as long as the applicant was cohabiting with M., who in the worst case scenario would represent a safety valve for the children’s welfare. What militated particularly against S.M.L. being a care person for the children was her very negative attitude towards the applicant, both in her conduct vis-à-vis him and the way she had commented on him vis-à-vis the children. She had in addition contacted persons closely related to the applicant and had made very derogatory remarks about him. Her conduct in this regard could not be justified by her negative experiences of the applicant. The High Court further had regard to A.’s wishes and found no reason for separating the brothers who had a close contact. As regards housing conditions, family and social network, there was no information permitting to distinguish between the parents. In light of the above considerations, the High Court upheld the City Court’s conclusion that the children should live permanently with their mother. As regards parental responsibilities the High Court observed that it seemed unlikely that the parents’ ability and willingness to cooperate would improve. Both children, especially T., had particular needs and the parent assuming the daily care would to a large extent have to cooperate with different instances of support. As to the further question regarding the applicant’s access to the children, the High Court unanimously agreed that the arrangement under the 1999 judicial settlement agreement and the City Court’s judgment ought to be amended. With respect to T., the High Court observed that support measures by the child welfare services had been granted involving him spending every fourth week in a support centre. In view of his need for stability and foreseeability, it would be a burden to him if he were to have access to the applicant at the ordinary level. Because of T.’s mental condition, it could be questioned to what extent he was able to understand and enjoy this. Moreover, the parents were unable to cooperate about T. and to agree on how he should be treated. When staying with the applicant, T. would experience a different regime from that of S.M.L. and the support centre. This he would perceive as being very negative. Therefore the High Court considered that the applicant’s access should be reduced to one Sunday from noon to 6 p.m. every four weeks. Since he would stay every four weeks at the support centre, the applicant’s access should take place on the Sunday two weeks after so that he would spend every other week-end at S.M.L.’s home. With respect to A., the High Court was divided (five votes to one). The majority considered that in view of A.’s particular need for stability and foreseeability after the long standing parental conflict, his access to the applicant would be so damaging that it ought to be restricted. In this connection the High Court referred to the applicant’s having been unable to care for A.’s needs in an adequate manner. It decided that he should have access to A. from Saturday 10 a.m. to Sunday 6 p.m. every four weeks. The minority (one of the professional judges) did not consider A.’s access to the applicant as being negative for A. S.M.L.’s negative focussing on the applicant made it necessary to enable A. to get the opportunity to know his own father. That the applicant currently lived with M and her five children would also be an asset for A., who in addition would get the opportunity to know his two half-siblings whom the applicant had got with Ms K.B. and to whom the applicant had access every other week-end. As to the argument that A. had been tired after spending week-ends with the applicant, the minority considered that access should end on Sunday at 6 p.m. but should continue to start on Friday after school and otherwise follow the ordinary arrangement provided for by law. On 6 December 2006 the Appeals Leave Committee of the Supreme Court refused the applicant leave to appeal. In so far as the appeal concerned the application of the law on the issue of daily care, the Committee found it obvious that the appeal had no prospects of success. As for the remainder, the Committee did not consider that a different conclusion could be reached without hearing oral evidence anew on a potentially decisive point or that hearing the appeal was warranted by the general interest or other special reasons.

train

001-93043

ENG

RUS

ADMISSIBILITY

ZEMEROV v. RUSSIA

Inadmissible

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

The applicant, Mr Viktor Alekseyevich Zemerov, is a Russian national who was born in 1937 and lives in Moscow. The Russian Government (“the Government”) are represented by their Agent, Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 26 September 2000 the Lefortovskiy District Court of Moscow upheld the applicant’s action against the Ministry of Internal Affairs and awarded him a lump sum of 154,017.71 Russian roubles (RUB) in compensation for health damage and RUB 4,498.16 in monthly payments starting from 1 September 2000. The District Court also noted that monthly payments were to be adjusted to increases of the minimum statutory wage. The judgment was upheld on appeal and became final on 26 January 2001. The lump sum was paid in one month and eight days after the judgment became final. The monthly payments were made on time. However, the adjustment the authorities made was wrong and the applicant brought a civil action for damages. On 20 June 2003 the Moscow City Court, in the final instance, dismissed the applicant’s claims. On 13 October 2003 the Lefortovskiy District Court of Moscow granted the applicant’s request for reopening of the proceedings due to newly discovered circumstances. On 25 November 2003 the Lefortovskiy District Court upheld the applicant’s action against the Ministry of Internal Affairs, made an adjustment of the monthly payments the applicant asked for and awarded him a lump sum of RUB 101,272.78 representing arrears in monthly payments of compensation for damage for the period from 1 January 2001 to 30 November 2003 and RUB 9,625.78 in monthly payments from 1 December 2003. The District Court noted that monthly payments were to be adjusted to increases of the coefficient of the minimum subsistence level in Moscow. The judgment was not appealed against and became final. The lump sum was paid one month and eight days after the judgment became final. The monthly payments were paid on time. The judgment was not enforced as regarded the adjustment and the applicant sued the authorities. On 15 June 2004 the Lefortovskiy District Court found for the applicant and awarded him RUB 6,834.45 representing arrears in monthly payments for the period from 1 January to 31 May 2004 and RUB 10,992.64 in monthly payments to be increased accordingly. The judgment was not appealed against and became final on 28 June 2004. The lump sum was paid one month and ten days after the judgment became final. The monthly payments were paid on time, but the authorities again failed to adjust the monthly payments and the applicant brought another action against them. On 18 November 2005 the Lefortovskiy District Court awarded the applicant RUB 7,914.69 representing arrears in monthly payments for the period from 1 January to 31 September 2005 and RUB 11,872.05 in monthly payments to be increased according to the requirements of law. The judgment was not appealed against and became final on 28 November 2005. The lump sum was paid one month and twenty six days after the judgment became final. The monthly payments were paid on time.

train

001-87001

ENG

CZE

ADMISSIBILITY

ENKE v. THE CZECH REPUBLIC

Inadmissible

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

The applicant, Mr Günter Enke, is a German national who was born in 1943 and lives in Leipzig (Germany). He was represented before the Court by Mr M. Kyjovský, a lawyer practising in Brno. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The Government of Germany did not make use of their right to intervene (Article 36 § 1 of the Convention). The facts of the case, as submitted by the parties, may be summarised as follows. On 29 December 1993, during his stay in the Czech Republic, the applicant’s car was damaged by a snow excavator. On 30 December 1996 the applicant filed a motion seeking the issuance of a payment order and an action for damages with the Trutnov District Court (okresní soud) against the Pec pod Sněžkou Municipality (Město Pec pod Sněžkou), the Pec pod Sněžkou Services (Služby města Pec pod Sněžkou) and the owner of the excavator. The proceedings terminated on 22 December 2004 on the date on which a judgment of the District Court of 12 March 2004 became final. On 20 July 2006 the applicant applied for compensation pursuant to Act no. 82/1998 as amended. He claimed EUR 1,800 in respect of fees and expenses incurred in the domestic proceedings. In a letter of 5 March 2007 the Ministry of Justice informed the applicant that his application had been accepted, that it had been found that his right to a determination of his civil claim within a reasonable time had been violated, but that the length of the proceedings did not justify a financial compensation. The Ministry refused also the applicant’s claim regarding compensation for pecuniary damage. On 21 March 2007 the applicant informed the Registry that he did not intend to turn to a court under section 15(2) of Act no. 82/1998 as amended. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007)

train

001-91146

ENG

GRC

CHAMBER

CASE OF VONTAS AND OTHERS v. GREECE

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary damage - award

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

4. The applicants are the owners of a house and a surrounding plot of land with a surface area of 769 square metres, located on the island of Spetses. The plot is adjacent to the promenade of the Port of Spetses. The title deeds relating to this property, duly deposited in the Land Registry, date back to 1912. 5. In particular, on 11 September 1912 G.P. bought the plot at a public auction conducted by the Registrar of the Spetses Magistrates’ Court. On 5 January 1914 G.P. sold the plot to K.D., who sold it to her daughter F.V. on 8 April 1921. The latter donated a part of the plot to her daughter, the third applicant, on 16 June 1965. On 29 April 1975 F.V. donated the remaining part of the plot to her son, the first applicant. On 9 March 1990 the first applicant granted himself a life interest in the property and settled the remainder on his daughter, the second applicant. 6. All these transactions were executed by deeds of public notaries duly deposited in the transcription registry. The applicants have always declared the property to be in their ownership and have paid the relevant taxes on it. 7. In autumn 1991 the first applicant applied to the Planning Office of the municipality of Spetses for a permit to start minor building works. 8. On 5 September 1991 the municipality of Spetses claimed that the northern part of the land in question constituted land for public use. On 6 July 1992 the Planning Office rejected the first applicant’s request on the ground that the topographical survey submitted by the applicants was inaccurate, as it wrongly included public land among their property. 9. On 24 June and 15 December 1993 the municipality of Spetses and the applicants filed opposing claims with the Piraeus Court of First Instance, each asking to be declared the owners of the disputed piece of land. 10. In 1994 the Piraeus Court of First Instance delivered an interlocutory judgment ordering a number of expert assessments. In particular, the court appointed T.A., a civil engineer, to conduct an expert assessment in order to clarify whether the disputed land was included in the applicants’ title deeds (decision no. 464/1994). 11. On 8 March 2002 T.A. took into consideration the applicants’ title deeds, the planning legislation in force and the official topographical and planning charts of the Planning Office of the Piraeus Prefecture and produced his expert report. After having prepared a topographical survey, he concluded that the disputed land was included in the applicants’ title deeds. 12. On 25 September 2003 the Piraeus Court of First Instance dismissed the applicants’ claims, holding that an area of 220 square metres on the northern side of the applicants’ garden constituted public land (judgment no. 4328/2003). In particular, the Piraeus Court of First Instance took into account several witnesses’ testimonies and aerial photographs and attached particular importance to the fact that the applicants had never exercised any ownership rights over that part of the land, since they had never cultivated it or planted trees or erected a fence there. 13. On 24 November 2003 the applicants appealed to the Piraeus Court of Appeal. 14. On 28 February 2005 the Piraeus Court of Appeal dismissed the applicants’ appeal (judgment no. 213/2005). In particular, it held that according to a rule of Byzantine-Roman law (vetustas), which had been applied in Greece before the introduction of the Civil Code in 1946, a property could be considered to be “for public use” (κοινόχρηστο) if it had been in common use for “an indefinite number of years in human memory” (αμνημονεύτου χρόνου αρχαιότητα). It further explained that, for this rule to be applied, two generations of people, each one spanning forty years had to remember that the disputed land had been in public use in the past. This eighty-year period in human memory must had to have been completed by 23 February 1946, the date on which the Civil Code had come into force, since the Code did not provide for such a rule. 15. Subsequently, the Piraeus Court of Appeal applied the above rule and found that it was proved from the testimonies of the witnesses put forward by the municipality of Spetses that the disputed land had been freely used by local people from 1866 to 1946 and had thus become public. It concluded that, independently of the question whether the disputed land was included in the applicants’ title deeds, it had become land “for public use”, and thus part of the municipality’s property. Furthermore, it considered that the fact that the land in issue did not appear as public property in the official planning charts of the island of Spetses was of no importance since the land had become public because of its public use. 16. On 14 June 2005 the applicants appealed to the Court of Cassation. 17. On 15 February 2006 the Court of Cassation dismissed the appeal. It held that the Piraeus Court of Appeal had correctly applied Byzantine-Roman law to the facts of the case. It accepted that it had been proved that the disputed land had been in common use since 1866 and concluded that the applicants had never become its owners (judgment no. 299/2006). Its judgment was “finalised” (καθαρoγραφή) on 12 April 2006.

train

001-67765

ENG

TUR

CHAMBER

CASE OF TALAT TEPE v. TURKEY

No violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

10. The applicant was born in 1961 and is at present living in Istanbul. 11. On 6 August 1992, based on the statements given by two members of the PKK to the police, the public prosecutor at the Diyarbakır State Security Court ordered the arrest of five people, including the applicant, on suspicion of aiding and abetting an illegal terrorist organisation. Several terrorist acts, including an attack on the Hersan Police Station, carried out by the PKK were mentioned in the order. The public prosecutor further requested to be kept informed every three months about the progress being made in the investigation. 12. On 9 July 1995 at 5.40 a.m., the police eventually arrested the applicant at the Istanbul Atatürk Airport on the basis of an order prohibiting him from leaving the country. At about 10 a.m. he was taken to the Gayrettepe Office for the Enforcement of Judgments in Istanbul. 13. On 11 July 1995 at 2 p.m., the applicant was taken into custody at the Istanbul Security Directorate. On the same day the public prosecutor at the Istanbul State Security Court authorised the Istanbul Security Directorate to extend the applicant's detention for ten days, starting from 9 July 1995. 14. On 17 July 1995 the applicant was examined by a doctor at the Haseki Hospital in Istanbul. The doctor noted in his report that no pathological findings had been found on the applicant's body and that the final medical report would be drafted by the Forensic Medicine Institute. 15. On 18 July 1995, at about 6 a.m., the applicant was taken to the Istanbul Atatürk Airport. The applicant and the police officers who accompanied him took a plane to Bitlis. At 2 p.m. he was handed over to police officers from the Bitlis Security Directorate. On the same day, the Bitlis Public Prosecutor authorised the extension of the applicant's detention for three more days. 16. The applicant alleged that he was subjected to ill-treatment in the Bitlis Security Directorate, which included beatings, electric shock treatment, blindfolding, verbal insults, hosing with cold water, being stripped naked and deprived of food. 17. On 19 July 1995 the applicant was driven to different places around Bitlis in order to locate his different meeting places with terrorists. A sketch map, describing the attack on the Hersan Police Station and how he had assisted the terrorists, was drafted by police officers. In a statement signed by the applicant on 19 July 1995, he confessed that he had aided members of the PKK. He alleged that, after having signed this confession, he was again subjected to ill-treatment. 18. On 20 July 1995 the applicant was seen by a doctor in Bitlis who noted in his report that there were no marks on his body of beatings or injuries consistent with the use of force. The applicant alleged that the doctor neither spoke to him nor examined him. 19. On the same day the applicant was first brought before the Diyarbakır State Security Court Public Prosecutor who decided to join the investigation file on the applicant dated 1992 to the new investigation file dated 1995. The applicant contended that his police statements were taken under duress and refuted the reliability of the medical report. Moreover, he denied all the allegations made against him. Later he was taken before the judge at the Diyarbakır State Security Court. He repeated that his police statements were taken under duress and refuted the allegations against him. Noting that the applicant had a profession and a permanent address, the judge concluded that there was nothing in the case file that required the applicant's detention pending trial and ordered his release. 20. On 23 July 1995 the applicant went on his own to be examined by another doctor. The subsequent medical report dated 15 August 1995 read as follows (translation): “Report: Talat Tepe, born 1961 in Mutki Bitlis, was taken into custody in Istanbul on 9 July 1995 and was held in custody for a total of twelve days; ten days in Istanbul and two days in Bitlis. During his detention in Istanbul, he was subjected to duress, such as not having access to means of communication and not being allowed to receive visitors despite his requests. In Bitlis, he was subjected to physical and psychological torture for almost 40 hours. He was interrogated while he was completely naked. He was held in a cold and dirty cell which had a stone floor. His access to the toilet and sanitary materials were restricted. He was subjected to offensive language and behaviour. He was threatened with death. He endured psychological pressure which led to desperation and destroyed his self-confidence (he was repeatedly told that he would be put on trial and subsequently be sentenced to death; he would be killed even if he was released, etc.). He was beaten up four to five times during this interrogation. As a result of moving cables around his body, he was subjected to electric shocks six times in succession, mainly on his legs and feet. He was hosed down with cold water. His testicles were squeezed. He was basically subjected to a kind of torture which endangers the victim's life and causes extreme pain, but does not always leave marks on the body. While in Istanbul he had to pay for his food. During the 40 hours of detention in Bitlis, he was unable to eat the food given to him since he was exhausted as a result of the torture. He was not supplied with water and he was told that drinking water after being subjected to torture would be dangerous for his health. Before being released he was taken to the Bitlis State Hospital, where a medical report was issued, revealing that he was in good health. This report was prepared in the absence of a proper physical examination. On 23 July 1995 the torture victim had pain in his shoulders and back. He was suffering from weariness and violent headaches. He was going through the interrogation all over again in his dreams. During his sleep he needed to go to the toilet frequently, and he was often going through the whole interrogation procedure in his dreams. The weariness and the dizziness of the victim were easily observed during the first examination. The results of blood and urine tests were normal. As a result of the neurological consultation, his neck movements were observed to be painful, and hypoesthesia and hypoalgesia were found in his left C5 dermatome. In the cervical BT examination no medullar and spinal chord compression was discovered. It was considered that the applicant's complaints were due to the trauma applied to the cervical region. He is provided with an anti-inflammatory treatment and he is under surveillance. As a result of the psychiatric consultation, traumatic experience related insomnia was discovered. It was stated that he did not need psychotherapy. Considering his state of health, it would be appropriate for him to rest for 7 (seven) days. 15 August 1995 Dr Emel Gökmen (signature)” 21. On 24 November 1995 the public prosecutor at the Diyarbakır State Security Court filed an indictment with the same court accusing the applicant of aiding and abetting an illegal armed organisation, contrary to Articles 31 and 169 of the Criminal Code and Article 5 of Law no. 3713 on the Prevention of Terrorism. 22. On 6 June 1996 the Diyarbakır State Security Court acquitted the applicant of the charges due to lack of evidence. 23. On 12 July 1995 the applicant's lawyers filed petitions with the Ministry of Justice complaining about the excessive length of the applicant's detention in police custody. 24. On 18 July 1995 the Ministry of Interior requested the Istanbul Public Prosecutor to investigate the complaints made by the applicant's lawyers. 25. On 27 July and 1 August 1995 the Istanbul Public Prosecutor took statements from the applicant's lawyers. They complained about the excessive length of their client's detention and his ill-treatment during his detention in Bitlis Security Directorate. 26. On 17 August 1995 the Istanbul Public Prosecutor took the applicant's statements. The applicant complained about the length of his detention and criticised the public prosecutor at the Istanbul State Security Court who had unlawfully authorised the prolongation of his detention. Moreover, he gave details of the alleged ill-treatment in Bitlis Security Directorate. He gave a description of the two police officers who were allegedly responsible for this treatment and maintained that one of them was the person who drove him from the airport to the Security Directorate. He stated that the doctor who examined him on 20 July 1995 did not ask him any questions and only checked the upper part of his body. However, he contended that the treatment that he had been subjected to was not the type of treatment which would necessarily leave traces on the body. Moreover, he was unable to complain to the doctor because police officers were present in the room. He further maintained that, apart from the documents in the case file before the Diyarbakır State Security Court, he did not have any evidence or witnesses to substantiate his allegations. 27. On 18 August 1995 the Istanbul Public Prosecutor sent a letter to the Bitlis Public Prosecutor requesting him to investigate the applicant's allegations of torture. 28. On 29 August 1995 the Bitlis Public Prosecutor requested information from the Bitlis Security Directorate about the identity of the two police officers who drove the applicant from the airport to the Security Directorate. Moreover, he sent a letter to the Diyarbakır State Security Court requesting a copy of the applicant's case file. He also sent a letter to the Istanbul Public Prosecutor requesting to have the applicant examined by a forensic doctor for traces of torture that allegedly occurred during his detention in Bitlis Security Directorate. 29. On 8 September 1995 the Bitlis Security Directorate informed the Bitlis Public Prosecutor of the names of the police officers who drove the applicant from the airport to the Security Directorate as well as those of the officers who questioned him during his detention. On 14 September 1995 five police officers were summoned before the Bitlis Public Prosecutor. In their statements to the public prosecutor all five police officers refuted the applicant's allegations. 30. On 24 October 1995 the Bitlis Public Prosecutor repeated his requests to the public prosecutor at the Diyarbakır State Security Court and the Istanbul Public Prosecutor. 36. On 18 April 1996 the Provincial Administrative Council in Bitlis decided that charges should not be brought against the five police officers. It noted in its decision that the applicant was interrogated on 19 July 1995 and seen by a doctor in the Bitlis State Hospital on 20 July 1995; a medical report drafted on the same day found no traces of blows to the applicant's body and mentioned that, subsequently, on 20 July 1995, the applicant was released following a decision of the Diyarbakır State Security Court. The Council consequently held that, contrary to what was claimed by the applicant, he had not been subjected to torture. 37. The applicant did not appeal against the decision of the Provincial Administrative Council. The decision was examined ex officio by the Supreme Administrative Court. On 18 March 1998 the court upheld the decision of the administrative council holding that there was no evidence to substantiate the applicant's claim that the police officers had committed the alleged crime. 38. The relevant domestic legislation is outlined in the Court's Tepe v. Turkey judgment (no. 27244/95, §§ 115-122, 9 May 2003).

train

001-58817

ENG

PRT

CHAMBER

CASE OF LOPES GOMES DA SILVA v. PORTUGAL

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

Georg Ress

8. The applicant is a Portuguese national. He was born in 1945 and lives in Lisbon. He is a journalist and at the material time was the manager of a large-circulation daily called Público. 9. An article appeared in the 10 June 1993 issue of Público stating that the Popular Party (Partido Popular - CDS/PP) had asked Mr Silva Resende, a lawyer and journalist, to stand in the Lisbon City Council elections. That information had also been published by the Portuguese press agency LUSA. 10. On the same page the applicant published an editorial containing the following passages: “... [the Chairman of the CDS/PP] has shown himself capable of exceeding even the most vulgar of caricatures ... This is clear from the CDS leadership's unthinkable choice of candidate to head the party's list in the Lisbon City Council elections. One need only read the extracts from recent articles by Mr Silva Resende in the Jornal do Dia which we publish in this issue to form an idea of the character being backed by the new Popular Party in the country's main city council elections. As ludicrous and grotesque as this will appear, it is nevertheless true. Not in the oldest or most delapidated ruins of Salazarism could an ideologically more grotesque and more buffoonish [boçal] candidate have been dug out: such an incredible mixture of crude reactionaryism [reaccionarismo alarve], fascist bigotry and coarse anti-Semitism. Any leading figure of the Salazar regime [Estado Novo] or any mayor of Lisbon from the former regime would come across as singularly progressive compared to this brilliant find ... It would all be merely an inconsequential anecdote or a surreal political oversight if it were not revelatory of a hidden facet which the CDS is trying to disguise behind the diaphanous veil of the modern Right. Incapable of finding a credible candidate for the Lisbon City Council, which is already symptomatic of the fragility of a party desirous of presenting itself as a possible party of government, the leadership of the CDS has resorted to a character who represents the most complacent, stale and ridiculous aspects of the Portuguese right-wing. A character who seems never to have really existed and that no humorist of however dubious taste would have been capable of imagining as the last of the Salazarian abencérages [salazarenta] in the 1990s. We presume that the young leader [of the CDS/PP] believes he has found, in desperation, someone capable of attracting at least football fans, which is the domain in which Mr Silva Resende has forged a remarkable career. It would appear that the majority of young Turks among the leadership of the CDS have contented themselves with reading Mr Silva Resende's football columns while remaining unaware of the rare pearls of his political beliefs...”. 11. In the same issue of Público numerous extracts of recent articles by Mr Resende were published on the same page as the applicant's editorial. The following are a selection of those extracts: “The bald-headed Jew [Mr L. Fabius] who spends his life, during his public appearances, militating in favour of secularism and the Republic (the two pillars of religious and patriotic impiety are sufficient in themselves to enable any reader of average intelligence to decode his real intentions) concluded after the elections that they [the socialists] were defeated because of their political practice and not because of their ideals.” (Jornal do Dia, 6 April 1993) “The Clintons' past, and above all the style of their campaign for the Whitehouse, were very revelatory of a fresh conspiracy of the Left at its most deviant: war on the property of others, the cult of agnosticism, moral relativism, social hypocrisy, the inhuman secularism of life. To obtain an idea of the forces mobilised to catapult the Clintons to power, one need only mention that the Jewish lobby paid 60% of the electoral expenses whereas it represents only 5% of the electorate.” (Jornal do Dia, 16 April 1993) [on the 25 April 1974 revolution] “... Americans and Russians reached an agreement to inflict a blow on Portugal in Lisbon. We were betrayed by the United States, we were betrayed by NATO, which has placed a naval fleet at the gates of Lisbon in case their blow should fail.” (Jornal do Dia, 21 May 1993) “It is no coincidence if politicians everywhere are involved in serious corruption. This moral chaos, which threatens to suffocate the world and leads to generalised perversity and attracts divine punishment, began several years ago when the machinery of ideological poisoning and agents of the propagation of error installed themselves comfortably everywhere, when they perverted youth, converting them to idols; when they tore women from the sanctuary of the home; when they flooded the world with their exhibition of vice; and, lastly, when they infiltrated political parties, placing them at the service of impiety.” (Jornal do Dia, 25 May 1993) “The Masonic Lodge and the Jewish Synogogue, even when not imposing their initiation rights and practices, are always flirting with the owners of power. Sometimes their members even succeed in being appointed to public posts. Le Pen's National Front movement is the only exception to this more or less subtle penetration. “Lepenism” is labelled a racist movement and is persecuted by the most unimaginable means, ranging from assault in broad daylight, sabotaging of meetings and systematic slander to the adoption of iniquitous laws to prevent it from penetrating the social fabric and above all climbing up the steps leading to power. The National Front is certainly not above a number of political sins, but it is the only political force which openly fights for the restoration of a France which proclaims the values of Christian civilisation opposed to Leftism, which, since 1789, has been plundering national energies and has turned the national flag into a symbol of heresy.” (Jornal do Dia, 27 May 1993) “It pains me to have to broach subjects which exude Satan's breath. However, the city of mankind is made up of all sorts and the Devil is undeniably exerting his influence throughout this world devastated by sin. ... Ten years ago a survey of attitudes to sin was carried out in France. The vast majority of those questioned replied broadly that sin did not exist, but was a taboo invented by medieval obscurantism. The huge setback represented by that response gives us an idea of how decadent we have become and of the abyss into which contemporary society is falling.” (Jornal do Dia, 5 June 1993) “Most people are unaware that Hitler and Mussolini were socialists and that it was in that capacity that they won power in their respective countries using all the tricks and violence supplied them by the canons of the Left.” (Jornal do Dia, 8 June 1993) 12. Following publication of the editorial in question, Mr Resende lodged a criminal complaint against the applicant with the Lisbon public prosecutor's department and sought leave to intervene in the proceedings as an assistant of the prosecuting authority (assistente). The applicant was subsequently charged with libel through the medium of the press (abuso de liberdade de imprensa). 13. In a judgment of 15 May 1995 the applicant was acquitted by the Lisbon Criminal Court. The court held that the expressions used by the applicant could indeed be construed as insults, but that there had not been an intention to defame. In the court's view, the expressions in question should be construed as criticism of Mr Resende's political beliefs and not of his reputation or his conduct. The court added that account also had to be taken of the extracts from articles by Mr Resende and the incisive manner in which he had referred to a number of public figures, even going so far as to attack their physical features. 14. On appeal by Mr Resende and the public prosecutor, the Lisbon Court of Appeal (Tribunal da Relação) set aside the decision in a judgment of 29 November 1995. The court weighed up the conflicting interests and considered that certain expressions used by the applicant, such as “grotesque”, “buffoonish” and “coarse”, were plain insults which exceeded the limits of freedom of expression. In the Court of Appeal's opinion, the applicant had recklessly committed the offence of which he had been accused. The applicant was accordingly fined 150,000 Portuguese escudos (PTE) and ordered to pay PTE 250,000 in damages to Mr Resende and, lastly, to pay costs amounting to PTE 80,000. 15. Relying on, inter alia, Article 10 of the Convention, the applicant lodged a constitutional appeal with the Constitutional Court (Tribunal Constitucional). He submitted that the Court of Appeal's interpretation of the relevant provisions of the Criminal Code and of the Press Act infringed the Constitution. 16. The Constitutional Court dismissed the appeal in a judgment of 5 February 1997 of which the applicant was notified on 10 February 1997. After stressing that both the Constitution and Article 10 of the Convention provided for certain limits on the exercise of freedom of expression, it held that the provisions referred to by the applicant, as construed and applied by the Court of Appeal, were not contrary to the Constitution. 17. Articles 38 and 26 (as in force at the material time) of the Portuguese Constitution protect the freedom of the press and the right to respect for personal honour and reputation. 18. Article 164 of the Criminal Code at the material time provided: “1. Anyone who, in addressing a third party, makes an accusation against another, even by merely casting suspicion, or expresses an opinion injuring that person's honour and reputation, or who reproduces such an accusation or opinion, shall be liable to a prison sentence of up to six months and a penalty of up to fifty day-fines. 2. The author of the statement shall not be punishable (a) if the accusation is motivated by a legitimate public interest or other valid reason; and (b) if he proves the truthfulness of such an accusation or has serious grounds for believing in good faith that it is true. ...” 19. Article 167 § 2 of the Criminal Code increased the penalties in question to a maximum of two years' imprisonment and 240 day-fines in respect of offences committed through the medium of the press. 20. Section 25(1) of the Press Act, in the version applicable at the material time (Legislative Decree no. 85-C/78 of 26 February 1978), provided: “Acts or conduct capable of infringing a legal interest protected by the criminal law and committed through the publication of texts or images in the press shall be considered to be offences committed through the medium of the press.” 21. Section 25 (2) provided that those offences fell within the criminal law. It also provided that an accused who had no previous conviction for the same offence could be sentenced to a fine instead of a custodial sentence.