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glnmario

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ECHR

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train

001-86963

ENG

RUS

CHAMBER

CASE OF MOROKO v. RUSSIA

Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy;Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

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

4. The applicant was born in 1979 and lives in Krasnoyarsk. 5. In 2001–02 he stood trial for a drugs offence and was acquitted. He sued the State for compensation for the unfounded prosecution and pre-trial detention. 6. The case came before the Leninskiy District Court of Krasnoyarsk. By its judgments of 5 December 2003 and 21 September 2006 the court ordered the Ministry of Finance to compensate the applicant’s non-pecuniary and pecuniary damage. The judgments became binding on 2 February 2004 and 16 November 2006, but were not enforced immediately. 7. The judgment of 5 December 2003 was enforced on 21 October 2005 when the Ministry credited the judgment debt to the applicant’s bank account. 8. The judgment of 21 September 2006 which was enforceable as of 16 November 2006 was not enforced immediately. The writ of enforcement was sent by the court to the bailiff service two months and seven days after the judgment had become final. On the same date the bailiff service returned the writ to the court as it lacked competence to enforce this judgment under the relevant provisions of the Budgetary Code. Two months later, i.e. on 27 March 2007, the applicant sent the relevant documents to the Federal Treasury, and on 15 August 2007 the judgment debt was credited to the applicant’s bank account. 9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment in two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must honour a judgment in three months. 10. Chapter 25 of the Code of Civil Procedure allows a person to appeal in court against an authority whose actions breach his rights (Article 254). If the appeal is well-founded, the court will order the authority to make good the breach (Article 258). 11. Article 208 of the Code of Civil Procedure empowers a court to upgrade the amount of a judgment debt, if a creditor so asks. 12. Chapter 59 § 4 of the Civil Code obliges the State to compensate a person’s non-pecuniary damage caused by a breach of his property rights.

train

001-69236

ENG

RUS

CHAMBER

CASE OF NOVOSELOV v. RUSSIA

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

Christos Rozakis

8. The applicant was born in 1961 and lives in Krasnodar. 9. On 26 June 1998 the applicant had a loud quarrel with his neighbour and assaulted him. Further to the neighbour's complaint, the police opened criminal proceedings against the applicant. 10. On 27 October 1998 the applicant was taken in custody and placed in investigations ward no. IZ-18/3 of Novorossiysk* (ИЗ 18/3 г. Новороссийска, “the facility”). 11. On 5 November 1998 the Oktyabrskiy District Court of Novorossiysk found the applicant guilty of disorderly behaviour, an offence under Article 213 § 1 of the Russian Criminal Code, and sentenced him to six months' imprisonment. 12. The applicant served the sentence in the same facility. He was released on 28 April 1999. 13. The applicant stayed in cells nos. 11 and 3. 14. According to the applicant, each cell measured approximately 42 m2 and accommodated 42 to 51 inmates. Inmates took turns to sleep. Thirty sleeping places were available, of which two were occupied with water receptacles for washing and flushing the toilet. The water containers were needed as running water was only available for one hour three times a day. No bedding was provided to inmates, save for tattered cotton mattresses. Between 5 November and 28 December 1998 in cell no. 11 the applicant had to sleep without a mattress on metal plates, covering himself with an old, dirty and worn cotton rag. 15. The Government did not dispute the cell measurements suggested by the applicant. They submitted that each cell had had 30 sleeping places, a full set of bedding had been distributed to each inmate and sleeping berths had been made of metal plates and covered with wadded mattresses. 16. According to the applicant, the ventilation in cells was only switched on for a few minutes when “inspectors” visited the facility. Windows were covered with steel plates leaving an open slot of about 10 cm. There was no fresh air in the cells. 17. The Government submitted that cells had been equipped with ventilation. It was switched on and off “in accordance with the schedule approved by the facility director” (order no. 41 of 26 May 1998). A copy of the schedule has not been produced to the Court. On “especially hot” days, doors were open to ensure a better circulation of air. At the material time windows had been covered with metal shields which were removed in 2002. 18. According to the applicant, the lavatory pan sat on an elevation of 0.5 m above the floor. A partition of 1.1 m in height separated it from the rest of the cell. Occasionally an inmate hung a sheet to have some privacy. According to the Government, lavatory pans were located at the entrance and separated from the living area by a brick partition measuring 1.3 m in height and width. 19. According to the applicant, inmates were given one piece of soap per week for the entire cell population. No laundry detergent was available. According to the Government, each inmate received 200 g of washing soap and 70 g of laundry detergent each month. Bathing was possible “regularly”. 20. The applicant claimed that a thick, black and footworn layer of dirt had covered the floor. Inmates' clothing swarmed with lice, spiders and other insects. Between 5 November 1998 and 15 January 1999 cell no. 11 was not once sanitised. Between 15 January and 28 April 1999 cell no. 3 was sanitised on one occasion. In the Government's view, the sanitary and hygienic conditions of the cells were up to the applicable standards and insecticide was distributed every month. 21. According to the applicant, the facility administration took complaints, requests and letters from inmates once a day, between 4.30 and 5 a.m. According to the Government, complaints and requests were taken from inmates during the morning inspection of cells starting at 8 a.m. 22. The applicant further submitted that the food ration had consisted of bread, millet porridge, boiled pearl barley and no-meat soup. In six months inmates were fed on five occasions with pea soup, soup with pasta and boiled rice. 23. In April 1999 the applicant contracted scabies and he received sulphuric and benzyl ointments to treat himself. He was not isolated from other inmates. The applicant's cellmates who contracted scabies and other skin diseases were not taken out of the cell either. The applicant submits that tuberculosis-infected inmates spent, on several occasions, a few days in his cell. According to the Government, infected inmates were isolated in a special wing. The applicant twice fell ill with a high temperature and he was treated with sulphadimisin and aspirin. From 13 to 20 April 1999 the applicant underwent outpatient treatment for dermatitis. 24. By the time of his release, the applicant had lost 15 kilograms in weight, he felt short of breath while walking, tired easily, could not run, and suffered from pustules and itching all over his body. 25. On 5 May 1999 the applicant was examined in clinic no. 1 of Novorossiysk and issued with a certificate confirming that he suffered from emaciation. 26. On 30 July 2002 the applicant filed a civil action for damages against the Treasury of the Russian Federation. He claimed compensation for non-pecuniary damage caused by “inhuman and degrading” conditions of detention in facility no. 18/3. He described the conditions of his detention in detail and relied, in particular, on Article 3 of the Convention. 27. On 1 October 2002 the Pervomayskiy District Court of the Krasnodar Region dismissed the applicant's action. It held that the applicant had failed to prove that the officials of facility no. 18/3 had been liable for pecuniary or non-pecuniary damage allegedly caused to him. The court noted that the applicant had served his sentence upon the lawful conviction by a competent court and, therefore, the responsibility of the treasury was not engaged. 28. On 14 November 2002 the Krasnodar Regional Court upheld, on an appeal by the applicant, the judgment of 1 October 2002. 29. Persons sentenced to no longer than six months' imprisonment may consent to serving the sentence in investigations wards (Article 74 § 1). 30. The norm of habitable floor surface per one inmate is fixed at 2.5 m2 in prisons (Article 99 § 1). Inmates shall have individual sleeping places and bedding, as well as personal hygiene articles (soap, toothbrush, toothpaste, toilet paper, disposable shavers) (Article 99 § 2). 31. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. 32. The relevant extracts from the General Reports 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... 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...”

train

001-72146

ENG

TUR

CHAMBER

CASE OF ÜLKE v. TURKEY

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

9. The applicant was born in 1970 and lives in İzmir. 10. Until 1985 he lived in Germany, where he completed part of his schooling. He subsequently moved to Turkey, where he continued his education, eventually going on to university. 11. In 1993 he became an active member of the Association of Opponents of War (Savaş Karşıtları Derneği – “the SKD”), founded in 1992. Until late 1993 he represented the SKD at various international conferences in different countries. After the SKD was dissolved in November 1993 the İzmir Association of Opponents of War (İzmir Savaş Karşıtları Derneği – “the ISKD”) was founded and the applicant served as its chairman from 1994 to 1998. 12. In August 1995 the applicant was called up. Invoking his pacifist convictions, he refused to perform military service and publicly burned his call-up papers at a press conference in İzmir on 1 September 1995. 13. On 8 October 1996 he was arrested. On 18 October 1996 he was indicted by the military prosecutor attached to the Ankara Military Court of the General Staff (“the General Staff Court”), under Article 155 of the Criminal Code and Article 58 of the Military Penal Code, on a charge of inciting conscripts to evade military service. 14. In a judgment of 28 January 1997 the Ankara General Staff Court sentenced the applicant, on the basis of the indictment of 18 October 1996, to six months’ imprisonment and to a fine. The court also found that the applicant was a deserter and made an order requesting the military prosecutor attached to that court to enlist him. 15. On 3 March 1997 the applicant lodged an appeal on points of law. In his grounds of appeal he relied on, among other provisions, Articles 9 and 10 of the Convention, claiming that he was a conscientious objector. 16. In a judgment of 3 July 1997 the Military Court of Cassation upheld the first-instance judgment. 17. In the meantime, on 22 November 1996, the applicant was transferred to the 9th Regiment, attached to the Bilecik gendarmerie command. He refused to wear military uniform or carry out the orders of the regiment’s commanding officer. He was detained in the regimental prison, where he refused to wear prison uniform. 18. On 26 November 1996 the military prosecutor at the Court of the Eskişehir Tactical Air Forces Command (“the Command Court”) indicted the applicant on a charge of “persistent disobedience” and sought his conviction under Article 87 of the Military Penal Code. 19. Ruling on the applicant’s refusal to wear prison uniform, the Command Court, in a judgment of 2 December 1996 after urgent proceedings, restricted his right to receive visitors for fifteen days, as a disciplinary measure. 20. Ultimately, in a judgment of 6 March 1997, the Command Court sentenced him to five months’ imprisonment for persistent disobedience. 21. On 4 July 1997 the Military Court of Cassation upheld the judgment of 6 March 1997. 22. In the meantime, the applicant had failed to rejoin his regiment after being released on 27 December 1996. He was arrested and remanded in custody. 23. He was indicted on 7 March 1997 by the military prosecutor at the Command Court, on charges of desertion and “persistent disobedience”. 24. In a judgment of 23 October 1997 the Command Court sentenced the applicant to ten months’ imprisonment and to a fine. 25. In the meantime, on 29 May 1997, he had been released on the condition that he rejoined his regiment on 31 May to perform his military service. As he failed to do so he was arrested on 9 October 1997 and transferred to Eskişehir prison to serve the sentence imposed by the Command Court on 6 March 1997. 26. In an indictment of 16 October 1997 the military prosecutor at the Command Court called for the applicant’s conviction for desertion between 31 May 1997 and 9 October 1997. 27. In a judgment of 22 January 1998 the Command Court sentenced the applicant to ten months’ imprisonment on the basis of the charges in the bill of indictment. 28. In a judgment of 30 September 1998 the Military Court of Cassation upheld the judgment of 22 January 1998. 29. On 26 January 1998 the applicant was escorted to his regiment at Bilecik. He was arrested for refusing to wear military uniform. 30. In a judgment of 11 June 1998 the Command Court sentenced him to seven months and fifteen days’ imprisonment on account of incidents that had occurred on 28 January 1998. 31. On 7 October 1998 the Military Court of Cassation upheld the judgment of 11 June 1998. 32. After being escorted back to his regiment on 20 March 1998, the applicant was arrested on 21 March 1998 for refusing to wear his military uniform. 33. In a judgment of 4 May 1998 the Command Court sentenced him to seven months and fifteen days’ imprisonment for “persistent disobedience” on 20 and 21 March 1998. 34. In a judgment of 7 October 1998 the Military Court of Cassation upheld the judgment of 4 May 1998. 35. In the meantime, on 4 May 1998, the applicant was sent back to his regiment, where he refused to wear military uniform. 36. In a judgment of 11 June 1998 the Command Court sentenced him to seven months and fifteen days’ imprisonment on account of the incidents of 4 May 1998. 37. In a judgment of 7 October 1998 the Military Court of Cassation upheld the first-instance judgment of 11 June 1998. 38. The applicant was released on 24 November 1998 and transferred to his regiment, but once again refused to wear military uniform. 39. He was prosecuted and arrested on account of the incidents of 24 November 1998, and on 26 November 1998 the Command Court sentenced him to seven months and fifteen days’ imprisonment. 40. In a judgment of 22 September 1999 the military Court of Cassation upheld the judgment of 26 November 1998. 41. The applicant served a total of 701 days in prison as a result of the above sentences, with the exception of the prison sentence imposed after his last conviction. He is wanted by the security forces for the execution of his sentence and is currently in hiding. He is no longer active in the association or in any other political activity. He has no official address and has broken off all contact with the authorities. He has been accommodated by his fiancée’s family. He has been unable to marry her legally or to recognise the son born to them. 42. Article 72 of the Constitution provides: “Patriotic service is a right and a duty for every Turkish citizen. The conditions in which that service shall be performed or deemed to have been performed in the armed forces or civil service shall be laid down by law.” 43. The legal provisions currently in force govern only the performance of national service in the armed forces. No alternative civil service is provided for by law. 44. Section 1 of the Military Service Act (Law no. 1111 of 17 July 1927) reads: “... every man of Turkish nationality shall be obliged to perform military service.” 45. Under section 10(2) of the Military Service Act, when the number of conscripts exceeds the requirements of the armed forces, they may be allowed, after carrying out basic military training, to perform military service for a shorter period in return for the payment of a tax, or to finish their service in the public sector. 46. The Military Penal Code stipulates that once they have been placed on the muster rolls for military service, conscripts are required to report to the designated military unit, failing which they will be regarded as unlawfully absent and liable to a criminal penalty under Article 63 of the Military Penal Code. Any additional act of disobedience is regarded as “persistent disobedience” and falls under Article 87/1 of the Military Penal Code. 47. The relevant passage from Article 155 of the Criminal Code reads as follows: “... Incitement to evade military service. It shall be an offence punishable by imprisonment of two months to two years and a fine ... – except in the cases provided for in the preceding Articles – to incite ... conscripts to evade military service ...”

train

001-89969

ENG

ARM

CHAMBER

CASE OF TADEVOSYAN v. ARMENIA

Remainder inadmissible;Violation of Art. 3;Violation of Art. 6-1 and 6-3-b;Violation of P7-2;Non-pecuniary damage - award

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

4. The applicant was born in 1944 and lives in the village of Mrgashat, Armenia. 5. The applicant is the Chairman of the Armavir regional branch of the National Unity party, one of the opposition parties. Prior to his retirement the applicant had worked in law enforcement for 30 years, including ten years as chief of police of the Metsamor Police Department (ՀՀ ոստիկանության Մեծամորի բաժին). 6. A series of demonstrations were held from March to May 2004 in Yerevan, organised by the opposition parties in protest against the alleged irregularities that had taken place at the February-March 2003 presidential election, challenging the legitimacy of the re-elected President. It appears that the applicant participated in some of these demonstrations. 7. On 4 April 2004 the applicant was visited at his home by two police officers who asked him to accompany them to the Metsamor Police Department. It appears from the materials of the case that the applicant showed some resistance while being taken to the police station. The applicant denied this fact. 8. At the police station an administrative case was initiated against the applicant on the grounds that he had disobeyed the lawful orders of the police officers and had used foul language. The applicant alleged that the chief of police had told him that he had been arrested in order to prevent him from participating in the political demonstration due to be held the following day in Yerevan. 9. On 5 April 2004 the applicant was taken to the Armavir Regional Court (Արմավիրի մարզի առաջին ատյանի դատարան) where he was brought before Judge A. who sentenced him to ten days of administrative detention for “disobeying the lawful order of the police officers and using foul language for about five minutes, when asked to come to the Metsamor Police Department on suspicion of having committed a robbery”. 10. The applicant was then taken to the Temporary Detention Facility at the Ejmiatsin Police Department to serve his sentence. 11. The applicant alleged that, following his release from detention on 14 April 2004, he had been subjected to frequent police visits to, and searches of, his home. He had been forced to hide when such visits took place, fearing that he would be taken to the police station again. 12. On 20 April 2004 the applicant wrote to the Ombudsman (ՀՀ մարդու իրավունքների պաշտպան), complaining about the above events, including the alleged frequent visits by the police officers. It appears that this complaint was forwarded by the Ombudsman to the regional prosecutor’s office by a letter of 17 May 2004. 13. The applicant alleged that on 20 May 2004 at around 8 a.m. he had been visited at his home by three police officers who had informed him that the Chief of the Metsamor Police Department (ՀՀ ոստիկանության Մեծամորի բաժնի պետ) wanted to talk to him. He had then been taken to the police station. 14. It appears from the materials of the case that the applicant was arrested at around 9 a.m. on that day. According to the Government, the reason for his arrest was an argument that had erupted between him and the police officers who had stopped his car for a check. 15. At the police station an administrative case was initiated against the applicant, who was apparently charged under Article 182 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”) with maliciously disobeying the lawful orders of police officers and using foul language. It appears that a record of an administrative offence was drawn up which was signed by the applicant. A third person, S., made a statement corroborating the charge against the applicant. 16. The applicant alleged that at the police station he had been asked to sign a statement that he had used offensive language when stopped by police officers while driving his car. He had refused to sign this statement, claiming that the charge against him was false. The officers responded by stating that they had been instructed to write such a statement by the chief of police. 17. The applicant further alleged that at around 12 noon he had been taken to meet the chief of police, who had informed him that he was to be detained for a further ten days. In reply the applicant denied the charges. The chief of police then used insulting language towards the applicant. Shortly thereafter he was taken to a court. 18. The Government contested the above allegations and claimed that the applicant had been informed by the police officers of his procedural rights, including his right to have a lawyer, but the applicant did not wish to have a lawyer. 19. The applicant was brought before Judge H. of the Armavir Regional Court (Արմավիրի մարզի առաջին ատյանի դատարան). Judge H., after a brief hearing, sentenced the applicant under Article 182 of the CAO to ten days of administrative detention. The judge’s entire finding amounted to the following: “On the night from 19 to 20 May 2004 [a car] was continually driving through the village of Mrgashat, which raised the suspicion of police officers on duty who, for the purpose of a check, at around 9 a.m. attempted to stop the car and to dispel their suspicion. The driver of the car [the applicant] started to swear at the police officers, obstructed their work, used foul language and disobeyed their lawful orders, for which he was brought to the Metsamor Police Department. In his submissions [the applicant] did not admit to having committed the offence, stating that he had not done anything wrong. He understood that he had to serve a sentence, therefore, he would go and serve a sentence. He was grateful to everybody, knew the law well and did not need defence counsel. The witnesses, District Inspector [G.] and Operative Officer on Juvenile Crimes [A.] of the Metsamor Police Department, stated that [the applicant] had disobeyed their lawful orders, used foul language and sworn at them. Witness [S.] stated that he had been present when [the applicant] swore at and argued with the police officers. The commission of the offence by [the applicant] is corroborated by the record of an administrative offence, the reports, [the record of the arrest] and witness statements.” 20. According to the record of the court hearing, the hearing was held in public at 4 p.m. The judge informed the applicant of his right to challenge the judge and the clerk and to have a lawyer. The applicant did not wish to lodge any challenges or to have a lawyer. The judge then proceeded with examination of evidence. It appears that the judge heard the applicant, the relevant police officers and then witness S. The judge departed to the deliberation room, after which he returned and announced the decision. 21. The applicant alleged that the record of the court hearing did not adequately reflect what had taken place in reality. The judge had failed to question or take any evidence from the applicant and to provide him with the necessary time to call defence witnesses and to cross-examine the police officers and the prosecution witnesses. His submissions as to the falseness of the police reports had been ignored. He had never been informed of his right to have a lawyer. The hearing had lasted only a few minutes. 22. On 21 May 2004 the applicant wrote to the Armavir Regional Prosecutor (Արմավիրի մարզի դատախազ), complaining about the alleged police visits, claiming that the administrative cases against him had been fabricated, asking the Prosecutor to act upon his complaints and asking to be released. He also alleged that the chief of police had insulted him. 23. On 26 May 2004 the competent prosecutor’s office refused to institute criminal proceedings in the absence of a criminal act. No appeal was lodged against this decision. 24. The applicant served his second ten-day sentence at the Temporary Detention Facility at the Ejmiatsin Police Department. 25. The applicant alleged, and the Government did not dispute, that during that period he had been kept in a cell which measured 10 sq. m together with nine other inmates, of whom several held multiple criminal convictions, despite his age, his position as a former chief of police and his lack of previous convictions. There were no beds and the detainees had to sleep on plywood on the floor. The cell was poorly ventilated and there was not enough fresh air. All the detainees except the applicant smoked in the cell. The cell was half dark, with a small window which measured 0.32 sq. m and was practically closed. The applicant’s access to the toilet facilities and to drinking water was limited to twice per day. He received only one meal per day. Since he was a former chief of police, he felt grossly humiliated and was fearful for his safety during his detention. 26. The applicant alleged that after his release from detention on 30 May 2004 he continued to suffer from anxiety and insomnia. 27. For a summary of the relevant provisions of the CAO see the judgment in the case of Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007). The provisions of the CAO which were not cited in the above judgment, as in force at the material time, provide: “Maliciously disobeying a lawful order or demand of a police officer or a member of the voluntary police made in the performance of his duties of preserving public order shall result in the imposition of a fine of between 50% and double the fixed minimum wage, or of correctional labour for between one and two months with the ’s personality, the application of these measures would be deemed insufficient, of administrative detention not exceeding 15 days.” 28. The relevant provisions of the Law, as in force at the material time, read as follows: “An arrested or detained person is entitled: ... (3) to lodge, himself or through his lawyer or lawful representative, applications and complaints alleging a violation of his rights and freedoms with the administration of the facility for arrested or detained persons, their superior authorities, a court, a prosecutor’s office, the Ombudsman, the bodies of public administration and local self-governance, non-governmental unions and [political] parties, mass media and international institutions and organisations protecting human rights and freedoms.” “...The living space afforded to arrested and detained persons must comply with the building and sanitary-hygienic norms established for general living spaces. The area of the living space afforded to arrested and detained persons shall not be less than 2.5 sq. m for each individual. Arrested and detained persons must be provided with individual bedding and bed linen.” 29. The relevant provisions of the Decree read as follows: “Special sections of the [facilities for holding arrested persons] shall be reserved for persons who have been subjected to administrative detention for periods prescribed by [the CAO]...” 30. The relevant part of the Report reads as follows: “4. Conditions of detention a. introduction 43. At the outset, the CPT wishes to highlight the criteria which it applies when assessing police detention facilities. All police cells should be clean, of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (for example, a chair or bench) and persons obliged to stay overnight in custody should be provided with a clean mattress and clean blankets. Persons in custody should be able to satisfy the needs of nature when necessary, in clean and decent conditions, and be offered adequate washing facilities. They should have ready access to drinking water and be given food at appropriate times, including at least one full meal (that is, something more substantial than a sandwich) every day. Persons held in custody for 24 hours or more should, as far as possible, be offered one hour of outdoor exercise every day. b. temporary detention centres 44. During the visit, the CPT’s delegation visited temporary detention centres in Yerevan, Akhurian, Hrazdan, Maralik and Sevan. Establishments of this type are used to hold two categories of detainees: criminal suspects and persons under administrative arrest. Conditions of detention in the temporary detention centres visited varied from acceptable (at the Hrazdan Department of Internal Affairs) to poor (e.g. at the Akhurian and Sevan Departments of Internal Affairs). 45. As regards occupancy levels, a consultation of registers and the number of sleeping places per cell suggested that the minimum standard of 2.5 m² of living space per person, as stipulated by the Law on [Conditions for Holding Arrested and Detained Persons], was respected as concerns criminal suspects. However, the CPT must add that this minimum standard is too low. As concerns the cells for administrative detainees, the information gathered during the visit indicated that conditions could become extremely cramped, e.g. up to 6 detainees in a cell of 9 m² in Hrazdan and Sevan. All the centres visited presented deficiencies concerning the in-cell lighting and ventilation. With the exception of the Hrazdan centre, access to natural light was poor (small windows, sometimes - as in Yerevan - covered by metal shutters) or inexistent (e.g. in Akhurian). Artificial lighting was invariably dim, with some cells (e.g. in Yerevan, Akhurian and Maralik) submerged in near darkness. As to ventilation, it left something to be desired at Yerevan and Sevan. As to the state of repair and hygiene of the detention areas, it ranged from quite acceptable at the Hrazdan Department of Internal Affairs to poor at the Sevan establishment. Cells at the Temporary detention centre in Yerevan were in a reasonably good state of repair; however, their level of cleanliness left something to be desired. Detention areas in Akhurian and Maralik were dilapidated but clean. 46. Cells were furnished with beds or wooden sleeping platforms. The delegation noted that mattresses, sheets, pillows and blankets were available for criminal suspects at all the temporary detention centres visited; however, this was not the case for administrative detainees. The delegation did not hear any complaints from persons who were - or had recently been - detained at the centres visited as regards access to a toilet. However, with the notable exception of the Hrazdan Department of Internal Affairs, the communal toilet and washing facilities were dilapidated and dirty. The centres in Yerevan and Hrazdan possessed shower facilities, which could apparently be used by newly-arrived detainees (upon recommendation of a feldsher/doctor) and by those administrative detainees who stayed in the respective establishments for longer than a week. In both centres, the shower facilities were in an acceptable state of repair and cleanliness, and hot water was available. However, the only personal hygiene item that was distributed to detainees was a small piece of soap. 47. According to information provided by police officers in the majority of the temporary detention centres visited, detainees were offered food three times per day, including one hot meal. However, this was not the case at the Sevan Department of Internal Affairs, where food was only delivered once per day, reportedly due to the limited budget set aside for this purpose (320 AMD - i.e. some 50 euro cents - per detainee per day). In this situation, the provision of food was to a large extent ensured by detainees’ families. Detained persons without family contacts had to rely on the generosity of other detainees or individual police officers for food. 48. All the temporary detention centres visited possessed outdoor exercise areas, where detainees were apparently allowed to take exercise for one hour per day (in the case of women and juveniles - for two hours per day). However, at the Temporary Detention Centre of the City Department of Internal Affairs in Yerevan, the delegation was informed that detainees could be deprived of outdoor exercise as a form of punishment for violation of the centre’s internal regulations. 49. The CPT recommends that the Armenian authorities take steps at temporary detention centres to: - ensure that all detainees are offered adequate living space; the objective should be at least 4 m² per person; - provide adequate in-cell lighting (including access to natural light) and ventilation; - maintain the cells and common sanitary facilities in a satisfactory state of repair and hygiene; - ensure that all detainees (including those held for administrative violations) are offered a mattress and blankets at night; - ensure that administrative detainees are able to take a hot shower at least once a week during their period of detention; - ensure that all detainees are offered food - sufficient in quantity and quality - at normal meal times; - put an end to deprivation of outdoor exercise as a disciplinary punishment.” 31. The relevant part of the Report reads as follows: “4. Conditions of detention a. Temporary detention centre of the Department of Internal Affairs of the City of Yerevan 20. Conditions of detention in this facility remained basically the same as those observed during the 2002 visit, i.e. poor. One positive change was that persons under administrative arrest were now provided with bedding (pursuant to Order No. 8 of the Head of the National Police of 20 August 2003). Further, the delegation was informed that the food entitlement for detainees had been increased by Government decision of May 2003. Otherwise, no refurbishment or major repairs had taken place since the previous visit. Consequently, the CPT reiterates the recommendations made in paragraph 49 of the report on the 2002 visit, in particular as regards living space, in-cell lighting, ventilation, state of repair and hygiene.” 32. The relevant part of the Report reads as follows: “4. Conditions of detention a. police holding areas 28. At the beginning of the 2006 visit, the delegation was informed that, pursuant to Order NK–328–NG of the President of the Republic of Armenia, dated 28 December 2004, a large-scale refurbishment programme had been initiated in all police holding areas. The CPT welcomes this. It should also be noted that a recent amendment to the [Law on Conditions for Holding Arrested and Detained Persons] increased the official standard of living space per detained person in police holding areas to 4 m². This can be considered as acceptable when applied to multi-occupancy cells; however, 4 m² is not an adequate size for a single occupancy cell. 29. During the visit, the delegation could observe the impact of the above-mentioned programme. Some of the police holding areas (e.g. in Charentsavan, Gavar and Hrazdan) were still undergoing refurbishment and were to reopen shortly. As regards the already refurbished holding areas, conditions in them were overall of a high standard.”

train

001-103933

ENG

RUS

CHAMBER

CASE OF TSECHOYEV v. RUSSIA

Remainder inadmissible;No violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

5. The applicant was born in 1965. He lives in Sagopshi, in the Malgobek district of Ingushetia. 6. The applicant is the brother of Suleyman Tsechoyev, born in 1956. 7. At the material time the applicant studied law in Yekaterinburg, Russia. The applicant was not an eyewitness to his brother's arrest and the following account is based on the witness statements collected by him later. 8. On the night of 23 October 1998 the applicant's brother Suleyman Tsechoyev was arrested in the family house situated at 40, Shosseynaya Street, in the settlement of Sagopshi in the Malgobek district of Ingushetia. The arrest was apparently carried out by the officers of the North Caucasus Regional Department for the Fight against Organised Crime (Северокавказское Региональное Управление по Борьбе с Организованной Преступностью – “the RUBOP”). The applicant submitted that at the time of the arrest the officers did not introduce themselves and did not present any documents or justification for their action. Nor did they inform the family where they were taking Mr Tsechoyev. 9. On 28 October 1998 the applicant, alerted by his mother, arrived at Sagopshi. His relatives told him that there had been no news of Suleyman Tsechoyev's whereabouts. 10. According to the documents submitted by the Government, on 3 November 1998 Suleyman Tsechoyev had been charged with aiding and abetting the kidnapping of Magomed K. on 5 September 1998, together with two other men and unidentified persons from Chechnya. The kidnapped man had been taken to Chechnya in two VAZ cars. 11. On 6 November 1998 the applicant, together with his sister, met with Mr Magomed Ye., the deputy prosecutor of Malgobek. The latter informed them that their brother had been arrested on his orders by officers of the RUBOP and was being detained in the town of Nazran, Ingushetia. Mr Magomed Ye. refused to tell the applicant and his sister where exactly their brother was detained and what charges had been brought against him. 12. On 20 November 1998 the applicant found out that his brother had been detained at the temporary detention centre (“the IVS”) of the Malgobek district police department (ROVD). 13. The applicant hired a lawyer, who unsuccessfully tried to reach Suleyman Tsechoyev at the detention centre. 14. In the beginning of December 1998 the applicant had a meeting with Mr Magomed Ye. The latter allegedly told him that he would release his brother in exchange for 6,000 US dollars (USD) and threatened to have Suleyman Tsechoyev transferred to the headquarters of the RUBOP in Nalchik, Kabardino-Balkaria, where he would be subjected to severe illtreatment, if the applicant refused to pay the money. The applicant refused to pay. 15. On 24 February 1999 the applicant saw his brother at the IVS. Suleyman Tsechoyev told the applicant that he had been pressured to confess to the crime and that he had been threatened with transfer to the RUBOP headquarters in Nalchik. 16. On 25 February 1999 the applicant returned to the detention centre to see his brother. He was told by the employees that the night before, at around 10 p.m., Suleyman Tsechoyev had been taken to the prosecutor's office and that after that, at about midnight, he had been taken away in a vehicle in the direction of Nalchik. 17. The Government confirmed that on 23 October 1998 Suleyman Tsechoyev had been detained by the law-enforcement bodies in accordance with the provisions of the criminal procedural legislation in force at the material time. He had been detained in connection with the investigation into Mr Magomed K.'s abduction that had been opened on 15 September 1998 and registered under file number 98540062. The decision to place Suleyman Tsechoyev under arrest had been unsuccessfully appealed against to a court. The Government submitted that the term of detention for Mr Tsechoyev had been extended on several occasions, the last of which had been on 25 May 1999; his detention had been authorised until 24 October 1999. 18. The applicant and his relatives had no news of Suleyman Tsechoyev after 25 February 1999. On 16 March 1999 a man who introduced himself as “Aslan” contacted one of the applicant's relatives. According to “Aslan”, he had been detained with Suleyman Tsechoyev in cell no. 8 in pre-trial detention centre no. 1 (SIZO-1) in Nalchik, Kabardino-Balkaria. The applicant's brother had been detained there under a false identity and had been in poor health. 19. On 17 March 1999 the applicant, together with his lawyer Mr Magomed Ga., went to Nalchik to visit his brother. The applicant's lawyer was granted permission to see Suleyman Tsechoyev. According to the lawyer, Suleyman Tsechoyev was in poor health and had no access to medical treatment. 20. On 22 March 1999 the head of the SIZO-1 medical unit provided the applicant with a handwritten statement. According to it, Suleyman Tsechoyev had been brought to SIZO-1 on 26 February 1999 with numerous bruises, abrasions, scratches on his limbs and injuries to the chest. 21. On 30 July 1999 the applicant and his sister obtained the Malgobek district prosecutor's permission to visit their brother. Suleyman Tsechoyev told them that he had been pressured to confess to the involvement in the abduction of Mr Magomed K. and that he had been ordered to convince his relatives to pay USD 6, 000 for his release. Suleyman Tsechoyev told his relatives that he had been subjected to severe beatings in the building of the RUBOP situated at 49 Naumova Street in Nalchik. Finally, he insisted that the applicant and his other relatives should not pay money for his release. It does not appear that any complaints have been lodged in this respect. 22. On 23 August 1999, at about 9 a.m., a group of four men wearing police uniforms arrived at SIZO-1 in a VAZ-2106 car. The men identified themselves as officers of the Malgobek ROVD in Ingushetia. Two of them entered the premises of the centre and produced the following documents authorising the transfer of Suleyman Tsechoyev from SIZO-1 to the Malgobek IVS: a) a letter from the acting prosecutor of Malgobek Mr U. B., dated 21 August 1999, requesting that Suleyman Tsechoyev be handed over to four officers of the Malgobek ROVD: Anzor K., Islam O., Kambulat K. and Ruslan B; b) a procedural decision in criminal case no. 98540062, dated 21 August 1999, concerning the transfer of the accused Suleyman Tsechoyev for investigative measures from SIZO-1 to the Malgobek IVS; c) an authority form, dated 23 August 1999, issued by the head of the Malgobek ROVD to officers of the Malgobek ROVD, Anzor K., Islam O., Kambulat K. and Ruslan B., concerning the transfer of Suleyman Tsechoyev to the Malgobek IVS. 23. The documents were produced to the employees of SIZO-1, officers Sh. and U., who handed Suleyman Tsechoyev over to the two men. The latter took the applicant's brother away in an unknown direction. 24. On 24 August 1999 Suleyman Tsechoyev's body was found in the Mayskiy district of Kabardino-Balkaria with gunshot wounds to the head. 25. On 7 September 1999 two RUBOP officers arrived at the applicant's house. They told him that a body whose fingerprints were consistent with those of Suleyman Tsechoyev had been found in Kabardino-Balkaria and asked him to identify it. 26. On 8 September 1999 the applicant and his sister identified the body as that of Suleyman Tsechoyev. 27. On 8 September 1999 the Kabardino-Balkaria forensic assessments office issued a report (no. 79). According to this, Suleyman Tsechoyev had died on an unspecified date from an open gunshot wound to the head. 28. It can be seen from the documents submitted by the Government that on 23 October 1999 the criminal proceedings in respect of Suleyman Tsechoyev were terminated in view of his death. 29. On 2 December 1999 the Malgobek town civil registration office issued a death certificate for Suleyman Tsechoyev. It stated that death had occurred on 23 August 1999. 30. The description of the events of the night of 23 October 1998 and the subsequent developments is based on the following documents: the applicant's accounts given on 10 and 16 February, 28 July and 29 August 2005; an account by the applicant's sister Ms L.B., given on 4 August 2005; an account by the applicant's neighbour R.G., given on 15 August 2005; a hand-drawn map of the premises of the applicant's house in Sagopshi and copies of the documents submitted with the application. 31. The Russian press widely reported the kidnapping for ransom of Magomed K., whose younger brother Musa K. had occupied a top executive position in Lukoil, one of Russia's largest oil companies, at the relevant time. It appears from the reports that Magomed K. had been freed from UrusMartan, Chechnya, some time in 1999 as a result of a raid carried out by his relatives, including Musa K., and that several well-known Chechen “field commanders” involved in the kidnapping were killed. Numerous publications also reported Suleyman Tsechoyev's murder and linked it to the kidnapping of Magomed K. Mr Magomed Ye., former deputy prosecutor of the Malgobek district, was quoted in many of these publications and wrote several articles himself. 32. It can be seen from the information submitted by the Government that the official investigation into the kidnapping of Magomed K. was closed in November 2001. 33. The Government, in response to the Court's request, submitted 380 pages from the investigation file, as well as additional information about its progress. They stated that disclosure of the remaining documents from the file could be harmful to the continuing investigation and sought application of Rule 33 § 3 of the Rules of Court to the submitted documents. 34. The applicant, in turn, submitted some additional information about his contacts with the investigation. The relevant information may be summarised as follows. 35. On 24 August 1999 the prosecutor's office of the Mayskiy district of Kabardino-Balkaria instituted an investigation under Article 105 § 1 of the Criminal Code (murder) into the death of an unknown man whose body had been found in the vicinity of Aleksandrovskaya with gunshot wounds to the head. The case file was given number 16/24-99 (in the submitted materials the number is also referred to as 16/24). 36. On 9 September 1999 the investigation into the murder of Suleyman Tsechoyev was transferred to the Kabardino-Balkaria prosecutor's office. The applicant's family was informed of this by a letter from the Prosecutor General's Office. 37. On 9 December 1999 the Ingushetia prosecutor's office opened a criminal investigation in respect of Mr Magomed Ye. under Article 285 § 3 of the Criminal Code (abuse of power entailing serious consequences), no. 99540071. On 15 March 2000 the Ingushetia prosecutor's office opened an additional investigation into abuse of power by Magomed Ye. under file number 2054007. 38. On 23 May 2000 the three cases were joined under file number 16/24-99 at the Northern Caucasus department of the General Prosecutor's Office. 39. On 9 July 2001 (in accordance with the decision of 4 September 2002 suspending the investigation, see paragraph 46 below) the investigation in respect of Mr Magomed Ye., his relatives and members of the K. family (twelve persons altogether) for abuse of power was closed. 40. On 12 July 2001 criminal charges against Magomed Ye. for murder and kidnapping were dropped for want of evidence. 41. On 15 July 2001 the investigation into the murder was suspended in view of the failure to identify the suspects. 42. On 23 July 2001 the department of the Northern Caucasus department of the General Prosecutor's Office concluded that the investigation had been incomplete. The decisions of 12 and 15 July 2001 were quashed and the investigation was remitted to an investigator of that department with a number of specific directions. 43. In December 2001 the Northern Caucasus department of the General Prosecutor's Office created a special investigative group charged with solving the crime. 44. On 15 May 2002 charges of involvement in the kidnapping and murder of Mr Magomed Ye. were dropped for want of evidence. On the same day proceedings were suspended for lack of suspects. 45. On 4 June 2002 the Russian Deputy General Prosecutor quashed the decisions of 9 July 2001 and 15 May 2002 and appointed a new investigative group, headed by the deputy head of the Northern Caucasus department of the General Prosecutor's Office. 46. On 4 September 2002 the investigation in criminal case no. 16/2499 was suspended owing to the failure to identify the perpetrators. On the same date the North Caucasus department of the Prosecutor General's Office informed the applicant of the decision. 47. On 24 August 1999 the investigators carried out an examination of the site, compiled a description of the body and collected three cartridges. Two days later an additional examination of the site resulted in the finding of another cartridge and four bullets. 48. On 25 August 1999 a forensic expert from the Mayskoye police department carried out an examination of the body and an autopsy. The expert found, inter alia, that the body bore six gunshot wounds to the left side of the head, each of which could have been lethal. The shots had been fired from a close range within a short period of time. The expert noted several bruises and abrasions on the face and hands, especially around the wrists, which had been caused within a period of twenty-four hours before death; he also noted traces indicating that the body had been dragged along immediately after the death had occurred. The expert concluded that death had occurred two or three days before the examination of the body. 49. On 23 September 1999 the ballistic expert reported that the four cartridges and bullets had been fired from one “Makarov” 9 mm calibre hand pistol. This conclusion was confirmed by a ballistic expert report of 14 November 1999, carried out by the expert department of the Ministry of the Interior of Kabardino-Balkaria. 50. On 9 September 1999 the investigator of the Mayskoye district prosecutor's office questioned the applicant. He stated that his brother had been detained on 23 October 1998 on the orders of the deputy prosecutor of the Malgobek district, Mr Magomed Ye., on suspicion of involvement in kidnapping. The applicant stated that on several occasions his brother had been transferred from one detention place to another. He had last seen him in June 1999 and Suleyman had complained that for a long time no investigative action had taken place. He also stated that in the beginning of September 1999 the investigator working on the kidnapping case had told him that he had ordered his brother's transfer to Malgobek and that he would soon be taken there. The applicant named several persons who could have been responsible for his brother's death, including former police officer Musa Kh., a cousin of the former deputy Malgobek district prosecutor Ibragim Ye., and Musa K. 51. On 30 September 1999 the investigator of the KabardinoBalkaria prosecutor's office again questioned the applicant, who gave detailed submissions relating the account of his brother's arrest and detention as summarised above. The applicant told the investigator that his brother had close friends in Urus-Martan, Chechnya, where he regularly travelled. He also stated that he suspected Magomed Ye. of masterminding and carrying out the operation aimed at abducting Suleyman Tsechoyev from the pretrial detention centre. He stated that Magomed Ye. had possessed the knowledge required to produce the papers necessary to organise the prisoner's transfer, that he had the necessary computer and other technical skills and that he had been rewarded by the relatives of Magomed K. In particular, the applicant stated that he was aware that Magomed Ye. had obtained from those relatives a VAZ vehicle, a computer, a mobile phone and that he had bought a flat in Nalchik, Kabardino-Balkaria, with money received from them. Furthermore, the applicant accused Magomed Ye. of being present when his brother had been beaten by relatives of Magomed K. outside Malgobek in February 1999. He again accused the K. family of organising his brother's murder and said that the crime could have been carried out by Magomed Ye., Musa Kh, Zaurbek Kh. and Mukhszhir Ye. 52. On the same day the applicant's sister L.B. told the investigator that she had visited her brother in prison, that he had not complained of anything but had denied that he had been involved in the kidnapping. She also named Magomed Ye. and Musa K., brother of the kidnapped Magomed K., as the possible perpetrators of the killing. 53. On 30 September 1999 the applicant and his sister L. B. were granted the status of victims in the criminal proceedings relating to their brother's murder. On 17 April 2000 the applicant was granted the status of victim in the criminal investigation carried out “into the unlawful actions of the former deputy prosecutor of the Malgobek town, Mr M[agomed] Ye.” 54. On 11 November 1999 the applicant and L. B. wrote to the Malgobek district prosecutor. They accused Mr Magomed Ye. of allowing the beating of their brother on the night of 24 to 25 February 1999 by two relatives of Ye. and by the relatives of Magomed K. They again submitted that Ye. had obtained property from the family of Magomed K. in return for his “assistance” in the solving of his kidnapping. 55. On 28 November 1999 the applicant's sister told the investigators that on 3 April 1999 she had visited her brother in prison and that on that day she had noticed marks from handcuffs and traces of beatings on his face. She also submitted that Suleyman Tsechoyev had told her that during the night of 24 February 1999 Magomed Ye. and his relatives, together with relatives of Magomed K., had taken him outside of Malgobek and beaten him in an attempt to obtain a confession regarding the kidnapping. 56. On 15 December 1999 the applicant gave detailed submissions to an investigator from the Ingushetia prosecutor's office relating the arrest and detention of his brother, as described above. In addition, he submitted that on 3 April 1999 his brother had told him in great detail what had happened on the night of 24 to 25 February 1999 and named other persons who had been detained with him and questioned by the relatives of Magomed K. He also allegedly told him that he had been taken to several detention centres in the Northern Caucasus prior to being admitted to the pre-trial detention centre no. 1 in Nalchik because he had suffered from the beatings and the officials had refused to accept him. The applicant named Mr Magomed Ye. as the individual responsible for the ill-treatment of his brother and, ultimately, for organising his transfer to the murderers. He stressed that the documents authorising his brother's removal from the prison in Nalchik had been produced by someone who had detailed knowledge of the requirements for such documents and that the forgery had necessitated considerable computer skills. The applicant also submitted that on 28 August 1999 he had gone to the SIZO no. 1 in Nalchik and left a food parcel for his brother, which had been accepted. At that time he had not been informed that his brother was no longer detained there. 57. On 17 December 1999 the applicant's sister repeated her previous statements. She stated, further, that in May and October 1999 Mr Ye. had threatened to kill her brother, the applicant. 58. On 17 December 1999 the applicant's mother gave statements similar to those of the applicant and her daughter. 59. On 21 April 2000 the applicant was questioned by an investigator from the Ingushetia prosecutor's office again. He repeated his allegations against Magomed Ye. 60. On 16 October 2001 the investigator from the Ingushetia prosecutor's office questioned the applicant again. He supplemented his previous statements and claimed that Mr Magomed Ye. had been acting in cooperation with the relatives of Magomed K. from the very early stages of the investigation. He stated that as early as September 1998 a number of men, whose names he had supplied to the investigation, had been arrested and then transferred to private residences where they had been beaten and tortured with the aim of extracting confessions. According to the applicant, Mr Magomed Ye. had participated in these actions and filmed them. The applicant also claimed that in February 1999 Mr Ye. had asked his mother and sister to pay USD 6,000 in return for his brother's release. He also submitted additional details about the circumstances of his brother's beatings on 24 February 1999. 61. The investigators questioned the staff at the pre-trial detention centre in Nalchik who had been on duty on 23 August 1999. On 10 September 1999 two officers stated that they had inspected the papers of the two men who had presented themselves as police officers from the Malgobek ROVD and had not found them suspicious. They had organised the transfer of Suleyman Tsechoyev to the two men in accordance with the usual procedure. One of the men bore the distinction of a Senior Lieutenant, the other of a non-commissioned officer of the Ministry of the Interior. The men had spoken Ingush between themselves; one of them had had a Motorolla radio receiver but had not used it during the encounter. One of the officers gave a detailed physical description of the two men and said that he would be prepared to identify them. The deputy head of the detention centre, Mr Zaurbi Sh., told the investigators that he had checked the names of the two men and the papers for the prisoner's transfer. He had not inspected their documents because, according to the relevant procedure, the identity documents should have been left at the entrance to the building. 62. Several of Suleyman Tsechoyev's co-detainees in the pretrial detention centre in Nalchik stated on 10 September 1999 that the deceased had not raised any complaints, that he had been visited by a lawyer and by his brother and that in August 1999 he had been taken away, apparently for transfer to Ingushetia. 63. On 12 October 1999 the acting prosecutor of the Malgobek district told the investigators that he had ordered Mr Tsechoyev's transfer to Malgobek on 5 August 1999, but for unknown reasons that order had not been complied with. The documents which had enabled Mr Tsechoyev to be kidnapped had been forged and their numbers corresponded to other documents. The persons indicated in the escort documents had not worked at the Malgbek ROVD. In June 2002 he gave a further statement, describing Mr Magomed Ye. as an honest and motivated officer who had been falsely accused by the applicant and his relatives. 64. On 15 November 1999 an officer from the Nalchik pre-trial detention centre identified a man from a photo as one of those who had collected Suleyman Tsechoyev on 23 August 1999. Later that man, a worker in a gas plant, submitted reliable evidence that he had not been in Kabardino-Balkaria at the time, as supported by documents and witness statements collected by the investigation. 65. On 22 December 1999 the head of the Malgobek ROVD stated that Suleyman Tsechoyev had been detained at the Malgobek IVS from September 1998 to February 1999. He was shown the registration log of the IVS, according to which on 24 February 1999 Mr Tsechoyev had been taken out of the IVS at 11.40 p.m. by the local police officer Musa Kh. The head of the ROVD explained that he had been informed late at night by the officer on duty that the deputy district prosecutor had ordered that Mr Tsechoyev be brought to his office for questioning. At first the head of the ROVD had refused, but Mr Ye. had called him and insisted, threatening to open a criminal investigation if he did not comply. Mr Ye. explained that he had senior officers of the Ministry of the Interior in his office and that it was possible that Mr Tsechoyev would be transferred to Kabardino-Balkaria for further investigation. The head of the ROVD then agreed, but instructed his staff to obtain Mr Ye.'s signature to the effect that he had accepted the detainee. He could not explain why a district police officer, Mr Musa Kh., had signed. When questioned about Suleyman Tsechoyev's abduction and murder, the head of the police confirmed that the men identified in the escort documents had never served at the ROVD and that he had not issued the documents in question. 66. In addition to the above investigative documents, copies of which the Government submitted to the Court, it can be seen from their memorandum of 2 October 2008 that the investigators also questioned five acting and former officers of the Malgobek prosecutor's office, all of whom denied that they had been aware of any connection between the K. family and Magomed Ye. One of these officers, quoted by the Government, stated that Suleyman Tsechoyev had been a member of the bandit group based in UrusMartan, along with three other men who had been charged with kidnappings. 67. The Government also submitted a copy of the record of interview of Zaurbek Kh., who stated that he had permanently lived in Moscow and had been there throughout the summer of 1999. Zaurbek Kh. denied having known Suleyman Tsechoyev; as to Magomed Ye., the witness stated that he had gone to the same school but had not kept in contact in recent years. 68. On 16 November 1999 the investigators in criminal case no. 16/2499 carried out an expert assessment of three documents concerning the transfer of Suleyman Tsechoyev from SIZO-1 on 23 August 1999. The criminology expert of Kabardino-Balkaria concluded that the imprint of the Malgobek district prosecutor's office's seal had been reproduced with the aid of a factory-made stamp, but not the one used by the district prosecutor's office. The imprint of the Malgobek ROVD seal had been reproduced with the aid of a colour printer. A graphology expert report reported difficulties in analysing short notes with dates and signatures on the documents, but concluded that some of the notes could have been made by Mr Magomed Ye., his brother and by the acting Malgobek prosecutor. 69. On 14 December 1999 the Central North-Caucasus forensic laboratory issued an additional expert assessment. It concluded that the signatures on all the documents concerning the transfer of Suleyman Tsechoyev from SIZO-1 to the Malgobek IVS had been forged, and that the date and signature on one of the documents had been written by Mr Magomed Ye. 70. In October 2001 the investigators questioned a number of experts from the Central North-Caucasus forensic laboratory seeking an explanation for the differences in the reports. The experts referred to the incomplete conclusions of some of the studies. 71. On 12 November 2001 the Russian Federal Forensic Assessments Office of the Ministry of Justice concluded that it was impossible to establish with certainty whether the handwritten words on the document in question had been written by Mr Magomed Ye. or not. 72. According to the documents contained in the criminal investigation file, at some point in 2001 documents constituting the basis for examination and a part of the original expert report had been stolen or changed. A separate criminal investigation was carried out, during which several officers from the prosecutor's office and the Ministry of the Interior were questioned. The investigation collected the copies of the original documents from the Russian Federal Bureau of Forensic Studies. Magomed Ye. was questioned as a suspect. On 15 May 2002 the investigation against him was closed for want of incriminating evidence. 73. On 7 October 1999 the investigator from the Kabardino-Balkaria prosecutor's office questioned Magomed Ye. The latter confirmed that he had headed the group at the Malgobek prosecutor's office which had investigated the kidnapping of Magomed K. He had authorised Suleyman Tsechoyev's detention in relation to that crime. According to him, Mr Tsechoyev had been suspected of involvement in other crimes committed in the region, which was the reason for his transfer to Nalchik and Pyatigorsk. Mr Ye. denied that he had been involved in the kidnapping and murder of Suleyman Tsechoyev. He stated that he had never seen the documents authorising the latter's removal from the pre-trial detention centre in Nalchik in August 1999. Mr Ye. stated that he had quit his job at the prosecutor's office in March 1999 and now lived in Moscow. He had learnt of Suleyman Tsechoyev's death from his father in September 1999. He denied that he had previously allowed the relatives of Magomed K. access to Suleyman Tsechoyev. 74. In October 1999 the investigators carried out a series of identification parades, during which the officers of the Nalchik pretrial detention centre failed to identify Mr Magomed Ye., his brothers and cousins as the persons who had taken away Suleyman Tsechoyev. 75. On 11 January 2000 the Kabardino-Balkaria prosecutor's office brought charges against Mr Magomed Ye. He was charged in absentia with complicity in Suleyman Tsechoyev's kidnapping and murder and forgery of official documents. On the same day Mr Magomed Ye. was ordered to be arrested and declared a fugitive from justice, and his name was put on the wanted list. 76. On 26 February 2000 Mr Ye. was detained and questioned as a suspect. He again denied any connection with the murder and requested a number of additional investigative measures. 77. The investigators obtained the documents according to which in March 1999 Mr Magomed Ye. had complained to his superior about the false accusations brought against him by the relatives of Suleyman Tsechoyev and requested the district prosecutor of Malgobek to open a criminal investigation for libel. At the same time, pending completion of the investigation, he requested to be relieved from the duty of investigating the case. On 31 March 1999 Magomed Ye. resigned from the prosecutor's office. 78. On 10 March 2000 the Nalchik Town Court released Mr Magomed Ye. from detention, having found that there were no reasons to suspect him of absconding from justice. The court noted that Mr Ye. had always appeared at the prosecutor's office when summoned to do so, resided at his declared place of residence in Moscow and had other family reasons not to abscond. 79. In April 2000 a waitress in a roadside café in KabardinoBalkaria told the investigators that between 21 and 25 August 1999 she had seen Mr Magomed Ye. During a confrontation carried out on 24 January 2002 she retracted her statements and explained that she had last seen him in March 1999, and that in August 1999 she had seen another person whom she had confused with Mr Ye. She gave detailed submissions in this respect. Two other men and Magomed Ye. gave concordant statements. 80. In July 2001 the investigators questioned witnesses and obtained documents to the effect that in August 1999 Mr Ye. had been working daily for a private company in Moscow. 81. In April 2002 Magomed Ye. gave an additional statement as a suspect. He again denied any involvement in the imputed crime, denied having ever received or used a VAZ vehicle and denied receiving any money or property from the K. family. 82. In their memorandum of 2 October 2008 the Government stated, without providing copies of such documents or the dates when they were obtained, that the investigators also questioned four members of the K. family who denied having any relations with Magomed Ye. or giving him money or property. These and other witnesses suggested that the libel campaign against Magomed Ye. had been inspired by members of a fundamentalist bandit group based in Urus-Martan, Chechnya, who had committed numerous kidnappings for ransom. The Kabardino-Balkaria Land Registry reported that Magomed Ye. had owned no real estate in that region. 83. In their memorandum of 2 October 2008 the Government also stated, without providing copies of such documents or the dates when they were obtained, that the investigators had also questioned the brother and cousin of Magomed Ye.: police officers named by the applicant as possible perpetrators of the crime. They denied their involvement in the events. The police department of Malgobek confirmed that Magomed Ye.'s cousin had been working daily between July and September 1999. Police officers Musa Kh. and Zaurbek Kh. were also questioned at some point and denied having any connection with the murder. The Government also referred to records of interviews of four members of the K. family who stated that they had no relations with Magomed Ye. outside the official framework of the investigation and that they had not given him money or property. 84. As can be seen from the statements collected in January 2008 from the applicant and his father, some time in 2001 police officer Musa Kh. had been charged with false imprisonment and abuse of power in relation to the taking of Suleyman Tsechoyev from the Malgobek IVS in the late hours on 24 February 1999. He had been found guilty and given a suspended sentence; the applicant did not appeal against the sentence. It also appears from these statements that the applicant and Musa Kh. had reached an informal agreement prior to the trial and that the applicant had “accepted” Musa Kh.'s “apology” and declaration that he had not been involved in his brother's murder. No other documents or information relating to this process have been submitted by the parties. 85. It can be seen from the submitted documents that in 2001 Musa K., the brother of the kidnapped Magomed K., complained to the prosecutor's office that he had been libelled by the applicant. It appears that in June 2001 the indictment was sent to the court, which at some point acquitted the applicant. 86. The investigators into the kidnapping of Magomed K. suspected and arrested several other men in addition to Suleyman Tsechoyev. Later, three of them were charged with other kidnappings; one of them was found guilty and sentenced in 2001; and two others were charged in absentia and their names put on the wanted list. One of them told the investigators that the applicant had threatened to denounce him to the law-enforcement bodies in order to give incriminating evidence against Magomed Ye. and Musa K. 87. On 26 February 2002 the criminal investigation was closed regarding the part concerning the actions of the officers of the Nalchik pretrial detention centre, on grounds of absence of corpus delicti. 88. On the same day the investigator from the department of the General Prosecutor's Office in the North Caucasus closed the criminal proceedings against Magomed Ye. for want of evidence. He noted that it had turned out to be impossible to identify the persons who had abducted and killed Suleyman Tsechoyev; that the conclusions of the graphology expert reports were contradictory and could not be construed as a single body of incriminating evidence against Mr Magomed Ye.; that by the time of the abduction he had no longer been employed at the prosecutor's office for more than six months and there was no evidence that he had continued to be aware of or to influence the proceedings; that between March and September 1999 he had remained in Moscow, as confirmed by witness statements and documents; that the allegations that he had obtained money or property from the K. family had proved to be unfounded; and, finally, that there were reasons to suspect that the applicant had personal motives, since he was being prosecuted for libel against the K. family and had threatened a witness in order to obtain evidence incriminating Magomed Ye. 89. On 22 May 2001 the Prosecutor General's Office informed the applicant that on 11 April 2001 the investigation in criminal case no. 16/2499 had been transferred to the department of the Prosecutor General's office in the North Caucasus. According to the letter, Mr Ye. had absconded from the authorities and his name had been put on the wanted list. 90. On 7 January 2002 the applicant and his relatives complained of the ineffectiveness of the investigation in criminal case no. 16/24-99 to the Prosecutor General. In his letter the applicant also alleged that some of the evidence in the criminal case-file materials had been forged by the investigators. 91. On 22 February 2002 the Prosecutor General's Office replied to the applicant. The letter stated that in connection with the forgery of the evidence in criminal case no. 16/24-99, they had opened criminal case no. 18/24411-01 on 14 September 2001. 92. On 15 or 24 May 2002 (the letter has two dates) the department of the Prosecutor General's Office in the North Caucasus informed the applicant that on 15 May 2002 the authorities had terminated the criminal proceedings against Mr Ye. owing to the failure to prove his involvement in the abduction of Suleyman Tsechoyev. On the same date the investigation had been suspended owing to the failure to identify the perpetrators. 93. On 20 June 2002 the applicant and his relatives wrote to the Prosecutor General complaining of the ineffectiveness of the criminal investigation into the murder. 94. On 9 August 2002 the applicant's family received a letter from the Prosecutor General's Office. The letter stated that on an unspecified date the investigation of criminal case no. 16/24-99 had been resumed. 95. On 28 February 2003 the applicant complained about his brother's murder to the President of the Supreme Court of the Russian Federation. In his letter he complained of the ineffectiveness of the investigation into the crime and the decisions suspending it. The applicant requested the authorities to resume the investigation and carry out an additional examination of the evidence in criminal case no. 16/24-99. In particular, he complained that the investigation had failed to compile a composite sketch of the two men who had collected his brother from the pre-trial detention centre and to compare the handwriting of the kidnappers with those of all the officers of the Ministry of the Interior in Ingushetia and KabardinoBalkaria, as well as of the regional department of the RUBOP in the Northern Caucasus. 96. On 5 March 2003 the Prosecutor General's Office, upon the applicant's request, forwarded him a copy of the decision of 4 September 2002 suspending the investigation in criminal case no. 16/24-99. 97. It does not appear that the applicant or the investigators took any steps between 5 March 2003 and 20 May 2005. 98. On 20 May 2005 the applicant's representatives wrote to the Prosecutor General. They requested information concerning the progress reached in the investigation in criminal case no. 16/24-99 and enquired whether the investigators had carried out any expert or forensic examinations in the case. It does not appear that the applicant's representatives received any response to this request. 99. On 21 August 2007 the Deputy Prosecutor General quashed the decision suspending the proceedings. On 25 December 2007 Mr Magomed Ye. was placed under an obligation not to leave his place of residence in Moscow. 100. In January 2008 the investigator questioned the applicant, his sister and his mother in Malgobek. They denied that Suleyman Tsechoyev had any connections to illegal armed groups in Chechnya or in Ingushetia, pointed out that he had never been charged with any such crime before and affirmed that there was no evidence to support that allegation. They again insisted that Magomed Ye. had been connected with the abduction and murder of their brother, in view of his involvement in the arrest and beatings. 101. On 21 May 2008 the father of Musa and Magomed K. gave a statement in which he denied that his family had ever given any money or valuables to Magomed Ye. or his family. 102. In his submissions the applicant also described attacks by unspecified persons on himself, his relative and his house. 103. Accordingly, the applicant submitted that on 13 July 2001 he and Mrs U. had been wounded during an attempt to arrest them by officers from the RUBOP of Kabardino-Balkaria. On the same day the Ingushetia prosecutor's office opened a criminal investigation into violent acts against public officers. 104. However, in January 2002 the investigation was adjourned in view of the failure to identify the suspect. In March 2004 criminal charges against the applicant were dropped; Mrs U. was granted victim status. 105. The applicant and Mrs U. sought damages for the injuries and moral suffering inflicted by the RUBOP and the Federal Treasury. They also contested the lawfulness of the order to deliver the applicant to an investigator which had served as the basis for the attempt to arrest him. 106. In October 2004 the Malgobek Town Court refused to grant their claim, referring to the absence of any definitive outcome of the criminal investigation and the applicant's failure to appeal against the decision to adjourn the proceedings. An appeal by the applicant was dismissed without consideration for failure to observe the requisite time-limits; he tried to have the time-limits restored but it appears that his complaint to the Supreme Court of Ingushetia remained unexamined. 107. No complaints were brought following those developments, but the applicant relied on the above proceedings to explain his inaction between 2003 and 2005 vis-à-vis the domestic criminal investigation into his brother's murder. 108. The applicant submitted, referring to numerous publications concerning the subject, that following the events described above Mr Magomed Ye. had become a well-known political figure in Ingushetia. As a successful businessman and journalist, he had founded an Internet site (www.Ingushetiya.ru) in 2001 which had quickly become an important media forum for the opposition forces. In 2008 Mr Magomed Ye. had become one of the organisers of the “I did not vote” campaign aimed at denouncing electoral fraud in Ingushetia during the Russian presidential elections. In June 2008 a district court in Moscow classified the site as “extremist” and demanded its closure. The order could not be implemented because the site was hosted in the United States. 109. On 31 August 2008 Mr Magomed Ye. was detained on arrival at the airport in Nazran, Ingushetia, and shot dead in the police car. In December 2009 a court in Ingushetia found one officer of the Ministry of the Interior of Ingushetia guilty of causing death by negligence and gave him a suspended sentence. In August 2010 this officer was killed by unknown gunmen in Ingushetia. On 25 October 2009 another former coowner of the Ingushetia.ru site, Mr Maksharip A., was killed by unknown gunmen in Kabardino-Balkaria.

train

001-107556

ENG

DEU

CHAMBER

CASE OF O.H. v. GERMANY

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction;Article 5-1-c - Reasonably necessary to prevent offence;Article 5-1-e - Persons of unsound mind);Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Non-pecuniary damage - award

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

5. The applicant was born in 1952 and is currently in Straubing Prison. 6. Between 1970 and 1987 the applicant was convicted in eight judgments of offences including theft, robbery, extortion, assault and dangerous assault and spent some fourteen years in prison. 7. On 9 April 1987 the Munich I Regional Court convicted the applicant of two counts of attempted murder. It sentenced him to nine years’ imprisonment and ordered his preventive detention (Article 66 § 1 of the Criminal Code, see paragraphs 41-42 below). 8. The Regional Court found that in 1986 the applicant and an accomplice had shot at two policemen several times in order to escape arrest and criminal prosecution following the discovery of their plans to carry out an armed bank robbery using a stolen car. A psychological expert and a neurological expert consulted by the court, who had both examined the applicant in person, confirmed that the applicant was suffering from a personality disorder characterised, in particular, by antisocial conduct, which was, however, not serious enough to be classified as pathological. The court therefore considered that he had acted with full criminal responsibility. The applicant’s preventive detention was necessary as, owing to his criminal tendencies, there was a risk that he might commit similar serious offences in the future and he was thus a danger to the public. 9. On 21 August 1996 the Regensburg Regional Court ordered that the applicant’s preventive detention, imposed by the judgment of 9 April 1987 of the Munich I Regional Court, take place in a psychiatric hospital (Article 67c § 1 and Article 67a § 2 of the Criminal Code, see paragraphs 43 and 47 below) from 5 November 1996, when the applicant would have fully served his prison sentence. According to the report drawn up at the court’s request by an external psychiatric expert, L., the findings of whom the court endorsed, the applicant suffered from schizophrenia simplex characterised by autistic behaviour and from a serious personality disorder. The expert took the view that the applicant had not been diagnosed with that illness before 1990 because it was characterised mostly by disorders concerning the affectivity, thinking or personality and less by hallucinations or delusional ideas. He should therefore be transferred to a psychiatric hospital as soon as possible for socio-therapeutic treatment and medication. Without such treatment, the applicant, owing to his tendency to commit serious offences, was a danger to the public. 10. On 5 November 1996 the applicant, having fully served his prison sentence, was placed for the first time in preventive detention, in psychiatric hospitals in Haar and Straubing. 11. On 29 July 1999 the Regensburg Regional Court ordered that the applicant’s preventive detention should take place in prison instead of in a psychiatric hospital (Article 67a § 3 of the Criminal Code, see paragraph 47 below). It considered that the applicant’s preventive detention in a psychiatric hospital was not helping to rehabilitate him. 12. The Regional Court noted that the psychiatric expert, L., whom it had consulted in 1996, had taken the view that the applicant’s chronic schizophrenia could be better treated and his rehabilitation better furthered in a psychiatric hospital. A doctor at Haar Psychiatric Hospital had considered that the applicant suffered from an antisocial personality disorder and, possibly, from psychosis of a schizophrenic nature. The treating doctors at Straubing Psychiatric Hospital had, however, taken the view that the applicant’s rehabilitation could not be furthered in that clinic as the applicant, who suffered from a schizophrenic-type disorder and antisocial conduct, had persistently refused any of the therapies offered. The Straubing prison authorities had opposed the applicant’s transfer back to prison, arguing that the applicant’s illness could only be treated in a psychiatric hospital. The court, having heard the applicant in person, endorsed the hospital’s findings. 13. Since 26 August 1999 the applicant has been detained in a separate wing of Straubing Prison for persons in preventive detention. 14. The continuation of the applicant’s preventive detention in prison was ordered by the Regensburg Regional Court on 21 June 2001. 15. On 13 May 2004 the Regensburg Regional Court ordered that the applicant’s preventive detention was to take place in a psychiatric hospital (Article 67a §§ 1 and 2 of the Criminal Code, see paragraph 47 below). On 25 June 2004 the Nuremberg Court of Appeal quashed that decision for lack of sufficient findings as to the illnesses or disorders from which the applicant suffered and as to the need to treat these in a psychiatric hospital and remitted the case to the Regional Court. 16. On 17 March 2005 the Regensburg Regional Court ordered that the measure of the applicant’s preventive detention be further enforced in prison. It underlined that for the applicant to be transferred to a psychiatric hospital under Articles 67a and 63 of the Criminal Code, it was only decisive whether the applicant’s rehabilitation could be better furthered thereby; the preconditions of Article 63 of the Criminal Code (see paragraph 48 below) did not have to be met. 17. The Regensburg Regional Court endorsed the findings of a psychiatric expert, W., it had consulted. The expert had considered that the applicant most probably suffered from a serious personality disorder with antisocial and schizoid elements, but not from schizophrenia simplex. As he refused therapy and his conduct had not changed substantially since 1986 he was liable to reoffend if released. The expert held that he should not be transferred to a psychiatric hospital under Article 67a §§ 1 and 2 of the Criminal Code. His rehabilitation could not be better furthered by such a transfer, as required by the said provision, because the disorder from which he suffered could not be treated primarily by medication and he refused therapy. Expert W.’s findings were contested by the medical director of the psychiatric wing of Straubing Prison, who maintained that the applicant suffered from an illness, schizophrenia simplex, which could be adequately treated only in a psychiatric hospital. 18. On 5 October 2006 the Regensburg Regional Court, sitting as a chamber responsible for the execution of sentences, ordered the applicant’s preventive detention to continue even after completion of ten years in such detention (Article 67d § 3 of the Criminal Code, see paragraph 46 below). 19. The Regional Court found that the applicant was liable to commit further offences, in particular assaults and robberies, if released. It further considered that the applicant was not to be transferred to a psychiatric hospital under Article 67a § 2 of the Criminal Code because his rehabilitation could not be better furthered thereby. It referred in this respect to the findings of the psychiatric expert it had consulted, P., who had found that the applicant refused treatment in a psychiatric hospital. The court noted that the fact that the applicant suffered from a mental illness and the particular nature of that illness was not decisive for its finding under Article 67a § 2 of the Criminal Code that the applicant’s rehabilitation could not be better furthered in a psychiatric hospital. Its view that the applicant’s preventive detention should take place in prison was confirmed by the fact that the applicant’s previous transfer to a psychiatric hospital had not yielded any success. 20. In reaching its decision, the Regional Court had regard to the report dated 25 May 2006 submitted by expert P. The latter, who had examined the applicant in person, had taken the view that the applicant, an antisocial personality, suffered from a schizophrenic-type disorder characterised by noticeable problems in the person’s conduct, thinking and mood, which gave the impression of schizophrenia, but without any symptoms indicating actual schizophrenia. He had considered that the applicant did not suffer from schizophrenia, a diagnosis made following several previous examinations and as maintained by the medical director of the psychiatric wing of Straubing Prison, L., who still considered that the applicant could be adequately treated only in a psychiatric hospital. Expert P. noted that since 2002 the applicant was no longer being treated in the psychiatric wing of Straubing Prison. 21. The psychiatric expert had further considered that the applicant was likely to reoffend in view of his numerous previous convictions and the fact that he had committed his offences in 1986 shortly after having been released from prison. Moreover, he had subsequently been convicted of assault (in 1995) and of a drug offence committed in prison (in 1989). He hardly had any social contact outside prison. His personality disorder had not been treated as he had refused psychiatric therapy. He had also refused to apply for relaxations in the conditions of his detention and had announced that he would abscond if granted leave under escort. Measures would need to be taken to prepare his conditional release, such as finding contact persons outside prison, social training and relaxations in the conditions of his detention as soon as this appeared justifiable. 22. By 4 November 2006 the applicant had served ten years in preventive detention. 23. On 27 December 2006 the Nuremberg Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it found that there was still a risk that, if released, the applicant, owing to his criminal tendencies, might commit serious offences, in particular assaults, robberies or thefts, resulting in considerable psychological or physical harm to the victims (Article 67d § 3 of the Criminal Code). His continued preventive detention was therefore still proportionate. 24. The Court of Appeal endorsed expert P.’s finding that the applicant’s rehabilitation would not have been better furthered by his transfer to a psychiatric hospital as he refused treatment. 25. On 25 January 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his continued preventive detention after completion of ten years on the basis of the amended Article 67d § 3 of the Criminal Code, which had entered into force after he had committed his offence, violated his human dignity, his right to liberty, the prohibition of retrospective punishment and the right not to be punished twice for the same offence under the Basic Law. 26. On 23 July 2007 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 241/07). It found that the applicant’s complaint had no prospects of success. The criminal courts had verified the continued danger posed by the applicant in accordance with the standards set by the Basic Law. Article 67d § 3 of the Criminal Code, as amended in 1998, permitted the continued preventive detention, for several decades if necessary, of incorrigible offenders who persisted in refusing any treatment and remained a danger despite their advancing age. 27. Since 26 August 1999 the preventive detention order against the applicant has been executed in a separate wing of Straubing Prison for persons in preventive detention. Persons in preventive detention have certain privileges compared with convicted offenders serving their sentence. 28. In particular, at the relevant time, persons in preventive detention had more wide-ranging possibilities to occupy themselves in their spare time (one extra hour could be spent outside on non-working days; use of a well-equipped sports room; additional private telephone calls). They had shorter lock-up hours (some five hours less per day), more generous visiting times (up to seven hours extra per month) and more wide-ranging opportunities to purchase goods (four extra opportunities to buy a larger variety of goods). They further had the right to wear their own underwear, use their own bed linen and bath robes, and have more pocket money. They had bigger cells (the applicant’s cell measures approximately 8.75 sq. m) which they could equip with bigger TV sets and additional furniture. 29. The applicant is considered by the Straubing prison authorities to be a nervous choleric person filled with hatred. Numerous disciplinary measures have had to be imposed on him, in particular for assaults on fellow prisoners and insults directed at the prison staff. He neither has contact with his fellow prisoners nor does he receive any visits from outside the prison. Since 1991 it has no longer been possible to assign him suitable work in prison. 30. As regards the therapy offered to the applicant, he stopped taking medication shortly after having started treatment for schizophrenia simplex with which he was diagnosed in 1990. This led to disturbances in his thinking, insufficient energy and a risk of occasional hallucinations. The legal preconditions for the forced administration of medication have never been met. 31. Between November 1996 and August 1999 the applicant was offered psychiatric treatment for schizophrenia simplex with which he had been diagnosed in Haar and Straubing psychiatric hospitals but he was unwilling to undergo treatment. 32. In Straubing Prison the applicant consistently refuses to accept the treatment offered or to meet the psychiatric experts who come to examine him in person. 33. On 19 February 2009 the Regensburg Regional Court, sitting as a chamber responsible for the execution of sentences, ordered the applicant’s preventive detention to continue under Article 67d § 3 of the Criminal Code. Endorsing the findings made by the psychiatric expert it had consulted, N., the court found that there was still a risk that the applicant, owing to his criminal tendencies, might commit serious offences if released. There was a risk, in particular, that he might commit assaults and robberies, resulting in considerable psychological or physical harm to the victims. The court further considered that the applicant’s preventive detention should not take place in a psychiatric hospital under Articles 67a § 2 and 63 of the Criminal Code because, as had been convincingly shown by the expert, the applicant’s rehabilitation could not be better furthered thereby. The fact that the applicant suffered from a psychiatric illness was not decisive for the decision to be taken under the said provisions. 34. The expert consulted by the court, who had to draw up his report on the basis of the case file as the applicant had refused to submit himself for examination, found that the applicant suffered from an antisocial personality disorder, characterised by a lack of empathy, disregard for social rules, aggressive behaviour and a lack of feelings of guilt. He further suffered from a schizophrenic-type disorder, which was generally characterised by eccentric behaviour and abnormalities in the person’s thinking and mood, which gave the impression of schizophrenia without any symptoms indicating actual schizophrenia: the applicant displayed eccentric and mistrustful behaviour, lacked social contact and experienced occasional hallucinations. It was, however, very unlikely that he suffered from schizophrenia simplex. The disorders from which the applicant suffered had still not been treated successfully and he continued to refuse therapy and medication. Therefore, the applicant’s rehabilitation could not be better furthered in a psychiatric hospital, where a lack of disciplinary measures could lead to him displaying even more antisocial conduct. He considered that the applicant should be transferred to a psychiatric hospital under Article 67a § 2 of the Criminal Code if he no longer refused to take the necessary medication. 35. On 17 March 2009 the Nuremberg Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 36. On 13 December 2010 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the Regensburg Regional Court’s decision of 4 November 2010 not to order his immediate release in view of the Court’s judgment of 17 December 2009 in the case of M. v. Germany (cited above). It found that the applicant’s objections had to be examined in different proceedings to be instituted ex officio under Article 67e § 1 of the Criminal Code (see paragraph 44 below). 37. The city of Straubing did not subsequently apply for the applicant to be placed in a psychiatric hospital under section 1 of the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 49 below). The psychiatric expert it had consulted, who had examined the applicant in person, had considered that the applicant suffered from a personality disorder with antisocial and schizoid elements, but not from a schizophrenic psychosis. The applicant’s free will was not impaired by that personality disorder so that the requirements for a placement in a psychiatric hospital under the said Act were not met. 38. Following the leading judgment of 4 May 2011 of the Federal Constitutional Court on preventive detention (see paragraphs 51-55 below), the Regensburg Regional Court initiated proceedings for a fresh review of whether the applicant’s preventive detention was to be terminated in the light of the principles established in the said judgment. The psychiatric expert consulted in the proceedings had to draw up her report on the basis of the case-file as the applicant refused to have himself examined by her. She took the view that the applicant suffered from a mental disorder (a schizophrenic-type personality disorder and a dissocial personality) within the meaning of section 1 of the Therapy Detention Act (see paragraph 50 below). It was his dissocial personality which contributed considerably to his dangerousness. In the expert’s view, it was highly likely that the applicant would commit further violent offences if released. On 25 August 2011 the Regensburg Regional Court, endorsing the findings of the psychiatric expert, decided not to declare the execution of the preventive detention order against the applicant terminated. The proceedings are currently pending before the Court of Appeal. 39. The applicant is currently still in preventive detention, imposed by the Munich I Regional Court on 9 April 1987 and taking place in a separate wing of Straubing Prison for persons in preventive detention. 40. 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: 41. 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). 42. 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). 43. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which has not taken place immediately after the judgment ordering it becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is served 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 applies a measure of probation; supervision of the person’s conduct (Führungsaufsicht) commences with the suspension. 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 timelimit is two years (paragraph 2 of Article 67e). 45. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3). 46. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the offender’s conduct. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a(3) of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis. 47. Article 67a of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, of the Criminal Code, the court may subsequently transfer a perpetrator against whom preventive detention was ordered to a psychiatric hospital if the perpetrator’s reintegration into society can be better promoted thereby. The court may quash that decision if it later emerges that no success can be achieved by placing the perpetrator in a psychiatric hospital (Article 67a § 3). The duration of the placement is determined by the provisions which apply to the measure ordered in the judgment (Article 67a § 4). 48. The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public. 49. Secondly, pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (Bavarian (Mentally Ill Persons’) Placement Act – Bayerisches Gesetz über die Unterbringung psychisch Kranker und deren Betreuung) a court may order a person’s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order. Such an order may only be executed as long as no measure under Article 63 of the Criminal Code has been taken (section 1 § 2 of the said Act). 50. Furthermore, on 1 January 2011, following the Court’s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Therapy Detention Act – Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter) entered into force. Under sections 1 § 1 and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be necessary for the protection of the public. 51. 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 about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order 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. 52. The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the 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. 53. 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. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act (see paragraph 50 above). As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 54. In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung; see § 89 of the Federal Constitutional Court’s judgment). It stressed that, in line with that openness of the Constitution to public international law, it attempted to avoid breaches of the Convention in the interpretation of the Constitution (see §§ 82 and 89 of the Federal Constitutional Court’s judgment). 55. 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

001-110195

ENG

ITA

ADMISSIBILITY

M. AND S. v. ITALY AND UNITED KINGDOM

Inadmissible

András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

1. The applicants, Mrs F.M. and Ms A.S., are Italian nationals who were born on 25 August 1962 and 10 September 2004 respectively and live in Milan. They were initially represented before the Court by Ms L. Cossar, a lawyer practising in Milan, who later gave up her mandate. The first applicant is the mother of the second applicant and is acting in her own name and on her child’s behalf. 2. 3. The first applicant lived and worked in the United Kingdom from 1996 and became resident there in 2000. The parents of the second applicant (“A.S.”), who are both Italian citizens, married in the United Kingdom on 22 September 2000, and registered their marriage in Italy in November 2000. The parents separated before the child’s birth and judicial separation proceedings were issued by the first applicant in the Milan Civil Tribunal on 15 June 2004. They were eventually linked to subsequent child care proceedings which were commenced upon A. S.’s birth. 4. On 17 March 2005, custody of the child was granted to the mother by the Milan Tribunal. Regular (initially supervised) contact, to be held in the mother’s house, was also granted to the father (“X.”), who was ordered to pay maintenance. 5. On 31 May 2005, the first applicant complained about X.’s violent behaviour and the effects this was having on the child. She further requested authorisation to return, with the child, to the United Kingdom for work purposes. 6. By a judgment of the Milan Youth Tribunal (Tribunale per i minorenni) of 5 August 2005, the applicants were granted permission to return to the United Kingdom and the second applicant was inscribed on the first applicant’s passport. They moved to Reading, England, in the United Kingdom. 7. By a decision of 13 September 2005, the Milan Civil Tribunal altered the visiting arrangements, holding that the child should spend alternate weekends with the father, in Italy and the United Kingdom, in the presence of a nanny, but not including overnight stays. Visits to the United Kingdom would be unlimited as long as announced in advance. 8. On 13 January 2006 a CTU (psychiatric assessment) report was filed, stating that the time was not ripe for joint custody but that arrangements for more visits with the father were to be made gradually. The second applicant’s contact with her father was regular and became unsupervised through progressive contact orders issued by the Milan Tribunal. 9. On 13 March 2006 the court confirmed the mother’s custody of the child. 10. On 29 September 2006 the first applicant made submissions reiterating her concerns regarding the father’s behaviour and its effects on the child. 11. On 30 October 2006, the second applicant returned to the United Kingdom following a weekend with her father. She had a heavy rash in her genital area and displayed disturbed behaviour. On 4 November 2006 the emergency doctor noted a small tear in her anus but could not determine its cause. On 13 May 2007, again following a weekend with her father, the second applicant returned with a rash in her genital area and according to her mother displayed uncharacteristic behaviour such as heavy kissing on the mouth, and profound physical and psychological discomfort. The emergency doctor noted the rash and inflammation and reported these to the appropriate authorities as suspicious and indicative of possible sexual assault. However, he also considered it could be due to a lack of hygiene or to masturbation and was surprised that a congenital malformation of the girl’s genitalia had not been brought to his attention. On 17 May 2007 a detective constable of Thames Valley Police informed the first applicant that there was insufficient evidence to pursue a criminal investigation. On the same day A.S.’s nursery reported that A.S. had been found masturbating on the potty and that her behaviour the previous days had been strange. 12. On 11 June 2007, following accusations made against him, the father lodged an emergency request with the Italian Civil Tribunal asking for sole custody of the child and for her to be resident with him. 13. On 18 June 2007 a British social worker reported on the mother’s good qualities and noted the possibility that sexual abuse had taken place. She thought it was possible that the child’s travelling to Italy might be causing stress and advised that A.S. be accompanied by a nanny on these journeys. On this basis the first applicant requested the Italian courts to order supervised visits and submitted a detailed account of the situation in her pleadings of 25 June 2007. 14. On 28 June 2007, the Italian court found that the inquiry into the claim of sexual abuse did not provide any evidence substantiating the claims brought solely by the mother, who suffered from a state of extreme anxiety. Moreover, no official action had been taken by the British authorities. The court, therefore, dismissed the claims as unfounded. It noted that the mother had systematically and continuously denigrated the child’s father, even if no concrete elements that could suggest he was an inadequate parent had been revealed. This brought into question the appropriateness of the mother’s behaviour. For these reasons the custody regime had to be altered. Joint custody was therefore granted to the mother and the father to underscore the importance of both parental figures for securing the healthy psychological growth of the child, making both parties aware that they must assume responsibility for overcoming their parental conflict, in which the child was heavily involved. It confirmed the previous visiting arrangements and residence mainly with the mother. The applicant alleged that she had not been heard before this decision. 15. On 5 July 2007, the mother applied to the English courts for an emergency protection order under the 1989 Children’s Act, with a suspension of visiting rights. On 6 July 2007 the Principal Registry of the Family Division in London ruled that nobody could remove the child from the mother or from British jurisdiction until the case had been heard, and that the father should have supervised visits. The father issued a crossapplication to enforce the existing Italian orders. On 24 July 2007 the Milan Tribunal issued the certificate needed for the enforcement of the Italian orders regarding visiting arrangements. This was delivered to the United Kingdom authorities on 1 August 2007. 16. In the meantime, the British police had interviewed the father. He was also informed that the social services and the police felt supervised access would be appropriate while the Italian social services made an assessment of the situation. 17. On 2 August 2007, before the High Court it was accepted that the Italian courts had primary jurisdiction (according to the Brussels II Regulation) in matters of legal separation and child care. The mother’s applications were therefore withdrawn and the orders of the Milan Tribunal were recognised and enforced. 18. In October 2007, the mother stopped all contact between the child and her father due to suspicions that the father had sexually abused the child after a contact visit in Italy. The mother had taken the child to a doctor in an Accident and Emergency department in a hospital in the United Kingdom. However, contrary to the mother’s claims, the doctor found that the child was healthy save for a slight rash; no lesions had been found on her external genitalia and her anus was intact. However, child protection referrals were made to the United Kingdom police and social services. The police conducted two interviews with the child, recorded on video, where A.S. spoke of her father touching her. They advised the mother not to allow any unsupervised contact between the child and her father in order not to prejudice the criminal investigation. However, a letter of the Director of Childhood and Education, Reading Borough Council, to X., informed him of the events and concluded that there was no evidence of harm or risk of danger. Thus, the department’s intervention had not been necessary. 19. On 6 November 2007 the applicant submitted documents related to the alleged abuse and requested the Milan Tribunal to terminate the father’s visiting rights. On 23 November 2007 the father lodged his defence arguments, requesting that the child be placed with him or alternatively with a foster family under the control of the Milan Municipality, and for the relevant physical and psychological reports to be drawn up. 20. On 28 November 2007 the British police wrote to the Milan Tribunal informing it that criminal investigations were taking place in respect of the suspicion of sexual abuse. 21. On 29 November 2007 the Milan Tribunal held that there was no reason to change the provisional custody and visiting arrangements in place. It ordered a new CTU, which would also investigate whether it was possible that any sexual abuse had taken place. 22. A comprehensive CTU was drawn up which included interviews with all the parties involved, including the nanny, the father’s partner and her son. No interviews were, however, held with the child together with the father, since the first applicant denied the father access. Medical examinations and reports were also taken into account. According to the report, while talk about genitalia and sexual attitudes was recurrent in the child, it was mostly associated with the images of the British police and the mother and not those of the father and his new family. The child repeatedly stated that certain terminology which she used had only been used with these figures (the police constable and the mother) and she was unable to explain certain of the terminology she herself used. It emerged that the child missed the father and the united family unit, she felt uncared for and that she needed to be left alone in tranquillity. The report concluded that there existed “a possible sexual trauma and in any event a suffering exacerbated when confronting the subject of an alleged abuse, in addition to the suffering from the continuous conflict between the parents which aggravated the family dynamics and harmed the child’s equilibrium”. However, the report could not confirm that such a state was due to an actual abuse, as it could have been the result of a sexually charged environment in which the child was brought up. 23. After protracted proceedings in which both parties were represented and extensive expert evidence was submitted, and following a collegial hearing of 14 January 2009, the Milan Tribunal issued a (48 page) partial decision, filed in the relevant registry on 26 January 2009. It pronounced the couple’s separation. Furthermore, having considered the parties’ submissions, the expert evidence – particularly the medical reports –, the CTUs, the reports of the British police and of the British social services, and confirming its jurisdiction, it ordered, inter alia, that custody of the child be assigned to the Municipality of Milan; that the mother return the child to Italy immediately, if necessary with the assistance of the public forces; that the child’s name be removed from the passport of the nanny who had previously accompanied her on her travels; that the Municipality of Milan place the child, if possible with her mother (should she be so willing), in a protected place, and instigate a course of therapy, making available to the parents every form of therapy and support that might assist with parenting and meetings between father and daughter, which had to resume; that the mother pay compensation to the father and the child for breaching the previous contact orders and causing a sudden interruption in the relationship between father and child (by also forbidding any telephone communication), with the ensuing repercussions on the child’s equilibrium and the moral suffering caused to both. 24. On 2 February 2009, the first applicant appealed to the Milan Court of Appeal, requesting the suspension of the partial decision. 25. On 24 February 2009, the father registered the Milan Tribunal’s order of 26 January 2009 in the High Court of England and Wales, requesting its enforcement. On the same day the High Court ordered the registration of the order and the securing of the passports and identity cards of both the mother and her child. The first applicant, in her application to the Court, stated that she could request from the father the restitution of her documents for periods relevant to work-related travel. 26. On 1 April 2009 the first applicant requested permission to appeal against the High Court decision, and requested that the decision be stayed in the meantime. 27. On 17 April 2009 X. released the first applicant’s identity card. 28. By a judgment of 22 April 2009, filed in the relevant registry on 29 May 2009, containing a reasoning of more than twenty pages, the Court of Appeal in Milan dismissed the mother’s appeal against the Milan Tribunal’s decision of 26 January 2009. It noted that the proceedings had been long and complex, marked by various decisions, based on pleadings and evidence submitted by both parties, who had effectively participated (contradittorio). It dismissed her application for the case to be transferred to the jurisdiction of England noting, inter alia, that all of the parties were Italian. The child had been born in Italy, where she had remained for the first year of her life; the child had only left Italy due to her mother’s work and had regularly returned on multiple and extensive visits; the child’s mother tongue was Italian and she had only just started to learn English; and the British courts could not be said to be better suited to deal with the application given the stage of the proceedings in which extensive investigative measures had been ongoing for many years, including two expert witnesses, psychiatric assessments of the parties and huge amounts of evidence. On the merits, considering all of the different evidence before the court, including the child’s testimony also through expert reports, but excluding video recordings which had been made with unknown technologies and which had not been open to challenge by the father, it held that the medical evidence was not conclusive and that the advice given by the English police on the basis of the mother’s unilateral statements could not be regarded as determinative of the father’s guilt, though it was not yet excluded as investigations in Italy were still ongoing. The Court of Appeal was seriously concerned about the level of acrimony between the parents and the damage to the child. It clearly emerged from the report of the court-appointed expert witness, the reports of the expert witnesses of the parties and the report of British social services that the child was in a serious situation of psychological distress. In particular, it referred to the damage relating to the sexual and corporeal sphere and also the suffering caused by the current conflict between her parents, and her need, which had been denied, to maintain a network of connections with members of the father’s family and her father. The position of the child, the fact that she had not seen her father since October 2007, was considered to be grave. It was considered necessary to clarify once and for all this position given the confusion caused by the accusations of the mother and the damage produced by an invasive investigative approach aimed exclusively and obsessively at finding abuse – and deliberately designed to remove the child from the father – with no respect for the consequences upon the child, who was clearly unhappy and displaying physical and psychological suffering. The court therefore endorsed the decision of the Milan Tribunal to order the return of the child to Italy and her placement in a neutral environment, with the mother, if the mother wished, or alone, if she did not, with a course of therapy and the reinstatement of contacts with the father in a protected and monitored fashion. The court considered this to be an inevitable solution, given the increasingly serious and poisonous situation, which could only be sorted out in a neutral place, where the nature and origin of the child’s fundamentally sexual compulsive behaviour, her eroticisation and the minor’s adult expressions, with sexual content, could finally be fully deciphered, and the family dynamics and parenting skills of the mother and father could be observed. Indeed, the mother appeared anxious and showed little empathy towards her daughter (according to CTU reports), she was not in favour of allowing father-child contact and her actions were of emotional harm to the daughter. With regard to the suffering that the child would undoubtedly experience if the order were carried out, it was pointed out that the mother had the possibility of reducing this alleged suffering by agreeing to be placed in the home with her daughter for the limited period of time needed to sort out the family dynamics, a choice that was compatible with her activity as a university researcher entitled to periods of sabbatical or leave to conduct research in other countries. 29. On 16 June 2009, the English Court of Appeal ordered that the Family Division of the High Court was the correct court to consider the mother’s appeal against the execution of the Milan Tribunal’s order in which she relied on Article 23(a) and (b) of Brussels II (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility). It ordered that a CAFCASS (Children and Family Court Advisory and Support Service) report be presented. In the CAFCASS report dated 27 July 2009, concerns were set out about the enormous effect of the enforcement of the Italian court’s order which would remove the child from the United Kingdom and into institutional care in Italy with or without her mother. It suggested that A.S.’s position in the proceedings be safeguarded by a guardian to be appointed. This suggestion was rejected by the court on 29 July 2009. 30. On 4 November 2009, the mother’s appeal was dismissed by the High Court after a three day final hearing, the appointment of an advocate to assist with interpretation of Brussels II (Council Regulation (EC) No 2201/2003) of 27 November 2003, and the consideration of over 1200 pages of evidence, including the evidence before the Italian courts and of the court-appointed expert. It was accepted that the Italian courts had jurisdiction in relation to the child, and that under Article 31 of the Regulations the court in the United Kingdom could only refuse to enforce the order for one of the reasons specified in Articles 22, 23 and 24 of the Regulations, and could not review the substance of the Italian order. The issues were limited to whether the decision of the Milan Tribunal of 26 January 2009 was manifestly contrary to public policy of the Member State in which recognition was sought, taking into account the best interests of the child (Article 23 (a)), or whether it was taken without the child having been given an opportunity to be heard, in violation of the fundamental principles of procedure in England (Article 23 (b)). It was not accepted that the policy adopted by the Italian courts in any way differed from that which would have been adopted by the United Kingdom courts, as the welfare considerations of the child plainly lay behind their decision. The order could therefore not be considered to be manifestly contrary to public policy. In addition, it was considered clear that the child’s voice had been put before the Italian courts through the expert witness who had prepared a thorough report which went conscientiously through a mass of material and involved a series of interviews with all parties. It was also abundantly clear that the expert was highly concerned about the child and had highlighted the child’s welfare in the clearest possible terms. The Italian courts had set out clearly why further assessments of the child, which all parties agreed were necessary, could not be done in England, making their orders even more understandable. In addition, the order was not a final order and was only for a limited time solely to address the problems that had caused the child to suffer to the extent that she had. It was clear that if sexual abuse by the father was established, relations with the father would be stopped. It was noted that the Italian court was faced with two difficult problems – on the one hand to discover the truth behind the mother’s allegations and on the other hand to prevent the child suffering further, as set out by the expert, as a result of the atmosphere created by the mother denigrating the father, and refusing to comply with court orders despite warnings. It was accepted that the order requiring mother and child to move to Italy even for a short time would cause the child upset, and might impact on the mother’s employment. Nevertheless, it was considered to be wrong to ignore the significant part that the mother’s attitude and actions had played in bringing about the present situation and the order of the Italian courts. Overall, the solution chosen by the Italian courts placed in such a dilemma was considered to have particular benefits including, inter alia, allowing the mother to remain with the child, the fact that it was only a short term measure, the fact that contact with the father was dependent upon the determination of the mother’s allegations, and that any decisions which followed would be taken by the same court that had heard this matter extensively since 2004. The High Court therefore made an order for recognition of the Italian court order, dismissed the mother’s application for a stay of the proceedings and dismissed her application for a transfer of the proceedings to the English High Court. 31. By a decision of 24 November 2009, filed in the relevant registry on 31 May 2010, the Italian Court of Cassation rejected the first applicant’s appeal on the basis that the appeal grounds were unfounded. It noted, however, that in respect of jurisdiction the Court of Appeal’s decision had been based on the application of the Brussels II Regulation, which at the time had not been applicable. In respect of other grounds of appeal it considered that the impugned decision had been comprehensive, took account of all the pleadings of the parties and appeared wholly legitimate. As to the merits, namely the admissibility and assessment of evidence, the Court of Cassation considered that the Court of Appeal had given ample, logical and correct reasons justifying its decision. 32. On 4 December 2009, the High Court in England issued a further judgment to clarify aspects of the previous judgment and ordered the execution of the Italian order by 16 December 2009. It clarified that the mother’s application for a stay of the proceedings had been dismissed together with her application that the High Court should not enforce the decision of the Italian court. The Italian authorities had provided information about where the assessment would take place, the accommodation that would be provided and further details of the plans for the mother and the child in Italy. Whilst sympathetic to the fact that the child would have to be taken out of school two days before the end of term, it was noted that proceedings in the United Kingdom had been ongoing since February 2009, and the date of enforcement continually delayed. It was noted in particular that the mother had accepted that she would be obliged to go and stay with the child in Italy to undertake assessments. This would give the child the enormous advantage of having her mother with her when she went to an unfamiliar setting. Finally, the High Court refused to extend the time-limit to appeal, but in any event refused to grant leave to appeal, as not only was the decision under consideration not contrary to public policy, but it was one which the British courts might well have followed. 33. On 11 December 2009 the first hearing in the divorce proceedings took place in Milan. The judge offered to “withdraw” the order for the placement of the child in an institution if the child entered Italy voluntarily. 34. On 16 December 2009, the English Court of Appeal dismissed the mother’s further application for a stay of the execution of the Italian order, confirming that the mother should return the child to Italy by 18 December 2009. 35. On 17 December 2009, following attempts to reacquire their travel documents, the applicants returned to Milan. On 18 December 2009, in the context of the divorce proceedings, the judge held that A.S. should remain under the custody of the Milan Municipality but that she could live with her mother for the limited time the latter was in Italy, the father to pay an allowance for the renting of an apartment. 36. In December 2009 A.S. regularly met with the doctors from Spazio Neutro (a service aiding the exercise of access rights according to Article 9 of the Convention on the Rights of the Child). From then up to June 2010 supervised access with the father took place once every two weeks and thereafter on a weekly basis. 37. On 11 January 2010, following the father’s refusal to pay the deposit for rent of an apartment, the applicants moved to Venice, although arrangements were in progress for the child to start school in Milan. On 26 January 2010 the first applicant removed A.S. from her passport following complaints by the father. 38. On 12 April 2010 the Italian inquiry into allegations of sexual abuse was discontinued, having become time-barred. 39. In the meantime, proceedings were pending in respect of the first applicant’s financial situation and the financial obligations of the parents, and various decrees were issued, including in respect of the child’s schooling. On 14 July 2010 A.S. was allowed to go on holiday to the United Kingdom with her mother. They went to England from 7 to 22 August 2010. 40. On 1 October 2010 the British police discontinued the investigation regarding sexual abuse. By a letter of 10 November 2010 the first applicant was informed that the case had also been reviewed by the Child Abuse Investigation Unit and after a careful consideration of all the facts and the recent changes in circumstances surrounding A.S. and her father’s supervised contact, it had been decided that no further active investigation would ensue. 41. The first applicant alleged that the father had again abused the child on a particular occasion when the child went to buy an ice-cream with her father with no supervision. She claimed that although she had urged the social services and medical staff to implement A. S.’s therapy, no action had been forthcoming. 42. Following the first applicant’s proposal for settlement in the context of the separation proceedings, on 16 November 2010 the father agreed to drop the judicial separation proceedings. Access decrees continued to be delivered according to the needs and in the best interests of the child, and from March 2011 A.S. was spending one weekend every fortnight at her father’s residence. 43. In February 2011 the parents commenced a mediation process at the local department in Milan. 44. On 13 May 2011 Spazio Neutro handed in another report suggesting the continuation of the current arrangements in Milan. The applicant complained that no mention was made of the fact that she would lose her job if she did not return to the United Kingdom. 45. Divorce proceedings continued in June 2011. By a decision of 13 July 2011, A.S. was to spend part of her summer holidays (24 July – 15 August) in the United Kingdom with her mother and another part (1628 August) with her father. A request lodged on 17 August by the first applicant for the child to have an extended period of summer holidays with her in the United Kingdom was rejected on 29 August 2011 on the ground that there had been no time for the Milan Municipality, to whom the child was entrusted, to give its approval. Moreover, it was noted that since the lodging of the request coincided with the first day of the father’s period of vacation with the child, it appeared that the request had been made with the intention of disrupting this already ordered period of holiday with the father. Furthermore, the child would have been unable to attend the visits with the social services and the municipality, if away from Italy. 46. In a social services’ report dated 26 August 2011, it was considered that the current arrangements were adequate to the minor’s needs and it would not be necessary to limit the parents’ rights any further in respect of medical and schooling issues. The report further noted with concern the repetitive requests of the parents regarding matters not related to the custody of the minor, which were taking precedence over the main issues and increasing conflict between the parents.

train

001-58069

ENG

FRA

CHAMBER

CASE OF GUILLOT v. FRANCE

No violation of Art. 8

R. Pekkanen

8. Mr Gérard Guillot and his wife, Mrs Marie-Patrice Guillot, née Lassauzet, chose to give their daughter, born on 7 April 1983, the forenames "Fleur de Marie, Armine, Angèle". After consulting State Counsel at Nanterre, the registrar of births, deaths and marriages for Neuilly-sur-Seine, to whom the child's birth had been declared, refused to register the first of these names on the ground that it did not appear in any calendar of saints' days. The birth certificate drawn up at the time mentions only "Armine, Angèle". 9. In a judgment of 7 February 1984 the Nanterre tribunal de grande instance dismissed the applicants' main application for an order that the forename "Fleur de Marie" be added as their daughter's first forename, but granted their application made in the alternative for the addition of "Fleur-Marie". It held as follows: "State Counsel objected to the application on the grounds that whereas 'Fleur' and 'Marie' are, when taken separately, acceptable first forenames under French law, that is not the case with 'Fleur de Marie'. The applicants submit that 'Fleur de Marie' is composed of two forenames recognised by French law, which when linked by the preposition 'de' form the name of the heroine of Eugène Sue's Mystères de Paris, a work which is world-famous. However, although a forename may be composed of up to two names already in use, it cannot, as in the present case, consist of a combination of two names linked by a preposition since it would cease to be a mere reuse of a traditional boy's or girl's name and become an image invented at the whim of individuals, for all that they might possess as lively an imagination as Eugène Sue. In any event, this was not the intention of the legislature when it regulated the choice of forenames. Consequently, the main claim in the application must be dismissed but there is no reason not to grant the claim made in the alternative relating to the forename 'Fleur-Marie'. For these reasons, ... Dismisses the applicants' application for an order that the forename 'Fleur de Marie' be added as the first forename of the child born on 7 April 1983 and already called Armine Angèle. Declares, on the other hand, that the forename 'Fleur-Marie' is acceptable under French law and orders that it be added as the first forename of the above-mentioned child. Orders that the operative provision of this judgment ordering the addition of the first forename be entered in the margin of the child's birth certificate. Orders that no certified copy of the certificate shall be delivered without the said addition. (...)" 10. Mr and Mrs Guillot appealed to the Versailles Court of Appeal, which on 18 September 1984 upheld the judgment of the court below in the following terms: "(...) Although in spite of the mandatory requirements of the Law of 11 Germinal Year XI, which provides that forenames must be chosen from the various calendars in use, case-law is tending towards a more liberal approach in order to take account of changes in social mores, local customs and family traditions, it is necessary to prevent parents from choosing forenames which are excessively whimsical and so eccentric that the child is likely to be the first victim. This is the case with the forename 'Fleur de Marie', notwithstanding that it was the name of the heroine of a famous literary work. On the other hand, there is no reason not to allow the claim made in the alternative that the forename should consist of the two forenames 'Fleur' and 'Marie' juxtaposed. (...)" 11. Relying in particular on Articles 8, 9 and 14 of the Convention (art. 8, art. 9, art. 14), the applicants appealed on points of law to the Court of Cassation (First Civil Division), which dismissed their appeal on 1 October 1986 on the following grounds: "(...) the provisions of section 1 of the Law of 11 Germinal Year XI are not contrary to ... Articles [8, 9 and 14] (art. 8, art. 9, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which merely establish general principles relating to respect for private and family life, freedom of conscience and the prohibition of discrimination between individuals; ... ... the Court of Appeal, which was not obliged to go into the finer detail of the parties' reasoning, held, in the exercise of its unfettered discretion, that the chosen forename, because it was eccentric and excessively whimsical, and notwithstanding that it was the name of the heroine of a famous literary work, was likely to harm the interests of the child; in so doing, the Court of Appeal justified its decision in law (...)" 12. Article 57 of the Civil Code provided: "The birth certificate shall state the date, time and place of birth, the sex of the child and the forenames to be given it, the forenames, surnames, ages, occupations and addresses of the father and mother and, if applicable, those of the person registering the birth ... The forenames which appear on a child's birth certificate may, where there is a good and lawful reason, be amended by an order of the tribunal de grande instance made on an application by the child or, during the child's minority, by the child's legal representative. The order shall be made and published in accordance with the conditions set out in Articles 99 and 101 of this Code. The addition of forenames may likewise be ordered." 2. The Law of 11 Germinal Year XI and its application 13. Section 1 of the Law of 11 Germinal Year XI provided: "(...) only names in use in the various calendars, and those of known figures of ancient history may be entered as forenames in birth registers; registrars shall not enter any other names in their registers." The ministerial circular of 12 April 1966 amending the general circular on civil status (Official Gazette of 3 May 1966) laid down in particular: "(...) CHOICE OF FORENAMES (...) General principles (...) Practical application (a) It should, however, be observed that the impact of custom in this field has considerably reduced the restrictions which were initially placed on the acceptance of forenames by the provisions of the Law of 11 Germinal Year XI taken literally. It is true that these provisions are of practical value in that they provide registrars of births, deaths and marriages with a bulwark against innovations which appear to them to be such as might later harm children's interests and which would therefore be unacceptable. In practice, registrars of births, deaths and marriages, who have to take the immediate decision whether a forename is acceptable, can hardly be expected to compile a list of the exact resources of the calendars and of ancient history in order to determine whether a given forename is included in this heritage or not. In practice they are required to use common sense when exercising their discretion, so as to ensure that the law is applied with a measure of realism and liberality, in other words in such a way that the changes in social mores which have hallowed certain usages are not ignored and that surviving local characteristics and even family traditions which can be shown to exist are respected. Registrars must not lose sight of the fact that it is for parents to choose forenames and that, to the fullest extent possible, any wishes they may have expressed should be taken into account. ... (b) In addition to the forenames normally allowed within the strict limits of the Law of Germinal, the following may therefore possibly be accepted, having regard to the foregoing considerations and, where applicable, subject to appropriate evidence being produced: 1. certain forenames of mythological origin (such as Achille, Diane, Hercule, etc.); 2. certain forenames peculiar to local languages of the national territory (Basque, Breton, Provençal, etc.); 3. certain foreign forenames (such as Ivan, Nadine, Manfred, James, etc.); 4. certain forenames which correspond to words that have a specific meaning (such as Olive, Violette, etc.) or even old surnames (such as Gonzague, Régis, Xavier, Chantal, etc.); 5. compound forenames, provided that they do not include more than two simple names (such as Jean-Pierre or Marie-France but not, for example, Jean-Paul-Yves, which would be a combination of three forenames). (c) Exceptionally, registrars of births, deaths and marriages may also accept, but with some caution: 1. certain diminutives (such as 'Ginette' for Geneviève, 'Annie' for Anne, or even 'Line', which is derived from feminine forenames containing that ending); 2. certain shortened forms of double names (such as 'Marianne' for Marie-Anne, 'Marlène' or 'Milène' for Marie-Hélène, 'Maïté' for Marie-Thérèse, 'Sylvianne' for Sylvie-Anne, etc.); 3. certain variations in spelling (for example Michèle or Michelle, Henri or Henry, Ghislaine or Guislaine, Madeleine or Magdeleine, etc.). (d) Ultimately, it would appear that registrars of births, deaths and marriages should only refuse to enter names chosen by parents which have not been demonstrably established as forenames in France by sufficiently widespread use. Thus, in particular, registrars should systematically refuse to enter forenames which are purely whimsical or names which, by reason of their nature, meaning or form cannot normally constitute forenames (surnames, names of objects, animals or qualities, words used as stage names or forenames or as pseudonyms, names that are onomatopoeic or recall political events). (...)" In a judgment of 10 June 1981 the Court of Cassation stated that "parents can in particular choose as forenames, subject to the general reservation that, in the child's interest, they are not found to be ridiculous, names in use in the various calendars; and while no official list of permitted forenames exists, there is no ground for requiring that the calendar relied on emanate from an official authority" (First Civil Division, 10 June 1981, Recueil Dalloz Sirey 1982, p. 160). 14. The Law of 6 Fructidor Year II provided - and still provides: "No citizen may bear a surname or forename other than those stated on his birth certificate; those who have abandoned their original names shall resume them." "Neither may any nickname be added to the original name, unless it has hitherto been used to distinguish members of the same family and does not evoke feudal or nobiliary attributes." "All public servants are expressly prohibited from referring to citizens in documents otherwise than by their surnames, the forenames shown on the birth certificate or the nicknames permissible under section 2 and from recording any other names in the certified copies or short-form certificates which they issue subsequently." 15. Law no. 93-22 of 8 January 1993 on civil status, the family and children's rights, which created the office of family-affairs judge, repealed the Law of 11 Germinal Year XI and replaced the last two paragraphs of Article 57 of the Civil Code by the following provisions: "A child's forenames shall be chosen by its father and mother (...) The registrar of births, deaths and marriages shall immediately enter the chosen forenames on the birth certificate. Any forename recorded on the birth certificate may be chosen as the usual forename. Where the said forenames or any one of them, either taken alone or linked to the other forenames or to the surname, appear to the registrar to be contrary to the child's interests or to the right of third parties to protect their surname, the registrar of births, deaths and marriages shall immediately so inform State Counsel, who may then refer the matter to the family-affairs judge. If the judge considers that the forename is contrary to the child's interests or infringes the right of third parties to protect their surnames, he shall order the name to be deleted from the registers of births, deaths and marriages. If the parents fail to choose an alternative name compatible with the aforementioned interests, he shall give the child another forename of his own choosing. The decision shall be noted in the margin of all documents relating to the child's civil status." On the other hand, the Law of 8 January 1993 did not repeal the Law of 6 Fructidor Year

train

001-90250

ENG

POL

CHAMBER

CASE OF KALETA v. POLAND

No violation of Art. 8

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

5. The applicant was born in 1948 and lives in Taufkirchen, Germany. 6. The applicant and W.K. had a daughter M., born on 11 June 1989. The couple married in August 1989. The applicant and his wife separated on 1 August 1992. 7. On 3 September 1992 W.K lodged a divorce petition with the Katowice Regional Court (Sąd Wojewódzki). On 9 February 1993 the proceedings were discontinued as she had withdrawn her petition. 8. In 1993 W.K. again lodged a petition for divorce, this time with the Family Court in Munich. 9. Between 23 February 1994 and 3 August 1994 W.K. was detained on charges of child abduction and theft. On 3 August 1994 she was acquitted by the Munich Court. 10. On 27 February 1995 the Munich District Court awarded custody rights to W.K. The court considered that the mother took great care of the child and that the child had very good living conditions at her mother’s place. 11. On 15 June 1994 the applicant lodged an application with the Będzin District Court for sole custody of his daughter. 12. On 22 June 1995 the District Court in Będzin, Poland, gave a decision. The court awarded parental rights to W.K and limited the applicant’s rights to visiting rights. The court did not specify the access arrangements. The court also restricted W.K.’s parental rights by appointing a guardian to supervise her in the exercise of her rights. 13. Meanwhile, on 9 December 1994 the applicant asked the court to specify the access arrangements. 14. On 5 October 1995 the Będzin District Court gave a decision pursuant to the provisions of the Hague Convention. It allowed the applicant to visit the child on the first Friday of each month between 10 a.m. and 5 p.m. The meeting was to take place on the premises of the Będzin Family Centre (Ośrodek pomocy dziecku i rodzinie w Będzinie). In addition, W.K and a court guardian were to be present during the meeting. 15. On 14 November 1996 the Bedzin Family Centre confirmed that between October 1995 and 14 November 1996 the applicant failed to report for visits. On the other hand, the child and the mother were present at every meeting. 16. On 20 November 1996 the applicant applied to the Będzin District Court to change the access arrangements. He wished to see his daughter during ten days of the winter holidays and two weeks in summer. On 27 November 1997 the Będzin District Court dismissed his request. 17. On 25 November 1996 the applicant lodged an application with the Munich District Court challenging his paternity with respect to M.K. However, a DNA test confirmed his paternity. 18. On 15 August 1997 the Family Court in Munich dissolved the applicant’s marriage and awarded parental rights to W.K. 19. On 5 January 1998 W.K. instituted proceedings before the Będzin District Court in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her. She further requested that the court prohibit the applicant from having contact with his daughter. 20. On 20 October 1998 the applicant asked the court to dismiss W.K.’s request. He also requested that it grant him parental authority and limit W.K.’s parental authority to a right to have contact with the child. He submitted that W.K. was incapable of bringing up a child and had a history of criminal convictions for theft. In addition, criminal proceedings against her were pending (for assault on the applicant). 21. On 9 March 2000 the Będzin District Court gave a decision and dismissed both the applicant’s and his ex-wife’s requests. It also varied the contact arrangement of 1995. The court allowed the applicant to visit his daughter three times a year, on the first Friday of every fourth month between 1 p.m. and 5 p.m. The court held that the meeting was to take place on the premises of the Będzin Family Centre and W.K. and a court guardian were to be present during the meetings. 22. The applicant appealed. On 7 June 2000 the Katowice Regional Court dismissed his appeal. The court repeated the reasons given by the District Court. 23. On 20 June 2000 the Katowice District Court convicted W.K. of assault on the applicant. 24. A further cassation appeal by the applicant was dismissed by the Supreme Court (Sąd Najwyższy) on 12 December 2000. The court referred to the child’s best interest. 25. In 2000 and 2001 W.K. failed to report with the child to the Będzin Family Centre for visits. In particular, on 7 January, 5 May, and 1 September 2000, and 5 January and 4 May 2001 the applicant was present at the Będzin Family Centre. On all these occasions the mother did not bring the child. 26. The applicant met his daughter on 7 September 2001, 4 January, 4 May and 10 May 2002. 27. On October 2001 the applicant made a request for modification of his contact arrangements. He asked to see his daughter without the presence of the mother and the guardian. On 22 May 2002 the Będzin District Court gave a decision. On the basis of an expert’s report the court considered that contact with the applicant had been very stressful for the child. For these reasons and in view of the well-being of the child the court dismissed the applicant’s request. 28. On 11 October 2001 the applicant made a request to the Family Division of the Będzin District Court under Article 1050 of the Code, asking the court to fine W.K. for failure to comply with the order of 9 March 2000. On 5 June 2002 the court dismissed his request. 29. On 20 October 2003 the applicant met his daughter in the Będzin Family Centre. 30. In August 2004 the applicant’s daughter (then fifteen years old) sent a letter to her father stating that she did not wish to see him. 31. On 3 September 2004 the mother again failed to bring M. for a visit. 32. On 15 December 2004 the applicant made a request to the Family Division of the Będzin District Court under Article 1050 of the Code, asking the court to fine W.K. for failure to comply with the order of 9 March 2000. He also asked the court to vary the contact arrangements and to allow him to visit his daughter three times a year, on the first Friday of every fourth month between 10 a.m. and 8 p.m. 33. On an unknown date the request to impose a fine on W.K. was transferred to the Civil Division of the Będzin District Court. On 20 October 2005 she was fined (1,000 Polish zlotys (PLN)) for failing to appear at meetings. Her appeal against his decision was dismissed on 15 February 2006. 34. On 7 January 2005 the Będzin District Court gave a decision and dismissed the applicant’s request for modification of the contact arrangements. The court heard the sixteen -year-old M., who stated that she did not wish to have any contact with the applicant. The court held that it was not in the child’s best interest to vary the visiting arrangements. 35. The relevant domestic law concerning the enforcement of a parent’s visiting rights is set out in the Court’s judgment in the case P.P. v. Poland no. 8677/03, §§ 69-74, 8 January 2008.

train

001-57463

ENG

ITA

CHAMBER

CASE OF CORIGLIANO v. ITALY

Preliminary objection rejected (substantially the same);Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (victim);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings

C. Russo

10. As to the exact dates of the facts, there are uncertainties and gaps in the evidence in the case- file which the efforts of the Court, and in particular the questions it put to the persons appearing before it, have not entirely succeeded in removing. Subject to that reservation, the facts may be summarised as follows: 11. Mr. Clemente Corigliano, an Italian national born in 1921, lives in Reggio Calabria, where he practises as a lawyer. 12. In March 1973, during demonstrations in Reggio, the police arrested Mr. Santo Amodeo in a shop belonging to Mr. Corigliano and in the latter’s presence. On 29 March, the applicant gave evidence at Mr. Amodeo’s trial before the Reggio Regional Court. His evidence directly contradicted that of the police officers who had made the arrest. The Court upheld their version of the facts. On 2 April, Mr. Corigliano lodged a complaint with the Reggio public prosecutor’s office (pubblico ministero) against two judicial officers in that town: Mr. Giuseppe Viola, President of the Criminal Chamber of the Regional Court, and Mr. Francesco Colicchia, assistant public prosecutor (sostituto procuratore della Repubblica); he accused them of various offences, in particular of having acted out of personal interest in the exercise of their duties and having deliberately failed to declare that the police report of the arrest was false. 13. Having been informed of the complaint, the public prosecutor (procuratore della Repubblica) decided to commence proceedings (elevava rubrica) against the applicant for aggravated slander (Articles 368 and 81 of the Penal Code). He did not, however, notify Mr. Corigliano of this. On 21 April 1973, he requested the Court of Cassation to remit the case to another court; he relied on Article 60 - amended by Act no. 879 of 22 December 1980 - of the Code of Criminal Procedure, sub-paragraph 1 of which provided that (translation from the Italian): "Where criminal proceedings are instituted against, or where an offence has been committed against, a judge or a member of the public prosecutor’s office, and the proceedings fall within the jurisdiction of the judicial institution to which he is attached, the Court of Cassation shall refer the case to another court of similar jurisdiction." On 8 May, the public prosecutor (procuratore generale) attached to the Catanzaro Court of Appeal sent the case-file to the Court of Cassation, which by order of 2 July 1973 referred the case to the Messina Regional Court. 14. Mr. Corigliano received judicial notification (comunicazione giudiziaria) on 7 December 1973 that criminal proceedings had been brought against him under Articles 368 and 81 of the Penal Code and that he was entitled to appoint a defence lawyer within three days. 15. There were two stages in the investigation of the case : the first ended in a discharge and the second - following an appeal by the public prosecutor’s office - in the applicant’s committal for trial. 16. During the initial stage of the investigation, Mr. Corigliano on three occasions challenged the jurisdiction of the Messina Regional Court before the Court of Cassation. On 11 January 1974, he alleged that all the procedural acts to date were void. This first appeal on a point of law was held to be inadmissible on 22 March. On 3 February 1975, the applicant brought a second cassation appeal, alleging a conflict of jurisdiction between the Regional Courts of Messina and Potenza, where other proceedings were pending against him. The Court of Cassation declared the appeal inadmissible on 3 October. On 5 October 1975, Mr. Corigliano brought a third cassation appeal, seeking to join the proceedings pending against him in Messina and Potenza. On 16 October, he was informed that his appeal had not been registered and that the joinder of proceedings fell within the exclusive jurisdiction of the trial court (Article 48 of the Code of Criminal Procedure). 17. The public prosecutor’s office in Messina originally conducted the investigation of the case itself in accordance with the "summary" procedure (Article 389 of the Code of Criminal Procedure). It heard the applicant, Mr. Viola and Mr. Colicchia on 17 December 1973. Following Mr. Corigliano’s refusal to appoint a defence lawyer, the public prosecutor’s office forwarded the case-file on 18 December to the competent judge so that the latter could carry out a "formal" preliminary investigation. On 22 April 1975, the case-file was sent back to the Reggio Calabria Regional Court so that evidence could be taken from the applicant on commission. On 5 June, that Court declared that it lacked jurisdiction and returned the case-file to the Messina Regional Court. On 21 June and then on 12 December, Mr. Corigliano was summoned to appear before the Messina investigating judge, who questioned him on 26 June and 22 December 1975. 18. On 19 February 1977, the file was transmitted to the public prosecutor’s office which asked for further investigation to be carried out. On 2 March, it requested a copy of the judgment delivered on 29 March 1973 by the Reggio Calabria Regional Court against Mr. Amodeo; this was received on 31 March. On 9 April, it sought a further hearing of the judicial officers complained of by the applicant; Mr. Colicchia was heard on 16 June. The report of Mr. Amodeo’s arrest, also at the request of the public prosecutor’s office, was forwarded by the Reggio police authorities on 9 January 1978 and entered in the case-file. Finally, on 11 January, the public prosecutor’s office requested the investigating judge to hear the police officer who had drawn up the report and had gone to live in Caserta in the meantime; he was heard on 20 January. On the same day, the judge sent the case-file to the public prosecutor’s office so that the latter could present its final submissions. They were presented on 6 February. The investigating judge issued an order discharging the applicant which was filed at the registry on 2 March; on 13 March 1978, the case-file was sent to the public prosecutor’s office. 19. On 16 March 1978, the public prosecutor’s office appealed against this order (Article 387 of the Code of Criminal Procedure). The applicant was notified on 28 March. The "grounds of appeal" were entered on 4 April and the following day the case-file was forwarded to the investigation chamber of the Messina Court of Appeal. The latter decided on 7 July to commit the accused for trial; its decision was lodged in the registry on 11 July 1978. 20. On 7 August 1978, the file was transmitted to the Messina Regional Court. On 6 February 1979, the applicant received a summons to appear at the hearing on 30 March. At the conclusion of the hearing, the Regional Court gave him a suspended sentence of eighteen months’ imprisonment. 21. The applicant appealed on the same day. The Appeal Court of Messina, which had received the file on 18 June 1979, acquitted the applicant at a hearing on 19 February 1980.

train

001-99911

ENG

ROU

CHAMBER

CASE OF CARABULEA v. ROMANIA

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 13 (procedural aspect);Pecuniary damage - award;Non-pecuniary damage - award

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

6. The applicant, Viorel Carabulea, is a Romanian national, who was born in 1963. He lives in Bucharest. 7. On 3 May 1996 his brother, Gabriel Carabulea, aged 27, died in police custody in Bucharest following his arrest on suspicion of robbery. The ensuing investigations conducted by the prosecution authorities ended with the conclusion that Gabriel Carabulea died of natural causes, against a background of pre-existing ailments. 8. The applicant contested that conclusion. In a written statement submitted to his lawyer on 27 September 1998 he indicated that before his brother's arrest, he had been living with him and his family – his brother's wife Nela and their baby daughter. His brother had been in good health. His wife Nela was suffering from tuberculosis, which had prompted Gabriel to have an X-ray, the results of which had confirmed his good health. 9. On 21 March 1996 Bucharest Police Station no. 9 circulated a notice to all police stations in Bucharest for the arrest of Gabriel Carabulea, who was known to the police, and described as “author of several crimes of robbery”. The notice contained Mr Carabulea's nickname, his home address and his full identity, including his parents' names. At the time, no formal charge existed against him. 10. On 13 April 1996 Mr Carabulea was apprehended by three police officers from Bucharest Police Station no. 14. They alleged that while on patrol in a police car, they saw Mr Carabulea driving a car and they gave chase. A few minutes later, allegedly, they witnessed a minor accident between his car and another car. They claim that Mr Carabulea jumped out of his car and ran towards some nearby apartment buildings and that they ran after him and effected an arrest. They then took him to Police Station no. 14, where an investigation was started for the offence of driving a car without a valid licence plate. According to the police incident report and a witness statement given by the other driver, no physical injuries or damage to property were sustained as a result of the accident. 11. The applicant submits that on 13 April 1996, Nela received a telephone call from Police Station no. 14, informing her that her husband had been arrested and that she could bring him clothes and food. The applicant and Nela went to see Gabriel at around lunchtime. He was in good health, did not complain of any ill-treatment and his clothes were in good condition, being neither torn nor creased. Gabriel told them that he was going to be transferred to Police Station no. 9 and asked the applicant to take care of his wife and daughter. The applicant went home, while Nela stayed with Gabriel until around 4 p.m., when he was transferred to Police Station no. 9. 12. According to a police report dated 13 April 1996, Mr Carabulea was taken to Police Station no. 9 for questioning in connection with an alleged robbery that had been committed on 20 March 1996. There, he was informed that he was “guilty of aiding and abetting robbery and of the possession of counterfeit foreign currency” and that he would be “detained for the next 24 hours”. The report was signed by a police officer and an officially appointed lawyer, A.M., but not by Mr Carabulea. 13. Still on the same day, 13 April 1996, Mr Carabulea was officially charged with the aforesaid robbery. In a written statement made before the prosecutor he allegedly admitted the offence when questioned about the charge. This statement was submitted by the Government. 14. An arrest warrant valid for a period of 24 hours was issued by I.P., the police officer in charge of the lock-up. The warrant did not specify the time at which the 24-hour period commenced, contrary to the legal requirements. 15. On entering the lock-up at Police Station no. 9, Mr Carabulea was subjected to a body search. He was not examined by a doctor. The Government's evidence is that Mr Carabulea was in good health on entering the police lock-up. 16. On 14 April 1996 he was brought before the prosecutor V.L., who issued a detention order valid for five days. 17. According to the applicant, on 15 April 1996 Mr Carabulea's wife went to Police Station no. 9 to take food to her husband. She allegedly bribed Captain U. with some cigarettes in order to be allowed to give her husband the food and to talk to him for a few minutes in the presence of Captain U. She noticed that Gabriel was helped to Captain U.'s office by two policemen, as he had difficulty walking. After this short visit, Nela told the applicant that Gabriel “was looking bad”, but that she had not dared to ask her husband what had happened, owing to Captain U.'s presence. 18. The Government's account, based on two statements, by one of Mr Carabulea's fellow detainees and by police officer I.P, is that on the morning of 16 April 1996, while taking his shower, Mr Carabulea felt sick. He was taken to the kitchen for fresh air and then he was given a massage. Half an hour later, Mr Carabulea complained again that he was feeling unwell and was taken to the police dispensary, where a medical assistant observed “an altered general health condition, pain when breathing and physical weakness”. 19. At a time unknown, Mr Carabulea was taken to the Ministry of the Interior Hospital, where a doctor found that his systolic blood pressure was 5 mmHG and his pulse rate was 100 bpm. A diagnosis of “respiratory viral infection with altered general health condition” and, allegedly, a “normal thorax image” was made. Admission to Jilava Penitentiary Hospital was directed. 20. Mr Carabulea was taken back to the police lock-up, where he remained until 1.20 p.m. He was then brought before the public prosecutor and another warrant authorising his pre-trial detention for up to 25 days was issued. 21. At 5 p.m. Mr Carabulea was admitted to Jilava Penitentiary Hospital, where, according to the medical file, a diagnosis of “deteriorated general state, with sharp pain in the thorax, epigastric pain, and dyspnoea on minimal effort” was made. As he was also found to have paroxysmal tachycardia (sudden increased heart rate), it was decided to transfer him to St John's Emergency Hospital. 22. At around 8 p.m. he was transferred to St John's Emergency Hospital, where an initial diagnosis of a massive upper gastrointestinal haemorrhage was made. According to the medical records, Mr Carabulea was in a deep state of “shock”, his blood pressure was 5 and his pulse was 100. The applicant was admitted to the Emergency Ward of the Cardiology Section in a state of shock, with cyanotic and cold extremities, repeated vomiting with drops of blood (“coffee-ground” type), and intense pains in the epigastric region. Surgical consultation was required. The doctors described the history of the disease as follows. “After the patient's anamnesis, it appears that the shock occurred in the morning, but no probable cause was indicated:- ingestion of toxic substances, drugs, foreign bodies or trauma”. Further examination based on “clinical and paraclinical information supported by cardiological examination” ruled out the initial diagnosis of massive upper gastrointestinal haemorrhage, and the patient was found to have suffered a pulmonary thromboembolism. He was, therefore, transferred to Fundeni Hospital, which specialised in cardiology, at an unspecified time during the night of 16 to 17 April. 23. Early the next morning (17 April) at Fundeni Hospital the initial diagnosis was “syncope of undetermined cause, pulmonary thromboembolism, paroxysmal tachycardia” (right heart deficiency) and “a haematoma beneath the capsule of the liver”. He was noted to be in a state of shock and, having regard to the seriousness of his condition, constant medical supervision was advised. 24. Mr Carabulea remained at that hospital, under constant police supervision, in a ward in which he was the only patient. All medical examinations took place in the presence of a police officer. 25. The applicant states that on 16 April, at around 10 a.m., he and his cousin, Constantin Gheorghe, together with Nela went to see Gabriel at the police station, but were told that he was no longer there, as he had been taken to Jilava Penitentiary Hospital. They went to the said hospital where they were told that Gabriel was not there either. They then returned to Police Station no. 9 but the police officer on duty did not give them any further information and so they went home. That evening, their neighbours Tudor and Mariana told them a cousin of theirs, Mara, who was a cleaning lady at Fundeni Hospital, had telephoned them because she had seen Gabriel, who had been taken to that Hospital and placed in the Intensive Care Unit. The applicant, Constantin Gheorghe and Nela went to Fundeni. At the hospital reception they were told that Gabriel was there but that it was not possible to see him as he was under police supervision. 26. In an unsigned examination note in the medical file, allegedly drawn up on 16 or 17 April 1996, it is recorded that Mr Carabulea “explained in a moment of lucidity” that on 13 April 1996 he had been involved in a car accident. The note further records “cranial, thoracic and abdominal trauma which he [had] neglected”, and that “since 14 April he [had] had slight pains in the upper area of the abdomen, a dry cough and dyspnoea”. A computerised tomography performed the same day disclosed a haemorrhage beneath the capsule of the liver. 27. On 17 April 1996, whilst in the Intensive Care Unit of the hospital, Mr Carabulea was interrogated by the prosecutor M.P. According to the documents submitted by the Government, Mr Carabulea withdrew his previous statement made on 13 April 1996 in which, allegedly, he had admitted the offence. 28. Mr Carabulea remained in Fundeni Hospital. 29. The applicant alleges that after Gabriel's admission to Fundeni Hospital, his wife, the applicant himself, his cousin Constantin Gheorghe and his friend Dumitru Dinu tried to visit him every day. On each occasion they were refused admission by the authorities on the ground that Mr Carabulea was under arrest. However, they did manage to see him, briefly, at times and were able to glean certain information from him. 30. For instance, on 17 April 1996, they made an attempt to see Gabriel, but the policeman inside the ward did not let them enter as the patient was under arrest and warned them that, for his sake, they should not come any more. No doctor was available to advise them as to Gabriel's condition but some medical assistants told them that it was “serious”. It was not until the following day, after long negotiations with the police officer on guard, that Nela was eventually allowed to see her husband for a few minutes. After the visit, Nela came out of the ward crying and told the applicant, Constantin Gheorghe and Dumitru Dinu that Gabriel's condition looked very bad but that she was unable to obtain any information from him because of the presence of the police officer. Some days later, Nela and Dumitru Dinu succeeded in entering Gabriel's ward for a few minutes. When they came out, they told the applicant and Constantin Gheorghe that Gabriel had told them that the police had suspended him from a cupboard, by using handcuffs, and had then congratulated him for having beaten the world record for hanging. He had also been rolled up in a wet carpet and beaten. On another occasion, Dumitru Dinu managed to see Gabriel through the door to the ward, which was slightly open. The applicant and Constantin Gheorghe, who were a few metres away, heard Gabriel calling out to Dumitru Dinu: “They've killed me, I'm a wreck!” (M-au omorât, m-au nenorocit). The applicant, Nela, Constantin Gheorghe and Dumitru Dinu went to the hospital every day to try to see Gabriel. Throughout this period, the medical staff refused to talk to them. On one occasion, when asked about the diagnosis, a doctor told them that the doctors did not know what the diagnosis was. 31. Mr Carabulea died in hospital on the morning of 3 May 1996. 32. The hospital notified the Prosecutor's Office of his death, reporting that the patient's death was caused by “recurrent pulmonary thromboembolism (on 17 April, 24 April and 3 May), severe pulmonary hypertension, thoracic and abdominal trauma as a result of a car accident of 13 April 1996, right heart insufficiency, thrombophlebitis in the left leg and irreversible cardio-respiratory block”. 33. The applicant submits that Mr Carabulea's family were not formally notified of his death but learned of it on 3 May 1996 when they went to the hospital to visit him. They were told at reception that Mr Carabulea had died and they were sent to the hospital mortuary. There, they saw Gabriel's body and noticed that he had bruising in a number of areas, including the ribs and stomach, one thigh and also in the genital area. They wanted to take his body home but were told that it was not possible and they were directed to come back on Monday 5 May. 34. According to an on-site report of I.C., Military Prosecutor, and dated 3 May 1996, Mr Carabulea's death was the result of a car accident which had taken place on 13 April 1996. The report stated that the corpse showed no external signs of injury and no symptoms of any internal lesions and that, whilst in the hospital, the patient had not referred to any alleged assault by the police officers at the place of detention. The report records that interviews were held with certain doctors, that no relatives of the victim were present at the time and that no other data was available. Despite the legal requirements, none of the doctors allegedly interviewed had countersigned the report. 35. A death certificate issued the same day records “acute cardio-respiratory insufficiency” as the immediate cause of death and “bronchopneumonia” as the proximate cause of death. 36. An autopsy ordered by the prosecutor on the date of death was carried out on 4 May 1996 by Dr P.P. of the Forensic Medicine Institute in Bucharest. The victim's family were not informed about the autopsy. 37. On Monday 5 May 1996 Mr Carabulea's family returned to Fundeni Hospital but were told that the corpse had been transferred to the morgue at the Forensic Medicine Institute, where an autopsy had already been performed. The family was allowed to take the body for burial. Before the burial, they took some pictures of the lower right side of the body. 38. Two copy pictures that were submitted to the Court show bruises and haematoma on the victim's right hand, upper right thigh, right iliac crest and on the right side of the genital area. 39. On 7 May 1996 the Bucharest Institute of Phthisiology issued a medical certificate stating that Mr Carabulea had been examined at its clinic one year earlier, in May 1995, and that there was no indication of any pathology associated with his pulmonary condition. 40. A provisional autopsy report dated 10 May 1996 and signed by Dr. P.P. stated that Mr Carabulea's death had been “non-violent and was the result of acute cardio-respiratory insufficiency following pulmonary thromboembolism, with widespread areas of pulmonary infarction against a background of pre-existing chronic diseases, myocardial sclerosis, and aggressive chronic hepatitis with progression towards cirrhosis. The violence bruise observed is more than 3-4 days old and could have been produced by the impact of a hard object, but did not cause death.” No X-ray of the thorax had been performed during the autopsy. 41. The final autopsy report was produced by Dr P.P. on 30 July 1996. Its findings based on a forensic examination of the corpse, noted an ecchymosis “as a result of violence on the right iliac crest” which had no causal link with the death, a fracture of three ribs “R3-R5 along the mid-clavicular line, 100 ml of serous-sanguineous fluid in the right pleural cavity”, and “black blood” in the lungs. The report was silent as to the source of bleeding. Genitalia and veins were reported as being “normal”. Its conclusion was drafted in identical terms to those used in the provisional report of 10 May 1996. 42. On 8 May 1996 Mr Carabulea's wife filed a complaint with the Military Prosecutor's Office in Bucharest, claiming that her husband, who had been in sound physical condition when he had entered police custody, had died as a result of beatings by police officers U. and B. (Police Station no. 9). She requested a murder investigation to be opened and she attached to her complaint the medical certificate which had been issued the previous year in May 1995 and which had certified that her husband's pulmonary and pleural condition had been good. 43. The same day, Captain U. compiled two separate reports on the circumstances of the arrest and detention of Mr Carabulea. He stated that when Mr Carabulea had undressed for the body search preceding entry to the lock-up, there had been no signs of injury on his body. He denied having used any physical pressure while interrogating Mr Carabulea. He also mentioned that on 16 April 1996 Nela Carabulea had arrived at the police station with a package for her husband and requested to see him but had been refused. 44. Also the same day, police officer AM.M. from Police Station no. 9 filed a report indicating that he had been on duty on the day Mr Carabulea had been brought to the station and that he had not heard any noises or screams coming from the cell in which Mr Carabulea had been detained. 45. On 8 May 1996 the officer in charge of the lock-up, I.P., addressed a written report to his superiors, in which he indicated that on 13 April 1996 Mr Carabulea had been brought to the lock-up at the police station and that when he had undressed for the body search preceding entry, there had been no signs of injury on his body. According to him, on 16 April 1996 Mr Carabulea and two other suspects had been examined by a medical assistant, who had recommended that an X-ray examination be carried out on Mr Carabulea. He stated that an X-ray had been taken at the Ministry of the Interior Hospital and that the doctor there had ordered that Mr Carabulea be treated as an in-patient at Jilava Penitentiary Hospital. 46. On 9 May 1996 Mr S.S., a lawyer acting on behalf of Mr Carabulea's family, filed another complaint with the Military Prosecutor's Office requesting the investigation of Captain U. for physical assault causing death. The complaint alleged that the inhuman treatment to which the victim had been subjected had been inflicted for the purpose of obtaining a confession to the offence with which he had been charged and that during the victim's stay in hospital, both his family and the lawyer himself had been hindered in their efforts to contact him. The lawyer also complained that all medical documents concerning Mr Carabulea had been sealed and sent to the Forensic Medicine Institute and that the family had not been given access to them. 47. The military prosecutor S.C. was placed in charge of the investigation. 48. On 9 May 1996 police officer G.B., who served under the orders of Captain U., took statements from N.B. and E.B., who had been placed in the same police lock-up as Mr Carabulea. They were in custody at the time their statements were taken. They declared in almost identical terms that they had never heard Mr Carabulea complain of ill-treatment by the police. 49. On 17 May 1996 the military prosecutor took statements from F.F. and M.T., two police officers working at Jilava Penitentiary Hospital who had guarded Mr Carabulea during his transfer to St John's Hospital and subsequently to Fundeni Hospital. They stated in identical terms that during the transfer, the victim, who had stomach aches, had been lying down, but had not spoken to them. They had been present during all the medical examinations of Mr Carabulea and had not heard him complain to the doctors about an assault while in police custody. 50. On 14 August 1996 police officers U., I.P. and G.B. made statements to the prosecutor regarding Mr Carabulea's detention and death. Captain U.'s statement largely corresponded to his reports of 8 May 1996 (paragraph 43 above). I.P. reported that he had taken part in the body search of Mr Carabulea and that he had not seen any signs of violence on Mr Carabulea's body. He further explained that as Mr Carabulea had not felt well in the morning of 16 April 1996 while in the shower room, he had taken him to the medical assistant at the police station and then to the Ministry of the Interior Hospital, where he had been examined and sent to Jilava Penitentiary Hospital. Before taking him to Jilava Penitentiary Hospital, I.P. had gone to the prosecutor's office for the 2nd district, where a 30-day warrant had been issued. G.B. stated that between 13 and 15 April 1996 he had been on leave. 51. On 20 August 1996 the military prosecutor decided not to open a criminal investigation in respect of police officers I.P. and G.B. He concluded that Mr Carabulea's death had been non-violent and was due to organic diseases which had developed progressively and which led to a deterioration in his general state of health following a car accident on 13 April 1996, during which he had suffered thoracic, abdominal and cranial contusions. 52. On 21 January 1997 the Romanian Helsinki Committee sent a letter to the Military Section of the Procurator-General's Office requesting a new investigation. It pointed out, in particular, that Mr Carabulea had never complained of any pain before being taken into police custody, that the bruising in the genital area could not have been caused by a car accident, and that M.I., Mr Carabulea's alleged co-accused on the robbery charge and the driver of the car which had allegedly been involved in a collision on 13 April, had never been questioned. 53. On 12 February 1997 the prosecutor-in-chief D.V., from the Military Section of the Procurator-General's Office, quashed the decision of 20 August 1996 on the basis of insufficient reasons. He sent the case file back to the prosecutor in charge for further preliminary inquiries in respect of the alleged assault by the police officers, with the following instructions: that a statement was to be taken from the victim's wife; that the report concerning the alleged car accident on 13 April 1996 was to be examined; that all the police officers who had taken part in the victim's arrest on 13 April 1996 and everyone present during his interrogation, including the prosecutor V.L. and the officially appointed lawyer, A.M., were to be questioned; that the various pieces of information concerning the interrogation of both Mr Carabulea and his co-accused were to be examined and assessed; that the prosecutor M.P. and the officially appointed lawyer P.P. were to be interrogated with a view to explaining why on 17 April 1996 Mr Carabulea had withdrawn his earlier statements and whether any physical pressure had been exerted on him during the first interrogations. He further instructed that a supplementary forensic report be produced with a view to determining whether the fracture of the ribs and the bruising in the genital area were the result of any alleged assault. 54. On 19 February 1997 the case was registered at the Military Section of the Procurator-General's Office and a new prosecutor, I.I., was assigned. In a report dated 3 March 1997 I.I. indicated that following an article published in the newspaper Cotidianul on 24 February 1997, he had invited Mrs Nela Carabulea, the victim's wife, to come to the prosecutor's office. During this meeting it was agreed that she would return at a later date, with her lawyer, in order to consult the file relating to her husband's death so as to enable her to submit any objections to the way in which the investigation had been carried out. 55. The Government claimed that after that meeting, Mrs Carabulea had refused to go to see the prosecutor. They produced two summonses dated 6 May 1997 and 30 June 1997 informing Mrs Carabulea that her failure to appear before the prosecutor would lead to the discontinuance of the proceedings, and to which Mrs Carabulea had allegedly failed to respond. They also submitted four alleged acknowledgments of receipt of various summonses which had been addressed to Mrs Carabulea, none of which containing her signature. 56. The applicant submitted in reply that Mrs Carabulea had not received any of these summonses. He stated that the prosecutor had met Mrs Carabulea on 3 March 1997 but had not asked her any questions. 57. On 25 August 1997 the prosecutor-in-chief, D.V., submitted a written request to the Bucharest Police Department for a copy of the file concerning the alleged car accident of 13 April 1996 and for information regarding the medical report prepared when Mr Carabulea had been taken into the police lock-up. 58. On 5 September 1997 the Bucharest Police responded that the file on the car accident was at the prosecutor's office for the 4th district. They further indicated that, according to Instruction no. 410/1974 issued by the Ministry of the Interior, any sign of physical violence noted during the body search had to be notified to the doctor in charge of the lock-up, who would advise whether the detainee should be admitted to the lock-up and would make preparations for a thorough medical examination, and that in any event, all detainees had to be medically examined within 24 hours of incarceration. 59. On 12 September 1997 the military prosecutor again requested the medical report that had been drawn up when Mr Carabulea's had been taken into police custody. On 13 November 1997 Bucharest Police Station no. 9 indicated that Mr Carabulea's medical file had been sent to Jilava Penitentiary Hospital. It appears from this medical file that the first entries were made on 16 April 1996, shortly before Mr Carabulea's transfer to Jilava Penitentiary Hospital. The file did not contain any mention of an X-ray that had, allegedly, been performed. 60. In late 1997 the military prosecutor received the investigation file concerning the alleged car incident on 13 April 1996. It appears from this file that on the said date Mr Carabulea had been charged only with the offence of driving a car without a valid licence plate. The file contains no mention of any collision with or of any damage to any other vehicle or of any injury to any person. 61. On 7 January 1998 the military prosecutor I.I. ordered the preparation of a forensic medical report on the body of the deceased by experts from the Bucharest Forensic Medicine Institute. The experts were asked to express an opinion on the cause of death and to say whether, in their view, the measures taken by the medical staff who had treated Gabriel Carabulea had been correct and appropriate having regard to his condition. They were further asked to advise on whether any signs of injury were evident in the genital area of the deceased and, if so, on the nature of such injury and on the duration of time that would have been required for its healing. A colour photograph showing bruising in the area of the victim's genitalia which had been submitted by the family was attached to the order. 62. On 17 February 1998, in response to the request of the public prosecutor, Dr P.P., who had performed the autopsy on 4 May 1996, (see paragraph 36) produced his second forensic report, in which he reiterated his previous findings. In addition, he stated that the broken ribs “had no vital character” and that the fracture of the mid-clavicular line “could have been produced post mortem”, during the cardiac resuscitation that was, apparently, carried out at Fundeni Hospital. Moreover, in his opinion, the bruising in the genital area as indicated on the photograph had also been produced post mortem, such bruising being a very common occurrence in his experience. 63. On 4 March 1998 the military prosecutor decided, in the light of the additional forensic report, not to open criminal investigations into the allegations both of physical assault resulting in the death of the victim and of an inadequate investigation by Captain U. and G.B. His decision, which was far briefer in its rationale than the decision of 20 August 1996 (see paragraph 51), concluded that Mr Carabulea's death was due to “a cardiopathy of a person with pre-existent visceral pathology” and had not constituted a criminal act. 64. The Government submitted two expert opinions by forensic pathologists, the first by Professor Dr Dan Dermengiu, from the “Mina Minovici” Forensic Medicine Institute in Bucharest, dated 20 June 2001, and the second by Professor Dr Derrick Pounder, a British forensic expert, dated 19 November 2004. 65. In his report, Professor Dermengiu explained that a pulmonary thromboembolism was a sudden biological event which appeared without any symptoms. He noted that Mr Carabulea had had a child who had died at the age of 1 year and 8 months because of a thrombosis of the inferior vena cava, owing to a congenital anomaly of the venous system, and he concluded that it was, therefore, reasonable to suppose that Mr Carabulea had presented similar anomalies of the venous system which had predisposed him to the development of a thrombosis. The report stressed that the alleged traffic accident had not caused any external or internal lesions and that there was no causal link whatsoever between the alleged traffic accident and the appearance of pulmonary thromboembolism and of the thrombophlebitis of the left limb, the first manifestation of which was evidenced on 3 May 1996. 66. Professor Pounder's report described the history of Mr Carabulea's treatment and subsequent death, as recorded in the medical records that had been presented to him, which he described as “poorly kept”. He noted that when Mr Carabulea had arrived at the Ministry of Interior Polyclinic, he was in serious ill-health and had been vomiting blood and that by the time he was transferred to St John's Hospital, at 8 p.m., he was in a generalised life-threatening condition requiring admission to the intensive care unit with the intention of addressing, immediately, the problem of saving his life. Life-saving measures having been taken, Mr Carabulea was then transferred to Fundeni Hospital on 17 April with a diagnosis of pulmonary thromboembolism. A computerised tomography performed there disclosed a lesion on the surface of the liver, while an ultrasound examination revealed some emboli in the small peripheral arteries of the lung. As a result of these findings, the doctors had been faced with the following dilemma: if the medical treatment required to limit the normal clotting mechanism of the blood (the emboli) was to be administered, then this ran the risk of exacerbating the liver haemorrhage which, as a consequence, might in itself have become life-threatening. Therefore, the doctors had administered the anti-coagulant with caution in order to prevent further haemorrhage around the liver. On 24 April Mr Carabulea had developed a second severe episode of pulmonary thromboembolism for which he had received emergency treatment and had been successfully resuscitated. His recovery was slow and the physicians had planned a phlebography but before this investigation could be performed, Mr Carabulea suffered a third episode of pulmonary thromboembolism and died at 7.25 a.m. on 3 May. 67. Dr Pounder found that the unequivocal cause of death was pulmonary thromboembolism as a consequence of blunt-force trauma. Assuming that Mr Carabulea had been involved in an alleged road traffic collision on 13 April, Dr Pounder found that it was more likely than not that the liver injury sustained on that occasion had led to his death. Dr Pounder also considered that Mr Carabulea had been at high risk of death from pulmonary thromboembolism, even with the best of medical treatment, “given his initial presentation with shock and the subsequent recurrence of the pulmonary thromboembolism”. 68. Dr Pounder stated that the yellow bruise at the front of the right hip mentioned in the autopsy report could have originated in a number of causes, including the wearing of a seatbelt during a car accident. Having regard to the medical records indicating that resuscitation had been attempted, Dr Pounder considered that the three fractured ribs identified at the autopsy had almost certainly been produced during attempts at resuscitation around the time of death. 69. Concerning the autopsy report in general, Dr Pounder acknowledged that there were serious omissions and severe inadequacies in the post mortem autopsy as identified also by Dr Szentmariay in his report (see below paragraphs 70 to 74). Dr Pounder found the autopsy report deficient in several aspects, both general and specific. It did not meet “normally accepted standards within Europe”; it originated from an institute belonging to the Romanian State; it should have been produced expeditiously; it lacked thoroughness and was too brief; it contained a number of serious omissions, such as the failure to document the state of the veins in the legs, the presence or absence of thrombus within them and the failure to give an account of the weight of a number of organs. The autopsy report had declared the death to be due to natural causes despite the likelihood that the trauma on the surface of the liver was a precipitant of the pulmonary thromboembolism. Dr Pounder also deplored the fact that the additional opinion obtained from the Forensic Medicine Institute “had not taken the opportunity to acknowledge and correct the errors” contained in the earlier autopsy report. 70. The applicant submitted two expert opinions, one dated 29 August 2001 by Dr I. Szentmariay, a forensic pathologist practising at the Institute of Forensic Medicine at Semmelweis University in Budapest (Hungary), and the other dated 10 March 2005 by Professor Sidsel Rogde, from the Institute of Forensic Medicine in Oslo (Norway). Their opinions were based on the Romanian prosecuting authorities' file on Mr Carabulea, including all the medical documents, the autopsy report and some of the prosecutors' decisions. 71. According to Dr Szentmariay, the medical file submitted lacked proper and adequate information, such as laboratory data, routine medical data, including the circumstances surrounding Mr Carabulea's death, the drugs administered throughout his stay in hospital, their dosage and application. Having regard to the low probability (1 in 50,000) of a patient of Mr Carabulea's age developing a fatal pulmonary thromboembolism, even after a minor uncomplicated surgery, the development of such an embolism required a very thorough clinical analysis of many laboratory tests and other data. However, crucial information was missing from the medical file which, thereby, prevented any genuine appraisal of the case. 72. Dr Szentmariay also commented upon a number of inconsistencies in the medical documents on file. In the first place, he noted the change of diagnosis from respiratory (pulmonary) viral infection, made at Jilava Hospital, to “upper gastrointestinal haemorrhage”, made at St John's Hospital, and later to pulmonary thromboembolism, although no explanation had been provided for such changes. Furthermore, the diagnosis of pulmonary thromboembolism which had been made at St John's Hospital, at Fundeni Hospital and later referred to in the autopsy report contained no explanation of how this diagnosis had been reached since no blood clot (embolus) was ever mentioned as having been found. He also noted that it was not until 23 April that Heparin, “the immediate cornerstone treatment for pulmonary thromboembolism”, was administered, despite the fact that the diagnosis of pulmonary thromboembolism had been made one week earlier. As to the “thrombophlebitis of the lower limbs” mentioned as one of the causes of death in the Notice issued by Fundeni Hospital on 3 May 1996, Dr Szentmariay stated that “thrombophlebitis of the lower limbs” was not a deadly disease and would not “at all” predispose a patient to thromboembolism. He found no numerical data available to quantify the severity of the pulmonary hypertension mentioned in the said Notice and he expressed the view that the “thoracic and abdominal trauma caused by the car crash” was an insufficient explanation of cause of death since no specific diagnosis had been made and there was no indication of any organs having been affected or of the kind of injuries that were allegedly sustained in the accident. He further noted that in Fundeni Hospital a diagnosis of haemorrhage around the liver was made. Since such diagnosis “always raises the strong possibility of blunt abdominal trauma in the near past” Dr Szentmariay was astonished that no other reference or observation was made in respect of this diagnosis. In his view, such a diagnosis would normally be followed very carefully “because of the potential of sudden blood loss, hepatic rupture and many other potentially life-threatening complications”. He pointed out that the scrotal lesion which could be seen on the pictures taken by the family was not described in the autopsy report although this should have formed part of the external body description. He further found the description in the autopsy report of the fracture of the ribs to be deficient since it provided no information as to the age of the fracture or as to whether it was on the right or left side, both of these elements being important in determining the causal mechanism of the rib fracture (resuscitation procedures or otherwise). 73. With reference to the statement made by Dr Dermengiu that Mr Carabulea might have had anomalies of the venous system, Dr Szentmariay pointed out that the autopsy indicated that the venous system of the victim was normal. He further stressed that the isolated vena cava developmental anomaly which had caused the death of Mr Carabulea's child was a very rare condition and that the heredity rate of such a disease was in the region of 1-2%; moreover, none of the medical records, including the autopsy report, had ever indicated that the victim had thrombophlebitis. 74. Dr Szentmariay also stated that it was “professionally incomprehensible why it took more than 100 days to complete the autopsy report” since the generally accepted time was 3 to 4 weeks. In short, he described the forensic autopsy report as “basically professionally useless, loaded with scant and incomplete descriptions and with medically erroneous conclusions”. As a consequence, he declared himself “unable to reasonably exclude the possibility of significant trauma contributing to the death”. Finally, he pointed out that in similar cases he would have suggested a reautopsy of the deceased, “but in this case, it is highly unlikely that similar action will yield useful information, depending on the technique of conservation of the body”. 75. The applicant's second expert, Professor Rogde, noted at the outset that the re-examination of the corpse should not have been done by the same pathologist as the one who had given the primary opinion. He further found the descriptions in the autopsy reports to be sparse and lacking in many aspects. He deplored the fact that photographs had not been taken post mortem, which would have been very helpful in determining whether there were bruises on the corpse or simply post mortem lividity, and he expressed the opinion that the pre-existing diseases of the victim described in the autopsy reports had probably not been of any importance concerning the death. He also confirmed that the cause of death was most probably pulmonary thromboembolism whose precipitating event could have been serious trauma. However, noting that the source of the embolism had not been found “and [was] probably not searched for”, he concluded that, having regard to the poor quality and brevity of the autopsy reports, it was not possible to determine the reason for the thrombosis. 76. On 27 September 1998 Dumitru Dinu, a friend of the victim, and Constantin Gheorghe, the victim's cousin, submitted written statements to the applicant's lawyer concerning the circumstances surrounding Mr Carabulea's death. 77. Dumitru Dinu stated that he had managed on one occasion to persuade the police officer to allow him to enter the ward with the victim's wife in order to help Gabriel to change his clothes. Whispering, Gabriel had complained that he had been brutally assaulted by the police who had suspended him from a locker with his hands tied behind his back and had beaten him while he was so hanging. When he refused to admit to the charge of robbery, he had been rolled in a carpet, jumped upon, and beaten with sticks. Gabriel had identified Captain U. as the chief of the police officers who had ill-treated him. The supervising police officer had terminated the meeting when he realised that they were talking about Gabriel's detention. As Dumitru Dinu and Gabriel's wife were leaving the ward, a medical assistant told them that a doctor wanted to talk to them. They went to see the doctor who informed them that Gabriel had very little chance of survival and that he was living on a drip. She told them that Gabriel had blood in his lungs and liver and a swollen heart and that his kidneys were blocked. Dumitru Dinu stated that he had returned to the hospital to see Gabriel for a second time. As the police officer had not allowed him to enter the room, he had forced the door open and asked Gabriel whether he was all right. He heard him shout back “They killed me! Don't leave me here, take me out of here otherwise I'll die!” The applicant, Nela Carabulea and Constantin Gheorghe were also present and heard these cries. Before the burial, Dumitru Dinu, who had brought along the photographer who took the only pictures of Gabriel's body, saw various injuries on the body, including, bruising around the stomach area and on the deceased's face, legs and genitals. 78. In his statement, Constantin Gheorghe confirmed that Gabriel had been kept in a ward under constant police surveillance. Although he did not see Gabriel during his stay in the hospital, he accompanied Nela Carabulea and Dumitru Dinu and he heard Gabriel call out “They killed me!” He witnessed Nela Carabulea and Dumitru Dinu come out of Gabriel's ward and tell him how Gabriel had complained that he had been tortured by the police under Captain U.'s command. He saw Gabriel's body after he had died. There were bruises on the legs and face, under the chin and on the genitals. “1. The Assembly considers it a necessary practice for autopsies to be carried out in all Council of Europe member states to establish the cause of death for medico-legal or other reasons or to establish the identity of the deceased. 2. As the mobility of the population increases throughout Europe and throughout the world, the adoption of uniform guidelines on the way autopsies are to be carried out and on the way autopsy reports are to be established becomes imperative. 3. This is especially so in the case of mass disasters, whether natural or not, where there may be several hundreds of victims of numerous nationalities. 4. Moreover, it is believed that autopsies should be carried out in all cases of suspicious death or where there are doubts as to the cause and that, if done systematically, they may more easily bring to light illegal executions and murders perpetrated by authoritarian regimes. 5. Internationally recognised and applied autopsy rules would therefore contribute to the fight to protect human rights, especially such human rights as the prohibition of torture and of ill-treatment, and the right to life. Here, the Assembly welcomes the fact that the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has been ratified by twenty out of the twenty-five Council of Europe member states. 6. The Assembly therefore recommends that the Committee of Ministers: i. promote the adoption of harmonised and internationally recognised rules on the way autopsies are to be carried out and the adoption of a standardised model protocol for autopsies; ii. support the proposal that states world-wide formally accept and implement the obligation to carry out autopsies in all cases of suspicious death; iii. invite the member states to apply the Interpol guidelines on disaster victim identification; iv. invite those Council of Europe member states which have not yet done so to ratify the Council of Europe Agreement on the Transfer of Corpses; v. invite the five Council of Europe member states which have not yet done so to ratify the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; vi. draw up international rules to facilitate the formalities proposed in sub-paragraphs 6.i, ii, iii, iv and v from the administrative (transport, crossing of borders, police, etc.) or legal points of view.” 79. The “Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions” adopted by the United Nations in 1991 includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In the introduction, it notes that an abridged examination or report is never appropriate in potentially controversial cases and that both a systematic and comprehensive examination and report are required to prevent the omission or loss of important details: “It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results.” 80. In part 2(c), it states that adequate photographs are crucial for thorough documentation of autopsy findings. Photographs should be comprehensive in scope and must confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report. 81. Following a visit to Romania, the Special Rapporteur in his report of 23 November 1999, found that there were persistent cases of police abuse aimed at extracting confessions from a suspect and that there was evidence to support the allegations that the Roma were more likely to be victims of police abuse than others. He further criticised as ineffective the system of investigation in which the military prosecutors had the exclusive authority to investigate, thus leading to the perception that the military prosecutors lacked independence and impartiality. He also noted that he had received numerous reports alleging that medical certificates were frequently falsified to cover-up ill-treatment by police and stressed that in most cases the investigations resulted in decisions not to prosecute. In spite of a request to the Romanian authorities, the Special Rapporteur did not receive any statistics on the number of complaints filed and prosecutions brought under Articles 266 (Abusive behaviour), 267 (Abusive investigation) and 267(1) (Torture) of the Criminal Code. Referring to the case of Gabriel Carabulea, the Special Rapporteur indicated that he had been informed by the military prosecutor that there was no reason to reopen the case but that the military prosecutor was prepared to review the facts once again. Noting that the lawyers for the victim had filed a complaint before the Court, the Special Rapporteur determined that he was not in a position to reach a conclusion on the merits of the case. However, he considered that the case raised serious concerns about the effectiveness of the investigation of torture on the part of police officials and was consistent with other reports that he had received. 82. In its report, the CPT indicated that a considerable number of detainees interviewed at the police lock-up cells and prisons visited by its delegation alleged that they had been physically ill-treated by the police. The following types of ill-treatment were constantly alleged: slaps, punches, kicks, blows with a truncheon (the victim sometimes being rolled up in a carpet or some similar covering). Some of the persons interviewed complained of beatings of the soles of the feet, which were apparently inflicted while the victim was on his knees on a chair or suspended from a solid bar in a position known as “spit-roaster”. These allegations related to the moment when the suspects were apprehended and to later stages of the interrogation by the police. The CPT delegation noted that when a prosecutor was asked how he would act in the presence of a suspect alleging ill-treatment by the police, he answered: “The police are my colleagues. I would regard this allegation as a lie coming from a recidivist...”

train

001-112574

ENG

UKR

CHAMBER

CASE OF PRYNDA v. UKRAINE

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

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

5. The applicants were born in 1944 and 1942. The first applicant, Ms Olga Prynda, died on 1 February 2010. The second applicant lives in the town of Stryy, Ukraine. 6. On 6 October 2003, at around 9 p.m., the applicants’ son was hit and killed by a car being driven by a German national, Mr F. The car belonged to a Polish national, Ms G. 7. The law-enforcement authorities examined the scene of the accident immediately after and prepared a vehicular accident scheme with the relevant measurements. The participants in the road traffic accident (Mr F. and Mr G., who was also in the car during the accident) gave their account of it. 8. On 7 October 2003 the Stryy Police Department instituted a criminal investigation into the road traffic accident and ordered a forensic medical examination of the victim. 9. On 8 October 2003 an on-site vehicular accident reconstruction was carried out with the participation of Mr F. and Mr G. and in the presence of attesting witnesses (Mr R. and Mr L.). On the same date two other persons were questioned as witnesses. 10. On 9 October 2003 the investigator ordered a technical vehicular examination, which was conducted on 13 October 2003 and established that the applicants’ son had died of serious head trauma as a result of the road traffic accident. 11. The applicants learned on 13 October 2003 that their son was dead and his body was in the town morgue. 12. On 23 October 2003 the applicants applied to the Transport Insurance Company for compensation. On 3 November 2003 the applicants and their granddaughters were awarded compensation of UAH 8,500 as heirs of the victim. In the accompanying letter, the Insurance Company informed the applicants that the above amount was the maximum amount it could pay under the law without consent of the foreign insurance company and it was open to them to seek any further compensation by lodging a civil claim against a person or persons liable for the accident. The applicants and their grandchildren received the above amount in equal shares on 13 June 2005. 13. On 28 October 2003 the forensic medical examination ordered on 7 October 2003 was conducted. It concluded that the applicants’ son had died as a result of the road traffic accident from open head trauma, and that he had been moderately drunk when the accident had occurred. 14. On 1 November 2003 the investigator ordered a forensic technical vehicular examination, which was conducted on 2 December 2003. 15. On 26 February 2004 the investigator ordered a vehicular trace examination, which was conducted on 26 April 2004. 16. Between December 2003 and December 2004 the applicants made numerous complaints to the different State authorities about delays in the investigation into the death of their son. 17. On 26 June 2004 the investigator stayed the proceedings on the ground that the only witnesses to the accident were the driver and the passenger of the car which had hit the applicants’ son, but they could not be questioned as they resided abroad and the police had no funds to arrange for them to travel to Ukraine. 18. On 14 July 2004 the Lviv Regional Prosecutor’s Office (“the LRPO”) quashed the decision of 26 June 2004 and instructed the police to continue the investigation. 19. On 30 December 2004 the investigator of the Lviv Regional Police Department decided to discontinue the criminal proceedings for lack of corpus delicti in the driver’s actions. It was established that, given the darkness, the wet road and the headlights from an oncoming car, the driver had only seen the applicant’s son, who had been walking on the road, at a distance at which he could not avoid hitting him. 20. On 10 January 2005 the LRPO quashed the decision of 30 December 2004 on account of the incompleteness of the investigation and gave instructions for further investigative actions. 21. By a letter of 25 January 2005, the Lviv Regional Police Department informed the applicants that the investigation of the case was complicated by the fact that the defendants resided abroad and the Department had no means available to cover the costs that would be incurred by them travelling to Ukraine. 22. On 31 January 2005 the investigator ordered an additional forensic technical vehicular examination, which was conducted on 25 February 2005. 23. On 4 April 2005 the investigator again decided to discontinue the criminal proceedings for lack of corpus delicti in the driver’s actions. 24. On 13 May 2005 the LRPO quashed the decision of 4 April 2005 on account of the incompleteness of the investigation, and gave instructions for further investigative actions to be taken. 25. On 12 August 2005 the investigator discontinued the criminal proceedings. The decision noted that the investigation had followed all the instructions of the prosecutor but had found no new factual data capable of affecting its previous conclusions. 26. On 26 December 2005 the LRPO quashed the decision of 12 August 2005. It noted that the investigator had followed the instructions given on 10 January 2005 only in part, while the instructions given on 13 May 2005 had been ignored altogether. 27. By a letter of 5 January 2006 the LRPO informed the applicant that the investigation had been reopened and disciplinary proceedings had been instituted against the investigator in their son’s case for having breached criminal procedure. 28. On 16 January 2006 the investigator refused to institute criminal proceedings against Mr F., Mr G. and Ms G. 29. On 30 January 2006 the investigator stayed the criminal proceedings concerning the death of the applicants’ son, stating that the prosecutor had instructed him to find other witnesses to the accident, which he had been unable to do so far. 30. On 5 May 2006 the investigation was resumed. 31. On 16 May 2006 the LRPO refused to institute criminal proceedings in connection with a complaint by the applicants in which they alleged that Mr. F, Mr. G. and Ms. G had bribed the police. 32. On 24 November 2006 the criminal proceedings were again discontinued. The investigator noted that he had summoned Mr G., who resided in Poland, to appear for participation in further investigative actions, but he had failed to appear. He also noted that Mr F. could not be summoned from Germany, as the investigation had no funds to pay for his travel expenses to Ukraine. It was further mentioned that there was no evidence that Mr F. had been the guilty party in the road traffic accident in question. 33. On 28 November 2006 the LRPO quashed the decision of 24 November 2006 on account of the incompleteness of the investigation. 34. On 4 November 2007 the investigation conducted an on-site reconstruction of the accident with the participation of Mr F., who was summoned from Germany. 35. On 17 November 2007 the investigator refused to institute criminal proceedings against Mr F. and discontinued the criminal proceedings into the road traffic accident that had led to the death of the applicants’ son. This latter decision was quashed by the LRPO on 15 January 2008. 36. On 6 February 2008 the investigator ordered an additional forensic transport trasological examination, which was completed on 3 April 2008. 37. On 19 April 2008 the investigator discontinued the criminal proceedings once again. He noted that the additional examination had established that the driver could have avoided hitting the victim with the use of emergency breaking only if the victim had been running. Given that there was no confirmation that the victim had been running, the investigator discontinued the proceedings, noting that under Article 62 of the Constitution an accusation could not be based on assumptions. 38. On 4 July 2008 the LRPO quashed the decision of 19 April 2008, stating that it was necessary to conduct additional investigations. 39. On 22 November 2008 the investigator discontinued the criminal proceedings. That decision was quashed by the LRPO on 9 December 2008. 40. On 30 December 2008 the criminal proceedings were stayed by the investigator, who indicated in his decision that on 6 October 2003 Mr F. had hit an unknown person. 41. On 20 April 2010 the investigator resumed the criminal proceedings. 42. On 20 August 2010 the investigator refused to institute criminal proceedings against Mr F. for lack of corpus delicti in his actions. By another decision, of the same date, the investigator discontinued the criminal proceedings concerning the road traffic accident which had led to the death of the applicants’ son. That decision by the investigator had been examined and upheld by the General Prosecutor’s Office. 43. The relevant provisions of domestic law can be found in the judgments in the cases of Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008), and Igor Shevchenko v. Ukraine (no. 22737/04, § 31, 12 January 2012).

train

001-81138

ENG

SVK

CHAMBER

CASE OF MACKO AND KOZUBAL v. SLOVAKIA

No violation of Art. 6-1

Nicolas Bratza

7. Mr Viktor Macko, the applicant in application No. 64054/00 (the first applicant), was born in 1965 and lives in Humenné. Mr Miroslav Kozubaľ, the applicant in application No. 64071/00 (the second applicant), was born in 1963 and lives in Hanušovce. 8. Between 19 November 1993 and 29 January 1996 the second applicant was the representative of the company ILaS Vranov, s.r.o. and he was entitled to act on the company's behalf in that capacity. On 30 January 1996 he was replaced by the first applicant who carried out that function until 2 September 1997. Prior to that, on 14 August 1995, the second applicant had authorised the first applicant, then director of company ILaS Vranov, s.r.o., to act on the company's behalf. From 3 September 1997 to 13 September 1998 Mr I. succeeded the first applicant as the above company's representative. 9. On 16 December 1998 Mr T., a police investigator of the Regional Office of Investigation in Prešov, accused Mr I. of unauthorised trading in foreign currency. I. was accused of having authorised, as a co-owner of the company ILaS Vranov, a sale of bills of exchange in Austria without the approval of the central bank. The transaction had been carried out in 1994. The investigation file had the number KÚV-80/20-98. 10. On 2 July 1999 investigator T. accused Mr I. of a different offence in the context of proceedings KÚV-80/20-98. I. was accused of fraud and money laundering on the ground that he had unlawfully obtained and used a sum of money while acting as the representative of companies Classinvest Slovakia o.c.p., a.s. and C.S.I. Slovenka Vranov, a.s. According to the accusation, I. had issued bills of exchange which had been uncovered and void. The transaction had allegedly been made in Vienna in 1997 and it had involved the same person as the above transaction of 1994. 11. The police investigator summoned the first applicant to an interview as a witness in the case against I. The first applicant appeared before the investigator and indicated that he wished to avail himself of the right under Article 100 § 2 of the Code of Criminal Procedure to remain silent with a view to avoiding any criminal proceedings against him. This fact is recorded in the minutes of the first applicant's interview of 5 October 1999. 12. On 23 November 1999 investigator T. issued a decision, under Article 66 § 1 of the Code of Criminal Procedure, in which he imposed a procedural fine of SKK 20,000 on the first applicant. The decision stated that the applicant had refused, on 5 October 1999, to make a witness statement in the criminal case against I. concerning fraud. The decision also stated that the applicant had relied on Article 100 § 2 of the Code of Criminal Procedure and that the investigator had concluded, after having considered the position in the case, that the applicant's statement as a witness could not result in the initiation of criminal proceedings against him. The decision had the number KÚV-80/OVEK-98. 13. The second applicant, like the first applicant, was summoned to an interview by investigator T. in the context of criminal proceedings brought against Mr I. On 18 November 1999, prior to interviewing the second applicant, the investigator informed him that he could remain silent, pursuant to Article 100 § 2 of the Code of Criminal Procedure, if his statement could result in his or his close relatives' prosecution for a criminal offence. The second applicant used that right. According to the minutes, he had stated that he would not mention the reasons for his decision to remain silent. 14. In a decision of 23 November 1999 the investigator imposed a procedural fine of SKK 20,000 on the second applicant under Article 66 § 1 of the Code of Criminal Procedure. The decision stated that the applicant had refused, without justification, to make a witness statement in a criminal case and that he had been warned that he could be fined therefor. According to the decision, the applicant had not indicated any reason for his refusal and the investigator concluded, after having considered the evidence in the case, that his witness statement had not been susceptible of resulting in his prosecution. 15. On 22 February 2000 the police investigator accused the first applicant of conspiracy to defraud on the ground that he had been involved in the fraudulent elaboration of a contract with a view to obtaining a considerable sum of money from the State. The decision had the file number KÚV4/OVEK2000. 16. On 1 August 2000 investigator T. issued two decisions under investigation file number KÚV-83/20-98 accusing several persons of criminal offences. 17. In the first decision Mr I., the two applicants and five other persons were accused of conspiracy to defraud. The case concerned the transfer of securities of the joint stock company Transpetrol, a.s. The alleged offence had been committed in 1998. A public prosecutor at the Regional Prosecutor's Office in Prešov quashed the investigator's decision on 7 August 2000. No further criminal proceedings have been brought against the second applicant subsequently. 18. In the second decision dated 1 August 2000 investigator T. accused the first applicant, together with Mr I. and another person, of preparatory acts relating to money laundering. It was imputed to the first applicant that, as representative of the company Brilant, a.s., he had participated in the fraudulent elaboration of a contract in 1996, and that he had transferred securities of the company Transpetrol, a.s. to his company. 19. On 2 August 2000 the police investigator joined to a single set of proceedings the above cases against Mr I. and, inter alios, the first applicant registered under file numbers KÚV-80/20-98, KÚV-83/20-98 and KÚV4/OVEK-2000. On 2 July 2001 the investigator discontinued the proceedings against Mr I. (file number KÚV-80/20-98) brought on 16 December 1998 as no offence had been committed. 20. On 10 December 2001 the public prosecutor indicted the first applicant, Mr I. and six other persons before the Regional Court in Prešov in the context of transfer of securities of Transpetrol, a.s. The first applicant was charged with two offences. 21. Firstly, the applicant was accused of fraud, together with Mr I. and two other persons, on the ground that they had fraudulently elaborated a pre-dated contract, in 1996, after a tax authority had issued a warrant with a view to securing a possible debt of company ILaS Vranov, s.r.o. As the warrant had prevented the company ILaS Vranov, s.r.o. from complying with its obligations under the above contract, the State had later been ordered to pay SKK 43,265,591 as compensation for the fine foreseen under that contract. The State's alleged debt had subsequently been enforced by means of a transfer of securities of the company Transpetrol, a.s. The public prosecutor concluded that, as a result, the Ministry of Economy had suffered a financial loss totalling SKK 2,184,000 million. 22. Secondly, the first applicant was accused of having engaged in preparatory acts relating to money laundering in that he had acquired, as representative of the company Brilant, a.s., 98 shares in the company Transpetrol a.s. which had been obtained by means of the above transasction and that he had intended to sell those securities abroad through his co-accused Mr I. 23. On 3 August 2004 the Regional Court in Žilina returned the case to the public prosecutor for further investigation. 24. On 25 May 2006 the Supreme Court quashed the Regional Court's decision of 3 August 2004 and ordered the first-instance court to proceed with the case. In its decision the Supreme Court referred to the fact that the second applicant had refused to make statements as a witness at interviews on 11 February 2000, 10 May 2000 and 20 March 2001 with reference to Article 100 § 2 of the Code of Criminal Procedure. Further questioning of the second applicant would in such situation amount to undue pressure with a view to forcing him to make a statement which he had refused to make in accordance with the relevant provisions of the Code of Criminal Procedure. The Supreme Court concluded that any evidence obtained in those circumstances could not be used in subsequent proceedings. 25. The criminal proceedings are pending. 26. On 10 December 1999 the first applicant filed a complaint against the decision of 23 November 1999 to impose a fine on him. He argued that he had availed himself of his right to remain silent as he had considered that his statement could give rise to criminal proceedings against him. He had not been warned that a fine could be imposed on him, and the investigator had not informed him that the position in the case excluded the bringing of criminal proceedings against the first applicant. 27. On 30 December 1999 the Prešov Regional Deputy Prosecutor dismissed the complaint. The decision stated that the first applicant had not indicated the reason for his refusal to make a statement. Under Article 100 § 2 of the Code of Criminal Procedure, a witness was obliged to inform an investigator why he or she refused to make a statement. Where the investigator did not accept the reasons invoked, the witness was obliged to answer the questions. 28. The first applicant requested that an extra-ordinary complaint be filed against the above decision imposing a fine for his refusal to make statement as a witness. 29. On 19 February 2001 a public prosecutor at the General Prosecutor's Office dismissed the request. In his letter the public prosecutor summed up the relevant facts as follows. On 5 October 1999 the first applicant had to be heard as a witness in the context of criminal proceedings KÚV-80/20-98 against Mr I. Those proceedings concerned an unlawful sale of bills of exchange, in 1994, which had resulted in the transfer of approximately SKK 19 million to the account of the company ILaS Vranov, s.r.o. on 7 July 1994. The offences imputed to the accused comprised also several other actions including the misuse, in 1996, of bonds issued by a company of which Mr I. had been the director and transfer of that company's assets to several persons including the applicant. The police investigator had joined the above proceedings, on 2 August 2000, as both the applicant and Mr I. had been accused in the case registered under file number KÚV-83/20-98. However, the actions imputed to Mr I. in proceedings KÚV-80/20-98, in the context of which the applicant had refused to make a witness statement, were entirely unrelated to the facts of the other cases. 30. The public prosecutor held that a witness could remain silent only to the extent that a specific part of his statement was susceptible of resulting in the introduction of criminal proceedings against the witness or his or her next of kin. As the first applicant had had no apparent reason for refusing to make a witness statement, and since he had given no specific reason for such a refusal, the decision imposing a procedural fine had been justified. 31. The second applicant filed a complaint against the decision imposing a fine on him. He argued, with reference to the record of the interview with the investigator, that he had remained silent as he had considered that a statement could give rise to criminal proceedings against him. The fine amounted to the application of psychological pressure to him. 32. On 30 December 1999 the Prešov Regional Deputy Prosecutor dismissed the second applicant's complaint. The decision stated that the applicant had not given any reason for his refusal to make a statement. Under Article 100 § 2 of the Code of Criminal Procedure, a witness was obliged to inform the investigator why he or she refused to make a statement. Where the investigator did not accept the reasons invoked, the witness was obliged to answer the questions. 33. On 12 December 2000 the second applicant petitioned the General Prosecutor's Office for a complaint in the interest of the law to be filed on his behalf. He challenged the above procedural fine. The fact that the same investigator had accused him of an offence on 1 August 2000 proved that the fine had been imposed with a view to coercing the second applicant to make a statement on the relevant facts. 34. In a letter of 19 February 2001 a public prosecutor of the General Prosecutor's Office refused to file an extra-ordinary complaint on the second applicant's behalf for reasons similar to those set out above in respect of the petition filed by the first applicant. 35. On 25 July 2001 a different public prosecutor of the General Prosecutor's Office confirmed that conclusion. The letter stated, in particular, that the interview in question had concerned offences imputed to other persons and that the second applicant, therefore, had had no valid reason for refusing to answer the questions. The offence of which the second applicant had been accused subsequently concerned facts different from those on which he had been asked to make a witness statement. 36. Article 47 § 1 reads as follows: “Everyone is entitled to refuse to make a statement where it would be susceptible of resulting in his or her prosecution for a criminal offence or in prosecution of a different person close to him or her.” 37. Under Article 66 § 1, a person who, despite previous warnings, disturbs proceedings or behaves in an offensive manner in relation to a court, a public prosecutor, an investigator or a police authority or, without sufficient excuse, does not obey an order or does not comply with an instruction addressed to him or her under the Code of Criminal Procedure, can be punished with a procedural fine of up to SKK 50,000. 38. Pursuant to Article 97, everybody is obliged to appear before a prosecuting authority upon summons and to make a statement as a witness about facts which he or she knows about an offence, its perpetrator or issues which are considered important for the purpose of criminal proceedings. 39. Article 100 § 2 reads as follows: “A witness is entitled to refuse to make a statement where such a statement would entail the risk that criminal proceedings would be brought against him, against his relative in direct line, his sibling, a person whom the witness adopted or by whom he was adopted, against the spouse or partner of such a witness or against any other person with whom the witness has family-like relations and whose harm the witness would justifiably perceive as being his own harm.” 40. The domestic authorities have held that a person who wishes to remain silent pursuant to Article 100 § 2 of the Code of Criminal Procedure must state the reason for his or her refusal to make a statement. The decision whether or not such a person's recourse to Article 100 § 2 is justified lies with the authority by whom the witness is to be heard. Where the authority concerned does not accept the reasons invoked, the witness is obliged to make a statement. 41. Where the refusal of a witness to make a statement is justified, an investigator cannot circumvent the witness's right to remain silent by inquiring into the reasons for such a refusal and facts related to the subject-matter of the envisaged interrogation, and by mentioning those facts subsequently in the minutes of the interrogation. The information contained in such an unlawfully obtained statement cannot be used as evidence in criminal proceedings.

train

001-78569

ENG

RUS

CHAMBER

CASE OF SHABANOV AND TREN v. RUSSIA

Violation of Art. 6-1;No violation of Art. 10;No violation of Art. 10;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed

Peer Lorenzen

5. The applicants were born in 1959 and 1963 and live in the town of Chernyakhovsk in the Kaliningrad Region. They are businessmen and founders of the Pravo Znat newspaper (“The Right to Know”). 6. On 27 April 2001 the applicants' newspaper published an article under the headline “What power costs: part 2” (“Сколько стоит власть-2”). The article gave a detailed account of the wages and benefits received by mid-range employees in the town council. The relevant extract read as follows: “For the sake of clarity, let us look at the elements that make up the wages. Let's take, for example, those of the head of the legal department... In total... 5,805 roubles. Not bad for a twenty-year-old professional who recently graduated from a teachers' college.” 7. Ms P., the head of the legal department, brought a defamation action against the applicants. She submitted that she possessed higher legal education and more than three years of relevant experience, and that the article had harmed her authority in that it had sown doubts as to her professional qualifications. 8. On 13 June 2001 the Chernyakhovsk Town Court of the Kaliningrad Region heard the claim and gave judgment. It found that the applicants had been aware of the identity of the head of the legal department and they had intended to expose a specific person, namely Ms P. The court established that Ms P. had been appointed to her position in September 2000 after having completed a course of higher legal education. It found as follows: “Having indicated in the article the salary of the head of the legal department and having referred to a twenty-year-old professional just out of college, the [applicants] related inaccurate information, given that Ms P., whom the [applicants] described as having graduated from a teachers' college four years previously, was at the material time the head of the legal department and had higher legal education. The article 'What power costs: part 2' implies that municipal employees receive high wages, paid out of the budget, and cites as an example a young professional with college-level education and no work experience. The court considers that such information damages Ms P.'s professional reputation and honour, in that it was disseminated to a large readership and begs the conclusion that the position of head of the legal department is occupied by an employee who lacks the requisite qualifications and work experience, which undermines the authority of the local administration and of Ms P.” The court ordered the applicants to publish a rectification and pay 300 roubles (RUR, 12 euros (EUR)) each to Ms P. 9. On 20 June 2001 both applicants appealed against the judgment of 13 June 2001. They submitted that the information had not been proven to be untrue and that it had not undermined Ms P.'s authority. They also alleged a procedural violation, in that the case had been examined by a formation consisting of one professional judge and two lay judges, one of whom, lay judge Ms Kr., had participated in a previous hearing on 5 February 2001, whereas lay judges could only sit in court once a year and for no longer than fourteen days. 10. On 18 July 2001 the Kaliningrad Regional Court confirmed the judgment of 13 June 2001. It upheld the District Court's findings that Ms P. had graduated from a teachers' college, but noted that this had occurred in 1997 and that, by the time of her appointment, she had also completed higher legal education. The court concluded that the article had been intended to cast a shadow of doubt on Ms P.'s professional fitness and had thus damaged her reputation. As to the alleged procedural violation, the court held that the applicants had not proved that the lay judge in question had sat for more than fourteen days and stated that their allegations had been based on an erroneous interpretation of the Lay Judges Act. 11. On 19 January 2001 the applicants' newspaper published an article by Mr V. under the headline “The army with wet feet” (“Армия с мокрыми ногами”). The article related the living conditions of soldiers in a military unit where almost two hundred men had fallen ill because Mr K., the unit commander, had not provided them with dry footwraps or arranged for a place to dry their boots. 12. Mr K. sued the applicants and Mr V. for the protection of his honour, dignity and professional reputation and claimed compensation for non-pecuniary damage. As evidence of the non-pecuniary damage sustained, Mr K. enclosed a medical certificate issued by a psychiatrist. The certificate was made available to the applicants in their capacity as defendants. 13. On 13 July 2001 the newspaper published a follow-up article “There are different kinds of syndromes. But still no footwraps” (“Синдром синдрому рознь. И без портянок”). The article commented on various aspects of Mr K.'s statement of claim. The relevant part read as follows: “So, our character '...had to visit a psychiatrist on 13 February 2001...'. 'Intellect with no peculiarities', noted the doctor, [who] found that K. had ... moderately pronounced asthenia syndrome and prescribed treatment. Asthenia means impotence, a kind of disease. It means that the commander of the regiment is not quite healthy. Or quite unhealthy?” 14. Mr K. subsequently supplemented his original statement of claim with a complaint about the publication of information on his state of health, which, in his opinion, was an unjustified interference with his right to respect for private life. 15. On 25 September 2001 the Chernyakhovsk Town Court of the Kaliningrad Region gave its judgment. The court established that the facts concerning the mass outbreak of illness among soldiers, described in the article of 19 January 2001, were accurate and dismissed Mr K.'s action in this part. However, it established that Mr K. had referred to his visit to a psychiatrist in his statement of claim, that only a limited number of people had access to the case file, and that Mr K. had not consented to having his diagnosis published in a newspaper. The court concluded that the article of 13 July 2001 violated Mr K.'s personal non-pecuniary rights, namely the right to inviolability of one's private life and personal and family secrets, which was protected by the Constitution. Relying on Article 151 of the Civil Code, it awarded him RUR 1,500 (EUR 55) and RUR 1,000 (EUR 37) against the first and second applicants respectively. 16. On 24 October 2001 the Kaliningrad Regional Court upheld on appeal the judgment of 13 July 2001. The court dismissed the applicants' argument that the public should have been informed of Mr K.'s state of health because he was the commander of a military unit. 17. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of the mass media. 18. The relevant provisions of the Civil Code read as follows: “1. An individual's life and health, dignity, personal integrity, honour and goodwill, professional reputation, the inviolability of one's private life, personal and family secrets, the right to liberty of movement and to choose one's place of temporary and permanent residence, the right to a name, copyright, other personal non-property rights and other incorporeal assets which a person possesses by virtue of birth or by operation of law shall be inalienable and untransferable by any means...” “If certain actions impairing an individual's personal non-property rights or encroaching on other incorporeal assets caused him or her non-pecuniary damage (physical or mental suffering)... the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage...” “1. An individual shall be entitled to claim, before a court, a rectification of information damaging his honour, dignity and professional reputation, unless the person who disseminated the information proves that it was true... 5. The individual about whom information damaging to his or her honour, dignity and professional reputation was disseminated shall be entitled to claim, in addition to rectification, compensation for pecuniary and non-pecuniary damage caused by the perpetrator.” 19. On 10 January 2000 the Federal Law on Lay Judges of Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into effect. By section 1 (2) of the Act, lay judges are persons authorised to sit in civil and criminal cases as non-professional judges. 20. Section 2 provides that lists of lay judges must be compiled for every district court by local self-government bodies, such lists being subject to confirmation by the regional legislature. Section 5 determines the procedure for the selection of lay judges. It provides that the president of a district court is to draw random lots from a list of lay judges assigned to that court. The number of lay judges assigned to every professional judge should be at least three times as many as that needed for a hearing. 21. By section 9, lay judges are to be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case last. Lay judges may only be called for service once a year. 22. Civil cases may be examined by a formation comprising two lay assessors and a professional judge. In the administration of justice lay assessors enjoy the same rights as professional judges (Article 6). 23. Civil proceedings are public in all cases, except where a hearing in private is necessary for the protection of information concerning State secrets, intimate details of parties' lives or the confidentiality of adoption (Article 9). 24. Written evidence is read out in open court and made available to the parties and their representatives (Article 175).

train

001-93734

ENG

TUR

ADMISSIBILITY

FATHI v. TURKEY

Inadmissible

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

The applicant, Mr Jamil Jaafar Fathi, is an Iranian national who was born in 1977 and lives in Alsemberg, Belgium. The facts of the case may be summarised as follows. In 2002 the applicant, who had previously taken refuge in Iraq for political reasons, fled to Turkey illegally. He was then recognised as a refugee by the UNHCR as part of a group of 1,204 asylum seekers (“the 1,204 group”) who had similarly fled Iran to Turkey in 2001. Following an agreement between the Turkish authorities and the United Nations High Commissioner for Refugees (UNHCR), the applicant was granted a temporary residence permit in Turkey to reside at a place to be determined by the Ministry of the Interior. The applicant, however, was not recognised as a “refugee” proper, within the meaning of the 1951 Geneva Convention, but was merely given “alien” status under Law no. 5683 on “the Residence and Travel of Aliens in Turkey”. He was also notified by the Ministry of the Interior that the terms of his residence in Turkey did not involve an eventual resettlement in a third country. On 15 December 2006 the President of the Chamber notified the respondent Government of the introduction of the application under Rule 40 of the Rules of Court. According to the information provided by the respondent Government in their observations, the applicant has been issued a temporary residence permit. On 22 September 2008 the applicant informed the Court that he had fled Turkey to Belgium, where he sought asylum. On 14 November 2008 the respondent Government informed the Court that despite his valid permit to reside in the city of Kahramanmaraş, the applicant had left the city without permission and that they had no information as to his whereabouts.

train

001-83245

ENG

ALB

CHAMBER

CASE OF DRIZA v. ALBANIA

Violations of Art. 6-1;Violation of P1-1;Violation of Art. 13+P1-1;Pecuniary and non-pecuniary damage - financial awards (global) and Government to return the plot of land;Costs and expenses - claim dismissed

Josep Casadevall

5. The applicant was born in 1941 and lives in Tirana. 6. The relevant domestic proceedings concern an application for the restitution of land. 7. In pre-war Albania the applicant’s late father had owned a bakery in Tirana and a plot of land measuring 6,000 square metres In 1960 the Albanian authorities demolished the building and expropriated the land. 8. On 27 September 1994 the Tirana District Court restored the applicant’s property rights over his late father’s property pursuant to the Property Restitution and Compensation Act 1993 (hereinafter, the Property Act). The decision became final and binding at the latest on 11 October 1994. 9. As it was unable to return the original property, the Tirana City Council decided on 30 April 1996 that the applicant had a right to receive compensation in kind for the original property. It allocated him a piece of land situated two kilometres from the centre of Tirana and measuring 5,000 sq. m. The land was divided into two plots measuring, respectively, 1,650 sq. m. (hereinafter, the smaller plot) and 3,350 sq. m. (hereinafter, the larger plot). 10. By decision no. 621 of 20 June 1996 the Tirana Commission on the Restitution of Properties and Compensation (hereinafter referred to as the “Tirana Commission”) upheld the Tirana City Council’s decision. 11. On 15 August 1996 the applicant’s title to the land was entered in the Tirana Land Register. 12. In 1996 and 1997 a series of possession orders concerning the two plots of land were issued by the Tirana City Council and the Tirana District Court. However, the applicant was unable to recover possession from the occupants. 13. On 10 September 1997 he concluded a preliminary contract to sell the smaller plot. 14. F.Z., a former member of an agricultural cooperative, had previously been granted under Law no. 7501 of 19 July 1991 the right to use the smaller of the two plots allocated to the applicant. 15. On an unspecified date she brought a civil action in the Tirana District Court claiming full title over the smaller plot under Law no. 8053 of 21 December 1995. She also asked the District Court to set aside the Commission’s decision of 20 June 1996 in so far as it related to that plot. 16. On 10 October 1997 the Tirana District Court set aside the Commission’s decision relating to the smaller plot on the grounds that the Commission had first to award compensation to the user and to the former owner of the land. 17. The applicant lodged an appeal with the Tirana Court of Appeal claiming full title to the plot. He argued that, when the Commission reached its decision, the plot was State property that was available for allocation to former owners in lieu of compensation. He added that F.Z. was merely a user of the land at the time. 18. On 2 June 1998 the Tirana Court of Appeal allowed the applicant’s appeal, quashed the District Court’s decision as being defective in law and upheld the validity of the Commission’s decision concerning the applicant’s title. 19. On 17 December 1998 the Supreme Court (Administrative Division) deciding on the merits, upheld the applicant’s rights over the smaller plot of land that had been allocated as compensation for the original property. The judgment became final and binding on an unspecified date. 20. On an unspecified date, while the enforcement proceedings were in progress, F.Z. lodged an application with the Supreme Court for supervisory review (Rekurs në interes të ligjit) of the merits of the Supreme Court (Administrative Division’s) judgment of 17 December 1998 and of the Court of Appeal’s judgment of 2 June 1998, on the grounds that they conflicted with substantive law. 21. The application for supervisory review was examined by the Supreme Court (Joint Colleges). On 5 July 2001, approximately two and a half years after the final decision, the Supreme Court granted the application. On the same date, it quashed, by a majority, the judgments of 2 June 1998 and 17 December 1998 in favour of the applicant, and upheld the District Court’s decision of 10 October 1997 dismissing the applicant’s claims relating to the smaller plot of land. It found that the Commission’s decision had been based on a misinterpretation of the substantive law (Property Act 1993). 22. The applicant was neither informed of the supervisory-review proceedings nor invited to attend the hearings before the Supreme Court. He was not served with the Supreme Court’s judgment within the six-month time-limit for appealing and so did not appeal against it. 23. Of the fifteen Supreme Court judges who decided the case on 5 July 2001, three (B. C., N. SH. and M.S.) had been members of the panel which on 17 December 1998 had decided the merits of the case. A further three (Th. K., P.Z., and V.K.) had sat on the panel which on 7 December 2000 had decided the merits of the case in the proceedings concerning both plots of land (see paragraph 29 below). The first three judges were called upon to rule in the supervisory-review proceedings on their alleged misinterpretation of substantive law while the other three judges had to determine the merits of the case for the second time in the same proceedings. 24. In 1997 the State Supreme Audit Institution (Kontrolli i Larte i Shtetit), acting on its own behalf and at the instance of S. SH., the user of the larger plot of land allocated to the applicant, brought an action in the Tirana District Court for an order setting aside the Commission’s decision of 20 June 1996 in its entirety, on the ground that it had exceeded its jurisdiction by allocating land to the applicant. 25. On 22 December 1997 the Tirana District Court set aside the Commission’s decision in its entirety as being defective in law. It also held that the State had an obligation to pay the applicant compensation under the Property Act for a plot of land measuring 5,000 sq. m. 26. On an unspecified date the applicant lodged an appeal with the Tirana Court of Appeal seeking the reinstatement of the Commission’s decision allocating him the land. 27. On 9 April 1999 the Tirana Court of Appeal dismissed the applicant’s appeal and upheld the District Court’s decision. 28. On an unspecified date the applicant lodged an appeal with the Supreme Court (Civil Division) arguing that the lower courts had failed to rule on the question of the users’ title to the land. 29. On 7 December 2000 the Supreme Court (Civil Division), deciding the merits of the case, upheld the Court of Appeal’s judgment on the ground that the Commission had exceeded its jurisdiction by deciding on the form of compensation the applicant should receive for the loss of his original property. It noted that pursuant to a Council of Ministers’ decision of 13 May 1996, Commissions were to be set up by the municipal councils to assess compensation for land situated in tourist areas. These Commissions had yet to be established. Lastly, the Supreme Court upheld the applicant’s right under the Property Act to obtain the payment of compensation for a 5,000 sq. m. plot of land. 30. The applicant lodged an appeal with the Constitutional Court under Article 131 (f) of the Constitution, arguing that the Supreme Court’s judgments of 7 December 2000 and 5 July 2001 were unconstitutional. 31. The appeal was declared inadmissible by the Constitutional Court on 8 April 2002 pursuant to Article 31 of the Constitutional Court Act, as being “outside its jurisdiction”. 32. The applicant says that an apartment block has now been built on the larger plot of land by third parties and the apartments sold to, and occupied by, new owners. The smaller plot is occupied by temporary structures. The applicant has not received any compensation from the authorities. 33. The Albanian Constitution, in so far as relevant, reads as follows: “1. The right of private property is protected by law. 2. Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided for by the Civil Code. 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. 4. Expropriations or limitations of a property right that are equivalent to expropriation are permitted only if fair compensation is provided. 5. A complaint may be filed in court to resolve disputes regarding the amount or extent of compensation due.” “In order to protect their constitutional and legal rights, freedoms and interests, or to defend criminal charges, everyone shall have the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “State bodies shall comply with judicial decisions.” “The Constitutional Court shall decide: ... (f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” “1. Within two to three years from the date this Constitution enters into force, the Assembly, guided by the criteria of Article 41, shall issue laws for the just resolution of various issues relating to expropriations and confiscations that were effected before the approval of this Constitution. 2. Laws and other normative acts relating to expropriations and confiscations enacted before the entry into force of this Constitution shall continue to apply provided they are compatible with the Constitution.” 34. Under the Code of Civil Procedure 1996, which was in force at the material time, judgments became final in the following circumstances: “Court judgments shall become legally binding on the expiration of the time-limit for lodging an appeal if no such appeal has been lodged. If the judgment is not quashed on an appeal to a higher court, it shall become legally binding when the higher court delivers its decision...” 35. Pursuant to the provisions in force at the material time supervisory review (Rekurs në interes të ligjit) was an extraordinary remedy that enabled courts to reopen proceedings after a judgment had become final. Between 1996 and its abrogation by Law no. 8812 of 17 May 2001 the supervisory-review procedure underwent several legislative changes. “Final judgments, decisions and rulings of the colleges of the Supreme Court shall be amenable to supervisory review in the interests of the law for the reasons set forth in section 472 (a), (b) and (c) on an application lodged by the parties to the proceedings within three years from the moment the decision becomes binding. The application for supervisory review will firstly be examined by a preliminary review panel of five judges and then by the full Supreme Court (Joint Colleges). ... Judges of the Supreme Court who sat as members of the division that delivered the judgment, decision or ruling or of the preliminary review panel shall not sit on the panel that conducts the supervisory review of the final judgment...” 36. The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) has undergone several amendments during the past fourteen years. The main changes to the first Property Act of 1993 came about as a result of two laws which entered into force respectively in 2004 and 2006. The original Act and these two amending Acts will hereinafter be referred to as the “Property Act 1993” the “Property Act 2004” and the “Property Act 2006” respectively. The relevant provisions of each of these laws can be summarised as follows: 37. Under the Property Act 1993 former owners of properties expropriated by the relevant regime and the legal heirs of such owners had the right to claim ownership of the original properties. Upon ownership being determined they were entitled either to the restitution of the original immovable property or to an award of compensation either in kind (up to a maximum of 10,000 sq. m) or in value if any of the following conditions was met: the alleged property (1) was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) was not subject to Law no. 7501 of 19 July 1991; (3) was currently State-owned; or (4) had been designated as suitable for construction and was situated within the boundaries of a city. Section 16 of the Act provided for the following forms of compensation in respect of property which could not be returned: (a) State bonds, equivalent to the compensation owed, with a first option over shares in State enterprises being privatised by the Government or in other activities carried on through the granting of loans; (b) an equivalent plot of land or a building site near to an urban area, in accordance with the general urban-development regulations; and (c) an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations. The Council of Ministers had power to define detailed rules for determining how such compensation should be provided and the applicable time-limits. 38. The 1993 Act also instituted the Commission on the Restitution of Properties and Compensation (Komisioni i Kthimit dhe Kompensimit të Pronave) as the competent administrative body to deal with former owners’ claims to restitution and compensation. However, it did not provide a time-limit within which a decision could be appealed against, so preventing it from even becoming binding. 39. The Property Act 2004, which repealed the previous version, provided for two forms of restitution of immovable property, namely the return, under certain circumstances, of the original property and compensation in the event of the authorities being unable to return the original property. Restitution was not limited in size. The Act provided for five forms of compensation: (a) property of the same kind; (b) property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the course of privatisation, and (e) a sum of money corresponding to the value attributed to the property at the time of the decision (section 11). The Act instituted the State Committee on Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role was to decide on the lawfulness of district committees’ decisions on restitution and compensation claims (sections 15 and 17). The Council of Ministers was to establish the rules and the criteria to be applied (sections 13). 40. Section 19 provided for the enforcement of decisions awarding compensation within the first six months of each financial year. Following its entry into force, anyone entitled to claim restitution or compensation was required to lodge an application with the District Committee by 31 December 2007. The Act granted the Committee a discretion to decide which form of compensation should be granted, but applicants could express their preference in writing. An appeal lay against the District Committee’s decision to the State Committee (section 20) and to the district courts within thirty days of the date of issue of the Committee’s decision. 41. On 28 April 2005 Parliament enacted legislation setting out the method by which immovable property would be valued for compensation purposes. Its implementation was left to the State Committee on Property Restitution and Compensation, which was to issue the site plans allowing the properties to be valued. 42. In order to comply with the committee’s awards of pecuniary compensation, section 23 of the 2004 Act provided for the establishment of a ten-year Property Compensation Fund, whose aim was to provide financial support for such awards. The 2004 Act was examined by both the Constitutional and the Supreme Courts. On 24 March 2005 the Supreme Court (Joint Colleges) concluded that the Property Act of 2004 had no retroactive effect and that its provisions could therefore not have any impact on property rights recognised by administrative or court decisions dating from before its entry into force. 43. On 17 July 2006 the Property Act 2004 was amended by the Property Act 2006, which entered into force on 17 August 2006. It provided, inter alia, for the establishment of the Agency for the Restitution of Properties and Compensation, a new body competent to decide restitution and compensation claims (section 15). The new law repealed sections 11 (2), 19 and 20 of the 2004 Act which, inter alia, laid down the procedure for the enforcement of compensation awards. 44. Law no. 8053 of 21 December 1995 conferred on former members of agricultural cooperatives the right to request the title to land they were farming.

train

001-105677

ENG

RUS

CHAMBER

CASE OF GUBIYEV v. RUSSIA

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

Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

6. The applicant was born in 1934 and lives in Chechen-Aul. 7. He is the sole founder, director and owner of a limited liability company called Voskhod (Общество с ограниченной ответственностью «Восход», “the company”). 8. According to the applicant, at the material time the company owned a mill complex and a petrol station. 9. In late 1999 the Russian Government launched a counter-terrorism operation in Chechnya. 10. On 18 July 2000, during a special operation in the vicinity of the village of Chechen-Aul, servicemen of military unit no. 3660 of the Russian Ministry of the Interior blew up the mill belonging to the company, with the result that it was completely destroyed and the petrol station situated nearby was damaged. 11. In 2000-2001 the applicant complained on behalf of the company to a number of public officials, including the commander of military unit no. 3660, the head of the administration of the Chechen Republic and prosecutors at various levels, about the damage inflicted. 12. On 25 May 2001 the prosecutor’s office of military unit no. 20102 took a decision to dispense with criminal proceedings in connection with the incident of 18 July 2000. The decision stated that, on the date in question, the servicemen of military unit no. 3660 had been carrying out a special operation in the vicinity of Chechen-Aul, and that, in order to destroy a place which was supposed to be a terrorist arms and ammunition store, and which the terrorists had transformed into a base from which they had strafed a federal checkpoint, the servicemen, following their commanding officers’ order, had blown up the mill complex belonging to the company, with the result that it had been completely destroyed. The decision further stated that the actions of the commanding officers and servicemen of military unit no. 3660 had been based on section 21 of the Federal Law on Suppression of Terrorism (“the Suppression of Terrorism Act”), had been rendered absolutely necessary by unlawful actions of unidentified illegal fighters putting the federal servicemen’s lives in real danger, and had been aimed at eliminating that danger. The decision went on to note that the danger could not have been eliminated by any other means, and therefore the destruction of the company’s property had not constituted a criminal offence. It thus concluded that there had been no evidence of a crime in the servicemen’s actions. The decision also stated that, taking into account the aforementioned circumstances and the fact that the pecuniary damage had been inflicted on a third person who had not performed any actions that would have rendered the infliction of damage absolutely necessary, a question of compensation for that damage should be resolved by a civil procedure. 13. In 2002 the applicant, acting on the company’s behalf, issued proceedings against military unit no. 3660 before the Commercial Court of the Rostov Region. He sought compensation for losses sustained in the amount of 13,483,299 Russian roubles (RUB, approximately 335,000 euros, EUR). 14. On 2 July 2002 the court rendered its judgment. Throughout the judgment the court referred to the mill complex and petrol station as the company’s property. It established the circumstances of the incident of 18 July 2000 as they had been presented by the claimant company and confirmed that the damage inflicted corresponded to the amount indicated in the court claim. In this latter respect, the court based its finding on a working estimate (see paragraph 33 below) and a letter from the State Agency for Construction, Architectural and Housing Policy, according to which the original amount should be adjusted in line with the index of prices in the first quarter of the year 2002. 15. The court further held as follows: “... The military prosecutor’s office of military unit no. 20102 carried out an inquiry into the incident. In a decision of 25 May 2001 reflecting the result of the inquiry it had been established that on 18 July 2000, pursuant to a combat order, servicemen of military unit no. 3660 were pursuing a special operation in the village of Chechen-Aul and its adjacent territory. The materials of the case reveal that the mill belonging to the Voskhod company was a convenient position to direct fire on the outpost of Interior troops stationed nearby, and that the lives and health of the servicemen were put under constant risk as a result. Since section 21 of the Suppression of Terrorism Act permitted deliberate infliction of damage on the legally protected interests of a person, society, or the State, the commanding officers of military unit no. 3660 took a decision on the basis of which the servicemen of that unit blew up the mill complex belonging to the Voskhod company. As a result of the explosion the building was completely destroyed. ... ... In accordance with section 21 of the Suppression of Terrorism Act ..., on the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of a counter-terrorism operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation. By virtue of Article 1067 of the Russian Civil Code, damage inflicted in a situation of absolute necessity, and notably for elimination of a danger threatening the tortfeasor or third parties, if the danger, in the circumstances, could not be eliminated by any other means, shall be compensated for by the tortfeasor. Having regard to the circumstances in which the damage was caused, a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeasor acted, or release from such an obligation, partially or in full, both the third party and the tortfeasor. The court, taking into account the absence of unlawfulness in the defendant’s actions and the fact that those actions were performed in a situation of absolute necessity, holds that they were lawful. Such actions are socially useful as they are aimed at protecting an individual, his rights and freedoms, the interests of society and the State from impending danger. Taking into account the circumstances in which the damage was caused and the fact that [it was inflicted on] a person who had not committed any unlawful acts but had become a victim of a seriesobligation to compensate for the losses.” 16. The court thus dismissed the claimant company’s claims in their entirety and ordered the company to pay a court fee in the amount of RUB 100,000 (approximately EUR 2,500). 17. On 29 August 2002 the Commercial Court of the Rostov Region, sitting as an appellate court, upheld the first-instance judgment, having in essence restated its reasoning. In its decision the court described the mill complex and petrol station as the company’s property. 18. On 25 November 2002 the Federal Commercial Court of the NorthCaucasus Circuit (“the Federal Commercial Court”) dismissed the company’s appeal, stating, in particular: “According to certificates issued by the Bureau of Technical Inventory of the Ministry of Housing Maintenance and Utilities and dated 20 March and 13 June 1996 [the mill and the petrol station] are registered in the name of the Voskhod company (зарегистрированы за ООО «Восход») on the basis of decisions of the Chechen-Aul local council dated 26 February 1992 and 26 December 1993 respectively. However, the claimant company has not submitted to this court documents confirming that the mill complex and petrol station were properly transferred into the company’s ownership (переданы на баланс ООО «Восход»), or proof of any other legal grounds for the company to acquire the property title to the mill complex and petrol station. There is no documentary evidence to confirm the condition and value of [the property in question] before it was destroyed. ... The claimant company confirmed [the amount of losses] by estimates of costs for the construction of a new mill complex and petrol station. The Voskhod company did not offer proof that it had acquired the property, or of its value at the moment of destruction, and therefore the court rightly dismissed the claimant company’s action.” 19. The court also upheld the reasoning of the two lower courts, stating, in particular, that the servicemen’s actions had been based on the Suppression of Terrorism Act and relevant presidential decrees and had aimed at restoring constitutional order in the Chechen Republic. It also noted that there had been no evidence in the materials of the case that the servicemen had acted ultra vires or that their actions had been unlawful, and therefore the servicemen should be exempt from responsibility for their actions. 20. Thereafter the applicant, acting on the company’s behalf, sought to have the amount of the court fee imposed on him by the first-instance court reduced. His request was dismissed. 21. Both parties submitted various documents confirming that the applicant was the sole founder, owner and director of the company. 22. A certificate issued by a tax authority confirmed that the company had been registered with that authority on 3 May 2001 and had been given an identification number as a taxpayer. 23. An extract of 1 July 2008 from the Uniform State Register of Legal Entities (Единый государственный реестр юридических лиц) provided various details concerning the Voskhod company. It indicated, in particular, that the company’s principal business activity was the retail sale of motor fuel, and its subsidiary activity was the production of flour, flour blends and pastry preparations for baking. 24. By a decision of 26 February 1992 the local council of the village of Chechen-Aul (“the Chechen-Aul local council”) assigned to the applicant, in his capacity as director of the Voskhod company, a plot of land measuring 300 square metres, and authorised the company to build a petrol station on that plot. 25. A certificate of 13 April 1993 issued by a competent authority attested that the construction of the petrol station had been completed and that that authority had accepted it as commissioned and fully operational. 26. In a decision of 26 December 1993 the Chechen-Aul local council, at the applicant’s request, gave him permission to build a mill complex and assigned him a plot of land measuring 1,500 square metres for that purpose. 27. A certificate of 20 March 1996 issued by the Republican Bureau of Technical Inventory of the Russian Ministry of Housing Maintenance and Utilities confirmed that the mill complex had been registered as the Voskhod company’s property on the basis of the decision of 26 December 1993 by the Chechen-Aul local council. A similar certificate was issued by the Republican Bureau of Technical Inventory on 13 June 1996 in respect of the petrol station. 28. Under a contract of 10 April 1999 the company agreed to purchase various equipment for the mill complex and to pay RUB 125,000 (approximately EUR 3,100). 29. A certificate of 13 December 2005 attested to the State registration of the property title to a petrol station belonging to the Voskhod company. 30. An extract of 18 July 2008 from the Uniform State Register of Rights to Immovable Property and Transactions therewith (Единый государственный реестр прав на недвижимое имущество и сделок с ним) confirmed that the Voskhod company was the owner of a petrol station. Another extract of the same date stated that there was no entry in the aforementioned Register in respect of any property rights of the Voskhod company to any mill complex. 31. A report of 19 July 2000 stated that on that date a commission of the Chechen-Aul local council had examined, at the applicant’s request, the mill complex belonging to the Voskhod company. The commission had established that the mill, which had had a production capacity of 100 tons of flour per day and had consisted of a permanent three-floor building measuring 20 x 30 metres, had been completely destroyed. The report then gave a more detailed description of the damage inflicted. It also stated that the commission had examined the mill complex in May 2000 and had drawn up an evaluation report attesting to some damage inflicted on the building during the previous military actions. The report then certified that the complete destruction of the mill complex, established by the commission on that date, had been carried out by federal forces on 18 July 2000 during a special operation in Chechen-Aul, this being confirmed by objective evidence and witness statements to the effect that representatives of the federal forces had planted explosive devices and then set off explosions in at least eight parts of the mill building. The commission also indicated in the report that the Voskhod company should apply to specialised agencies for assessment of the damage inflicted. 32. By a certificate it issued on 5 November 2008 the Chechen-Aul local council attested that on 18 July 2000 the mill complex with equipment belonging to the Voskhod company had been destroyed and the petrol station had been damaged. 33. A working estimate of repair costs of 15 September 2001 indicated that it was necessary to invest an overall amount of RUB 9,356,308 (approximately EUR 234,000) to restore the mill complex and petrol station. 34. A report of 11 September 2002 drawn up by a State agency of expert examinations stated that this latter authority had, at the applicant’s request, carried out an expert evaluation of the aforementioned estimate of repair costs and established that they should total RUB 13,677,294 (approximately EUR 340,000), taking into account the index of prices in the third quarter of the year 2002. 35. In a certificate of 20 September 2000, issued at the applicant’s request, the Chechen-Aul local council confirmed that on 18 July 2000, the date on which the mill complex belonging to the Voskhod company had been blown up, the federal forces had been carrying out a special operation in Chechen-Aul to blow up oil refining facilities. The operation in question had been conducted by military unit no. 3660. 36. In his explanation given on 27 June 2008 to the prosecutor’s office of the Chechen Republic the applicant confirmed that he was the sole founder, owner and director of the Voskhod company. He further stated that the Chechen-Aul local council in its decision, of 26 February 1992, (see paragraph 24 above), had authorised the company to build a petrol station, that the construction had been completed on 13 April 1993, and that the petrol station had been acknowledged by a competent State authority as commissioned and fully operational (see paragraph 25 above). The applicant pointed out that the company had duly registered the property title to the petrol station with the Bureau of Technical Inventory (see paragraph 27 above), but no documents confirming the formal transfer of the title in respect of the petrol station to the company had ever been drawn up. The applicant also stated that on 26 December 1993 the Chechen-Aul local council had also authorised the company to build a mill complex (see paragraph 26 above). According to him, the construction had been completed in late 1993 [apparently a mistake, should read 1994] and the mill complex started functioning with a production capacity of 100 tons of flour per day. The applicant stated that he had been unable to comply with the procedure whereby a new construction should be accepted by an appropriate State authority as commissioned and fully operational, because of the beginning of military actions in the Chechen Republic at that time. He also stated that the company had registered the property title to the mill complex with the Bureau of Technical Inventory (see paragraph 27 above), but no documents confirming the formal transfer of the title to the mill complex to the company had ever been drawn up. The applicant further claimed, with reference to the contract of 10 April 1999 (see paragraph 28 above), that the company had purchased various equipment for the mill. He went on to state that from late 1999, when the second counter-terrorism operation in the Chechen Republic started, until late 2001, military unit no. 3660 had been stationed on the Voskhod company site, including in the mill complex, and that servicemen of that unit had disassembled the equipment. After military unit no. 3660 had been transferred to another location, the servicemen of that unit had blown up the mill complex building. According to the applicant, prior to the events in question no survey of the petrol station and mill complex had been done. The applicant further referred to an estimate of 15 September 2001 (see paragraph 33 above) and stated that at present the amount necessary to restore the petrol station and mill complex was considerably higher than that indicated in the estimate. 37. In a certificate of 5 November 2008 the Chechen-Aul local council confirmed that for several months, from early 2000 until July 2000, federal servicemen had been stationed within the territory and on the Voskhod company site, of which the applicant was the founder and director. 38. The Russian Constitution provides as follows: “1. The right of private property shall be protected by law. ... 3. No one may be deprived of property otherwise than by a court decision. Expropriation of property for State needs may only be carried out subject to preliminary and equivalent compensation.” “... 3. The rights and freedoms set forth in the Constitution may only be limited by the federal law to the extent necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, or for ensuring the defence of the country and security of the State.” 39. Article 131 of the Russian Civil Code states that the title to and other proprietary interests in immovable property, limitations of those rights, their creation, transfer and termination shall be subject to State registration in a single State register by the relevant authorities. The State registration procedure was established in the Federal Law On Registration of Property Rights to Immovable Property and Transactions with such Property (“the State Registration Act”). 40. Article 1064 provides that damage caused to the property of an individual or of a legal entity shall be compensated for in full by the person who inflicted such damage. The latter may be released from the obligation to pay compensation if he or she can prove that the damage was not inflicted through his or her own fault; however, the law may provide for compensation in respect of damage even in the absence of fault by the person who caused it. Damage inflicted by lawful actions shall be compensated for in cases established by law. 41. By virtue of Article 1067, damage inflicted in a situation of absolute necessity, and notably for elimination of a danger threatening the tortfeasor or third parties, if the danger, in the circumstances, could not be eliminated by any other means, shall be compensated for by the tortfeasor. Having regard to the circumstances in which the damage was caused, a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeasor acted, or may release from such an obligation, partially or in full, both the third party and the tortfeasor. 42. Article 1069 stipulates that a State agency or a State official will be liable towards a citizen for damage caused by their unlawful actions or failure to act. Compensation for such damage will be awarded at the cost of the federal or regional treasury. 43. Article 25 of the Russian Code of Commercial Procedure establishes that actions must be brought in the courts at the location of the defendant. 44. The Federal Law on Suppression of Terrorism of 25 July 1998 (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом», “the Suppression of Terrorism Act”), as in force at the relevant time, provided as follows: “For the purposes of the present Federal Law the following basic concepts shall be applied: ... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities; ‘counter-terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; ‘zone of a counter-terrorist operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted;...” “On the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of a counter-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” 45. The Federal Law On Registration of Property Rights to Immovable Property and Transactions with such Property (Федеральный закон от 21 июля 1997 г. № 122-ФЗ «О государственной регистрации прав на недвижимое имущество и сделок с ним, “the State Registration Act”) in its sections 2 and 4 provides that the title to and other proprietary interests in immovable property shall be subject to State registration, and that the latter shall be the only proof of the existence of a right of property.

train

001-88515

ENG

MDA

ADMISSIBILITY

NENASEVA AND OTHERS v. MOLDOVA

Inadmissible

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

The applicants, Ms Valentina Nenaşeva, Ms Galina Vier, Ms Tatyana Zimovna and Ms Valentina Maler, are Moldovan nationals, who live in Chişinău. They were represented before the Court by Mr Ştefan Urîtu from the “Helsinki Committee for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were all employees of a private company (“the company”). On different dates in 1998 they were dismissed. Since the company had failed to pay them their salaries for the last six months of their employment, in August 1998 the applicants lodged with the Botanica District Court an action against their former employer, seeking payment of their salary arrears. The Botanica District Court found in favour of the applicants and by judgments of 16 October 1998, 28 September and 8 October 1999 ordered the company to pay them the following amounts: 5,290 Moldovan lei (MDL) (the equivalent of 926 euros (EUR) at the time) to Ms Maler; MDL 5,893 (EUR 514) to Ms Nenaşeva; MDL 5,025 (EUR 429) to Ms Vier and MDL 6,143 (EUR 524) to Ms Zimovna. No appeals were lodged and the judgments became final 15 days later. The applicants obtained enforcement warrants which were sent to a bailiff on 11 and 30 November 1999. Because the bailiff did not enforce the warrants, the applicants sent numerous complaints to various authorities asking for the judgments to be enforced. On 28 May 2001 a bailiff issued a decision and discontinued the enforcement proceedings on the ground that the company had been insolvent and handed over the enforcement warrants to the applicants. The applicants did not lodge an appeal against this decision, nor did they repeatedly submit the enforcement warrants to the Bailiff’s Office for enforcement. The judgments in favour of the applicants have not been enforced to date. The relevant provisions of domestic law have been set out in this Court’s judgment in the case of Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts), § 31). Article 426 of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003, reads as follows: “The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against the acts carried out or the refusal to carry out such acts by a bailiff within the enforcement proceedings. (...)”

train

001-78375

ENG

UKR

CHAMBER

CASE OF IVANOV v. UKRAINE

Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Peer Lorenzen

4. The applicant was born in 1950 and lives in the city of Zhytomyr, Ukraine. 5. On 12 September 1995 the applicant had a quarrel with his neighbours, Mr and Ms L., which led to a fight. The applicant was arrested by the police and brought to the police station. 6. On 13 September 1995 the Zhytomyr District Court fined the applicant 150 000 karbovanets (1.5 UAH) for the administrative offence of swearing in a public place. 7. On 22 September 1995 the Zhytomyr District Police Department instituted criminal proceedings against the applicant upon the complaint of Mr and Ms L. for inflicting medium bodily harm on Mr L. On 20 December 1995 the police investigator instituted criminal proceedings against the applicant for extremely malicious hooliganism (особо злостное хулиганство). 8. On 18 January 1996 the applicant was formally charged with the extremely malicious hooliganism and gave a written undertaking not to abscond. 9. On 7 February 1996 the investigation was completed and the applicant was given access to the case-file. 10. On 20 February 1996 the applicant finished consulting the case-file. 11. On 12 March 1996 the investigation was resumed. The proceedings against the applicant for extremely malicious hooliganism were discontinued. Instead, he was charged with inflicting medium bodily harm. 12. On 14 March 1996 the investigation was completed and the applicant was given access to the case-file. He finished consulting the case-file on the same day. 13. On 19 March 1996 the case was referred to the Zhytomyr District Court. 14. On 30 May 1996 the court ordered a forensic examination and adjourned the hearing. 15. On 16 July 1996 the court ordered an additional forensic examination and adjourned the hearing. 16. On 24 October 1996 the court sentenced the applicant to two years' imprisonment with one year's probation. The court confirmed the obligation not to abscond, i.e. not to leave his place of residence, as a restrictive measure. 17. On 26 November 1996 the Zhytomyr Regional Court upheld the decision of the first instance court. 18. On 6 June 1997 the Presidium of the Zhytomyr Regional Court quashed the decisions of 24 October and 26 November 1996 under the supervisory review procedure and remitted the case for an additional investigation. 19. On 23 June 1998 the General Prosecutor's Office (“the GPO”) closed the criminal case against the applicant and quashed the preventive measure imposed on him. On 26 August 1998 this decision was quashed and the case was reopened. 20. On 2 October 1998 the case was again closed and the preventive measure was quashed. On 29 October 1998 the decision of 2 October 1998 was quashed. The applicant maintained that in November 1998 he had requested a permission to visit his sick mother in another town in Ukraine, but had been refused. The case was then closed on 10 January 1999, being finally reopened on 13 January 1999. On 11 March 1999 the applicant once again gave his obligation not to leave his place of residence. 21. On 30 October 1999 the case was sent to the Zhytomyr District Court. 22. On 4 November 1999 the court found the case ready for examination and scheduled the hearing for 26 January 2000. 23. On 26 January 2000 the court heard the merits of the case and adjourned the hearing till 20 March 2000. 24. On 20 March 2000 the court postponed the hearing due to the failure of the applicant's lawyer to appear. 25. On 4 April 2000 the court heard the merits of the case and adjourned the hearing till 28 April 2000. 26. On 28 April 2000 the hearing was adjourned following the applicant's request. 27. On 1 June 2000 the court heard the merits of the case and adjourned the hearing till 19 June 2000. 28. On 5 July 2000 the court postponed the hearing till 25 September 2000 due to the failure of the applicant's lawyer to appear. 29. On 25 September 2000 the court postponed the hearing till 27 October 2000 due to the failure of the victim to appear. 30. On 2 October 2000 the applicant requested the court's permission to leave for Moscow till 25 October 2000. The court allowed this request. 31. On 16 November 2000 the court postponed the hearing till 1 December 2000, and on 1 December 2000 the court postponed the hearing till 19 March 2001 due to the failure of the applicant's lawyer to appear. 32. By a ruling of 19 March 2001, the court rejected the applicant's request to close the criminal case against him. The applicant appealed against this ruling, therefore the hearing on his case was adjourned. 33. On 18 April 2001 the Zhytomyr Regional Court rejected the applicant's appeal against the ruling of 19 March 2001 as it could not be appealed separately. 34. The hearing was resumed in the Zhytomyr District Court on 25 July 2001 and adjourned till 1 August 2001. 35. On 19 November 2001 the applicant requested the court not to hear the case in absence of his lawyer. 36. On 10 May 2002 the court heard the merits of the case and adjourned the hearing till 20 June 2002. 37. On 20 June 2002 the court rejected the applicant's request to replace the investigators in his case. 38. On 31 July 2002 the court rejected the applicant's request to replace the judge in his case. 39. On 10 June 2003 the court rejected the applicant's request to terminate the criminal proceedings against him because the administrative offence for which he was found guilty in 1995 was different from the offence for which he was charged under the pending criminal proceedings. 40. On 6 October 2003 the Zhytomyr District Court acquitted the applicant for a lack of evidence. 41. On 23 December 2003 the Zhytomyr Region Court of Appeal quashed the decision of 6 October 2003 and remitted the case for a fresh consideration. 42. On 2 February 2004 the Judge of the Supreme Court of Ukraine rejected the applicant's appeal in cassation against the decision of 23 December 2003 as that decision was not subject to appeal. 43. On 10 February 2004 and 4 March 2004 the hearing was adjourned due to the victim's failure to appear. 44. On 2 April 2004 the President of the Zhytomyr District Court allowed the applicant's request to replace the judge in his case. Judge B. was replaced by Judge Ye. 45. On 15 October 2004 the hearing was adjourned till 20 October 2004 due to the applicant's failure to appear. 46. On 20 October, 28 October and 17 November 2004 the hearing was adjourned due to the victim's failure to appear. 47. The court heard the merits of the case on 13 December, 18 December and 27 December 2004. 48. On 20 January 2005 the applicant challenged the judge in his case. 49. On 25 February 2005 the hearing was adjourned till 17 March 2005 due to the prosecutor's failure to appear. 50. On 17 March 2005 the court heard the merits of the case and adjourned the hearing till 7 April 2005. 51. On 7 April 2005 the applicant challenged the judge in his case. 52. On 28 April and 7 May 2005 the hearing was adjourned due to the prosecutor's failure to appear. 53. On 3 March 2006 the court convicted the applicant of inflicting medium bodily harm and sentenced him to one year's imprisonment. The court exempted the applicant from serving the sentence as the charges against him had become time-barred. 54. On 23 May 2006 the Zhytomir Regional Court of Appeal upheld the judgment with minor changes. 55. The criminal proceedings are still pending before the Supreme Court. 56. The text of Articles 148, 149 and 150 of the Code of Criminal Procedure of 1960, which are the general rules on preventive measures, is set out in Merit v. Ukraine (no. 66561/01, judgment of 30 March 2004). 57. According to Article 151 of the Code, an undertaking not to abscond consists of an obligation by a suspect or an accused not to leave his or her place of residence or temporary stay without the permission of an investigator. In the event of a breach of such a written undertaking, a stricter measure of restraint may be applied. 58. According to Article 48 of the Criminal Code at the material time (Article 49 of the Criminal Code in force as of 1 September 2001), the charges of medium gravity become time-barred after five years from the date of committal.

train

001-95578

ENG

POL

CHAMBER

CASE OF STASZEWSKA v. POLAND

No violations of Art. 3

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

5. The applicant was born in 1969 and lives in Szczecin. 6. In the early hours on 2 June 2001 the applicant and her friend J.D. were coming back from a party in Cracow. At a certain point they stopped because the applicant wanted to collect some leaves from an oak tree; she is a painter and she needed them to produce dye for her work. As they approached the tree, a police car stopped near them. Two uniformed policemen got out of the car and asked the applicant and her friend what they were doing there. The applicant asked what she was suspected of and what the policemen wanted from her. She asked them to show their badges. The policemen refused. 7. Then the applicant and her friend were asked to show their identity cards. J.D. did not have his identity card on him; however, he gave the policemen his personal details. The applicant refused, saying that she did not have her card on her and that she did not trust the Polish police. Then she said that she would not speak to them any longer and tried to walk away. Subsequently, she was informed that the process of establishing her personal details had not been finished and was warned that coercive measures would be used and that she would be taken to a police station if she persisted in her refusal. Then the policemen took her by both arms and brought her to the police car, parked nearby. The applicant resisted arrest by trying to get away, kicking and shouting. After she was brought to the car, she refused to get in. The two policemen called another police car and two other policemen arrived. Then the applicant was pushed into the car, laid on the floor and held down by the weight of the policemen's bodies. While she was being pushed into the car, kicking and shouting, one of the policemen was accidently hurt by a walking-length umbrella that the applicant was holding. 8. Subsequently, the applicant was handcuffed behind her back and taken to the police station. She refused to give a sample of her breath, saying that she suffered from asthma and bronchitis. She was taken to an accident and emergency service, where she refused to undress for a medical examination. Then she was taken to a sobering-up centre where she underwent a breath test, which showed a blood-alcohol level of 0.04 ‰. The doctor refused to keep the applicant in the sobering-up centre. She was taken back to the police station, where she apparently underwent another breath test. Subsequently she was taken to the police detention centre (izba zatrzymań). As emerges from the record of arrest (protokół zatrzymania osoby) the applicant did not appeal against the decision on her arrest and did not ask for a lawyer. She refused to sign the record of arrest. 9. In the police detention centre a policewoman told the applicant that she had to undress to undergo a body search in order to check whether she had any dangerous objects on her. The applicant refused, but as the policewoman allegedly warned her that she would be undressed by force, she eventually agreed. The applicant was then placed in a cell without a mattress. She had to spend the night on a concrete floor without her jacket, which had been taken away from her because it had a cord which might serve as a dangerous object. Only after some time was she given a blanket. She was refused permission to go to the toilet. 10. On 2 June 2001, at an unspecified time during the day, the applicant was released. 11. On the same day, at 21.55, the applicant went to an accident and emergency service in Cracow, where she was examined by a doctor. 12. According to a medical certificate from that examination the applicant had bruises on her chest and both arms, a haematoma on the left arm, bruises on the left hip and a haematoma on her left foot. 13. There are no discrepancies in the facts until the moment the applicant was asked to show her identity card. She refused, saying that she did not have her card on her, and tried to walk away. Subsequently, she was warned that coercive measures would be used and that she would be taken to a police station if she persisted in her refusal. Then the policemen took her by both arms and brought her to the police car, parked nearby. The applicant resisted arrest by trying to get away, kicking and shouting. After she was brought to the car, she refused to get in. The two policemen called another police car and two other policemen arrived. They “helped carry out the intervention”. When the applicant was in the car, she suddenly hit one of the policemen in his mouth with the ferrule of her umbrella. 14. Alternatively, according to the criminal court which conducted proceedings against the applicant (see below), the applicant had calmed down before being “put in the car”. After that she hit one of the policemen with her umbrella. 15. There are no discrepancies as regards facts which occurred in the accident and emergency service and the sobering-up centre. 16. Subsequently, in the police detention centre, two policewomen told the applicant that she had to remove her clothing to undergo a body search. The policewomen, who were questioned later in the course of investigation, said that the strip search had been carried out in accordance with the relevant procedures and denied that it could be humiliating for the applicant. 17. On an unspecified date the applicant's lawyer applied to the Cracow District Prosecutor for the prosecution (wniosek o ściganie) of the police officers who had arrested the applicant. 18. On 30 May 2003 the Cracow District Prosecutor discontinued the investigation, finding that the policemen's acts did not constitute the offence of abuse of authority. The prosecutor relied on statements given by a number of witnesses, including the applicant's friend J.D. 's version”. J.D. however did not see what happened after the applicant had been placed in the police car. He said that only at the police station had he noticed that one of the police officers was hurt on his face and that he had found the wound “superficial”. The Prosecutor relied also on an expert opinion produced in the course of the investigation, according to which, as a result of the police intervention on the night in question, the applicant had bruises on both her arms and a haematoma on her left arm, bruises and a haematoma on her left foot, bruises on her left hip and a sprained right wrist. The above symptoms and physical state caused her health to be impaired for a period shorter than seven days within the meaning of Article 157 § 2 of the Criminal Code. As regards the body search of the applicant, the prosecutor invoked the provisions of the 1990 Police Act and Order no. 7/94 of the Chief Police Commandant (Komendant Główny Policji) of 10 November 1994, which provided for the detailed examination of the clothes, shoes and underwear of arrested persons for any objects which could be dangerous to their own or another's health or life. 19. On 16 June 2003 the applicant's lawyer appealed, asking that the evidence in the file of the criminal proceedings against the applicant, which were pending at that time (see: “Criminal proceedings against the applicant”, below), be examined. In the applicant's lawyer's view, it was relevant for the present proceedings that the case against the applicant had been remitted by the second-instance court for reexamination. He also wanted the court to compare the evidence given by the police officers in both sets of proceedings. In his appeal the applicant's lawyer did not refer to the fact that at the police detention centre the applicant had allegedly been refused permission to go to the toilet and that she had had to spend the night on a concrete floor without any cover. 20. On 14 October 2003 the Cracow District Court (Sąd Rejonowy) held a hearing and rejected the applicant's lawyer's application. The court found that it was not bound by a judgment given in the criminal proceedings against the applicant and that the question whether or not the applicant had committed the offence of forcibly resisting arrest was irrelevant for the assessment of whether the police officers had abused their authority. 21. On the same day the Cracow District Court upheld the prosecutor's decision. 22. On an unspecified date the applicant was charged with resisting lawful arrest. 23. On 25 June 2002 the Cracow District Court convicted the applicant as charged and ordered her to pay a fine. 24. On an unspecified date the applicant's lawyer appealed. 25. On 1 July 2003 the Cracow Regional Court (Sąd Okręgowy) quashed the first-instance judgment and remitted the case for further examination. The court found that the applicant's injuries could not have been caused by her being placed in the police car in the way described by the police officers. 26. On 24 March 2004 the Cracow District Court, having re-examined the case, again convicted the applicant and ordered her to pay a fine. The District Court did not directly refer to the shortcomings of the proceedings found on appeal by the Regional CourtThe applicant was found guilty of resisting lawful arrest by, inter alia, hitting one of the policemen with an umbrella and hurting his lip and kicking the police officers. 27. On an unspecified date the applicant's lawyer appealed again. 28. On 12 April 2005 the Cracow Regional Court upheld the firstinstance judgment. 29. The regulations on permissible use of direct coercive measures by the police are laid down in section 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of a particular situation and in so far as they are necessary to obtain compliance with that order. 30. Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provides that direct physical force can be used to overpower a person, to counter an attack and to ensure compliance with an order. When such force is being used, it is forbidden to strike the person against whom the action is being carried out, except in self-defence or to counter an attack against another person's life, health or property. 31. Order no. 7/94 of the Chief Police Commandant of 10 November 1994 is neither an act nor a regulation which is published in the Journal of Laws (Dziennik Ustaw). Thus it is an internal police document and not accessible to the public. 32. Article 157 of the Criminal Code sets the threshold between minor and more serious bodily injury or impairment to health. According to that provision, if the bodily injury or impairment to health lasts less than seven days, the perpetrator is subject to a fine, the penalty of restriction of liberty or deprivation of liberty for up to two years. In such case the prosecution occurs upon a private charge. If the bodily injury or impairment to health lasts longer than seven days, the perpetrator is liable to a heavier penalty.

train

001-89825

ENG

SRB

CHAMBER

CASE OF KOSTIC v. SERBIA

Violation of P1-1;Non-pecuniary damage - award;Pecuniary damage - Government to enforce a demolition order

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

6. The applicants are spouses. They were both born in 1947 and currently live in Belgrade. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. The applicants and a certain M.P. were co-owners of a house and five other buildings in Belgrade. 9. On 21 May 1998 M.P. obtained a building permit for the partial reconstruction of the house co-owned by the applicants, authorising him to convert his flat into a duplex and enlarge it by approximately 100 meters squared. 10. M.P. started with the construction work immediately thereafter. 11. On 7 August 1998, on the basis of an on-site intervention, the Inspectorate of the Voždovac Municipality (“the Municipality”) concluded that M.P. was not performing the construction work in line with the building permit. It therefore ordered him to stop all work and to file a request for a new permit. 12. On 2 September 1998 the Inspectorate ordered M.P. to demolish, within three days, that part of the construction which had been erected contrary to the building permit. 13. On 11 September 1998 the Inspectorate issued an enforcement order in this respect. 14. Meanwhile, M.P. filed a request for a new building permit. 15. On 24 September 1998 the Municipality issued a favourable interim decision. 16. On 15 December 1998 the second-instance authority quashed this decision, remitting the case for re-consideration. 17. On 13 July 1999 the Municipality dismissed M.P.'s request for a new building permit, finding that his plan did not satisfy the requirements prescribed by the relevant domestic legislation. 18. On the same date, a technical report noted that “following the recent precipitation” and the construction work undertaken by M.P. the applicants' property had been seriously damaged. In particular, mortar had fallen, walls had cracked, and extensive damp and leakages had appeared throughout the premises. 19. On 27 March 2001 and 20 June 2002 the applicants filed criminal complaints against unidentified officials employed with the Municipality, alleging abuse of office. 20. On 25 November 2003 this complaint was rejected by the Fifth Municipal Public Prosecutor's Office (Peto opštinsko javno tužilaštvo) in Belgrade. 21. Following the entry into force of the new Planning and Construction Act in May 2003, M.P filed a request with the Municipality for the “legalisation” of the reconstruction of his flat (see paragraphs 32-34 below). 22. On 22 May 2003 and 11 June 2004 the applicants lodged submissions opposing the said legalisation. 23. On 11 February 2005 the Municipality informed the applicants that M.P. had filed a request for legalisation. 24. On 14 December 2005 M.P. supplemented this request. 25. Over the years, the applicants had repeatedly requested enforcement of the demolition order dated 2 September 1998, but to no avail. 26. Article 39 defines a party to an administrative case as a person at whose request the proceedings have been instituted, a person against whom the proceedings have been brought, or, indeed, any other person who is entitled to participate in the proceedings with a view to protecting his or her rights or interests. 27. Article 261 § 2 provides that an administrative decision shall be executed once it becomes enforceable. 28. Article 268 § 1 provides, inter alia, that the authority in charge of the enforcement of an administrative decision shall, ex officio or at the request of a party, issue an enforcement order. Such an order shall declare that the decision has become enforceable and determine the means and object of the enforcement. 29. Article 271 provides, inter alia, that enforcement proceedings shall be terminated ex officio if the enforcement title itself has been repealed in the meantime. These proceedings shall, however, be stayed “if it is established” that an interim decision, which was being executed, has subsequently been replaced by a contradicting separate “decision in respect of the main issue”. 30. Article 5 provided, inter alia, that an area's development was to be carried out in such a way as to: (i) protect its natural and man-made characteristics; (ii) respect the relevant planning regulations; (iii) preserve its natural resources; and (iv) protect the environment, as well as the public interest in general. 31. This Act was repealed on 13 May 2003. 32. Articles 160-162 provide, inter alia, that the owner of a building, a flat or, indeed, of any other object erected or reconstructed in the absence of a valid building permit shall have to inform the competent administrative authority (“the authority”) of this situation by 13 November 2003. This authority shall have sixty days to advise the owner about the relevant conditions for the “legalisation” of the construction in question, as well as the documents needed in this regard. The owner himself shall then have another sixty days to comply with this instruction. Should he do so and depending on whether the relevant conditions have been met, the authority shall accept the legalisation sought. In the event, however, that the owner does not abide by the set deadlines, the authority shall adopt a demolition order in respect of the said construction. 33. Article 171 provides, inter alia, that requests concerning the “issuance of building permits”, as well as those to do with “other individual rights and obligations”, lodged before the entry into force of this Act, shall be dealt with on the basis of prior legislation. 34. The Planning and Construction Act entered into force on 13 May 2003. 35. Article 154 defines different grounds for claiming civil compensation. 36. Article 172 § 1 provides that a legal entity is liable for any damage caused by one of “its own bodies”. 37. On 17 May 2005 the First Municipal Court (Prvi opštinski sud) in Belgrade ordered the Municipality of Stari Grad to pay the plaintiff a specified amount of compensation on account of the lost rent. The court relied, inter alia, on Article 172 of the Obligations Act and explained that the plaintiff had been unable to lease his flat for a certain period of time as a result of the Municipality's failure to evict a protected tenant from the flat in question (XVIII P br. 9031/04). On 16 March 2006 this judgment was upheld by the District Court (Okružni sud) in Belgrade (Gž. br. 12872/05). 38. On 21 February 2006 the Municipal Court in Novi Sad ordered the respondent State to pay the plaintiff a specified amount of compensation for the breach of his rights guaranteed under Article 5 of the Convention (P br. 1848/05). On 8 November 2006 this judgment was upheld by the District Court in Novi Sad (Gž. br. 3293/06). Based on such jurisprudence, the Government maintained that the Serbian courts were willing to directly apply the Convention, as well as the Protocols thereto. 39. Under Article 25 § 1 if a builder was aware of the fact that he was building on land owned by another, or was not aware of this but the land's owner had immediately expressed his opposition to the work undertaken, the latter shall have the right to: (i) seek recognition of his ownership of the building erected; (ii) request that this building be demolished; or (iii) seek compensation from the builder for the usurped land, based on its market price. 40. Under Article 43, inter alia, a co-owner shall be entitled to file a claim for the protection of his or her rights in respect of an entire property, as well as the protection of that individual's stake therein. 41. Under Articles 61 and 201-212, should a Public Prosecutor reject a criminal complaint filed in respect of a crime prosecuted ex officio, the victim may personally take over the prosecution of his own case before a court and simultaneously file a claim for any civil damages suffered.

train

001-104858

ENG

GRC

CHAMBER

CASE OF KONSTAS v. GREECE [Extracts]

No violation of Art. 6-2;Violation of Art. 6-2;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award

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

6. The applicant was born in 1946 and lives in Athens. 7. From 1985 he was a professor of international relations at the Panteion University in Athens. From 1990 to 1995 he was President of the University. At the time of the 1996 general elections the applicant was appointed Press Minister ad interim. From 1997 to 1999 he was Minister Plenipotentiary to the Council of Europe. 8. In September 1998 an administrative investigation into the pre-1997 financial management of the Panteion University was ordered by the university authorities. The resulting report was submitted to the public prosecutor at the Athens Court of Appeal, who brought criminal proceedings against fifty-four members of the University’s teaching staff who had been President or Vice-President in the period 1992 to 1998, including Mr Konstas. The applicant was charged with being an accomplice to forgery, defrauding the State of more than fifty million drachmas (approximately 146,000 euros (EUR)), misrepresentation and misappropriation of public funds. By decision of the public prosecutor at the Athens Court of Appeal, he and eighteen other accused were immediately committed to stand trial (summons no. 2284/2005). The case attracted considerable media attention. 9. On 7 September 2005 the Indictment Division of the Athens Court of Appeal endorsed the public prosecutor’s decision and decided to drop the criminal charges against some of the accused. As to the applicant, it considered that he had “played a major role in the commission of the offences” (decision no. 1969/2005). ... 12. On 6 June 2007 the Athens Assize Court sentenced the applicant and nine others to 14 years’ imprisonment for misappropriation of public funds, fraud against the State and misrepresentation (judgment no. 2444/2007). Mr Konstas immediately appealed and the Athens Assize Court ordered a stay of execution of his sentence pending the judgment on appeal. ... 14. On 11 June 2007, during a plenary debate in the Greek Parliament, the Deputy Minister of Finance referred to the proceedings in question, stating that certain opposition MPs had been heard by the Athens Assize Court as witnesses for the defence. In particular, he said: “Who are these incorruptible people? The denigrators, the renowned MPs of the Socialist Party (PASOK) and former PASOK Ministers who rushed to the defence of the Panteion bunch of crooks? Were they or were they not your personal and political friends? Didn’t you appoint them acting Ministers for the Press, Ministers Plenipotentiary to the Council of Europe, when the Panteion scandals were coming to light? They were your friends, dear colleagues, and you hastened to defend them before the Parliament. You even steal from each other. According to the newspaper ’To Vima’, your friends even stole money from Mr Simitis [a former Prime Minister]!” 15. On 2 July 2007, during a plenary debate in Parliament, the Prime Minister referred to the case saying that it was “an unprecedented scandal of deliberate and planned embezzlement of eight million euros for the benefit of those involved, to the detriment of Panteion University”. 16. On 12 February 2008, addressing the opposition in Parliament, the Minister of Justice said: “Remember the Panteion scandal. The Greek courts boldly and resolutely convicted all those you were protecting all this time.” 17. According to the case file, the case is still pending before the Athens Court of Appeal. Judgment no. 2444/2007 of the Athens Assize Court was finalised on 4 November 2009. ... 18. The relevant Articles of the Civil Code read as follows: “Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries. In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded.” “In the cases provided for in the two preceding Articles, the court may, in the judgment it gives on the application of the person whose right has been infringed, and regard being had to the nature of the infringement, also order the infringer to make reparation for the plaintiff’s non-pecuniary damage. Such reparation shall consist in the payment of a sum of money, publication of the court’ 19. Sections 104 and 105 of the Introductory Law to the Civil Code read as follows: “The State shall be liable, in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets.” “The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.” 20. The above section establishes the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts (Kyriakopoulos, Interpretation of the Civil Code, section 105 of the Introductory Law to the Civil Code, no. 23; Filios, Contract Law, Special Part, volume 6, Tort, 1977, para. 48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima, 16th year, p. 75). The admissibility of an action for damages is subject to one condition, namely, the unlawfulness of the act or omission.

train

001-98184

ENG

BIH

ADMISSIBILITY

SKOBIC v. BOSNIA AND HERZEGOVINA

Inadmissible

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

The applicant, Mr Ratko Škobić, is a citizen of Bosnia and Herzegovina and the Netherlands who was born in 1941 and lives in Rotterdam. The Government of Bosnia and Herzegovina (“the Government”) were represented by Ms M. Mijić, Agent, and Ms Z. Ibrahimović, Deputy Agent. The facts of the case, as submitted by the parties, may be summarised as follows. Prior to the dissolution of the Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicant deposited foreign currency in his five bank accounts at the then Jugobanka Sarajevo – Ekspozitura Bugojno and Privredna banka Sarajevo – Osnovna banka Bugojno (in what is today the Federation of Bosnia and Herzegovina) and Jugobanka Sarajevo – Filijala Banja Luka and Privredna banka Sarajevo – Osnovna banka Banja Luka (in what is today the Republika Srpska). In Bosnia and Herzegovina, as well as in other successor States of the SFRY, such savings are commonly referred to as “old” foreign-currency deposits (for the relevant background information see Suljagić v. Bosnia and Herzegovina, no. 27912/02, 3 November 2009). In 1991/92 the balance in the applicant’s accounts (which included interest) was apparently in the region of 210,000 Dutch guilders (approximately 95,000 euros). The applicant subsequently attempted to withdraw his savings on several occasions, but to no avail. It would appear that he has not obtained a verification certificate pursuant to the domestic legislation on “old” foreign-currency savings. The relevant law and practice were outlined in Suljagić, cited above.

train

001-92429

ENG

POL

CHAMBER

CASE OF RASMUSSEN v. POLAND

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 6-3-b;No violation of P1-1;Non-pecuniary damage - finding of violation sufficient

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Roman Wieruszewski

6. The applicant was born in 1948 and lives in Szczecin. 7. The applicant had been a judge for twentyseven years. By virtue of an amendment to the law on the System of Common Courts 1985, which came into effect on 17 October 1997, the status of a “retired judge” was created (see paragraph 24 below). On 4 December 1997 the applicant who had retired on 8 July 1997 on grounds of ill health acquired the status of a “retired judge”. Under the applicable provisions of domestic law retired judges were entitled, as from 1 January 1998, to a special retirement pension equivalent to seventyfive per cent of their last full salary (sędziowski stan spoczynku) every month. 8. On 3 August 1997 the Lustration Act entered into force. By a further amendment to the 1985 Law of 17 December 1997, which came into effect on 15 August 1998, retired judges who had acquired the right to a special retirement pension were required to submit a declaration under that Act. In September 1998 the applicant made a declaration under the provisions of that Act to the effect that she had never secretly collaborated with the communist secret services. 9. Subsequently, on an unspecified date, the Commissioner of Public Interest applied to the Warsaw Court of Appeal, acting as the firstinstance lustration court, to institute proceedings in the applicant’s case under the Lustration Act on the ground that she had lied in her lustration declaration by denying that she had collaborated with the secret services. He referred to documents showing that in 1986 the applicant had agreed to collaborate and from 1986 until 1988 had submitted fifteen written reports. 10. During the proceedings the applicant was represented by a lawyer. The case file could be consulted by the applicant and her lawyer in the secret registry of the lustration court. They were authorised to make notes. However, the notes could be made only in special notebooks which were subsequently sealed and deposited in the registry. It was possible for them to make notes, but not to take the notes from the registry. 11. On an unspecified date the Warsaw Court of Appeal, acting as the firstinstance court, held a hearing in the applicant’s case. The hearing was not public. She was questioned by the court and commented on the evidence at the court’s disposal. The case file was composed of the applicant’s lustration declaration, copies of certain documents contained in the applicant’s file compiled by the communist secret police and the Commissioner’s application for lustration proceedings to be instituted. 12. On 7 April 2004 the court gave a judgment in which it found that the applicant had made an untrue lustration declaration because she had been a willing secret collaborator of the communist secret services. It observed that the documents in the case file were incomplete, but that they were nevertheless sufficient to find that the applicant had been a secret collaborator. The applicant appealed. 13. On 4 November 2004 the same court, acting as a court of appeal, upheld the contested judgment, holding that the evidence in the case file was sufficient to find that the applicant had knowingly and intentionally collaborated with the communist secret services. The applicant submitted a cassation appeal to the Supreme Court, which dismissed it by a judgment of 7 April 2005. 14. From January 1998 to May 2005 the applicant received 4,614 Polish zlotys (PLN) per month (PLN 3,738 after tax) as the special retirement pension. 15. Subsequently, on 19 May 2005, the National Judicial Council, acting upon a request submitted by the Minister of Justice, instituted proceedings to divest her of her status as a retired judge. It also decided that payment of the special retirement pension to the applicant should cease with effect from 19 May 2005. 16. In her pleadings submitted to the Council the applicant argued that a decision to divest her of her special pension was unlawful as the requirements of the Lustration Act did not apply to retired judges. Even supposing that retired judges were obliged to make a lustration declaration, they could not be divested of their status under the provisions of this Act. In any event, such a decision could only be given after disciplinary proceedings had been conducted under the provisions of the Act on General Courts, but no such proceedings had been conducted in her case. She requested that payment of her special pension be resumed. 17. On 20 July 2005 the National Judicial Council adopted a resolution by which the applicant was divested of the special pension to which she was entitled on account of her status as a retired judge. The applicant appealed, essentially reiterating the arguments which she had raised in her pleadings submitted to the Council. 18. On 7 December 2005 the Supreme Court dismissed her appeal against this resolution. 19. In August 2005 the applicant requested the social insurance authority to grant her an ordinary retirement pension. Her request was refused by a decision of 28 November 2005 on the ground that the applicant had not been working for the statutory period of thirty years necessary for an entitlement to a retirement pension to accrue. 20. Later on, in April 2006, she was granted a partial disability pension (renta z tytułu częściowej niezdolności do pracy) from 1 August 2005, the first day of the month when she had lodged a request for an ordinary social insurance pension, to 31 October 2008, when the applicant was to reach the statutory retirement age, in a monthly amount of PLN 1,351 (PLN 1,124 after tax). 21. As from 1 March 2008 the applicant’s pension was reassessed against inflation. From then on she was paid PLN 1,438 per month (PLN 1,196 after tax). 22. As from 1 October 2008 the applicant has received her monthly retirement pension in the amount of PLN 2,062 (PLN 1,693 after tax). 23. On 3 August 1997 the Lustration Act (Ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) entered into force. Its purpose was to ensure transparency as regards those people exercising public functions who had been secret collaborators with the secret service during the communist era. It lost its binding force on 15 March 2007. The relevant domestic law and practice have been extensively summarised in the following judgments: Matyjek v. Poland, no. 38184/03, §§ 27-38, 24 April 2007 ; Bobek v. Poland, no. 68761/01, §§ 1843, 17 July 2007; and Luboch v. Poland, no. 37469/05, §§ 28-39, 15 January 2008). 24. On 17 October 1997 amendments of 28 August 1997 to the Law on the System of Common Courts 1985 (“the 1985 Law”) entered into force (“the October amendments”). The amendments introduced the status of a “retired judge”. By a further amendment which entered into force on 1 January 1998 it was provided that a judge, with the status of a retired judge, who had retired on grounds, inter alia, of age or illhealth should be entitled to remuneration equal to seventy-five per cent of his or her basic salary plus a bonus calculated on the basis of the years of service. 25. On 15 August 1998 further amendments of 17 December 1997 to the 1985 Law came into effect (“the December amendments”). The amendments provided, so far as relevant: “Article 78 .... § 1. A retired judge shall be obliged to keep the dignity of the position of a judge. § 2. A retired judge shall take disciplinary responsibility for a failure to maintain the dignity of the position of judge after having retired and for any failures to maintain such dignity when serving as a judge.” 26. The December amendments further provided, inter alia, as follows: “Article 7 § 6. Judges ... who have acquired the right to the retirement pension or disability pension shall submit the declaration envisaged under section 18 of [the Lustration Act 1997]. Article 8 § 1. Retired judges ... who worked for or served in the [State’s security services] or who have submitted untrue declarations concerning such service or employment or collaboration with [such services] shall lose the right to retired judge status and to remuneration in the retired status. § 3. The circumstances referred to in § 1 shall be ascertained according to the procedure laid down in [the Lustration Act 1997]. The loss of the rights shall occur from the date of issue of the decision.”

train

001-103811

ENG

NLD

ADMISSIBILITY

SELDENRIJK-RAAT AND OTHERS v. THE NETHERLANDS

Inadmissible

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

1. The applicants, Ms Elisabeth Seldenrijk-Raat, Mr Alexander Seldenrijk and Mr Robert Vincent Seldenrijk, are Netherlands nationals who were born in 1944, 1970 and 1983 respectively. They live on a farm in Westergeest (municipality of Kollumerland, province of Fryslân). 2 3. In late November 2004 two animal health inspectors, P. and H1, came to inspect a pony kept on the applicants’ farm and thought to be in a state of neglect. The applicants state that on that occasion they gave their full co-operation. The inspectors announced their intention to come back at a future date to take another look at the animal, accompanied by a veterinary surgeon if need be. 4. On 10 February 2005 the inspector P. returned, accompanied by two uniformed police officers, Officers H2 and R. According to the applicants, they had a police dog with them. 5. According to official documents, the first applicant refused to admit them onto the premises. The second applicant then ran towards the inspector and the police officers and tried to push Officer H2 away. Officer H2 then grabbed hold of the second applicant and told him that he was under arrest. The second applicant, however, refused to come quietly: he had to be wrestled to the ground by all three, Inspector P. and Officers H2 and R., and brought under control with pepper spray. While this was going on the first applicant tried to pull the officials off the second applicant. The third applicant appeared, waving his arms about and telling the officials to leave. Officer H2 then sprayed pepper spray into his face. At that, the third applicant left, only to come back with a spade which he brandished in a threatening manner. 6. For their part, the applicants deny that the pony was neglected in the first place. They state that the officers failed to identify themselves and that they searched the applicants’ dwelling without a warrant. 7. They further allege that the first applicant was struck by Officer H2; that after the second applicant had been subdued and handcuffed, the police officers grabbed him by the neck, closing off his jugular artery and causing him pain and bruising; that the second applicant was thrown onto the floor of a police van, where he was thrown about on the way to the police station; that the first and third applicants were driven to the police station without being allowed safety belts; and that the third applicant’s mobile telephone was checked for private telephone numbers without the third applicant’s permission. 8. They also allege that following their arrest they asked to see a lawyer but were met with a refusal. 9. The applicants were tried before a single-judge chamber (politierechter) of the Regional Court (rechtbank) of Leeuwarden on 4 May 2006. Judgment was given the same day. 10. The first applicant was found guilty of deliberately obstructing an official charged with investigating criminal acts in the execution of a legal prescript. She was fined 190 Euros (EUR). 11. The second applicant was found guilty of resisting an official engaged in his lawful duties (wederspannigheid). He was also fined EUR 190. 12. The third applicant, like the first applicant, was found guilty of deliberately obstructing an official charged with investigating criminal acts in the execution of a legal prescript. He too was fined EUR 190. 13. In each case EUR 100 of the fine was suspended. 14. Animal health inspector P. joined the proceedings as a civil party. His claims were declared inadmissible and remitted to the civil courts. 15. The applicants appealed. 16. The cases were re-heard by a single-judge chamber of the Court of Appeal (gerechtshof) of Leeuwarden on 15 November 2006. Judgment was given the same day. The applicants were all convicted in the same terms used by the Regional Court. 17. The first applicant was fined EUR 150, EUR 100 of which was suspended. The second and third applicants were each fined EUR 190, EUR 100 of which was suspended. 18. All three applicants lodged appeals on points of law with the Supreme Court (Hoge Raad). In their statements of points of appeal on points of law (cassatieschriftuur) they complained that their conviction did not follow from the evidence. They inspected the case file after it had been transmitted to the Supreme Court by the Court of Appeal. 19. On 25 September 2007 the first applicant wrote to the Procurator General to the Supreme Court complaining about the disappearance of a number of documents from the file when it was transmitted to the Supreme Court by the registry of the Court of Appeal. Copies of the documents concerned were appended to the letter. It appears that these documents were copies of official police reports with the applicants’ critical remarks added in handwriting and statements by veterinary experts to the effect that the pony was very old but in good health for its age. 20. On 22 April 2008 the Acting Procurator General gave advisory opinions in all three cases recommending that the appeals be dismissed as unfounded since the evidence relied on by the Court of Appeal was quite sufficient and the convictions were sound. 21. On 9 May 2008 the applicants’ lawyer submitted a letter written by the applicants themselves by way of response to the Acting Procurator General’s advisory opinion. This letter reiterated the applicants’ complaints about the actions of the various officials and their protestations of innocence. It also mentioned the letter with appended documents which they had written to the Procurator General (paragraph 19 above) and stated that the Procurator General had forwarded it to a member of the registry of the Supreme Court for inclusion in the file. 22. On 24 June 2008 the Supreme Court gave judgment dismissing the appeals on summary reasoning.

train

001-86611

ENG

RUS

CHAMBER

CASE OF BETAYEV AND BETAYEVA v. RUSSIA

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 8;Violation of Art. 13+2;Violation of Art. 13+8;Remainder inadmissible;Non-pecuniary damage - award

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

5. The applicants were born in 1957 and 1958 respectively and live in the village of Goyty, the Urus-Martan District, the Chechen Republic. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicants and their two sons, Lecha Betayev, born in 1981, and Ibragim Betayev, born in 1983, lived together in their three-room family house at 52 Kagermanova Street in the village of Goyty. 8. On the night of 25 to 26 April 2003 the applicants and both their sons were at home. The applicants were sleeping in one room and their sons in separate rooms. 9. At about 1.30 a.m. a group of around twenty armed men in camouflage uniforms arrived at the Betayevs’ house. Some of them stayed outside, while others forcibly entered the house. All but three of them were wearing balaclava masks. They did not identify themselves and offered no explanation for their visit. Their commander had no mask on, and the applicants observed that he had fair hair, blue eyes, a straight nose and Slavic features. The applicants inferred that the armed men were federal military or security servicemen because they spoke Russian without an accent and their uniform was similar to that of the federal armed forces. 10. The servicemen went to all rooms at once and three of them entered the room where the applicants were sleeping. They turned on the light and shouted at the applicants while pointing their machine guns at them. The first applicant tried to get up, but one serviceman hit him on the shoulder with the butt of his machine gun to push him down. Then he grabbed the first applicant by the collar of the shirt, pulled him down and ordered him to lie face down on the floor. The first applicant obeyed. The second applicant was told to face the wall and stand still without turning her head. 11. The applicants could hear from the next room that Ibragim Betayev was asked his full name and replied. The first applicant could also see that Lecha Betayev was woken up, ordered to get out of bed and then taken outside by two servicemen. The applicants and their sons were not requested to show their identity papers. 12. One of the servicemen, who appeared to be in charge of the others, told the first applicant that one of his fellow Chechen villagers had reported that the first applicant had had a machine gun and a radio station at home. The first applicant replied that he had not had any weapon. The servicemen started searching the house; the applicants were not presented with a search warrant and no witnesses were asked to observe the scene. 13. During the search the first applicant was permitted to sit on the bed, but was ordered not to turn his head and not to follow the search. 14. The servicemen searched the house, including the attic, the courtyard and the sheds outside, turning everything upside down. They were going to take up the floor of the house, but the first applicant asked them not to do so because, given the poor condition of the house, it might have been problematic, and the commander decided not to. The search took about one hour; after that the applicants heard the noise of an armoured personnel carrier (“APC”) revving up outside. Two or three minutes later the man who was in charge of the other servicemen told them that they were leaving. He ordered the applicants to remain in the house, threatening to shoot if they went outside before the servicemen had left. 15. Only then did the applicants discover that Lecha and Ibragim Betayev had been taken away. 16. The second applicant went into the courtyard and saw five military vehicles. When the vehicles started driving off the APC went first, followed by two UAZ vehicles and then two Ural vehicles. The applicants could hear that the vehicles were moving in the direction of the village centre of Goyty and then towards Grozny without stopping or slowing down at the military checkpoint on the bridge across Argun channel, although they could not avoid it driving in that direction. 17. Having looked around, the applicants discovered that the servicemen had taken away some of their belongings, such as mechanical tools, an electric battery charger and some other domestic hardware. According to the written statements by Ms M. and Ms D., villagers of Goyty, in the morning of 26 April 2003, the applicants’ house was in chaos after the search and the marks of military boots could be seen everywhere. 18. The applicants waited until the dawn and then inspected the traces of the military vehicles. They found that all the vehicles, apart from the APC, had been parked some thirty or fifty metres away from their house, while the APC must have been parked right in the river bed of Goytinka, which flows about twenty metres from the applicants’ house. They could see the traces clearly because it had drizzled that night. According to the written statement by Ms M., she saw the APC traces at the same spot as well. She also discovered that her fence had been broken through on that same night, so as to allow access into the courtyard of the Betayevs’ house. 19. The Government submitted that, according to the Prosecutor General’s Office, on 26 April 2003 the first applicant had reported to the Urus-Martan District Department of the Interior (“ROVD”) that at about 2.30 a.m. unidentified persons armed with machine guns had broken into his house and taken away his sons, Lecha and Ibragim Betayev. 20. On 26 April 2003 the applicants started searching for Lecha and Ibragim Betayev. Both in person and in writing, they applied to various official bodies trying to find out the whereabouts and the fate of their sons. It was the first applicant who made all the written submissions to various authorities on behalf of both applicants because the second applicant was illiterate. The applicants retained copies of some of the letters to the authorities and their answers, which they submitted to the Court. 21. The applicants also kept up a constant search for traces of their sons through informal channels, by contacting officials and other people. They took part in the identification of numerous dead bodies found in all parts of Chechnya, but in vain. 22. Their attempts to find out the whereabouts of Lecha and Ibragim Betayev and the criminal proceedings can be summarised as follows. 23. In the morning of 26 April 2003 the first applicant went to the local police station in Goyty and asked Mr Kh., the officer on duty, about the abduction of his sons. Mr Kh. told the applicant that at about 1.30 a.m. on 26 April 2003 he had seen two UAZ vehicles and an APC with men wearing camouflage uniforms sitting on it. The vehicles had been heading towards the applicants’ house. Mr Kh. and his colleague had unsuccessfully tried to stop them. Mr Kh. had informed the ROVD of this, but received an order from the latter not to intervene. The applicants provided Mr Kh.’s detailed written testimony of those events. 24. After going to the police station in Goyty, the first applicant went to the district centre, the town of Urus-Martan. There he visited the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”), the ROVD and the local administration. With all of them he lodged complaints concerning the abduction of his sons, in which he also mentioned that the perpetrators had broken his furniture and wrecked the floors and the ceiling. An investigator from the district prosecutor’s office interviewed him and the first applicant related in detail the circumstances of his sons’ abduction. 25. On the following days the applicants regularly went to Urus-Martan to visit all district authorities and find out whether there had been any news of their sons. However, no authority acknowledged any involvement in the abduction of Lecha and Ibragim Betayev and all of them denied knowledge of their whereabouts. 26. Four days later the applicants were visited by an officer from the ROVD. He briefly inspected the site, which was still in a state of disorder after the search; he also questioned the applicants and two neighbours, who confirmed the use of military vehicles by the armed servicemen. 27. On 5 May 2003 the district prosecutor’s office informed the first applicant that an investigation into the kidnapping of Lecha and Ibragim Betayev had been opened in case no. 34053. 28. On 8 May 2003 the district prosecutor’s office granted the first applicant victim status in the criminal proceedings. 29. On 1 July 2003 the district prosecutor’s office suspended the investigation in case no. 34053 for failure to identify those responsible. 30. On an unspecified date the applicants requested the expert of the European Union in respect of the Southern Federal Circuit, Mr Lyuboslavskiy, to assist them in the search for their sons. On 21 July 2003 the latter wrote to the Prosecutor General of Russia describing the circumstances of the search of the applicants’ house and of Lecha and Ibragim Betayev’s abduction and asking for information about the measures taken to investigate the unlawful arrest of the Betayev brothers. 31. On 21 July 2003 the district prosecutor’s office resumed the investigation in case no. 34053. 32. On 25 August 2003 the prosecutor’s office of the Chechen Republic notified the first applicant that the criminal investigation into the kidnapping of his sons had been suspended and subsequently resumed. 33. On 29 September 2003 the first applicant wrote to the district prosecutor’s office once again complaining of the unlawful search and of his sons’ arrest and setting out all the details he considered relevant to the investigation, such as the description of the military vehicles and the reasons why he thought that the armed men had belonged to the federal forces. He also complained of lack of information on the progress in the investigation and requested an update. 34. On 7 October 2003 the first applicant wrote the Urus-Martan District Department of the Federal Security Service (“FSB”) asking whether his sons had been detained by the FSB or whether they had been wanted or suspected of any criminal activity. 35. On 13 October 2003 the first applicant again wrote to the district prosecutor’s office reiterating his allegations that the State agencies had been involved in the detention of his sons. He expressed concern that their lives could be in danger, or that they may have been tortured, and asked for urgent and effective measures to be taken in the search for them. He also requested to be allowed access to case file no. 34053. 36. On 24 October 2003 the first applicant lodged a complaint with the prosecutor’s office of the Chechen Republic requesting that the district prosecutor’s office be compelled to take urgent steps to investigate the disappearance of his sons. 37. On 31 October 2003 the district prosecutor’s office suspended the investigation in case no. 34053. 38. On 10 November 2003 the district prosecutor’s office resumed the criminal proceedings in case no. 34053 and notified the first applicant at once of the suspension and resumption of the investigation. 39. On 9 December 2003 the first applicant wrote to the Department of the FSB of the Chechen Republic reiterating his enquiry of 7 October 2003. 40. On 19 January 2004 the first applicant complained to the Prosecutor General of Russia of the failure to investigate the disappearance of his sons. 41. On an unspecified date in January 2004 the first applicant received a reply from the Department of the FSB of the Chechen Republic. He was informed that Lecha and Ibragim Betayev had not been arrested by the Urus-Martan District Department of the FSB and had never been brought to its premises. He was also informed that no criminal proceedings had been instituted against his sons and that their arrest had not been ordered. 42. On 9 March 2004 the prosecutor’s office of the Chechen Republic informed the first applicant that, further to his complaint to the Prosecutor General of Russia, his case had been reviewed and that some investigative actions were being taken. He was invited to address all his queries to the district prosecutor’s office. 43. On 5 November 2004 the first applicant requested the district prosecutor’s office to resume the investigation in case no. 34053. On 14 November 2004 the district prosecutor’s office replied that all requisite investigative measures had been taken to solve the crime and that the search for the perpetrators was under way. 44. On 2 June 2006 the Prosecutor General’s Office informed the first applicant that his complaint had been forwarded to the prosecutor’s office of the Chechen Republic. 45. On 1 May 2003 the district prosecutor’s office instituted a criminal investigation in case no. 34053 into the disappearance of Lecha and Ibragim Betayev by unidentified armed persons under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). 46. On 8 May 2003 the first applicant was granted victim status and questioned. He submitted that at about 1.30 a.m. around twenty unknown armed men had entered his house and searched it. They had taken away his sons. The second applicant was questioned on an unspecified date and made a statement identical to that by her husband. 47. The district prosecutor’s office questioned nine neighbours of the Betayevs. They submitted that they had not eyewitnessed the abduction of the applicants’ sons and had heard no noise of engines on the night of 25 to 26 April 2003. 48. A number of other witnesses were questioned in the course of the investigation. However, the identities of the perpetrators were not established. No proof was found supporting the allegation that servicemen of the federal forces had been involved in the crime. 49. On several occasions the district prosecutor’s office instructed the ROVD to establish the whereabouts of Lecha and Ibragim Betayev. They also sent requests to remand prisons of the Chechen Republic and adjacent regions, military units of the United Group Alignment, the military commander’s office of the Urus-Martan District and the departments of the FSB. Those bodies had no information on Lecha and Ibragim Betayev’s whereabouts. 50. The headquarters of a military unit located not far from the village of Goyty informed the district prosecutor’s office that their servicemen had not carried out any special operations on 26 April 2003. 51. Between 1 July 2003 and 16 January 2004 the investigation was suspended four times for failure to identify those responsible and then resumed. The first applicant was promptly notified of the decisions suspending and resuming the investigation. 52. On 16 February 2004 the district prosecutor’s office once again suspended the investigation and notified the first applicant accordingly. 53. On 11 July 2006 the prosecutor’s office of the Chechen Republic quashed the decision of 16 February 2004 because certain requisite investigative measures had not been taken; in particular, the servicemen of the ROVD had not been questioned. The proceedings were resumed. 54. On 17 August 2006 the district prosecutor’s office rejected a request by the applicants to institute criminal proceedings on account of unlawful intrusion into their home on the night of 25 to 26 April 2003 for failure to comply with a two-year statutory limitation period. On the same date they extended the scope of the charges against the unidentified persons who had kidnapped the applicants’ sons to an offence under Article 158 § 2 (aggravated theft) and allowed the first applicant to join the criminal proceedings as a civil party. 55. On 17 August 2006 the district prosecutor’s office suspended the investigation in case no. 34053. 56. On 18 September 2006 the investigation was again resumed. 57. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 34053, providing only copies of decisions to suspend and resume the investigation and to grant victim status and of several notifications to the relatives of the suspension and resumption of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning witnesses or other participants in the criminal proceedings. 58. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.

train

001-89420

ENG

DEU

CHAMBER

CASE OF LEELA FORDERKREIS E.V. AND OTHERS v. GERMANY

Violation of Art. 6-1;No violation of Art. 9;Non-pecuniary damage - claim dismissed

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

6. The applicant associations are religious associations or meditation associations belonging to the Osho movement, formerly known as the Shree Rajneesh or Bhagwan movement. The movement was founded by the Indian mystic Rajneesh Chandra Mohan, who was first called Bhagwan by his followers, and then later Osho. According to their statutes, the applicant associations promote the teachings of Osho, who maintained that the aim of spiritual development was enlightenment. One precondition was to become free of all socialisation, through a comprehensive programme of traditional and new meditation techniques and a range of therapies. The applicant associations run Osho meditation centres, organise seminars, celebrate religious events and carry out joint work projects. They also protect the religious rights of their members against discrimination. 7. The applicant associations belong to a group of previously unknown religious communities which first surfaced in Germany in the 1960s. They were described as “sects”, “youth sects”, “youth religions”, “psycho-sects”, and “psycho-groups” or given similar labels. The groups quickly became the subject of critical public debate due to the fact that their actions are seen to be predominantly influenced by their religious and philosophical views and due to the way they treat their members and followers. The focus of concern was the potential danger that these groups could pose to adolescents’ personal development and social relations, which could lead not only to their dropping out of school and vocational training, radical changes in personality, various forms of dependence, lack of initiative and difficulties in communication, often aggravated by the group structure characteristic of certain communities, but also to material loss and psychological harm. 8. Since 1970 the Federal Government and the governments of the Länder have been confronted with these issues. To draw attention to the potential dangers of such groups, both to the individual and to society, the Federal Government launched a large-scale information and education campaign designed to increase public awareness and stimulate a critical discussion on the aims and activities of sects and sectarian groups. Since 1979 the German Government has given several official warnings concerning so-called sects with a view to informing the public about the practice of these groups. The Rajneesh, or Bhagwan, movement was mentioned as one of these new religious and spiritual movements. As part of their public relations work, State agencies have characterised the applicant associations as a “sect”, “youth sect”, “youth religion” and “psycho-sect”. The adjectives “destructive” and “pseudo-religious” have also been used to describe them, and the accusation has been raised that their members are manipulated. 9. These expressions were contained in Government statements, namely, in replies to members of the German Parliament of 27 April 1979, 23 August 1982 and 10 October 1984, in a report by the German Government to the Petition Board of the Federal Diet on youth sects in the Federal Republic of Germany dated February 1980 and published by the Federal Minister of Youth, Family and Health, and in a speech by the Federal Minister of Youth, Family and Health delivered on 8 December 1984. 10. In the reply of 27 April 1979 on the subject “Recent religious and philosophical communities (so-called youth sects)” the “Shree Rajneesh Movement” was counted among the so-called religious and philosophical communities. The Federal Government stated that these were labelled with general terms such as “youth sects”, “destructive religious groups” or “destructive cults”. The Federal Government itself referred to them as “youth sects” “pseudo-religious and psycho-groups” as well as generally referring to them as “sects”. In their reply dated 23 August 1982 the Government mentioned the “Bhagwan-Shree-Rajneesh movement” in connection with questions concerning the membership structure of “so-called new youth sects”. Furthermore, in the preliminary remarks the term “so-called psycho-sects” was used, while throughout the main text the Government referred to “youth religions”. In their reply of 10 October 1984 concerning the “economic activities of destructive youth religions and psycho-sects” the Government mainly used the terms “youth religion” and “psycho-sect”. The Government further stated that it appeared to be difficult to apply labour law regulations to associations the conduct of whose members was manipulated. In its report to the Petititions Board of the Federal Diet of February 1980 the Federal Government pointed out in the introduction that the terms “youth religion” or “youth sect” encompassed a number of highly varied groups. The “group based around “Bhagwan (i.e. God) Shree Rajneesh” was presented as one of these groups, and was included as one of the “psycho-movements”. In the speech he gave on 8 December 1984 at a conference on the topic “New youth religions – Protecting the freedom of the individual” the Federal Minister of Youth, Family and Health used the terms “youth religion”, “youth sect”, “sect”, “destructive religious cults”, “pseudo salvation teachings” and “pseudo-religion” with reference to the groups dealt with. 11. On 1 October 1984 the applicant associations instituted legal proceedings before the Cologne Administrative Court (Verwaltungsgericht). They requested that the Government desist from issuing the above-mentioned statements about the religious movement and the associations belonging to it, maintaining that such statements were incriminating. They essentially alleged that their freedom to profess a religious or philosophical creed under Article 4 §§ 1 and 2 of the Basic Law (Grundgesetz) had been infringed. 12. According to the applicant associations, the teachings of the community were based on the idea of achieving transcendence in all essential areas of life. These teachings were continuously shared by them and their community. The various statements of the Government had breached the obligation of neutrality required by Article 4 of the Basic Law by discrediting the teachings of the movement. The expressions used were either actually defamatory or were meant to be, and there was no factual or legal basis which would justify using those terms. The applicant associations did not pursue any activities contrary to the basic rights of other persons, groups or organisations. The Government had misinterpreted the concepts of Osho’s teachings and thus interfered with the essential religious beliefs of their movement. 13. By a judgment of 21 January 1986 the Cologne Administrative Court prohibited the Government from calling the Rajneesh movement in official statements a “youth religion”, “youth sect” or “psycho-sect”, from using the adjectives “destructive” and “pseudo-religious” and from alleging that members of the Rajneesh movement had been manipulated. 14. The Administrative Court found that those terms evoked a negative connotation of the basic contents of the applicant associations’ religious beliefs and that the use of those terms infringed their religious freedom guaranteed by Article 4 § 1 of the Basic Law. It considered, however, that the use of the term “sect” as such had no negative impact on the applicant associations’ religious belief. 15. The Administrative Court pointed out that there was no indication that the applicant associations pursued exclusively commercial aims or that the teachings of Osho or the methods employed by the applicant associations were contrary to human dignity. The right protected by Article 4 of the Basic Law obliged the State to maintain strict neutrality regarding religious activities and prohibited negative judgments on a determined religious belief. Furthermore the use of such general terms was not appropriate for the prevention of danger. 16. On 28 April 1986 the Government appealed against that judgment. A hearing was held before the Administrative Court of Appeal of the Land North Rhine-Westphalia (Oberverwaltungsgericht für das Land Nordrhein-Westfalen) on 22 May 1990. By a judgment of the same day the Administrative Court of Appeal quashed the impugned judgment and dismissed the applicant associations’ claim as a whole, as well as the appeals of two applicant associations who had contested the findings of the first-instance court as regards the use of the term “sect”. It did not allow an appeal on points of law. 17. The Administrative Court of Appeal found that the contested statements interfered with the applicant associations’ basic rights guaranteed by Article 4 §§ 1 and 2 of the Basic Law. However, the right to religious freedom was not absolute. It was subject to limitations by other provisions of the Basic Law. Limitations and interferences by the State had to be accepted where important reasons of public interest required the protection of basic rights which were in conflict with the right to freedom of religion. Where a mere suspicion of a possible violation of these rights existed, relevant information and warnings were appropriate and necessary for their protection. Under Article 65 of the Basic Law, which vested governmental functions in the Government, taken together with the positive obligations under Article 2 § 2, first sentence, which guarantees the right to life and to inviolability of the person, and Article 6 of the Basic Law, which protects the rights of the family, the Government had the right to impart information. The views expressed by the Government were acceptable and respected the principle of proportionality. 18. On 13 March 1991 the Federal Administrative Court (Bundesverwaltungsgericht) dismissed the applicant associations’ appeal against the decision of the Administrative Court of Appeal refusing leave to appeal. The court considered that the case had no fundamental importance. It noted that the legal questions raised in connection with public declarations of the Government in respect of new religious movements had already been dealt with in its previous case-law and that of the Federal Constitutional Court (Bundesverfassungsgericht). The applicant associations’ submissions did not raise any new issue. The Government’s constitutional right to inform the public and to protect the human dignity and health of citizens justified the interference with the freedom of religion or belief. The right to inform the public included the right to warn the public and to consider the conduct of others as dangerous. 19. On 3 May 1991 the applicant associations filed a constitutional complaint against the above-mentioned court decisions. On 23 April 1992 the Federal Constitutional Court informed the applicant associations in reply to their letter of 10 April 1992 that it was not able to indicate when a decision would be given. On 13 January 1993 it wrote to the applicant associations that the case had been communicated to the Federal Government and the Land of North-Rhine-Westphalia. On 2 November 1993 the Federal Government submitted their observations, which were served on the applicant associations on 4 November 1993. On 21 September 1994 the applicant associations submitted their observations in reply. By letters of 8 March 1993, 6 August 1995, 8 July 1998 and 3 February 2000 the applicant associations enquired about the state of the proceedings. 20. On 26 June 2002 the Federal Constitutional Court ruled that the judgment of the Administrative Court of Appeal of the Land North Rhine-Westphalia of 22 May 1990 violated the applicant associations’ basic rights guaranteed by Article 4 §§ 1 and 2 of the Basic Law. It quashed the judgment insofar as the applicant associations’ claim had been dismissed in respect of the use of the expressions “destructive”, and “pseudo-religious”, and the allegation that they “manipulated their members” and referred that part of the complaint back to the Administrative Court of Appeal for a new decision. However, it found that the Government was authorised to characterise the applicant associations’ movement as a “sect”, “youth religion”, “youth sect” and “psycho-sect” and was allowed to provide the public with adequate information about it. 21. According to the Federal Constitutional Court, the right to freedom of religion or belief guaranteed by Article 4 §§ 1 and 2 of the Basic Law did not prevent the State from entering into a public and even critical discussion about the aims and activities of religious groups. The limitations on the freedom of religion were to be found in other basic rights and freedoms guaranteed by the Basic Law, such as the protection of human dignity, the right to life and physical integrity and the protection of marriage and the family. 22. The power to manage State affairs derived directly from the Basic Law and authorised the Federal Government to provide information in all matters coming within the sphere of their overall State responsibility. Providing direct public information helped them to resolve conflicts within the State and society, to face challenges even if they occurred at short notice, to react quickly and adequately to the problems and concerns of citizens and assist them in finding guidance. This activity did not require an express legal provision, since it did not constitute a direct interference with the applicant associations’ rights. It merely influenced the conduct of others vis-à-vis the applicant associations. Moreover, it was not possible to establish rules for the Government’s information-imparting role, given the wide variety of the subject matter dealt with and methods used. When acting in the exercise of their power to direct State affairs, the Federal Government were entitled to provide information to the public, even if basic rights were indirectly affected as a result. 23. However, the State had to restrict itself to neutral terms and act with moderation in matters of religion or belief. Defamatory, discriminating or deceptive statements were prohibited. The Government also had to respect the separation of powers between the Federal State and the Länder. The Government were authorised to impart information relating to supra-regional matters and where nationwide information helped to resolve problems efficiently. Providing information in these circumstances did not exclude or impair the powers of the Länder governments to impart information themselves, nor did it prevent the administrative authorities from carrying out their administrative tasks. 24. Furthermore, the Federal Government had to respect the principle of proportionality when imparting information. Statements affecting the very essence of the right guaranteed by Article 4 §§ 1 and 2 of the Basic Law had to be appropriate in relation to the cause for concern. 25. As to the term “sect”, the Federal Constitutional Court found that the Government were not prohibited from using the term, which at the material time corresponded to the general understanding of new religious movements. Similarly, the use of the terms “youth religion” and “youth sect” described the prevailing situation at the material time and the term “psycho-sect” reflected the Osho movement’s meditation practices. These terms were employed without discriminatory differences of treatment in respect of these groups on grounds of their religion or belief. They complied with the obligation of the State to neutrality in matters of religious and philosophical beliefs and did not affect the very essence of the right guaranteed by Article 4 §§ 1 and 2 of the Basic Law. 26. In contrast, the use of the terms “destructive” and “pseudo- religious”, and the allegation that members of the movement were manipulated, did not satisfy the requirements of constitutional law. 27. Even if the employment of such terms could not be criticised on the ground that it exceeded the powers of the Federal Government, the terms used nonetheless infringed the neutrality requirement and were thus not justifiable according to the proportionality principle. In particular, no substantiated reasons had been advanced which could have justified the statements regarded as defamatory by the complainants, nor were any such reasons otherwise apparent. That decision was served on the applicant associations on 30 July 2002. 28. On 8 November 2002 the Federal Government withdrew their appeal against the judgment of the Cologne Administrative Court of 31 January 1986 as the appeal was again pending before the Administrative Court of Appeal following the decision of the Federal Constitutional Court of 26 June 2002. 29. On 27 December 2005 the applicant associations’ representative informed the Court that the fourth and fifth applicant associations, Dharmadeep Verein für ganzheitliches Leben e.V. and Osho Meditations Center Berlin e.V, wished to withdraw their application. 30. The relevant provisions of the Basic Law read as follows: Article 2 § 2, first sentence “Everyone has the right to life and to inviolability of his person” Article 4 §§ 1 and 2 “The freedom of belief and conscience and the freedom to profess religious and philosophical beliefs are inviolable. The undisturbed practice of worship is guaranteed.” Article 6 § 1 “Marriage and family enjoy the special protection of the State.” Article 65 “The Federal Chancellor shall determine and be responsible for the general guidelines of policy. Within these limits each Federal Minister shall conduct the affairs of his department independently and of his own motion. The Federal Government shall resolve differences of opinion between Federal Ministers. The Federal Chancellor shall conduct the proceedings of the Federal Government in accordance with rules of procedure adopted by the Government and approved by the Federal President.” 31. By a judgment of 23 May 1989 the Federal Administrative Court ruled that the German Federal Government was entitled to provide information and publish warnings by virtue of their constitutional responsibility to inform the public about new religious and ideological communities and “psycho-groups” (BVerwGE 7 C 2/87, see Judgments and Decisions of the Federal Administrative Court, vol. 96, pp 82 et seq.). On 15 August 1989 the Federal Constitutional Court, sitting as a bench of three judges, did not accept the constitutional complaint of the Maharishi Organisation (Transcendental Meditation) for adjudication, confirming that the Federal Government was entitled to provide information on new religious and ideological communities and “psycho-groups” in compliance with its constitutional obligations, namely to express opinions and submit recommendations and warnings to the public within the limits of the proper execution of the powers granted by the Basic Law (1 BvR 881/89). 32. In 1996 the Federal Diet (Deutscher Bundestag) charged an expert commission to prepare a report on “so-called sects and psycho-cults”. In its final report issued in June 1998 the Commission of Enquiry stated that negative sentiments were typically evoked when the term “sect” was used. However, only a small number of the movements characterised as “sects” were problematic. The Commission recommended that in official statements, information leaflets or legal texts the word “sect” not be employed in future.

train

001-72277

ENG

FIN

ADMISSIBILITY

HAUTAKANGAS v. FINLAND

Inadmissible

Nicolas Bratza

The applicant, Mr Kalevi Hautakangas, is a Finnish national, who was born in 1948 and lives in Mutala. He was represented before the Court by Mr Jukka Ahomäki, a lawyer practising in Järvenpää. The respondent Government were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant sustained injuries to his shoulder, arms and wrists in an accident on 9 March 1994 while driving a kick sledge. An insurance company granted the applicant a daily allowance (päiväraha, dagpenning) for 100 % reduction of his working capacity from 11 March 1994 to 8 March 1995. As the applicant apparently had continued problems, especially with his right wrist, he submitted medical opinions to the insurance company, applying for a continued daily allowance / accident pension for the period from 8 March 1995 onwards. On 14 June 1995 the insurance company rejected his application and denied the compensation claim for loss of income, considering that the applicant’s working capacity was reduced by less than 10 % and that he was able to work at his post as technical director in a company. The applicant sought medical help in 1996 and participated, inter alia, in a rehabilitation examination. Right elbow nerve damage and signs of damage to the right wrist as well as depression were diagnosed in a medical opinion dated 29 April 1996. The applicant also underwent an isotope survey on 7 January 1997 and submitted to the insurance company a medical opinion dated 7 March 1997 regarding his hands and wrists. On 22 October 1997 the insurance company upheld its previous decision and decided not to grant the applicant a daily allowance for the period 8 March 1995 onwards. On 18 November 1997 the insurance company corrected its previous decision of 22 October 1997 so as to grant the applicant an accident pension for 100 % reduction of working capacity from 9 March to 31 March 1995. The applicant appealed to the Accident Board (tapaturmalautakunta, olycksfallsnämnden) requesting an accident pension (tapaturmaeläke, olycksfallspension) as of 8 March 1995. He relied, inter alia, on a medical opinion in which he was regarded as unfit to work until 31 March 1995; on a medical opinion of 20 April 1995, in which he was regarded as unfit to work for the following year; and on documents from the rehabilitation examination in 1996. The insurance company submitted in its observations that the applicant was not entitled to compensation after 31 March 1995. It maintained that the accident had caused impact injuries to the applicant’s left shoulder joint, left forearm and both wrists. The applicant claimed that he had sustained injuries in addition to his shoulder, neck, right shoulder joint and right forearm, requesting an accident pension as from 1 April 1995 with interest. The insurance company further adduced a medical opinion dated 11 December 1997 in which the applicant was regarded as unfit to work due to depression until 30 June 1998. The company maintained that the applicant’s neck strain and depression were not caused by the accident of 9 March 1994 and that the elbow nerve damage, which was caused by the said accident, was so mild that it did not render the applicant incapable to work. On 16 April 1998 the Accident Board upheld the insurance company’s decision of 18 November 1997. It reasoned its decision as follows: “Based on the medical evidence submitted [the applicant] has sustained impact injuries to both his wrists, left shoulder area and left forearm area as well as damage to his right elbow nerve as a result of the accident on 9 March 1994. These injuries have not reduced his working capacity by at least 10 % as from 31 March 1995 and [the applicant] is therefore not entitled to an accident pension pursuant to section 18, subsection 2 of the Act on Accident Insurance. [The applicant] must be regarded as capable of working as a managing director/technical director at his post. The Accident Board holds that [the applicant’s] present difficulties with his right hand and arm are to a high degree of probability not caused by the accident on 9 March 1994, given that hardly any tissue damage has been found in the magnetic scan of his right hand or in the ENMG-examination. The left elbow nerve damage, for which the applicant has received compensation from the insurance company, is mild and the Accident Board holds that it is probably sickness-related. The Accident Board further finds that [the applicant’s] depression, which reduces his working capacity, was neither caused by the accident of 9 March 1994, or by the subsequent injuries. Initially no neck strain was found and neither had any damage to [the applicant’s] right shoulder joint been reported in connection with the accident.” The applicant appealed to the Insurance Court requesting an accident pension as from 31 March 1995 with interest. He submitted to the Insurance Court two medical opinions dated 10 February 1998 and 13 July 1998 supporting his claims and a certificate indicating that the applicant had tried to find employment on 9 January 1998. According to the Insurance Court’s decision it invited observations from both parties and received letters from the applicant dated 15 October 1998. On 10 November 1998 the Insurance Court rejected the appeal and upheld the Accident Board’s decision. The Insurance Court reasoned its decision as follows: “Reasons mentioned in the Accident Board’s decision. The submitted new evidence does not give rise to different conclusions.” The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen). The Supreme Court refused the applicant leave to appeal on 30 March 2000. Following an appeal on 20 June 2000 the Ministry for Social Affairs and Health (sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet) maintained that the insurance company had in some of its observations by mistake mentioned nerve damage in the applicant’s left elbow whereas the nerve damage was in fact in the right elbow. It however noted that the mistake had not affected the outcome of the case as the appellate bodies had had access to the original medical opinions which described the injuries correctly. Section 16 (969/1995) of the Constitution Act (hallitusmuoto, regeringsform, 94/1919), as in force at the relevant time, provided that everyone should have the right to have his case considered appropriately and without undue delay by a lawfully competent court of justice or other public authority as well as the right to have a decision concerning his rights and obligations reviewed by a court of justice or other independent judicial organ. Subsection 2 of the said section provided that the publicity of proceedings and the right to be heard, to receive a decision with stated grounds and to appeal against the decision as well as other guarantees of a fair trial and of good public administration were to be secured by Act of Parliament. At the relevant time chapter 24, section 15 (1064/1991) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provided that a judgment had to be reasoned, indicating the facts and the legal argumentation on which it was based and the grounds which had led the court to hold a disputed issue established or unsubstantiated. Section 1 of the Decree on the Accident Board (asetus tapaturmalautakunnasta, förordningen om olycksfallsnämnden; 839/1981) provides that the Accident Board functions as the first appellate body in matters concerning obligatory accident insurance. Section 53 of the Accident Insurance Act (tapaturmavakuutuslaki, lag om olycksfallsförsäkring; 608/1948) provides that appellate bodies in accident insurance matters are the Accident Board, the Insurance Court and the Supreme Court. On the Accident Board there are a full-time president, at least two vice-presidents and at least three lawyer and medical doctor members as well as at least six members representing labour market organisations. They all bear the responsibility of a judge. The president, the vice-presidents and the lawyer members must be qualified to sit as a judge and they must have a good knowledge of accident insurance. The medical doctor members must be registered and have a good knowledge of insurance medicine. All the members and their personal substitutes were at the relevant time appointed by the Council of State for a fixed term of three years. The labour market members were appointed on a proposal by the employers’ and employees’ organisations. Pursuant to section 18, subsection 2 of the Act on Accident Insurance (tapaturmavakuutuslaki, lag om olycksfallsförsäkring, 608/1948) an accident pension is paid on condition that an employee’s working capacity because of the injury or illness caused by an accident is estimated to have been reduced by at least 10 %.

train

001-4781

ENG

AUT

ADMISSIBILITY

LERCHEGGER v. AUSTRIA

Inadmissible

Nicolas Bratza

The applicant is an Austrian citizen, born in 1952 and living in Stein (Austria). The applicant previously filed an application with the European Commission of Human Rights (no. 25049/94) concerning his detention on remand. On 26 June 1996 the Commission declared that application inadmissible. The facts of the present case, as submitted by the applicant, may be summarised as follows. On 5 August 1992 the Graz Public Prosecutor’s Office (Staatsanwaltschaft) filed a bill of indictment against the applicant charging him with various counts of fraud committed between 23 May 1992 and 29 June 1992 (“indictment no. 1”). Subsequently the applicant was arrested and taken into detention on remand on suspicion of having committed further fraud offences between 20 June and 20 November 1992. On 17 December 1992 a trial was held by the Graz Regional Court (Landesgericht) with Judge B.G. sitting as a single judge on the charges contained in the indictment of 5 August 1992. Upon request by the public prosecutor, the trial was adjourned since additional charges were not ready for adjudication. On 29 December 1992 the investigating judge, upon request by the public prosecutor, decided to separate the additional charges - concerning the offences the applicant had allegedly committed after June 1992 - from those contained in indictment no. 1 and to conduct these latter proceedings independently. On the basis of these offences a further bill of indictment was drawn up on 6 July 1993 (“indictment no. 2”). Meanwhile, on 11 March 1993 the Regional Court, being Judge B.G. sitting as a single judge, convicted the applicant of two counts of fraud set out in indictment no. 1 and sentenced him to four months’ imprisonment. On 25 August 1993 the president of the Graz Regional Court rejected the applicant’s motion of 13 August 1993 challenging Judge B.G. for bias. The president noted that the applicant had accused this judge of suppression of evidence, manipulation of proceedings, defamation and intimidation. The president found that the applicant’s submissions were polemical and unsubstantiated. As regards the applicant’s reference to procedural measures, such as the obtaining of files from parallel proceedings, or making enquiries with certain banks and insurance companies whether persons employed there and named as witnesses had information on the subject of the criminal proceedings, such preparatory measures did not indicate a lack of impartiality on the part of a judge. On 26 August 1993 the trial concerning indictment no. 2 commenced before a Chamber of the Graz Regional Court, presided by Judge B.G. The applicant, assisted by an ex-officio defence counsel, filed numerous requests for the taking of further evidence. The Court granted this request and, in view of the complexity of the investigations, decided to remit the case to the investigating judge. On 25 October 1993 the Graz Public Prosecutor’s Office filed a third bill of indictment against the applicant charging him with a further count of fraud and two counts of fraudulent conversion (“indictment no. 3”). On 27 December 1993 the applicant challenged all judges of the Graz Regional Court for bias. This motion was dismissed by the Graz Court of Appeal (Oberlandesgericht) on 31 January 1994. The Court of Appeal noted the applicant’s allegations that the investigating judge had manipulated evidence, that the psychiatric court expert had drawn up an erroneous report, that witnesses heard had given false testimony and that the public prosecutor’s office had refused to institute criminal proceedings against the investigating judge, the court expert and the witnesses. The Court of Appeal found that the applicant’s allegations concerned single members of the court and were not sufficient to cast doubt on the impartiality of all members of the court. Whether or not single members of the Regional Court were biased was a matter which the president of that court had to decide, should the applicant file such motions with him. On 10 February 1994 the trial against the applicant before the Regional Court resumed. At the beginning the public prosecutor again read out indictment no. 2, extending the charges to indictment no. 3. The applicant, assisted by defence counsel, did not oppose this extension. However, he challenged the psychiatric court expert for bias and stated that he had in the meantime laid a criminal information against the expert for defamation. He also challenged the presiding judge for bias. The court rejected both motions. Subsequently the applicant was questioned on the charges against him and several witnesses were heard. As regards the charges contained in the indictment of 25 October 1993, two employees of the C. bank were heard as witnesses. The applicant asked the witnesses several questions and explained his version of the events. At the end of the trial the applicant made numerous further requests for the taking of evidence, which were rejected by the court. The Regional Court found, inter alia, that the applicant himself had admitted receiving 100,000 ATS from the K. bank and that it was therefore unnecessary to obtain the report of an expert in graphology as to whether the signature on the receipt was the applicant’s. As regards a further charge of fraud, the Regional Court found that the witness, A., whom the applicant had requested to be heard, was not available as he had meanwhile emigrated to South Africa. On the same day the Court convicted the applicant on eight counts of fraud, fraudulent conversion and deceit, and acquitted him of further charges of fraud and defamation. It sentenced him to four and half a years’ imprisonment. The Regional Court found that the applicant was an impostor who usually pretended to be a business consultant or a pilot having substantial income and considerable private means. In reality, however, he had no income and no means and, since his release from prison in May 1992, earned his living from fraudulent acts and transactions. As to a count of deceit, the Court found that the applicant had approached a Hungarian airline and had pretended to be the managing director of a company and a member of the Diet of Styria wishing to establish, in co-operation with them, a regular flight connection between Graz and Budapest. However, the company named by the applicant did not exist. In order to reassure his Hungarian business partners, the applicant had shown a falsified paper, allegedly established by an Austrian bank, according to which he had paid 25 million ATS for the foundation of a joint venture between his company and the Hungarian one. Expecting future co-operation, the Hungarian company had incurred expenses and thus suffered prejudice. As to the assessment of evidence, the court noted that in the first hearing on 26 August 1993 the applicant had requested the taking of further evidence which had been so extensive that the case had to be remitted to the investigating judge. The result of the taking of evidence had not been in the applicant’s favour. Witnesses named by the applicant did not know him; others confirmed the accusations against him. As regards the count of fraud to the detriment of the K. bank, the applicant’s defence that the amount paid to him by the K. bank had been commission for services rendered, and not a loan granted to him, was implausible as he could not name any service for which he could have charged such commission. On 3 May 1994 the applicant filed a plea of nullity and an appeal against sentence with the Supreme Court (Oberster Gerichtshof). He complained, inter alia, that the indictment of 25 October 1993 had not been served on him prior to the trial on 10 February 1994, and that his right to prepare his defence had therefore been infringed. He further complained that the Regional Court had failed to take the evidence requested by him, and that his motion challenging the presiding judge for bias had been rejected. On 7 September 1994 the Supreme Court examined the plea of nullity. It quashed the applicant’s conviction and sentence regarding one of the counts of fraud which involved car rentals, as it found that the Regional Court should have made further efforts to obtain the evidence sought by the applicant. It confirmed the other convictions. As a result of quashing one of the convictions the whole sentence had to be re-examined. As to the complaint of a failure to serve indictment no. 3 prior to the trial on 10 February 1994, the Supreme Court acknowledged its veracity. However, the public prosecutor had read out the contents of this indictment at the beginning of the trial and had thereby brought the charges mentioned therein to the notice of the applicant. The applicant had been questioned in detail by the investigating judge on these charges and had therefore been familiar with them beforehand. Moreover, the applicant had failed to show in what way the inclusion of these offences concerning facts he had known for a considerable time would have hindered his defence. As regards the applicant’s complaint that the Regional Court had failed to take certain evidence requested by him, the Supreme Court found that the Regional Court had in general acted correctly in rejecting these requests, giving detailed explanations. However it did not accept the Regional Court’s decision regarding witness A. In the Supreme Court’s view, the Regional Court should have tried to obtain this witness’ new address in South Africa, and summoned or heard him on letters rogatory, before concluding that he was unavailable. As regards the applicant’s submissions that the Austrian courts lacked jurisdiction concerning the count of deceit to the detriment of the Hungarian airline, the Supreme Court found that the Austrian courts were competent since the applicant had also acted in Austria. On 30 December 1994 the Regional Court, upon a request by the public prosecutor’s office, discontinued the criminal proceedings concerning the charge quashed by the Supreme Court. On 11 January 1995 the Regional Court, after an oral hearing, sentenced the applicant to four years’ imprisonment. On 26 April 1995 the Supreme Court rejected the applicant’s further plea of nullity. On 21 June 1995 the Graz Court of Appeal dismissed the applicant’s appeal against sentence.

train

001-72285

ENG

DEU

ADMISSIBILITY

PETERSEN v. GERMANY

Inadmissible

The applicant, Mr Werner Petersen, is a German national who was born in 1947 and lives in Neustadt. He is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld. The applicant is the father of the child S., born out of wedlock on 3 May 1985. He had been living with Ms B.-K., the child’s mother, from May 1980 to November 1985. After their separation S. lived with his mother. The applicant had contacts with S. until autumn 1994, when Ms B.K. prohibited further visits. He subsequently instituted numerous court proceedings concerning access to and custody of his son. The applicant’s repeated motions to be granted access to S. by a court order were to no avail. From April 1998 until S. attained the age of majority on 3 May 2003 proceedings concerning the applicant’s renewed request to be granted access to S. were pending in the Bremen Regional Court. Likewise, the applicant’s motion lodged in 1995 to withdraw or restrict Ms B.-K.’s right of custody in order to prevent her from moving abroad for three years with S. and her family was dismissed. The national courts found that there were no indications that there were risks for the child’s well-being which could justify an interference with Ms B.-K.’s right of custody. The applicant’s motion lodged in 1999 to be granted joint custody of S. was equally rejected. Two joint applications (nos. 38282/97 and 68891/01) concerning the said access and custody matters are pending with this Court. On 6 December 2001 the Court declared inadmissible Mr Petersen’s application no. 31178/96 concerning the change of S.’s surname after Ms B.K.’s marriage and compensation for financial losses because of an undue refusal of access. On 19 August 2000 the applicant lodged a request with the Kirchhain District Court partly to withdraw Ms B.-K.’s custody of S. in order to secure the preparation of an expert report in the access proceedings pending in the Bremen Regional Court since April 1998. He also applied for interim measures to be taken. On 1 March 2001 the Frankfurt (Main) Court of Appeal dismissed the applicant’s motion for bias against District Court judge S. It found that there were no indications whatsoever that the judge challenged was biased. On 15 August 2001 the Frankfurt (Main) Court of Appeal dismissed the applicant’s objections against its decision. On 3 December 2001 the Kirchhain District Court conducted a hearing attended by the applicant and S.’s guardian ad litem. It imposed a coercive penalty of 200 Deutschmarks on Ms B.-K. for failure to attend the hearing. It suspended the proceedings in order to await the outcome of the access proceedings pending in the Bremen Regional Court. On 21 January 2002 the Frankfurt (Main) Court of Appeal, following the applicant’s and Ms B.-K.’s appeals, quashed the District Court’s order against Ms B.-K. to pay a coercive penalty for failure to attend the hearing because of a formal mistake. The applicant’s objections against this decision were to no avail. On 5 February 2002 the Frankfurt (Main) Court of Appeal quashed the decision of the Kirchhain District Court ordering the suspension of the proceedings. On 2 May 2002 the Frankfurt (Main) Court of Appeal, on the applicant’s appeal, ordered the Kirchhain District Court to further the proceedings. On 17 May 2002 the Kirchhain District Court fixed a date for S.’s hearing on 31 May 2002. The date for the hearing was then postponed until June 2002. On 3 June 2002 the Frankfurt (Main) Court of Appeal dismissed as inadmissible the applicant’s appeal against the fixing of the dates for a hearing, as no appeal lay against these orders. On 9 July 2002 the Kirchhain District Court dismissed the applicant’s further motion for bias against District Court judge S. as ill-founded. It found that the judge’s conduct of the proceedings disclosed no indications of bias on her part. The applicant’s objections were to no avail. On 30 August 2002 the Frankfurt (Main) Court of Appeal, endorsing the reasons given by the District Court, dismissed the applicant’s appeal against the District Court’s decision of 9 July 2002. On 28 April 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint (1 BvR 1825/02) against the decisions of the Kirchhain District Court and the Frankfurt (Main) Court of Appeal concerning the applicant’s motions for bias against District Court judge S. and the length of the proceedings. On 3 May 2003 S. attained the age of majority. At that time, the proceedings in the Kirchhain District Court had not yet been terminated. In previous proceedings brought by the applicant (3 F 563/99), the Frankfurt (Main) Court of Appeal found on 5 July 2000 that the applicant was entitled to obtain certain information about his son’s development. Ms B.-K. was ordered to inform him about the type of school which S. attended, his class and his results, his interests in sports and music and any serious diseases, and to give him a recent photograph of his son. The applicant’s requests for further information were dismissed. On 17 January 2003 the Kirchhain District Court dismissed the applicant’s renewed request dated 3 December 2002 (33 F 886/02 RE) for information on S.’s personal situation. It argued that the applicant had received conclusive information about his son’s personal situation following his previous requests. On 11 November 1999 the applicant lodged a motion with the Kassel Administrative Court to be granted access to the files of the Schwalm-Eder-District Youth Office concerning his son S. On 7 October 2003 the Kassel Administrative Court (5 E 3263/99) dismissed the applicant’s motion as inadmissible. It found that the applicant had inspected the entire case-files in November 2000 and therefore had no legitimate interest in being granted access again. On 22 April 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaints (nos. 1 BvR 278/02 and 1 BvR 406/02) against decisions concerning the applicant’s request for access to his son and a request lodged in 2001 for information about his son’s development. It imposed a fine of 500 euros (EUR) respectively for abuse of petition on the applicant. On 18 June 2002 the Registry of the Federal Constitutional Court informed the applicant that the court had decided not to modify its decision of 22 April 2002.

train

001-58061

ENG

ESP

CHAMBER

CASE OF DE SALVADOR TORRES v. SPAIN

No violation of Art. 6-3-a

C. Russo;R. Pekkanen

6. The applicant, Mr de Salvador Torres, was born in 1928 and is resident in Barcelona. 7. In June 1966, in his capacity as head administrator of a public hospital in Barcelona (Hospital Clínico y Provincial), the applicant made an agreement with a bank to the effect that interest on deposits would be paid at a higher rate than that applicable by law. The applicant arranged for payment into his personal account of the excess amounts corresponding to the difference between the legal rate of interest and that of the additional interest (extratipos) paid by the bank on the sums deposited. Between 1966 and 1983 a total sum of 147,614,565 pesetas were thus transferred to the applicant. 8. In 1983 criminal proceedings were brought against the applicant. By a decision of 16 March 1984 (auto de procesamiento), Barcelona investigating judge no. 2 found that the facts established by him disclosed the offence of embezzlement of public funds (malversación de caudales públicos) under Article 394 para. 4 of the Criminal Code (see paragraph 15 below), carried out not by a civil servant stricto sensu but by a person entrusted with funds belonging to a public institution (Article 399 of the Criminal Code - see paragraph 16 below). The applicant was subsequently committed for trial in the Barcelona Audiencia Provincial. The public prosecutor and the hospital, acting as a private prosecutor, lodged submissions which essentially endorsed the findings of the investigating judge and requested, inter alia, that the applicant be sentenced to fifteen years' imprisonment. State Counsel (Abogado del Estado), appearing also as a private prosecutor on behalf of the State finances, submitted that the facts of the case constituted the offence of corruption of a civil servant. 9. In a judgment of 12 September 1988, the Audiencia Provincial, held that, although the applicant fell into the category provided for in Article 399, the sums embezzled by him were not "public funds" and, accordingly, Article 394 para. 4 was not applicable. It further held that, owing to his particular personal status in the hospital, the applicant could not be considered a civil servant stricto sensu. It therefore dismissed the charges of corruption. The applicant was nonetheless convicted of the offence of simple embezzlement (apropiación indebida) under Article 535 (see paragraph 17 below) and sentenced to eighteen months' imprisonment pursuant to Articles 528 and 529 para. 7 of the Criminal Code (see paragraphs 18 and 19 below). The Audiencia Provincial did not find any aggravating circumstance of general application (see paragraph 21 below). 10. The public prosecutor and the hospital appealed on points of law. They described the amounts in question as public funds and again requested the applicant's conviction for the offence of embezzlement of public funds under Articles 394 para. 4 and 399 of the Criminal Code. In his submissions, the public prosecutor stressed the fact that the Audiencia Provincial had clearly acknowledged that the applicant was a person entrusted with funds belonging to a public institution for the purposes of Article 399. 11. The applicant did not appeal, thereby accepting the facts as established by the Audiencia Provincial, their legal classification and the sentence. 12. In two subsequent decisions of 21 March 1990, the Supreme Court (Tribunal Supremo) found that, although the sums embezzled could be considered public, the offence under Article 394 para. 4 did not apply since the hospital was not legally entitled to those sums. Contrary to the Audiencia Provincial, the Supreme Court further held that: "(...) In any event, it is true that, even if Article 394 of the Criminal Code (embezzlement of public funds) cannot be applied, the fact remains that the accused Mr de Salvador is a civil servant and that he took advantage of his position in order to commit the offence of which he was found guilty. Therefore, ... the aggravating circumstance in Article 10 para. 10 must be applied. To put it in a graphic manner: if the offence of embezzlement of public funds cannot apply due to the lack of the objective element, the aggravating circumstance must apply given the offender's legal position." The Supreme Court therefore quashed the judgment being appealed and convicted the applicant of the offence of simple embezzlement with the aggravating circumstance that he had taken advantage of the public nature of his position in performing the duties entrusted to him (Article 10 para. 10 of the Criminal Code - see paragraph 21 below). In doing so, the Supreme Court considered that a request to apply this aggravating circumstance could be inferred from the public prosecutor's submissions (see paragraph 10 above). In the exercise of its powers (see paragraph 22 below), the Supreme Court sentenced the applicant to five years' imprisonment, the maximum term of imprisonment for the offence of embezzlement under the rules for the determination of sentence set forth in Article 61 para. 2 of the Criminal Code (see paragraph 20 below). 13. Mr de Salvador Torres filed an amparo appeal in the Constitutional Court (Tribunal Constitucional). He asserted that he had not been informed of all the components of the charge against him and that, accordingly, his right to a fair trial had been violated (Article 24 of the Constitution - see paragraph 14 below). By a decision (auto) dated 20 July 1992, the appeal was declared inadmissible on the ground that it did not disclose any relevant issues of constitutional law. The Constitutional Court found that the applicant was well aware that the charges against him presupposed not only that the offender's position was equivalent to that of a civil servant, but also that he had taken advantage of that position in the commission of the offence. He had therefore had the possibility to address that issue throughout the proceedings and his defence rights had not been forfeited. 14. According to Article 24 of the Constitution: "1. Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests and in no circumstances may there be any denial of defence rights. 2. Likewise, everyone has the right ... to be informed of the charge against him, to have a ... trial ... attended by all the safeguards, to adduce the evidence relevant to his defence, (...)" 15. By Article 394 of the Criminal Code: "Any civil servant who embezzles or suffers others to embezzle public funds or other property entrusted to his care by virtue of his office shall be liable to: ... 4. a term of imprisonment ranging from twelve years and one day to twenty years (reclusión menor) if the amount embezzled exceeds 2,500,000 pesetas. ... In all cases, the offender shall also be permanently disqualified from public office." 16. By Article 399, the foregoing provision also applies to: "(...) those entrusted, in any capacity whatsoever, with funds ... belonging to provincial or municipal authorities or to educational establishments or charitable organisations, and to administrators or depositories of funds ... deposited by a public authority, even if they belong to individuals". According to the case-law, the offender must not only be a civil servant or a person entrusted with sums belonging to a public institution, he or she must also have taken advantage of that position. 17. By virtue of Article 535: "Anyone who, to the detriment of others, appropriates or embezzles money, assets or any other personal property, entrusted to his care as depository, agent or administrator, or in any other capacity carrying the obligation to deliver or return the property, or denies having received such property shall be liable to the penalties laid down in Article 528 (...)" 18. Article 528, in so far as relevant, provides as follows: "(...) A person convicted of this offence shall be liable to a term of imprisonment ranging from one month and one day to six months (arresto mayor) if the sum involved exceeds 30,000 pesetas. If there are found to be two or more of the aggravating circumstances provided for in Article 529 below or one especially aggravating circumstance, the person convicted shall be sentenced to a term of imprisonment ranging from six months and one day to six years (prisión menor) ... Where only one of the aggravating circumstances referred to in Article 529 is found to be established, the term of imprisonment shall be in the range of the maximum sentence available (grado máximo) [from four months and one day to six months]." 19. By Article 529: "The following circumstances shall be deemed to be aggravating circumstances for the purposes of the preceding Article: (...) 7. Where the offence is particularly serious in terms of the sum embezzled." 20. In order to determine the sentence, where a particular offence is punished with a term of imprisonment, this can be divided in three identical periods (grados): minimum, medium and maximum. If a court finds that no mitigating circumstances and only one aggravating circumstance can be established, it shall impose a medium or maximum sentence. Where more than one aggravating circumstances are established, the maximum sentence shall be imposed (Article 61). 21. Aggravating circumstances can be specific to a particular offence (see, for example, paragraph 19 above) or of a general nature. Article 10 of the Criminal Code describes the aggravating circumstances which can be applied to any offence: "The following are aggravating circumstances: (...) 10. the fact that the offender has taken advantage of the public nature of his or her position." 22. Where the Supreme Court finds that an appealed decision is in breach of the law, it will quash it and set it aside and render a new decision on the merits. In doing so, the only restriction on the court is not to pass a heavier sentence than the one which would correspond to the prosecutor's request (Article 902 of the Code of Criminal Procedure). 23. As with any court, the Supreme Court has the power to depart from the legal classification given by the prosecution provided that: (a) the criminal intent in the offence found applicable is essentially identical to that in the offence as charged ("delitos homogéneos" - for instance homicide and parricide); (b) no different facts are taken into consideration; (c) the new classification leads to the imposition of a sentence that is less severe than that requested by the prosecution. These powers have been considered constitutional by the Constitutional Court in, among others, its judgments of 23 November 1983 (105/83), 17 July 1986 (104/86) and 29 October 1986 (134/86). The new legal classification may involve the finding of aggravating circumstances that are implicit in the original characterisation (Supreme Court, Criminal Chamber, judgment of 13 June 1984, Repertorio de Jurisprudencia Aranzadi no. 3553, p. 2708).

train

001-90220

ENG

SVN

ADMISSIBILITY

NEZIROVIČ v. SLOVENIA

Inadmissible

Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

1. The applicant, Mr Jusuf Nezirović, is a Slovenian national who was born in 1961 and lives in Trbovlje. He was represented before the Court by Mr Boštjan Verstovšek, a lawyer practising in Celje. 2. 3. On 12 October 1999 the applicant was injured in an industrial accident. The applicant’s employer had taken out insurance with the insurance company ZT. 4. On 12 September 2001 the applicant instituted civil proceedings against ZT in the Ljubljana District Court (Okrožno sodišče v Ljubljani) seeking damages in the amount of 8,590,967 Slovenian tolars (approximately 35,800 euros) for the injuries sustained. Between 1 October 2001 and 19 January 2006 the applicant lodged seven preliminary written submissions and/or adduced evidence. Between 3 September 2003 and 21 September 2005 he made four requests that a date be set for a hearing. In letters to the applicant of 11 September 2003 and 28 June 2004, the judge explained that his case was not yet at the top of the list of cases for examination by the court. Between 15 December 2004 and 27 September 2006 four hearings were held. One hearing, scheduled for 25 November 2005, was adjourned at the applicant’s request. During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed expert. On 27 September 2006 the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 16 November 2006. 5. On 30 November 2006 the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani). On 9 May 2007 the court allowed the applicant’s appeal in part and increased the amount of damages awarded. The judgment was served on the applicant on 31 May 2007. 6. On 22 June 2007 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). 7. On 22 August 2007 the Ljubljana Higher Court dismissed the applicant’s request for the correction of an alleged material error in its judgment. The proceedings before the Supreme Court would appear to be still pending. 8. On 27 February 2008, while the proceedings were pending before the Supreme Court, the applicant lodged a supervisory appeal with the Ljubljana District Court, in accordance with section 6 of the Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette, no. 49/2006 - “the 2006 Act”). In his supervisory appeal, the applicant explained that the proceedings had begun on 12 September 2001 and were still pending. As a consequence, his right to a trial within a reasonable time had been violated. He requested that the proceedings on his appeal on points of law be expedited and that a decision be delivered by the end of 2008 at the latest. There is no decision as to this supervisory appeal in the case file. 9. On 27 March 2008 the applicant lodged a new supervisory appeal with the Ljubljana District Court, in which he described more thoroughly the processing of his case by the courts and alleged that his right to a trial within a reasonable time had been breached. 10. On 10 April 2008 the president of the Supreme Court, to whom the supervisory appeal had been transferred, rejected it under section 6, subsection 5, of the 2006 Act. He noted that case had been submitted to the Supreme Court on 13 December 2007. Having regard to the measures available to him under the 2006 Act, he concluded that the proceedings could not be expedited. He added, however, that he had taken steps to eliminate the systemic delays at the Supreme Court, namely the employment of additional judges and legal secretaries. 11. On 25 April 2008, relying on the same grounds as in his supervisory appeal, the applicant lodged a motion for a deadline with the Supreme Court. He requested that the case be decided within a month. 12. On 9 May 2008, referring to his findings in the decision rejecting the supervisory appeal, the president of the Supreme Court rejected the motion for a deadline as unfounded, on the basis of section 11, subsection 3, of the 2006 Act. 13. Following the judgment in Lukenda v. Slovenia (no. 23032/02, 6 October 2005), and decision no. U-I-65/05 of the Constitutional Court (22 September 2005), both of which bound the Slovenian State to establish conditions in which the right to a trial without undue delay was to be afforded, the Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the so-called “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutors’ offices by the end of 2010, by providing for structural and managerial reform of the judiciary. 14. The 2006 Act (see paragraph 8 above), the preparation of which was part of the Lukenda Project, was enacted by the Slovenian Parliament on 26 April 2006. It was published in the Official Gazette on 12 May 2006 and came into force on 17 May 2006. On 1 January 2007 it became operational, which means that it has been implemented since that date. 15. Section 3 of the 2006 Act provides for two remedies to expedite pending proceedings - a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) - and, ultimately, for a claim for just satisfaction in respect of damage sustained on account of the undue delay (zahteva za pravično zadoščenje). 16. Section 4 defines the criteria that domestic authorities should take into account when assessing such complaints: “When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.” 17. The supervisory appeal is governed by sections 5 and 6, which, in so far as relevant, provide: “(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (hereinafter ‘the president of the court’). (2) For the purposes of decision-making concerning the protection of the right to a trial without undue delay, the supervisory appeal shall contain the following elements: ... – indication of circumstances or other particulars concerning the case, which demonstrate that the court is unduly protracting the decision-making; ... “(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling. (2) If the supervisory appeal does not contain all the required elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling. (3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, in the framework of his court management competence under the statute governing the court system, forthwith request the .... judge or chair of a court panel (hereinafter ‘the judge’) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings, not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include the declaration in respect of criteria referred to in section 4 of this Act and the opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he assesses that, in the light of allegations of the party indicated in the supervisory appeal, its examination is necessary. (4) If the judge notifies the president of the court in writing that all relevant procedural acts will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal. (5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling. (6) If the president of the court ... (7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the statute governing the judicial service. ...” 18. Sections 8 and 11 define the motion for a deadline and provide for measures that may be applied by the court dealing with the motion. They read, in so far as relevant, as follows: “(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge an application for a deadline on the grounds stated in section 5(1) of this Act with the court hearing the case. ... (3) The party may lodge the motion for a deadline within fifteen days after receiving the ruling or after the time-limits provided for in paragraph 1 of this section.” (1) The president of the higher court in the judicial area covering the local court, district court or other court of first instance, shall have the competence to decide on the motion for a deadline concerning the cases heard by the local court, district court or other court of first instance. (2) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by higher court or court having the status of higher court. (3) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by the Supreme Court of the Republic of Slovenia. (4) Other judges may be assigned by the annual schedule of allocation to act in place of or together with the presidents of courts referred to in previous paragraphs for decision-making on motions for a deadline. ... (3) If the president of the court establishes that, in view of the criteria referred to in Article 4 of this Act, the court does not unduly delay with the decision-making of the case, he shall reject the motion for a deadline by way of a ruling. ... (5) The president of the court shall decide on the motion for a deadline within fifteen days after receiving it.” 19. Section 15 provides for the conditions under which a claim for just satisfaction can be lodged and section 16 regulates the monetary compensation and criteria for its assessment: “(1) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act. ...” “(1) Monetary compensation shall be payable for non-pecuniary damage caused by a violation of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia. (2) Monetary compensation for individual finally decided cases shall be granted in the amount of 300 up to 5,000 euros. (3) When deciding on the amount of compensation, the criteria referred to in section 4 of this Act shall be taken into account, in particular the complexity of the case, actions of the State, actions of the party and the importance of the case for the party.” 20. Sections 19 and 20 govern just satisfaction proceedings: “(1) Proceedings to enforce a claim for just satisfaction, provided that the condition referred to in section 15(1) of this Act is met, shall be instituted by a party by means of a motion for settlement lodged with the State Attorney’s Office with a view to reaching an agreement on the type or amount of just satisfaction. The party may lodge such motion within nine months after the final resolution of the case... ...” “(1) If no agreement under section 19 of this Act is reached upon the motion for settlement, or the State Attorney’s Office and the party fail to negotiate an agreement within three months of the date of the motion being lodged, the party may bring an action for damages. (2) An action for damages against the Republic of Slovenia shall be brought not later than eighteen months after the final resolution of the party’s case. ...” 21. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 83/2001) provide: “A judgment, against which an appeal can no longer be lodged, shall become final (pravnomočen), insofar as the party’s claim or counter-claim has been decided therein. ...” “The parties may lodge an appeal against a judgment delivered at first instance within thirty days from the service of its written grounds... An appeal, lodged on time, precludes the judgment from becoming final in the part which has been challenged in the appeal.” “The parties may lodge an appeal on points of law against a final judgment, delivered at second instance, within thirty days from the service of its written grounds.”

train

001-78433

ENG

SVK

CHAMBER

CASE OF DOBAL v. SLOVAKIA

Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Nicolas Bratza

4. The applicant was born in 1947 and lives in Košice. He is a selfemployed entrepreneur. In that capacity he had dealings with a private company S. which included arranging insurance for its vehicles. 5. On 6 August 1993 S. brought a civil action against the applicant in the Košice II District Court (then Obvodný súd, at present Okresný súd) claiming a sum of money in connection with their previous business. 6. On 11 August 1993 the Košice II District Court found that the action fell within the jurisdiction of the Košice I District Court and decided to transmit the case to the latter. 7. On 10 December 1993 the Košice II District Court quashed its above decision of 11 August 1993 on the ground that, according to up-to-date information, the defendant’s business was within its judicial district. The case thus remained with the Košice II District Court. 8. On 19 August and 24 October 1994 the District Court requested the defendant to pay court fees and to specify its claim for legal costs. The defendant replied on 30 September and 19 December 1994, respectively. 9. On 28 December 1994, in summary proceedings, the District Court issued a payment order (platobný rozkaz) against the applicant for the amount claimed. 10. On 19 January 1995 the applicant successfully appealed (protest). The order was ex lege vacated and the matter fell to be determined in ordinary proceedings. 11. On 16 June and 25 October 1995 the District Court requested the applicant to pay court fees for his appeal. The applicant replied that he could not pay as he had no money, but he eventually paid on 9 February 1996. 12. The District Court held hearings on 24 January and 30 May 1997. Both hearings were adjourned, the former due to the absence of the plaintiff’s lawyer, the latter at the plaintiff’s request since he wished to explore the possibility of settling the case out-of-court. 13. On 26 February 1998 the applicant counterclaimed that the defendant owed him money and sought an order for repayment. 14. Another hearing was scheduled for 17 March 1998 but did not take place because the judge was absent for health reasons. 15. On 9 June 1999 the Košice Regional Court (Krajský súd) declared the plaintiff company insolvent and appointed a receiver. As a result, by operation of Article 14 § 1 (d) of the Bankruptcy Code (Law no. 328/1991 Coll., as amended), all actions by and against the plaintiff were automatically stayed. However, under that provision, actions by the insolvent entity could resume if their defendants so required. 16. In a letter of 16 June 1999 the District Court informed the applicant that the proceedings had been stayed. 17. The proceedings are still stayed. 18. The insolvency order was issued on 9 June 1999 and, in the absence of an appeal, it became final on 1 July 1999. 19. On 2 August 1999 the Regional Court appointed a new receiver as the original one had resigned due to a conflict of interests. 20. The applicant registered his claim (see paragraph 13 above) in the insolvency proceedings. 21. On 9 May 2001 the Regional Court held a meeting of creditors (schôdza veriteľov). At the meeting the creditors approved a summary of the insolvency estate and the proposal for its sale. The Regional Court subsequently held a hearing (prieskumné pojednávanie) with a view to establishing the claims of the different creditors in the insolvency proceedings. At the hearing, which the applicant did not attend, the receiver rejected his claim. It was decided that the applicant and other creditors whose claims had been rejected and who had been absent would be informed in writing that they could seek judicial recognition of their claims by way of a separate action (incidenčná žaloba) under Article 23 § 2 of the Bankruptcy Code. 22. In a letter of 27 February 2002 the Regional Court informed the applicant of the above possibility. The applicant then brought proceedings for recognition of his claim. They are described in detail below. 23. The receiver subsequently held 21 rounds of sales of items belonging to the estate. The sales were supervised by the Regional Court. 24. On 9 March 2005 the receiver filed a report with the Regional Court on the progress of the proceedings. He stated inter alia that it had not been possible to conclude the proceedings thus far because the estate was involved in 9 other court proceedings which were all still pending. 25. The insolvency proceedings are still pending. 26. On 12 March 2002 the applicant responded to the Regional Court’s above letter of 27 February 2002. From the contents of his letter it can be understood that he insisted on his claim and disagreed with its rejection. 27. In a letter of 18 April 2002 the Regional Court informed the applicant that his submission did not meet the formal requirements for an action for recognition of a claim in insolvency and advised him in detail of the relevant requirements. 28. On 23 April 2002 the applicant resubmitted the action. 29. On 17 July 2003 the Regional Court discontinued the proceedings observing that the applicant had withdrawn the action. 30. On 31 March 2004 the Supreme Court (Najvyšší súd) upheld the decision on the applicant’s appeal. 31. On 2 October 2002 the applicant filed a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd) about the length of the above proceedings before the Košice II District Court. 32. On 19 February 2003 the Constitutional Court declared the complaint inadmissible. In line with its established practice it held that, as the proceedings had been lawfully stayed for a legitimate reason (the insolvency), no unjustified delays could be imputed to the Košice II District Court at that time. The part of the proceedings before the District Court before they had been stayed could not be reviewed because they had been stayed outside the statutory two-month time-limit for lodging a constitutional complaint. It was noted that the applicant had not complained of delays in the insolvency proceedings which were pending before the Regional Court. As regards any delays in the proceedings which might have occurred prior to the decision of 16 June 1999 to stay the proceedings in the Košice II District Court, the applicant had filed his constitutional complaint after the expiry of the statutory two-month time-limit.

train

001-127116

ENG

HUN

COMMITTEE

CASE OF DÖMÖTÖR v. HUNGARY

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

András Sajó;Nebojša Vučinić;Peer Lorenzen

4. The applicant was born in 1950 and lives in Budapest. 5. On 22 November 2002 Ms G.D. and two others brought an action against the applicant and ten further respondents before the Budapest IV/XV District Court, seeking title to, and termination of, co-ownership. Several respondents lived abroad, causing certain difficulties in summoning them. 6. The District Court held six hearings between 3 June 2003 and 28 January 2005. 7. On 27 July 2005 the proceedings were stayed on account of the death of respondent A.G. The applicant, on whom this was legally incumbent, invited the successors to join the proceedings on 22 January 2007. 8. Between 18 October 2007 and 22 May 2009 five further hearings were held. A partial judgment was delivered on 4 June 2009. 9. On 23 November 2010 the Budapest Regional Court held a hearing and, by its order of 30 November 2010, quashed the partial judgment and remitted the case to the first instance. 10. In the resumed proceedings, four hearings were held and a partial judgment was delivered on 25 November 2011. 11. The proceedings continued on appeal before the Budapest Regional Court, acting as a second-instance court. This court adopted a final partial decision on 7 May 2013. 12. As to the remainder, it appears from the documents in the case file that the proceedings are still pending.

train

001-98808

ENG

DEU

ADMISSIBILITY

MASSMANN v. GERMANY

Inadmissible

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

The applicant, Mr Jürgen Massmann, is a German national who was born in 1943 and lives in Baunatal. He was represented before the Court by Mr D. Amelung, a lawyer practising in Munich. The applicant, in his capacity as a member of the management board of a stock corporation established under German law, was involved in the preparation and conclusion of an agreement between the corporation and the Ministry of Defence and Aviation of the Kingdom of Saudi Arabia in January 1991 on the delivery of thirty-six tanks to Saudi Arabia. In 1995 the Augsburg public prosecution authorities initiated an investigation against the applicant on charges of breach of trust and evasion of income tax in connection with the said deals (file No. 10 KLs 520 Js 127135/95). He was suspected of having accepted for his own benefit - within the scope of a so-called kick-back procedure on the basis of a collusive agreement with a separately prosecuted arms lobbyist - the return flow of part of the commission payments made by the corporation and affiliated companies to an enterprise of which the said arms lobbyist was the beneficial owner (wirtschaftlicher Eigentümer). He had thereby allegedly acted in breach of his fiduciary duties vis-à-vis his employer and without declaring the funds received in his income tax return. In the course of the investigations the suspicion arose that in the period from 1991 to 1997 further executive staff of the said stock corporation and affiliated companies, including the applicant, had jointly evaded corporate and trade tax (Körperschafts- und Gewerbesteuer) by declaring commission payments as deductible expenses in breach of applicable tax law. The Augsburg public prosecution authorities severed this part of the investigations and they were subsequently conducted by the local public prosecution authorities with jurisdiction at Düsseldorf (file No. 28 Js 158/00). In the course of the severed preliminary proceedings (Ermittlungsverfahren) documents were confiscated from the corporation's and affiliated companies' premises as well as from the applicant, on the basis of a search warrant of the Düsseldorf District Court dated 5 June 2000. By a decision of 12 October 2000 the Augsburg Regional Court (Landgericht) ordered the seizure of the documents that had previously been confiscated by the Düsseldorf public prosecution authorities in the separate preliminary proceedings. The Düsseldorf Public Prosecutor provided some of the documents, including analysis reports. On 6 November 2001 the main hearing against the applicant and a co-accused member of the managing board on charges of income tax evasion and breach of trust was opened before the Augsburg Regional Court (file No. 501 Js 127135/95). On the same date defence counsel lodged a first application to obtain the entire file in the separately conducted investigation proceedings from the Düsseldorf public prosecution authorities and requested that the hearing be adjourned. On 8 November 2001 the Augsburg Regional Court refused to adjourn the hearing, and dismissed the applicant's request to obtain the file in the parallel proceedings as premature. On 6 December 2001 defence counsel again lodged an application to obtain the file in the parallel proceedings. He claimed that the content of the file would demonstrate that the applicant had not played a significant role in the transactions at issue. He further pointed out that further members of the management of the affiliated group who were suspects in the parallel proceedings together with the applicant had been summoned as witnesses in the proceedings before the Augsburg Regional Court. Effective questioning of these witnesses would only be possible if the defence was previously granted access to the file in the parallel proceedings. By a decision of the same day the Regional Court ordered that the file be obtained. By a letter dated 12 December 2001 the Düsseldorf Public Prosecutor stated that while there was no concern about granting the acting Chamber at the Augsburg Regional Court access to the file, the request for the applicant's counsel to have access to it had to be dismissed pursuant to Article 147 § 2 of the Code of Criminal Procedure (Strafprozessordnung - see Relevant Domestic Law below) on the ground that the preliminary investigations in the separate proceedings were ongoing and disclosure of the remaining documents might put the purpose of the investigations at risk. This was particularly the case because defence counsel was representing the applicant in both proceedings. The Augsburg Regional Court therefore refrained from obtaining the file. On the occasion of hearings that took place on 13 December 2001 and 8 and 10 January 2002 the applicant's counsel lodged further applications for an adjournment of the hearing of the witnesses who were at the same time suspects in the parallel preliminary proceedings until the defence had had the opportunity to examine the file in those proceedings. He claimed that this was necessary with a view to preparing the questioning of the witnesses and in order to determine the scope of the witnesses' privilege to refuse evidence and not to incriminate themselves on the ground that they were also suspects in the parallel preliminary investigations. Referring to the Düsseldorf public prosecution authorities' refusal of access to the file, the Regional Court rejected these requests and heard the witnesses. The Regional Court pointed out that it would always be possible to summon the witnesses again at a later stage. On 17 January 2002 the Regional Court dismissed requests lodged on 8 January 2002 by the applicant and the co-accused member of the management board for the file in the parallel proceedings to be seized. The Court held that it followed from the legal principle established in Article 96 of the Code of Criminal Procedure read in conjunction with Article 35 of the Basic Law (Grundgesetz - see Relevant domestic law below) that a seizure of the files would only be possible in the event the public prosecution authorities had not sufficiently reasoned their refusal of access to the file. However, in the case at hand the Düsseldorf public prosecution authorities had based their decision on Article 147 § 2 of the Code of Criminal Procedure, stipulating that counsel may be denied access to files in ongoing preliminary investigations if their disclosure might put the purpose of the investigations at risk. This provision constituted a lex specialis in relation to Article 96 of the Code of Criminal Procedure. Furthermore, there was nothing to establish that the decision of the Public Prosecutor to deny access had been arbitrary or unlawful. Given the Düsseldorf Public Prosecutor's refusal to make the file available to defence counsel, the Regional Court had refrained from obtaining the file altogether, specifying that consultation of the file by the court alone would be in breach of the rights of the defence. A further application to adjourn the hearing lodged on 29 January 2002 by the applicant was rejected by the Regional Court on 5 February 2002. The court held that the fact that it was not possible to obtain the entire file did not justify an adjournment of the hearing, since the Düsseldorf proceedings related to different tax evasion charges and different tax debtors. The Regional Court however pointed out that while it was not possible to obtain the entire file in the parallel proceedings, nothing prevented the applicant and the prosecution authorities from lodging applications in line with the formal requirements to obtain specific documents and other means of evidence included in the file. On 19 February 2002 the applicant again requested the seizure of the entire file in the parallel proceedings, but this time alternatively limited his request to those documents that had been seized from the applicant on the basis of the search warrant issued by the Düsseldorf District Court on 5 June 2000, as well as all documents compiled within the scope of an independent investigation of the case by an accounting firm and a law firm. By a decision of 5 March 2002 the Regional Court granted the applicant's alternative application and asked the Düsseldorf public prosecution authorities to examine whether disclosure of the said documents was possible. On 25 March 2002 the Düsseldorf Public Prosecutor agreed to disclose the requested documents and further announced that access to the entire file and residual documents would be granted in August 2002. By a decision of 4 April 2002 the Regional Court ordered the seizure of the documents specified in its decision of 5 March 2002 on the ground that they could be of importance as evidence in the proceedings and counsel subsequently had the opportunity to examine the requested documents. By a judgment of 23 July 2002 the Augsburg Regional Court convicted the applicant of tax evasion in three cases as well as of breach of trust and sentenced him to five years' imprisonment. By written submissions of 28 February 2003 and 22 June 2004 the applicant appealed against the Regional Court's judgment to the Federal Court of Justice (Bundesgerichtshof). He complained, inter alia, that the Regional Court's refusal to seize the file and to adjourn the proceedings until the entire file had been made available prevented him from effectively defending himself in breach of his right to a fair trial as guaranteed by the Basic Law and the Convention. Pursuant to Article 96 of the Code of Criminal Procedure, the Regional Court would have been under an obligation to obtain a decision by the Ministry of Justice of the North Rhine-Westphalia Land in its capacity as the Düsseldorf Public Prosecutor's superior authority on whether the refusal of access to the file was justified. Article 147 § 2 of the German Code of Criminal Procedure did not deal with a refusal of access in separately conducted proceedings and was not applicable in the case at hand. The question of whether Article 147 § 2 of the Code of Criminal Procedure was lex specialis in relation to its Article 96 was of significant importance. He further alleged that the information contained in the file would have demonstrated that the applicant had not played a responsible role in the transactions at issue, contrary to what had been established in the Regional Court's judgment. By a decision of 11 November 2004 the Federal Court of Justice (file No. 5 StR 299/03), following a statement by the Federal Public Prosecutor (Generalbundesanwalt), quashed the Regional Court's verdict as regards the assessment of the scope of the applicant's guilt (Schuldumfang) and to this extent remitted the case to another Chamber of the Regional Court. At the same time the Federal Court of Justice dismissed, inter alia, the applicant's complaint that due to the failure to obtain the file in the parallel proceedings his defence had been restricted in a decisive point as ill-founded. It found that it was doubtful whether the applicant had sufficiently substantiated this complaint pursuant to Article 338 no. 8 in conjunction with Article 344 § 2 of the Code of Criminal Procedure. The applicant had not established that there was a link between the alleged procedural flaw and the grounds on which the judgment of the Regional Court had been based. Once the applicant had been granted access to part of the files he would have been under an obligation to specify what missing information would be significant for his defence. Furthermore, defence counsel would have been under an obligation to continue his efforts for a disclosure of the entire file within the time-limit for lodging his appeal on points of law with a view to establishing in his submissions to the Federal Court of Justice that the non-disclosed parts of the file contained information that was significant for the defence. However, the applicant's submissions contained only theoretical conclusions on the possibly relevant content of the file. The Federal Court of Justice further confirmed that Article 147 § 2 of the Code of Criminal Procedure was lex specialis in relation to Section 96 of the Criminal Code of Procedure. When taking a decision on whether to grant access to files the Düsseldorf Public Prosecutor had to weigh the interest of the accused to effectively defend himself in the proceedings before the Augsburg Regional Court against the necessity to keep the file in the preliminary investigations secret and might for instance grant access to parts of the file. In the case at hand a judicial review of the prosecution authorities' denial to grant access to the files in analogous application of, inter alia, Article 147 § 5 of the Code of Criminal Procedure might be considered. The Regional Court on itsRegional Court until disclosure of the entire file. By a decision of 6 September 2005 (file No. 2 BvR 10/05) which was served on the applicant on 21 September 2005 the Federal Constitutional Court declined to consider the applicant's constitutional complaint. It found that his complaint about the Regional Court's refusal to seize the documents retained by the Düsseldorf Public Prosecutor was inadmissible since the applicant had not exhausted the appropriate procedural domestic remedies in this respect. He had failed to lodge applications for the taking of particular evidence, even though the Regional Court had indicated this possibility and even though the applicant had been granted access to parts of the files by the Düsseldorf Public Prosecutor. He had in particular been able to consult all the documents which had been the subject of his requests dated 29 January and 19 February 2002. From the material that had been made available to him he must have been in a position to reason what other specific means of evidence would be needed for his defence. Given the fact that the proceedings had lasted until the end of July 2002 he could have lodged further corresponding applications for the taking of evidence. However, allegations in respect of specific means of taking evidence had been made by the applicant for the first time during the proceedings before the Federal Court of Justice. The Federal Constitutional Court further pointed out that the Düsseldorf public prosecution authorities had announced that the entire file would be released in August 2002 and that the judgment of the Augsburg Regional Court had been pronounced on 23 July 2002. The applicant would have had the opportunity to lodge an application for an adjournment of the hearing of 23 July 2002 thereby avoiding the alleged violation of his basic rights instead of subsequently lodging an appeal against the first-instance judgment. In addition, the Federal Constitutional Court found that the applicant's complaint was inadmissible on the ground that he had not established that the contested judgment was based on the alleged violation of his basic rights as required by Sections 23 § 1 and Section 92 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz). In his submissions before the Federal Court of Justice and the Federal Constitutional Court he had not sufficiently substantiated that the consideration of the parts of the file that had not been available during the proceedings before the Regional Court would have led to a different assessment of the case by the latter, even though he obviously had access to the retained parts of the file after termination of the main proceedings before the Augsburg Regional Court. The separately conducted preliminary proceedings regarding the evasion of corporate and trade tax (file No. 28 Js 158/00) were stayed by the Düsseldorf public prosecution authorities on 10 June 2005. Following remittal of the proceedings concerning the charges on breach of trust and evasion of income tax as regards the assessment of the scope of the applicant's guilt by the Federal Court of Justice, the Augsburg Regional Court, by a judgment of 19 December 2005 (file No. 501 Js 127135/95) reduced the applicant's sentence to two years and six months imprisonment. Following a further appeal lodged by the applicant, the Federal Court of Justice by a decision of 10 January 2007 amended the Regional Court's judgment of 19 December 2005 and reduced the applicant's sentence to two years imprisonment on probation. It dismissed the remainder of the applicant's appeal as ill-founded. By written submissions of 23 February 2007 the applicant lodged a constitutional complaint alleging, inter alia, a violation of his right to a fair trial on grounds different from those being the subject of the instant application. The latter proceedings are still pending before the Federal Constitutional Court. Pursuant to Article 35 of the Basic Law all federal and authorities of the Länder shall render legal and administrative assistance to one another. Article 96 of the Code of Criminal Procedure stipulates that access to files or other documents kept by public authorities or public servants may not be requested if their superior authority declares that the publication of these files or documents would be detrimental to the welfare of the Federation or of a German Land. Article 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the files which have been presented to the trial court or which would have to be presented to the trial court in case of indictment and to inspect the exhibits. Paragraph 2 of this provision allows access to part or all of the files or to the exhibits to be refused until the preliminary investigation has ended if it might otherwise be at risk. Pending the termination of the preliminary investigation, it is for the Public Prosecutor's Office to decide whether to grant access to the files or not; thereafter it is for the president of the trial court (Article 147 § 5). Pursuant to Article 338 no. 8 of the Code of Criminal Procedure a judgment shall always be considered to be based on a violation of the law if the defence has been inadmissibly restricted by a decision of the court on a topic which was decisive for the judgment. Pursuant to Article 344 § 2, in the event an applicant complains of procedural flaws, he has to establish the facts as regards such flaws. Section 23 of the Federal Constitutional Court Act requires that applications for the institution of proceedings lodged with the Federal Constitutional Court must be lodged in writing, state the reasons for the complaint and specify the requisite evidence. Section 92 of the said Act stipulates that the right which has allegedly been violated has to be specified, as well as the action or omission of the organ or authority which has allegedly been at the origin of the violation.

train

001-103676

ENG

RUS

CHAMBER

CASE OF ELMURATOV v. RUSSIA

No violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-4

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen

5. The applicant was born in 1966 and lives in St Petersburg. 6. On several occasions (in 1988, 1992, 1994 and 1999) the applicant was convicted in Uzbekistan of disorderly conduct and attempted escape. In the applicant’s submission, in 1988, 1992, 1994, 1998, 1999, 2003 and 2004, while in the hands of Uzbek officials, he was subjected to illtreatment. 7. On 7 June 2004, in Uzbekistan, the applicant inflicted numerous cuts on himself and was placed in a hospital. He was discharged from the hospital on 16 June 2004. 8. In February 2008 the applicant arrived in Russia to look for work. He was registered as a migrant in St Petersburg. 9. On 28 March 2008 the Kumkurgan District Court of Uzbekistan ordered the applicant’s placement in custody under suspicion of having committed aggravated theft of cattle. 10. On 10 April 2008 an Uzbek investigator placed the applicant’s name on a wanted list. 11. On 27 April 2009 the applicant was arrested by Russian police at his place of residence in St Petersburg. 12. On 25 May 2009 the Uzbek Prosecutor General’s Office requested the applicant’s extradition. On 4 June 2009 the request was received by the Russian Prosecutor General’s Office. 13. On 28 September 2009 the Russian Prosecutor General’s Office decided to extradite the applicant to Uzbekistan. 14. On 12 October 2009 the applicant’s counsel lodged an appeal against the extradition order, arguing the following: proceedings concerning the applicant’s request for temporary asylum were still pending (see paragraphs 1821 below); the applicant’s extradition would entail a breach of Article 3 of the Convention because the Court had already found violations in the cases of Ismoilov and Others v. Russia and Muminov v. Russia involving extradition to Uzbekistan; according to independent international observers ill-treatment was widespread in the Uzbek prison system and fair trial guarantees were not respected. No reference was made to the applicant’s alleged previous experience while in detention in Uzbekistan. 15. On 10 November 2009 the St Petersburg City Court dismissed the applicant’s appeal against the extradition order. It reasoned, in particular, that the applicant’s references to possible ill-treatment in Uzbekistan had been unsubstantiated and that the applicant had not argued that he might be persecuted on racial, religious, social or political grounds. 16. The applicant appealed against the decision of 10 November 2009, arguing that his submission that he would face ill-treatment in Uzbekistan had not been examined by the court. Again no reference was made to the applicant’s alleged previous experience while in detention in Uzbekistan. 17. On 24 December 2009 the Supreme Court of Russia upheld the decision of 10 November 2009. It reasoned as follows: the applicant had absconded from the Uzbek authorities; the decision to arrest the applicant had been taken by a competent Uzbek court; the applicant was not a Russian national; the Uzbek Prosecutor General’s Office had guaranteed that the applicant would not be extradited to a third State or punished for another crime, and that he would be free to leave Uzbekistan when he had served his sentence; there were no reasons to reject the extradition request; the applicant’s allegations that torture of detainees was a widespread practice in Uzbekistan had not been substantiated; the applicant had not proved that he might be persecuted on the grounds of race, religion, membership of a social group, political convictions or anything else. 18. In July and September 2009 the applicant applied for asylum to the Federal Migration Service of St Petersburg Region (“the FMS”). In his application, dated 23 September 2009, he claimed that all detainees in Uzbekistan were kept in poor conditions. On 15 October 2009 he was interviewed by FMS officials. 19. On 21 October 2009 the FMS dismissed the applicant’s request; he was notified of the decision on 23 October 2009. 20. The applicant then applied for temporary asylum. On 24 December 2009 the FMS dismissed his request. 21. On 10 February 2010 the applicant appealed against the FMS decision, arguing for the first time before the Russian authorities that he had been ill-treated in Uzbek prisons while serving his previous sentences. 22. Following the applicant’s arrest on 27 April 2009 (see paragraph 11 above), on 28 April 2009 the prosecutor’s office of the Krasnogvardeyskiy District of St Petersburg (“the district prosecutor’s office”), relying on Article 61 of the Minsk Convention, ordered the applicant’s placement in custody pending extradition on the basis of the decision of 28 March 2008 by the Kumkurgan District Court of Uzbekistan (see paragraph 9 above). 23. On 16 June 2009 the district prosecutor’s office, referring to Article 466 § 2 of the CCP, issued a new decision authorising the applicant’s placement in custody pending extradition on the basis of the Uzbek court decision of 28 March 2008. 24. On 28 June 2009 the applicant complained to a court, referring to Decision no. 333-O-P of 1 March 2007 of the Constitutional Court and the Court’s case-law, that he had been unlawfully detained for more than two months and that the term of his detention had not been extended. 25. On 24 August 2009 the Krasnogvardeyskiy District Court of St Petersburg (“the district court”) examined the complaint about unlawfulness of detention. It reasoned that, pursuant to Article 466 § 2 of the CCP, a prosecutor could place a person in custody where a foreign court’s arrest warrant and a request for extradition existed. However, in the applicant’s case, the district prosecutor’s office had applied the preventive measure before the extradition request had been sent and thus had breached Article 466 § 2 of the CCP. At the same time, the second district prosecutor’s office’s decision to remand the applicant in custody had been taken after the extradition request had been received. The district court concluded that the district prosecutor’s office’s decision of 28 April 2009 was unlawful. Nonetheless, it refused to release the applicant, arguing that the decision of 16 June 2009 was compatible with domestic law and thus served as a legitimate ground for the applicant’s detention. It also noted that “[t]he provisions of the CCP do not establish terms for deciding on extradition issues and procedure for extension of the term of detention of persons in respect of which an extradition request has been received from a foreign State”. 26. Both the applicant and the district prosecutor’s office appealed against the decision of 24 August 2009. 27. On 19 October 2009 the St Petersburg City Court quashed the decision of 24 August 2009 for procedural defects and remitted the case for a fresh examination at the first level of jurisdiction. It also stated that the preventive measure applied to the applicant should remain unvaried, without citing any legal grounds for his detention or specifying its term. 28. On 10 November 2009 the St Petersburg City Court, while upholding the extradition order, extended the applicant’s detention for three months, that is until 9 February 2010. 29. On 8 December 2009 the district court discontinued the proceedings concerning the applicant’s complaint that his detention was unlawful, for the reason that the St Petersburg City Court had extended the term of detention until 9 February 2010. 30. On 24 December 2009 the Supreme Court of Russia, while dismissing the applicant’s appeal against the extradition request, touched upon the issue of lawfulness of the applicant’s detention in one sentence: “There are no reasons to doubt the lawfulness of Mr Elmuratov’s custodial detention pending his extradition”. 31. On 29 January 2010 the district prosecutor’s office requested a court to extend the term of the applicant’s detention for two months. 32. On 8 February 2010 the district court granted the prosecutor’s request in part. It reasoned that the applicant had been charged with very serious crimes, such as theft of cattle, and that Rule 39 of the Rules of Court had been applied in his case and concluded that there were no grounds for varying the preventive measure. The term of the applicant’s detention was extended until 9 April 2010. 33. On 27 February 2010 the St Petersburg City Court dismissed the applicant’s appeal against the decision of 8 December 2009, for the reason that the Supreme Court of Russia had ruled on 24 December 2009 that his detention pending extradition was lawful. 34. On 18 March 2010 the St Petersburg City Court dismissed the applicant’s appeal against the decision of 8 February 2010. 35. On 6 April 2010 the district court extended the term of the applicant’s detention until 27 April 2010, for the reason that he had been charged with serious crimes, did not have a permanent place of residence and thus could abscond or continue his criminal activities. 36. On 27 April 2010 the district prosecutor’s office ordered the applicant’s release from custody, for the reason that the maximum period of his detention had expired. 37. Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order must not exceed forty-eight hours (Article 22 § 2). 38. The term “court” is defined by the Code of Criminal Procedure (CCP) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCP as “an official empowered to administer justice” (Article 5 § 54). 39. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2). 40. Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years’ imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge’s decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime must not exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2). Further extensions may be granted only if the person has been charged with serious or particularly serious criminal offences (Article 109 § 3). 41. Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons’ interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual’s access to court” may be subject to judicial review (Article 125). 42. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1). 43. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2). 44. Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under the Russian Criminal Code (Article 464 § 2 (1)). 45. Verifying the compatibility of Article 31 § 2 of the Law on Legal Status of Foreign Nationals in the USSR of 1982, the Constitutional Court ruled that a foreign national liable to be expelled from the Russian territory could not be detained for more than forty-eight hours without a court order. 46. Assessing the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 47. In the Constitutional Court’s view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is the procedure laid down in the CCP. That procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. 48. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCP or in excess of the time-limits fixed in the Code. 49. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person’s detention with a view to extradition. 50. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction. 51. The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified. 52. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code. 53. The Constitutional Court dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCP, stating that this provision “does not establish time-limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate constitutional rights of [the claimant] ...” 54. By a Directive Decision No.1 adopted by the Plenary Session of the Supreme Court of the Russian Federation on 10 February 2009, (“Directive Decision of 10 February 2009”) the Plenary Session issued several instructions to the courts on the application of Article 125 of the CCP. The Plenary reiterated that any party to criminal proceedings or other person whose rights and freedoms were affected by actions or the inaction of the investigating or prosecuting authorities in criminal proceedings could invoke Article 125 of the CCP to challenge a refusal to institute criminal proceedings or a decision to terminate them. The Plenary stated that whilst the bulk of decisions amenable to judicial review under Article 125 also included decisions to institute criminal proceedings, refusals to admit defence counsel or to grant victim status, a person could not rely on Article 125 to challenge a court’s decision to apply bail or house arrest or to remand a person in custody. It was further stressed that in declaring a specific action or inaction on the part of a law-enforcement authority unlawful or unjustified, a judge was not entitled to quash the impugned decision or to oblige the official responsible to quash it, but could only request him or her to rectify the shortcomings indicated. Should the impugned authority fail to comply with the court’s instructions, an interested party could complain to a court about the authority’s inaction and the latter body could issue a special decision [частное определение], drawing the authority’s attention to the situation. Lastly, the decision stated that a prosecutor’s decision to place a person under house arrest or to remand him or her in custody with a view to extradition could be appealed against to a court under Article 125 of the CCP. 55. In a Directive Decision No. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“Directive Decision of 29 October 2009”), it was stated that, pursuant to Article 466 § 1 of the CCP, only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCP and following a prosecutor’s request for that person to be placed in custody. In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCP. In extending a person’s detention with a view to extradition a court was to apply Article 109 of the CCP. 56. When carrying out actions requested under the Minsk Convention, to which Russia and Uzbekistan are parties, an official body applies its country’s domestic laws (Article 8 § 1). 57. Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 58. The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 59. A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days of the date of placement in custody (Article 62 § 1). 60. The UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006 the following: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.” 61. In November 2007 Human Rights Watch issued a report entitled “Nowhere to Turn: Torture and Ill-Treatment in Uzbekistan”, which provides the following analysis: “Prolonged beatings are one of the most common methods used by the police and security agents to frighten detainees, break their will, and compel them to provide a confession or testimony. They often start beating and kicking detainees with their hands, fists, and feet and then continue using truncheons, filled water bottles and various other tools ... Several individuals reported that they were either tortured with electric shocks or forced by police to watch as others were tortured with it ... Police and security officers sometimes use gas masks or plastic bags to effect near asphyxiation of detainees. After forcing an old-fashioned gas mask over the head of the victim, who in some cases is handcuffed to a chair, the oxygen supply is cut ...” 62. The UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008 the following: “741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials ... 743. Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted. 744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002 ...” 63. Amnesty International issued on 1 May 2010 a document entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, stating the following: “Amnesty International believes that there has been a serious deterioration in the human rights situation in Uzbekistan since the so-called Andizhan events in May 2005. ... Particularly worrying in the light of Uzbekistan’s stated efforts to address impunity and curtail the use of cruel, inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill-treatment by law enforcement officials and prison guards, including reports of the rape of women in detention. ... Despite assertions by Uzbekistan that the practice of torture has significantly decreased, Amnesty International continues to receive reports of widespread torture or other ill-treatment of detainees and prisoners. According to these reports, in most cases the authorities failed to conduct prompt, thorough and impartial investigations into the allegations of torture or other illtreatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other illtreatment remains the exception rather than the rule. ... Allegations have also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests have been held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated and have been subjected to unfair trial. In one case in 2008, for example, a man who was returned to Uzbekistan from Russia was sentenced to 11 years’ imprisonment after an unfair trial. His relatives reported that, upon his return to Uzbekistan, he was held incommunicado for three months during which time he was subjected to torture and other ill-treatment in pre-trial detention. He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible. ... The government continued its strict control over religious communities, compromising the enjoyment of their right to freedom of religion. Those most affected were members of unregistered groups such as Christian Evangelical congregations and Muslims worshipping in mosques outside state control.”

train

001-58124

ENG

GRC

CHAMBER

CASE OF CANEA CATHOLIC CHURCH v. GREECE

Violation of Art. 6-1;Violation of Art. 14;Not necessary to examine Art. 9;Not necessary to examine P1-1;Not necessary to examine Art. 14;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings

N. Valticos;R. Pekkanen

6. The Roman Catholic Church of the Virgin Mary (Tis Panagias) in Canea is the cathedral of the Roman Catholic diocese of Crete. Built in the thirteenth century, it adjoins a former Capuchin convent and it has been used as a place of worship continuously since at least 1879. The building was acquired by the church by adverse possession (ektakti khrissiktissia). 7. In June 1987 two people living next to the church, Mr I.N. and Mr A.K., demolished one of its surrounding walls, which was 1.20 metres high, and made a window looking onto the church in the wall of their own building. 8. On 2 February 1988 the church, represented by the abbot, the Right Reverend Giorgios Roussos, applied to the Canea District Court seeking a declaration that it was the owner of the wall in question and orders that the defendants must cease the nuisance and restore the previously existing situation, that the judgment should be provisionally enforceable and that the defendants should be liable to a fine of 100,000 drachmas and six months’ imprisonment if they did not comply with the judgment. The defendants raised an objection to admissibility on the ground that Catholic churches in Greece had no legal personality and were thus prevented from bringing legal proceedings. The plaintiff church answered the objection by stating that it was a cloister church, founded and authorised before 1830 and recognised under the Protocol of London of 3 February 1830. More particularly, it stated that it was a Capuchin cloister that had been authorised before 1830 and belonged to the diocese of Syros and Thera, which did have legal personality (aftotelia). 9. On 18 October 1988 the District Court held that the wall was owned by the church and ordered the defendants to rebuild it to its original height. As to the objection to admissibility, the court held that it was unfounded, accepting the plaintiff church’s submissions, which – it found – were substantiated by the papal seal of 20 June 1974 that was in the file; the court also noted that the abbot was the manager of its wealth and was therefore entitled to represent it in legal proceedings. 10. The defendants appealed against that judgment to the Canea Court of First Instance on 8 December 1988. 11. On 18 May 1989 the Court of First Instance, allowing the appeal, quashed the judgment of the court below for the following reasons: “… The provisions of the Treaty of Sèvres of 10 August 1920, which remains in force by virtue of Protocol No. 16 annexed to the Treaty of Lausanne of 24 July 1923, require Greece to ensure Greeks’ freedom of religion, freedom of worship and equality before the law irrespective of their religious denomination – freedoms which are, moreover, guaranteed in Articles 4, 5 and 13 of the current Constitution – but do not provide that religious or other establishments founded by a religious minority may acquire legal personality without complying with the State’s laws on the acquisition of legal personality. Furthermore, the Third Protocol of London adopted by the protecting powers on 3 February 1830, and ratified in Greece by the Greek Senate’s Memorandum of 10 April 1830, … did not confer on the bishops of the Western Church any jurisdiction other than spiritual and administrative, that is to say relating to that Church’s domestic order, and the provisions of the canon law that governs the Roman Catholic Church which attribute legal personality to convents and other Church establishments founded by decisions of the bishops of that Church were not adopted. In the instant case the Holy Church and Holy Convent of the Capuchins, whose date of foundation is not apparent from the evidence, did not acquire legal personality from the sole fact of being founded by the competent bishop in Greece without the formalities laid down in Greek laws on the acquisition of legal personality having been complied with. Consequently, they have no legal standing and their action must be dismissed for that reason in accordance with Article 62 of the Code of Civil Procedure. The failure to comply with the State’s laws on the acquisition of legal personality is admitted by the plaintiffs themselves. It must be noted that even if this church was founded before 1830, it accordingly did not acquire legal personality, having failed to comply with the laws of the State. …” 12. On 14 December 1990 the church appealed on points of law, alleging a breach of the Protocol of London of 3 February 1830 taken together with the Greek Senate’s Memorandum of 10 April 1830, Article 8 of the Treaty of Sèvres of 1920, Article 13 of the Civil Code, Articles 13 and 20 of the Constitution and Article 9 of the European Convention on Human Rights. In his opinion of 10 December 1992 the reporting judge of the Court of Cassation indicated that he thought the judgment of 18 May 1989 should be quashed; he pointed out that under Article 13 § 2 of the Constitution and Article 8 of the Treaty of Sèvres, Greek nationals belonging to religious minorities enjoyed the same protection in law and in fact and the same safeguards as other Greek nationals and, in particular, had an equal right to establish religious foundations and practise their religion freely; furthermore, under the canon law of the Roman Catholic Church, churches, convents and monasteries established with the approval of the Holy See had legal personality without it being necessary to comply with the formalities laid down in Greek laws. Such a restriction would be contrary to Article 13 of the Constitution and Article 8 of the Treaty of Sèvres. 13. In a judgment of 2 March 1994 the Court of Cassation dismissed the appeal in the following terms: “… [The Treaty of Sèvres], having been ratified in a statute, was kept in force as domestic law, but inasmuch as its content is covered by the Convention for the Protection of Human Rights and Fundamental Freedoms, which is much wider in scope, the treaty must be regarded as having been abrogated by this subsequent Convention, which pursues the same objective. However, the special provisions of the treaty which are not reproduced in the Rome Convention and do not conflict with it must be regarded as still being in force. By means of the Convention Greece protects, inter alia, the religious freedom not only of minorities but of any person within its jurisdiction, irrespective of religion, national origin, membership of an ethnic minority, etc. Article 13 § 2 of the Constitution, which provides for freedom to practise any ‘known’ religion and for freedom to perform religious obligations without hindrance, likewise corresponds to the content [of the Convention]. Regard being had to the foregoing, it is clear that the above-mentioned provisions guarantee to religious minorities freedom of religion, freedom of worship and religious equality and, by extension, the right to found religious associations and establishments, which acquire legal personality as of right but only after complying with the State’s laws on such acquisition … It is even provided (in Article 13 § 4 of the Constitution) that the religious convictions of minorities cannot constitute a legal ground exempting them from complying with the above-mentioned laws on the acquisition of legal personality, which, by the first sentence of Article 62 of the Code of Civil Procedure, is a condition of being able to bring or defend legal proceedings … Consequently, if Article 20 of the Constitution, whereby everyone is entitled to seek legal protection from the courts, is to apply, the above-mentioned statutory conditions must be satisfied. Furthermore, since section 13 of the Introductory Law to the Civil Code … provides that only legal persons ‘lawfully constituted’ at the date of adoption of the Civil Code continue to exist, the court below rightly held that Article 20 of the Constitution did not apply in the instant case as the formalities required by Greece’s laws for the acquisition of legal personality had not been complied with by the appellants.” 14. The relevant Articles of the Constitution provide: Article 3 “1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928. 2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph. 3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople.” Article 13 “1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs. 2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited. 3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion. 4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions. 5. No oath may be required other than under a law which also determines the form of it.” 15. Section 13 of the Introductory Law to the Civil Code provides: “Legal persons that were lawfully constituted at the date of adoption of the Civil Code [23 February 1946] shall continue to exist. As regards their legal capacity, administration or functioning, the relevant provisions of the Code shall apply.” 16. Article 61 of the Civil Code gives the following definition of a legal person in general: “A union of persons for the purpose of pursuing a given aim or a group of assets assigned to the service of a given aim may acquire legal personality if the requirements laid down by law are satisfied.” 17. The legal persons provided for in the Civil Code are associations (Articles 78 et seq.), foundations (Articles 108 et seq.) and charitable fundraising committees (Articles 122 et seq.). Non-commercial partnerships only acquire legal personality after taking the publicity measures laid down by law for commercial partnerships (Articles 741 et seq. and Article 784). It must also be noted that the Civil Code makes the provisions on partnerships applicable to unions of persons that have been created to pursue a given aim but are not associations (Article 107). 18. By Article 62 of the Code of Civil Procedure, “A person who has the capacity to possess rights and be bound by obligations shall also be entitled to bring or defend legal proceedings. Unions of persons which pursue a specified aim without being associations and also partnerships that do not have legal personality may bring or defend legal proceedings.” This concept of a union of persons seems to approximate to the concept of a common-interest group in Greek law, since the courts have applied the concept to co-ownership of a seagoing vessel, to a political party and to an association of co-owners of a building. 19. Section 1 (4) of Law no. 590/1977 on the Charter of the Church of Greece confers personality in public law on the Orthodox Church and on a number of its institutions, at least as regards “their legal relations”. 20. Article 8 of the Treaty of Sèvres of 10 August 1920 provides: “Greek nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Greek nationals. In particular they shall have an equal right to establish, manage and control, at their own expense, charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.” 21. The applicant church annexed to the memorial it filed with the Court a series of judgments given by the highest courts in the land which, it submitted, substantiated its assertion that neither the legal personality of the Catholic Church in Greece nor its capacity to bring or defend legal proceedings had ever been called in question. The decisions were the following: (a) judgment no. 142/1889 of the Court of Cassation, in which the court held that the appropriate Catholic bishop represented the legal person of the Catholic Church and its parish churches in legal proceedings for the protection of their property, and did so by virtue of the Catholic canon law, which was wholly applicable in Greece in so far as it did not conflict with any provisions of national law; (b) judgment no. 1437/1896 of the Athens Court of Appeal, in which the court ruled similarly, holding that the canon law of the Catholic Church had been recognised in the Protocol of 3 February 1830 “as having the force of law” in Greece; (c) judgment no. 256/1902 of the Athens Court of Appeal, in which the court held that it was for the Pope to appoint local administrators of the Catholic Church’s property and, moreover, that there was no need for Catholic parish churches “once established and lawfully in existence, to obtain permission from the State authorities to acquire [their] legal personality”; (d) judgment no. 45/1931 of the Court of Appeal of the Aegean Islands, in which it was held that Catholic parish churches were represented by persons appointed by the Pope, according to canon law; (e) judgment no. 1885/1946 of the Athens Court of Appeal (the first to be given on the subject after the Civil Code of the same year had come into force), in which the court held that legal persons constituted before 1946 were accorded full recognition under section 13 of the Introductory Law to the Civil Code; as regards, more specifically, Catholic Church foundations in Greece, it was held in the same judgment that Catholic bishops had “special” power to constitute them by means of a unilateral decision, without any need for that decision to take any particular form or to be subject to any prior authorisation; (f) judgment no. 2716/1973 of the Second Division of the Supreme Administrative Court, whereby that court recognised the legal personality of the Catholic convent of the Ursuline Sisters on the island of Tinos, established by law in 1865 and to which was attached the Catholic school operating in Athens under the same name; (g) judgment no. 1292/1977 of a full court of the Supreme Administrative Court, whereby the court recognised the legal personality of the parish church of St John the Baptist on the island of Thera in a case of expropriation in the public interest; (h) judgment no. 101/1979 of the Court of Appeal of the Aegean Islands, delivered in a case of unlawful interference with the rights of possession and ownership of the same parish church of the island of Thera, whose capacity to bring and defend legal proceedings was formally confirmed. On the other hand, following judgment no. 360/1994 delivered by the Court of Cassation in the present case, the Crete Court of Appeal dismissed an action brought jointly by the Episcopal Catholic Church of Crete and the applicant church for recovery of possession of a rented property, holding that the plaintiffs had no standing as they did not have legal personality (judgment no. 408/1995). 22. The Government cited a judgment of the Supreme Administrative Court (no. 239/1966) in which it was held that a monastery founded in 1963 by a decision of the Catholic bishop of Greece had not by virtue of that fact alone acquired legal personality. The Supreme Administrative Court said: “The Third Protocol of London adopted by the protecting powers on 3 February 1830, and ratified in Greece by the Greek Senate’s Memorandum of 10 April 1830, … was intended to ensure that the Catholics living in Greece enjoyed freedom of religion and freedom of worship and it did not confer on the bishops of the Western Church any jurisdiction other than spiritual and administrative, that is to say relating to that Church’s domestic order, and the provisions of the canon law that governs the Roman Catholic Church which attribute legal personality to convents and other Church establishments founded by decisions of the bishops of that Church were not adopted. The legal personality of Church establishments is a question which does not relate to worship or the Church’s domestic order but primarily concerns the legal order of the State and consequently cannot exist unless it is recognised by law.” 23. Lastly, in a judgment (no. 1099/1985) of 1985 the Court of Cassation held that the abbot of a monastic establishment of the Roman Catholic Church is empowered to represent it in legal proceedings concerning its property without the written authorisation of the local bishop as provided in canon 1526. 24. According to the applicant church, numerous notarial acts to which the Catholic Church of Greece and/or Catholic parish churches, duly represented by authorised agents in accordance with Catholic canon law, were parties unequivocally attest that as regards their property, the churches’ legal personality has never been challenged. By way of example, it has produced the following documents: (a) contract of sale no. 17955/1915, whereby the Catholic Cathedral of Athens, duly represented by the Archbishop of the Greek Catholics, purchased 12,500 square metres of land in the Athens suburb of Iraklion. Attached to this contract is an Athens Mortgage Registry certificate dated 13 June 1997 confirming that the contract was registered according to the rules in force; (b) contract of sale no. 5027/1936, whereby the applicant church, duly represented, purchased a shop in the centre of Canea; (c) contract of sale no. 271/1955, whereby the Catholic Cathedral of Athens, duly represented, purchased a four-storey building in the centre of Athens. Attached to this contract is an Athens Mortgage Registry certificate dated 13 June 1997 confirming that the contract was registered according to the rules in force; (d) contract of sale no. 2084/1981, whereby the applicant church sold to the city council of Canea 4,231.75 square metres of land in the city centre; in this document the church of Canea was represented by its bishop, appointed by papal decree; (e) contract of sale no. 53844/1981, whereby the applicant church, expressly described as a private-law entity and a religious foundation of the Catholic Church, purchased a flat in the Athens suburb of Maroussi; (f) contract of sale no. 1817/1992, whereby the Catholic Cathedral of Athens sold a flat in Athens which it had acquired by gift in 1980. This notarial act mentions (i) the foundation of the vendor cathedral in 1865 by unilateral act of the Bishop of Syros and (ii) the papal bull of 1973 whereby its representative was appointed according to the rules of Catholic canon law. Attached to this contract is an Athens Mortgage Registry certificate dated 13 June 1997 confirming that it was registered according to the rules in force. In all these contracts it is expressly stated that the appropriate transfer tax was duly paid; and the contracts were all registered with the appropriate mortgage registries. Furthermore, as may be seen from the tax returns duly completed and submitted by the applicant church for the years 1994, 1995 and 1996, its rent income from its properties, including some of the abovementioned properties, was exempt from income tax because of the landlord’s status as a religious legal entity. In addition, two inheritance certificates issued by the clerk of the Athens Court of First Instance on an application by the Catholic Cathedral of Athens (the first certificate) and the Catholic parish church of Phira on the island of Thera (the second certificate) attest that these churches were recognised as the sole heirs of persons who died in 1988 and 1990.

train

001-107508

ENG

MLT

CHAMBER

CASE OF SALIBA AND OTHERS v. MALTA

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

David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

6. The applicants were born in 1922, 1920, 1962, 1958, 1955, 1953, 1935, 1933, 1958, 1959, 1968, 1964, 1961, 1962, 1966, 1957, 1962 and 1959 respectively. The ninth, tenth, twelfth and thirteenth applicants live in the United Kingdom, the eleventh applicant lives in the United States and all the other applicants live in Malta. 7. The applicants or their ancestors (hereinafter “the applicants”) were owners of half an undivided share of several properties in Senglea, namely, five apartments on the ground floor and an adjacent entrance giving access to another twenty apartments above. At the time when the property was acquired, for the price of 345 pounds sterling (approximately 400 euros (“EUR”)), it was leased and occupied by various third parties. 8. This property was damaged during the Second World War and war-damage compensation was due to the owners under the War Damage Ordinance. 9. By a declaration of 27 February 1951 the Government took possession of this property under title of “possession and use” in accordance with the Land Acquisition (Public Purposes) Ordinance (see relevant domestic law). Under this title the owners were paid a yearly acquisition rent of 88 Maltese liras (“MTL”) − approximately EUR 205 for the entire property. This rent was calculated on the rental value declared by the owners to the Land Valuation Office. 10. Subsequently, without requesting prior consent from the owners and without having the plans of the property as it stood, the Government demolished the property and built a new set of apartments on wholly different plans, using part of the property to widen a road. The Government noted that permission for demolition was not necessary since they had legal possession of the property. At the time since the city of Senglea had been totally bombarded and consisted of a pile of rubble, the Government were engaged in an intensive restructuring and construction exercise, taking possession of properties and rebuilding the area with residences for social accommodation. In doing this the applicants alleged that the Government had also appropriated to themselves the war-damage compensation due to them. The Government considered this allegation to be unsubstantiated. 11. On 24 September 1991 the owners wrote to the Commissioner of Lands (“COL”) requesting compensation for their property. They suggested the sum of MTL 105,000 – approximately EUR 244,584. Receipt of their request was acknowledged but the claim remained unanswered. 12. By a declaration of 22 June 1993 the Government acquired the said property under the title of “public tenure” according to the Land Acquisition (Public Purposes) Ordinance (see relevant domestic law). Under this title the owners continued to be paid EUR 205 per year for the entire property. 13. In the meantime, this property was allocated as housing to third parties and included a shop. 14. The applicants pointed out that in 1988 the Government had declared that it would no longer be resorting to takings under titles of “possession and use” or “public tenure”. During political debate, the Deputy Prime Minister had in fact referred to such takings as a nefarious method of acquisition. Indeed, in the past twenty years the Government had converted takings under title of “possession and use” or “public tenure” to takings under “outright purchase”. The latter provided for a more favourable form of compensation, namely the market value of the property at the time of taking. The applicants submitted a number of examples reflecting this allegation (for example, Legal Notice nos. 271 and 272 of 2010 converting previous takings to outright purchases, and declaration no. 578 of 31 August 1990 substituting a declaration of taking under possession and use of a few months earlier with an outright purchase, following complaints by the owners. In the latter case the property had also been demolished and rebuilt and was being used for social housing). 15. The applicants also submitted an expert report valuing the entire property in Senglea at EUR 950,000. Thus, their share as owners of half an undivided share was worth EUR 475,000. 16. On 13 March 1998 the applicants brought constitutional redress proceedings. Invoking Article 1 of Protocol No. 1 to the Convention and Article 14 they requested that the court find a violation of their rights as a consequence of the actions taken by the COL and to grant adequate compensation. Given the way the application was presented the Government did not plead non-exhaustion in respect of the failure of the applicants to institute proceedings before the LAB. 17. The case was set down for hearing on 25 March 1998. On 25 September 1998 the court-appointed architect was requested to conduct an on-site inspection to determine whether the property built by the Government was indeed built on the applicants’ property and what use was being made of the ground floor. The report was submitted on 5 January 1999; however, the court-appointed expert failed to draw up an estimate of the value of the property in issue and the applicants’ request for additional terms of reference to be given to the expert was rejected on 16 December 1999 on the basis that the value of the property was irrelevant to the merits of the claim. Subsequently, on 7 September 2001 the case was adjourned pending negotiations regarding the possibility of reaching an amicable solution to the case. This having failed, the proceedings continued on 20 February 2002 at the applicants’ request. On 14 November 2002 the applicants requested the court to make written submissions. On 1 March 2005 the applicants requested that the case be suspended pending the determination of another constitutional case that could have affected the merits of their case. The hearing of submissions recommenced on 22 May 2007. The Government filed their written submissions on 12 September 2007 and the case was scheduled for judgment on 9 October 2007. 18. By a judgment of 16 October 2008 the Civil Court (First Hall), acting in its constitutional jurisdiction, rejected their claims. It held that, since the applicants were still owners of the said property, the taking under both titles could not be considered a deprivation of property but a control of the use of such property. This control had been necessary in view of the fact that the property had been ruined in the war and that there had been a need to provide social housing in the post-war years. For the same reasons, even assuming that the taking under title of public tenure had been a deprivation of possessions, it would have been in the public interest. In respect of the fair balance required, the court observed that, when the State was pursuing economic reform or social justice, less reimbursement was due than the full market value. While it was true that the recognition rent payable to the applicants was not high and there were no prospects for it to be increased in future years, it was comparable to the rents applicable under the controlled rents regime in force in respect of other old properties. Moreover, in the present case the owners had not been required to incur expenses for the building of the new apartments or for their maintenance and when the property had been originally purchased by the owners’ ancestors it was already rented to third parties to which such regulated rents applied. In consequence, it could not be said that the applicants had borne an excessive burden. The court found that their related complaint under the same provision in respect of the unauthorised demolition could not be examined ratione temporis. 19. Lastly, as to the complaint regarding the difference in treatment as a result of the taking under title of public tenure as opposed to an outright purchase, the court held that the choice was specifically available to the Government. However, according to the policy in force, takings under titles of possession and use were converted to outright purchases in cases where the properties were used for commercial purposes. Other properties, where the Government wished to keep control of the expropriated property, were taken under title of public tenure. While this choice allowed for a large margin of appreciation, the applicants had not proved that other people in an analogous position had been treated more favourably and it did not appear that the policy had been applied arbitrarily or in a discriminatory fashion in the applicants’ case. 20. On appeal, by a judgment of 6 October 2009 the Constitutional Court upheld the first-instance judgment. 21. Primarily, it noted that the applicants had been acquiescent for a period of forty years before they ever solicited any action from the authorities or the relevant courts. On the merits, it confirmed that the interference did not amount to a deprivation since quite apart from retaining the title of ownership, the applicants had continued to receive rent in respect of the said property and to have standing to institute proceedings in respect of complaints relating to the property. Thus, not all the legal rights of the owners had been extinguished. 22. It further noted that the legality of the interference and the public interest involved were not disputed. Indeed, the law (section 12(3) of the Land Acquisition (Public Purposes) Ordinance, prior to its amendment) allowed the State to carry out works on property taken under possession and use, without any specific limitation. Moreover, the property which had been demolished and rebuilt had been taken in a damaged state, and any complaints about the entitlement to war-damage compensation remained unsubstantiated and were irrelevant to the main complaint in issue. 23. The decision as to under which title the property could be taken fell within the margin of appreciation of the State. As to the fair balance and the relevant amount of compensation, while it was true that a rent of EUR 205 was by today’s standards low for the property in issue, the value of the property had to reflect the values applicable in 1951 and not 2009. It noted that the applicants had not even contested the amount of rent due before the Land Arbitration Board (“LAB”) and that their acquiescence had led to a situation where even if they had wanted to do so, they could not prove the boundaries of the property. However, it was also true that the authorities had failed in their duty to draft a report as to the state and the boundaries of the property before they demolished it and created new plans for it. Thus, at this stage it was impossible to determine the actual boundaries of the property and in this state of uncertainty it was not surprising that the applicants had not taken up the procedure before the LAB. In any event, the court was of the view that the complaint was manifestly ill-founded. 24. As to the complaint under Article 14, it noted the witness testimony from the Department of Lands to the effect that takings under absolute purchase had occurred, although they generally related to commercial properties; that there had been cases were the Government had acted differently and acquired property by outright purchase following a taking by title of possession and use; that there was no hard policy regulating what type of taking was required in each case; and that to the witness’s knowledge there had been no political or other specific reasons motivating such an action. The court concluded that the fact that it had been established that other property had been taken by absolute purchase was not enough to prove discriminatory treatment and therefore there could not be a violation of the said provision. 25. The Constitutional Court further criticised the delay of ten and a half years which the first-instance court had taken to decide on the case even though a good part of the delay had been attributable to the applicants who, inter alia, had taken four and a half years to make submissions. 26. Following the introduction of the application with the Court (April 2010), on 3 June 2010 the Government issued a declaration that the property was being taken under title of absolute purchase. The property was valued in terms of section 22 of the Ordinance and the compensation offered was that of EUR 168,417.43. 27. Section 5 of the Land Acquisition (Public Purposes) Ordinance (“the Ordinance”), Chapter 88 of the Laws of Malta provides for three methods of acquisition by the Government of private property. It reads as follows: “The competent authority may acquire any land required for any public purpose, either - (a) by the absolute purchase thereof; or (b) for the possession and use thereof for a stated time, or during such time as the exigencies of the public purpose shall require; or (c) on public tenure: Provided that after a competent authority has acquired any land for possession and use or on public tenure the conversion into public tenure or into absolute ownership of the terms upon which such land is held shall always be deemed to be an acquisition of land required for a public purpose and to be in the public interest: Provided also that, subject to the provisions of articles 14, 15 and 16, a competent authority may acquire land partly by one and partly by another or others of the methods in paragraphs (a), (b) and (c): Provided further that where the land is to be acquired on behalf and for the use of a third party for a purpose connected with or ancillary to the public interest or utility, the acquisition shall, in every case, be by the absolute purchase of the land.” 28. Section 13 regarding compensation reads, in so far as relevant, as follows: “ (1) The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner, saving the provisions contained in subarticle (2). (2) The compensation shall in the case of acquisition of land for temporary possession and use be an acquisition rent and in the case of acquisition of land on public tenure be a recognition rent determined in either case in accordance with the relevant provisions contained in article 27.” 29. The Ordinance provides that compensation in respect of absolute purchase is calculated in accordance with the applicable “fair rent”, as agreed by the parties following the Government’s offer or as established by the LAB. In respect of public tenure, section 27(13) of the Ordinance provides as follows: “The compensation in respect of the acquisition of any land on public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles (2) to (12), inclusive, of this article, increased (a) by forty per centum (40%) in the case of an old urban tenement and (b) by twenty per centum (20%) in the case of agricultural land. 30. In so far as relevant, section 19(1) and (5) reads as follows: (1) When land has been acquired by a competent authority for use and possession during such time as the exigencies of the public purpose shall require, the owner may, after the lapse of ten years from the date when possession was taken by the competent authority, apply to the Board for an order that the land be purchased or acquired on public tenure or vacated within a period of one year from the date of the order, and the land shall either be vacated or acquired on public tenure or purchased upon compensation to be determined in accordance with the provisions of this Ordinance or of any Ordinance amending or substituted for this Ordinance. (5) Public tenure shall of its nature endure in perpetuity, without prejudice to any consolidation by mutual consent or otherwise according to law of that tenure with the residual ownership of the land; and the recognition rent payable in respect thereof shall in every case be unalterable, without prejudice to the effects of any consolidation, total or partial. The residual ownership of land held on public tenure with the inherent right to receive recognition rent, shall, for all purposes of law, be deemed to be an immovable right by reason of the object to which it refers and shall be transferable according to law at the option of the owner, from time to time, of that right. 31. Thus, while a taking under title of “possession and use” is intended for a determinate period of time, a taking under title of “public tenure” is for an indeterminate period of time, possibly forever, and the relevant recognition rent is to remain unaltered for its duration.

train

001-59992

ENG

POL

CHAMBER

CASE OF R.D. v. POLAND

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

Nicolas Bratza

9. On 16 September 1994 the Wałbrzych District Prosecutor (Prokurator Rejonowy) charged the applicant with receiving a bribe and detained him on remand in view of the reasonable suspicion that he had committed the offence in question. On the same day the prosecutor confronted the applicant with his co-suspect who had offered him a bribe, and ordered a search of the applicant’s home. On 28 September 1994, on an appeal filed by the applicant, the Wałbrzych Regional Court (Sąd Wojewódzki) quashed the detention order and released him under police supervision. 10. On 10 February 1995 the Wałbrzych District Prosecutor lodged a bill of indictment with the Wałbrzych Regional Court. The indictment comprised twelve counts charging seven co-defendants. Two of the applicant’s co-defendants were indicted on charges of an attempt to traffic in women. 11. Subsequently, on an unknown date, the Wałbrzych Regional Court appointed a defence counsel for the applicant. 12. The trial ended on 15 April 1996. The applicant was convicted as charged and sentenced to one year’s imprisonment suspended for two years and a fine. The Regional Court exempted the applicant from paying the costs of the proceedings and court fees at first instance. It ordered the State Treasury (Skarb Państwa) to cover the legal fees involved in his defence by the officially-appointed lawyer. 13. On 24 June 1996 the applicant’s lawyer filed an appeal with the Wrocław Court of Appeal (Sąd Apelacyjny). The Regional Prosecutor lodged his appeal at about the same time. The applicant filed a memorandum and produced documents in support of his arguments on 27 September 1996. 14. Later, the Wrocław Court of Appeal appointed a new defence counsel to assist the applicant in the appellate proceedings. 15. On 10 October 1996 the Wrocław Court of Appeal heard the appeals. Both the applicant and his officially-appointed lawyer were present. The applicant asked the court to read out all the records of evidence heard from him during the first instance proceedings. The court declined to do so, pointing out that the appellate hearing was limited to the questions of fact and law which had been put forward by the parties in their appeals and oral pleadings. It found it unnecessary to read the voluminous records of the oral evidence taken from the applicant. 16. On the same day the Court of Appeal upheld the first-instance judgment. It levied on the applicant a court fee of 65.00 Polish zlotys [approx. 130 FRF] for examining his appeal and ordered him to pay 50.96 Polish zlotys [approx. 100 FRF] as the costs of the appellate proceedings. The court ordered that the costs involved in the applicant’s defence in the appeal proceedings be borne by the State Treasury. 17. On 12 October 1996 the applicant lodged a notice of cassation appeal with the Wrocław Court of Appeal and asked it to serve on him the written reasons for its judgment. He also asked the Court of Appeal to appoint a new lawyer to assist him in the preparation of his cassation appeal. The relevant part of the application read: “The appeal proceedings were of a fictitious nature ... [which was shown] by the time foreseen by the Court of Appeal for dealing with [my] appeal. [That] court foresaw only 15 minutes ... The appellate hearing was to start at 9.00 a.m. and the next case was to be heard at 9.15 a.m. ... In addition, as I learnt on 11 October this year, the Court of Appeal had replaced my previous defence counsel by someone else ... who – probably – did not know the case. ... Article 464 § 2 of the Code of Criminal Procedure stipulates that a cassation appeal must be filed and signed by an advocate. Since the Court of Appeal deprived me of my [previous] officially-appointed lawyer, it should appoint another counsel for me. I therefore ask the court to appoint me such a lawyer and order him to file a cassation appeal on my behalf, in particular on the grounds mentioned in my pleading of 14 June 1996 and on other grounds – such as breaches of the law committed by the Court of Appeal – which I will later specify in my own separate cassation appeal. ...” 18. On 9 December 1996 the written reasons for the judgment of the Wrocław Court of Appeal were served on the applicant. On that date the time-limit of thirty days for lodging a cassation appeal began to run (see also paragraph 32 below). 19. On 23 December 1996 the Court of Appeal dismissed the applicant’s request for free legal assistance in cassation proceedings. The court considered that the applicant had failed to prove that he could not afford such assistance. The relevant decision read: “In his application, received at the Court of Appeal’s registry on 15 October 1996, the applicant asked this Court to appoint a lawyer to assist him in filing a cassation appeal against the judgment of the Wrocław Court of Appeal of 10 October 1996. The circumstances on which the applicant relies cannot be considered as a basis for a finding that his family and financial situation, and his income, make it impossible for him to pay costs involved in appointing a lawyer of his own choice in order to have a cassation appeal filed. That [view] is based on the post previously held by the applicant and the income that he received from his employment. Instruction: this decision – refusing an application for appointing a lawyer to assist in filing a cassation appeal – cannot be appealed against.” That decision was served on the applicant on 31 December 1996. The time-limit for lodging a cassation appeal expired on 9 January 1997. 20. In the meantime, on 3 January 1997, despite the court’s instruction to the contrary, the applicant had appealed to the Supreme Court (Sąd Najwyższy) against the refusal to grant him legal assistance. He lodged the appeal through the Wrocław Court of Appeal. 21. By an order made on 15 January 1997, the President of the Court of Appeal refused to proceed with the appeal because it was inadmissible in law. The applicant appealed to the Supreme Court, which, on 28 February 1997, upheld the contested order. 22. At the relevant time provisions of the Law of 19 April 1969 – Code of Criminal Procedure (Kodeks postępowania karnego) (“the Code”) applied to proceedings before criminal courts. The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. 23. Under Article 69 of the Code, an accused who had proved that he could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”) might ask the trial court to appoint him a defence counsel. 24. Article 71 of the Code laid down the principle known as “compulsory assistance of an advocate” (przymus adwokacki). That Article provided, in so far as relevant: “An accused must have a defence counsel [of his own choice or officially appointed] when a regional court is competent to deal with his case as a court of first instance. The counsel must take part in the main hearing; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary.” 25. Under Article 75 § 1 of the Code, the official appointment of a lawyer was valid as long as the proceedings lasted and, subject to explicit exceptions, an officially-appointed lawyer was also obliged to act on behalf of his client after the judgment became final. However, according to domestic practice which started after 1 January 1996 (the date on which a new cassation appeals procedure was introduced into the system of criminal justice), a lawyer had again to be officially appointed in cassation proceedings. 26. The conditions for exempting an accused from paying costs and fees involved in criminal proceedings, as well as from paying fees due for legal assistance, were laid down in Article 556 of the Code. That provision, in its relevant part, read: “The court may – either in full or in part – exempt an accused or [private or auxiliary] prosecutor (oskarżyciel prywatny lub posiłkowy) from [an obligation] to pay back to the State Treasury costs of proceedings or to pay ... fees due for legal representation by an officially-appointed lawyer if there are grounds to consider that, given the family and financial situation and the income of the person concerned, the payment thereof would entail a disproportionate burden on him.” 27. Legal fees of advocates were set out in the Ordinance of the Minister of Justice of 4 June 1992 on Legal fees in proceedings before judicial authorities (Rozporządzenie Ministra Sprawiedliwości w sprawie opłat za czynności adwokackie w postępowaniu przed organami wymiaru sprawiedliwości). That ordinance was subsequently repealed; under a new ordinance, only minimum legal fees are stipulated and costs of legal representation are in principle determined freely in a contract between an advocate and a client. 28. Paragraph 20 (1) of the 1992 Ordinance determined legal fees for defence in a criminal case before a regional court, a court of appeal and the Supreme Court at from 200 to 600 Polish zlotys (PLN) for each instance. Legal fees for the preparation of a cassation appeal were determined at from 50 to 300 PLN (paragraph 20 (1)). 29. Regardless of whether a person was represented by a court-appointed lawyer or by a lawyer of his own choice, legal fees involved in his defence were estimated under the rules set out in the 1992 Ordinance. 30. As from 1 January 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, a party to criminal proceedings might lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. 31. Article 463a § 1 of the Code provided, in so far as relevant: “A cassation appeal may be lodged only on the grounds referred to in Article 388 [these included a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of such a breach. No cassation appeal may be directed against the severity of the penalty imposed (niewspółmierności kary).” 32. Article 464 of the Code stipulated: “1. Parties to criminal proceedings shall be entitled to lodge a cassation appeal. 2. A cassation appeal, which has been lodged by a party other than a prosecutor, shall be filed and signed by an advocate. 3. Notice of a cassation appeal must be lodged with the court that has given the [relevant] decision within seven days from the date on which such decision was pronounced. The appeal itself must be lodged within thirty days from the date on which the decision, together with the reasons therefor, was served on the party concerned.” Paragraph 2 of Article 464 was later incorporated into Article 526 § 2 of the New Code of Criminal Procedure, which in similar terms lays down the principle of “compulsory assistance of an advocate” in cassation proceedings. 33. Article 467 § 2 of the Code provided that the court which had given the decision appealed against was competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused’s appeal was not filed and signed by an advocate, it had to be rejected on formal grounds. If such an appeal complied with the formal requirements, the case was referred to the Supreme Court. Pursuant to paragraphs 3 and 4 of Article 467 of the Code, a single judge or, if the President of the Supreme Court so ordered, a panel of three judges sitting as the Supreme Court, decided on the admissibility of a cassation appeal. If the Supreme Court found that the appeal was inadmissible, it made a decision “not taking cognisance of the merits of the appeal” (postanowienie o pozostawieniu kasacji bez rozpoznania).

train

001-85689

ENG

RUS

CHAMBER

CASE OF TETSEN 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;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

5. The applicant was born in 1979 and lives in Vizinga in the Komi Republic. 6. From 14 June 2001 to 31 July 2003 the applicant was employed in the military commander’s office in the Chechen Republic. On the commander’s orders, he took part in counter-terrorist operations. For his participation he was paid an additional compensation of 55,807.70 Russian roubles (RUB) for a period of eighty-five days. 7. The applicant applied to a court, claiming that the additional compensation should be paid for the entire duration of his employment in the military commander’s office. He submitted original employment contracts and orders signed by the military commander. 8. The military commander’s office did not send a representative to take part in the proceedings and asked the court to hear the case in his absence. 9. On 25 August 2003 the Military Court of the Rostov-on-Don Garrison accepted the applicant’s claim and awarded him RUB 444,965.37 against the military commander of the Chechen Republic. 10. No appeal having been lodged against the judgment, it became enforceable ten days later. 11. On 6 September 2003 the applicant obtained a writ of execution and submitted it to the Ministry of Finance. 12. On 23 August 2005 a representative of the military commander’s office asked the Military Court of the Rostov-on-Don Garrison to quash the judgment of 25 August 2003 on account of newly discovered circumstances. He claimed that it had been founded on “unreliable evidence” (недостоверные доказательства). 13. By decision of 20 October 2005, a judge of the Military Court of the Rostov-on-Don Garrison set aside the judgment of 25 August 2003 on account of newly discovered circumstances. The parties did not make available a copy of that decision to the Court. According to the applicant, it did not specify why the evidence in the original judgment was considered “unreliable”. The Government indicated that it was unreliable because “the applicant’s calculations of the indebtedness [had] had no legal effect”. 14. In the re-opened proceedings the applicant’s claims were rejected in full. Copies of these judgments were not made available to the Court.

train

001-58093

ENG

ITA

CHAMBER

CASE OF ARGENTO v. ITALY

Art. 6 inapplicable

C. Russo;N. Valticos;R. Pekkanen

7. Mrs Maria Argento is a doctor employed at the local health unit (“the USL”) in Ragusa, where she lives. 8. On 30 November 1985 she instituted proceedings in the Sicily Regional Administrative Court (“the RAC”) for judicial review of a decision of the USL assigning her, at the time when she was recruited to a permanent post, to a staff category lower than the one to which she considered herself to be entitled. 9. On 11 December 1985 the applicant asked for a date to be fixed for the hearing. 10. According to the information supplied at the hearing before the Court by the applicant's representative, the proceedings were then still pending.

train

001-72225

ENG

GBR

ADMISSIBILITY

SCHOFIELD v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

The applicant, Mr John Schofield, is a British national who was born in 1970 and lives in Preston, Lancashire. He is represented before the Court by Matthew Gold & Company, a firm of solicitors based in London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was, at the material time, a lance corporal (a non-commissioned officer) in the British army. On 16 May 2000 he was convicted by a General Court Martial (“GCM”) of two offences of rape of a junior female army officer (a Lieutenant). The applicant was sentenced to nine years’ imprisonment and dismissed with disgrace from the service. The GCM comprised four officers (not below the rank of Captain), a permanent president and a judge advocate. The Reviewing Authority did not alter the GCM’s finding or sentence. The appeal to the Courts-Martial Appeal Court (“CMAC”) was dismissed on 30 July 2001. The applicant had argued that trial by court-martial comprised exclusively of officers violated the impartiality guarantee of Article 6 of the Convention where the complainant was an officer, the accused was a soldier from the ranks and the issues in the case turned on the credibility of the evidence of those individuals. The CMAC noted that: “We have already referred to the fact that the members of the court swear a judicial oath for each case they are to try. The following passage formed part of the judge advocate’s summing-up ...: “What is required of you at this stage is cold, clinical dissection of the evidence. You are a panel of five commissioned officers, trying the factual issues in this case. The complainant... is a commissioned officer. It would, of course, be entirely wrong for you to prefer the evidence of [the complainant] because she is a commissioned officer as against the evidence of the accused because he is a non-commissioned officer. That would be to show partiality and I remind you again of the oath you took at the outset of this case, to try this case without partiality, favour or affection. Your commonsense will no doubt tell you that commissioned officers do not always tell the truth any more than non-commissioned officers do not always tell the truth. It may be, I know not, that you were unimpressed with [the complainant’s] career to date. It’s not been without its problems. She was short-toured from Bosnia and I suspect you will conclude that on occasions she drank rather more than was good for her. These are factors about her that you are entitled to consider, but again it would be wrong to say ... that simply because of those problems in her career to date, she is not worthy of belief. Similarly with the accused, bear in mind all you know about him, the fact that he is a non-commissioned officer is one of the things you know about him. You also know about his career to date, his achievements and what other people think of him and his qualities. Weigh that in the balance when deciding the weight that you feel is appropriate to attach to his evidence.” These directions were clear, robust, and balanced. The court can have been left in no possible doubt but that it was their duty to assess the evidence free of the least influence exerted by the protagonists’ respective ranks. In our judgment no apparent bias ... is shown, and there was no violation of Article 6.” In its judgment of that date the CMAC also refused to certify a point of law of public importance to the House of Lords concerning the applicant’s ground of appeal to the CMAC. The Armed Forces Act 1996 (the “1996 Act”) came into effect on 1 April 1997, amending the Army Act 1955 (the “1955 Act”). The relevant domestic law and practice applicable to air-force courts-martial following the entry into force of the 1996 Act is set out in the case of Cooper v. the United Kingdom ([GC], no. 48843/99, §§ 15-77, ECHR 2003XII). The relevant regulatory framework governing post-1996 Act army courts-martial is the same in all material respects (the Cooper judgment, at § 107). At the relevant time, a GCM was required to consist of a permanent president, not less than four serving military officers of at least three years’ military experience and a judge advocate (section 84D of the 1955 Act, prior to amendment by the 2001 Act). The Armed Forces Act 2001 (the “2001 Act”) has since inserted a new section 84D into the 1955 Act. The new section provides, inter alia, that membership of a GCM may include two (non-commissioned) warrant officers where the accused is a person of a rank below that of the warrant officers concerned. In giving evidence on 6 March 2001 to the Select Committee on this draft legislation, the Chief of the Defence Staff stated: “There are some areas where [the Bill] will improve the way we actually conduct our discipline. The idea, for example, of having warrant officers able to sit on courts-martial gives us the opportunity to use the experience of these excellent people within the service, and I am sure that will be perceived as a good thing, which in turn must reflect on the overall discipline.”

train

001-103951

ENG

ESP

CHAMBER

CASE OF OTEGI MONDRAGON v. SPAIN

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

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

6. The applicant was born in 1956. At the time the application was lodged he lived in Elgoibar (Gipuzkoa). 7. At the time of the events, the applicant was spokesperson for Sozialista Abertzaleak, a left-wing Basque separatist parliamentary group in the Parliament of the Autonomous Community of the Basque Country. 8. On 21 February 2003, following an order issued by central investigating judge no. 6 of the Audiencia Nacional, the premises of the daily newspaper Euskaldunon Egunkaria were searched and then closed, on account of the newspaper’s alleged links with the terrorist organisation ETA. Ten persons were arrested, including the newspaper’s senior managers (members of the board and the editor-in-chief). After spending five days in secret detention the persons concerned complained that they had been subjected to ill-treatment in police custody. 9. On 26 February 2003 the President of the Autonomous Community of the Basque Country received the King of Spain at the opening of an electricity power station in the province of Biscay. 10. At a press conference held the same day in San Sebastián, the applicant, as spokesperson for the Sozialista Abertzaleak parliamentary group, outlined his group’s political response to the situation concerning the newspaper Euskaldunon Egunkaria. Replying to a journalist he said, with reference to the King’s visit to the Basque Country, that “it [was] pathetic”, adding that it was “a genuine political disgrace” for the President of the Autonomous Community of the Basque Country to be inaugurating the project with Juan Carlos of Bourbon and that “their picture [was] worth a thousand words”. He went on to say that inaugurating a project with the King of the Spaniards, who was the Supreme Head of the Civil Guard (Guardia Civil) and the Commander-in-Chief of the Spanish armed forces, was absolutely pitiful. Speaking about the police operation against the newspaper Euskaldunon Egunkaria, he added that the King was in charge of those who had tortured the persons detained in connection with the operation. He spoke in the following terms: “How is it possible for them to have their picture taken today in Bilbao with the King of Spain, when the King is the Commander-in-Chief of the Spanish army, in other words the person who is in charge of the torturers, who defends torture and imposes his monarchical regime on our people through torture and violence?” 11. On 7 April 2003 the public prosecutor lodged a criminal complaint against the applicant for “serious insult against the King” within the meaning of Article 490 § 3 of the Criminal Code read in conjunction with Article 208, on account of his remarks made on 26 February 2003. 12. In the proceedings before the Basque Country High Court of Justice, which had jurisdiction to try the applicant because of his status as a member of parliament, the applicant argued that his remarks had constituted political criticism directed against the Head of the government of the Basque Country. He added that to say that the King of Spain was the Supreme Head of the Civil Guard did not imply any intention to undermine dignity or honour; it was merely a statement of the political reality in the Spanish State, where the King exercised supreme command over the armed forces. The applicant further argued that there was no insult or attempt to dishonour in saying that the Civil Guard had tortured the persons detained in connection with the closure of the newspaper Euskaldunon Egunkaria because that was the reality, and proceedings had been instituted in that connection before the Madrid investigating judge no. 5. Numerous public figures had also commented on the subject. In sum, the applicant, as a politician, had sought to express political criticism in the context of freedom of expression, one of the foundations of the rule of law and democracy. He pointed out in that regard that politicians had greater freedom of manoeuvre when it came to informing society about matters of public interest. 13. In a judgment of 18 March 2005, the High Court of Justice found the applicant not guilty of the charges against him. After stating that his remarks had been “clearly offensive, improper, unjust, ignominious and divorced from reality”, the court found as follows: “... This is not an issue concerning the private life of the Head of State but one of rejection of the ties of political power deriving from the hereditary nature of the institution which he personally symbolises. ... [C]riticism of a constitutional institution is not excluded from the scope of the right to freedom of expression; in this case the latter has the status of a constitutional right which takes precedence over the right to honour. The Constitution does not guarantee the right to freedom of expression solely in relation to certain points of view that are considered correct, but in relation to all ideas, subject to the limits which it lays down ...” 14. The High Court of Justice summed up as follows: “[T]he [applicant’s] remarks were made in a public, political and institutional setting, regard being had not only to the speaker’s status as a member of parliament but also to the authority to which they were addressed, namely the State’s highest judicial authority, and to the context of political criticism of the [Head of the government of the Basque Country] for his official hospitality in receiving His Majesty King Juan Carlos I in the wake of the closure of the newspaper [Euskaldunon] Egunkaria and the detention of its senior managers, and the latter’s public allegations of illtreatment. This context is therefore unconnected to the innermost core of individual dignity protected by law from any interference by third parties.” 15. The public prosecutor lodged an appeal on points of law, arguing firstly that the law protected the honour of the King as a specific individual possessed of personal dignity, who had been the object of the offence of insult, and secondly that the law was aimed at ensuring respect for the symbolic content of the institution of the Crown as established by the Spanish Constitution and “represented by the Head of State, the symbol of its unity and permanence”. The seriousness of the offence could be inferred from the fact that the legislature had sought to afford increased protection to the dignity of the King, including vis-à-vis other public authorities (Articles 496 and 504 of the Criminal Code). Furthermore, the inviolability of the King, as proclaimed in Article 56 § 3 of the Constitution, demonstrated the unique position occupied by the Crown in the system of the 1978 Spanish Constitution. That constitutional position highlighted the disproportionate nature of the vexatious and insulting remarks made by the applicant. In the view of the public prosecutor, who referred several times to the case-law of the Strasbourg Court, it was clear that the King had been performing official duties and that he was a figure in the public eye; however, that did not deprive him of the right to respect for his honour. In that regard, the public prosecutor pointed out that Article 20 § 1 (a) of the Constitution did not protect a supposed right to proffer insults. Drawing a parallel with the special protection to be afforded under Article 10 § 2 of the Convention to the judiciary, the public prosecutor further argued that the same protection should be afforded to the Head of State, who was the “symbol of the unity and permanence of the State” and was above party politics, from the “destructive and baseless attack” constituted by the applicant’s remarks. Lastly, in the public prosecutor’s view, the applicant’s remarks could be said to amount to “hate speech” within the meaning of the Court’s caselaw, given the existing situation with regard to terrorist attacks. 16. In two judgments delivered on 31 October 2005, the Supreme Court set aside the judgment of the lower court, making several references to the Court’s case-law. It sentenced the applicant to one year’s imprisonment, suspended his right to stand for election for the duration of the sentence and ordered him to pay costs and expenses, on the ground of his criminal liability for the offence of serious insult against the King. The Supreme Court considered the impugned remarks to have been value judgments rather than statements of fact. The remarks, described as “ignominious” by the lower court, had expressed contempt for the King and the institution he represented, affecting the innermost core of his dignity by accusing him of one of the most serious manifestations of criminal conduct in a State governed by the rule of law. The exercise of the right to freedom of expression had therefore been contrary to the principle of proportionality and had been unnecessary, overstepping the limits beyond which criticism could be deemed to be hurtful or upsetting. The Supreme Court further observed that the context in which the remarks had been made did nothing to alter their offensiveness. Firstly, the proceedings relating to the complaints of ill-treatment of the persons detained in connection with the operation against the newspaper Euskaldunon Egunkaria had been discontinued for lack of evidence. Secondly, the impugned remarks could not be construed as a reaction or response to a political debate with the King. In view of the seriousness of the insulting comments and the fact that the applicant had deliberately expressed them in public, the Supreme Court sentenced him to one year’s imprisonment. 17. Judge P.A.I. issued a dissenting opinion in which he argued that the comments complained of had been of a political nature, in view of the applicant’s status as a member of parliament and the context in which they had been made, namely the King’s visit to the Basque Country and the attitude of the Head of the government of the Basque Country in that regard. The judge agreed with the Basque Country High Court of Justice that the remarks had not targeted the King’s private life or his personal honour but had been directed solely at his institutional role as Commander-in-Chief of the Spanish armed forces. The applicant had not claimed that the King was responsible for actual acts of torture, only that he was strictly liable as Head of the State apparatus. The judge pointed out that the limits of freedom of expression were wider with regard to institutions since the latter did not possess honour, an attribute that was confined to individuals. 18. The applicant lodged an amparo appeal with the Constitutional Court alleging, inter alia, a breach of his right to freedom of expression (Article 20 § 1 (a) of the Constitution) and of his right to freedom of ideas (Article 16 of the Constitution). 19. In the applicant’s view, the Supreme Court’s judgment had incorrectly weighed the competing interests at stake, as the comments complained of had not contained any insulting or vexatious expressions, had been directed principally against the President of the Autonomous Community of the Basque Country rather than the King of Spain and, in any event, had reflected the reality of the situation and had not referred to the King’s private life or his attitudes. The statements in question had not been disproportionate in the context in which they had been uttered, namely the warm welcome extended to the King of Spain by the government of the Basque Country in the wake of the closure of the daily newspaper Euskaldunon Egunkaria and, in connection with that closure, the detention of several individuals who had stated before the courts and the Basque Parliament that they had been tortured. 20. In a decision (auto) of 3 July 2006, served on 11 July 2006, the Constitutional Court declared the applicant’s amparo appeal inadmissible as manifestly devoid of constitutional content. The Constitutional Court noted at the outset that the right to freedom of expression did not encompass a right to proffer insults. It pointed out in that connection that the Constitution did not prohibit the use of hurtful expressions in all circumstances. However, freedom of expression did not protect vexatious expressions which, regardless of their veracity, were offensive and ignominious and were not pertinent for the purpose of conveying the opinions or information in question. 21. The Constitutional Court considered that the weighing of the competing rights at stake had been carried out in an appropriate manner by the Supreme Court, as the latter had concluded that the impugned remarks had been disproportionate, while taking into account the context in which they had been made, the public nature of the act, the public interest in the subject in question (the use of torture) and the fact that the persons targeted (a politician and the King) were public figures. In the Constitutional Court’s view, there was no denying the ignominious, vexatious and derogatory nature of the impugned remarks, even when directed against a public figure. That finding was all the more valid with regard to the King, who, by virtue of Article 56 § 3 of the Constitution, was “not liable” and was a “symbol of the unity and permanence of the State”. Regard being had to his role as “arbitrator and moderator of the lawful functioning of institutions”, the King occupied a neutral position in political debate. This implied that he was owed institutional respect of a kind that was “substantively” different from that due to other State institutions. The Constitutional Court stated as follows: “... [I]n a democratic system which recognises freedom of ideas and freedom of expression, the fact that [the figure of the King] is characterised in this way does not shield him from all criticism ‘in the exercise of his duties or on account of or in connection with them’ ...; however, such criticism may not extend to attributing acts of public authority to the King – which, as indicated above, is prohibited by the Constitution – as a pretext for gratuitous attacks on his dignity or public esteem.” 22. Lastly, the Constitutional Court held that the applicant’s remarks, on account of their obviously derogatory nature, had clearly gone beyond what could be considered legitimate. It agreed with the Supreme Court that the remarks had expressed open contempt for the King and the institution he embodied, affecting the essential core of his dignity. Hence, such statements could manifestly not fall within the exercise of the right to freedom of expression. 23. In a decision (auto) of 15 May 2006, the Basque Country High Court of Justice ordered that enforcement of the applicant’s sentence be stayed for three years. According to the Government, his sentence was remitted on 16 July 2009. 24. The applicant was imprisoned on 8 June 2007 after the Supreme Court upheld a judgment of the Audiencia Nacional of 27 April 2006 sentencing him to fifteen months’ imprisonment for publicly defending terrorism. 25. He is currently in pre-trial detention in connection with other criminal proceedings. 26. The relevant provisions of the Spanish Constitution read as follows: “Spaniards shall be equal before the law; they may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” “1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law. ...” “1. The following rights shall be recognised and protected: (a) the right freely to express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction; ... 2. The exercise of these rights may not be restricted by any prior censorship. ... 4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children. ...” “1. The King shall be the Head of State, the symbol of its unity and permanence. He shall be the arbitrator and moderator of the lawful functioning of institutions. He shall be the supreme representative of the Spanish State in its international relations, in particular with those nations belonging to its historic community, and shall exercise the functions expressly attributed to him by the Constitution and the law. ... 3. The King shall be inviolable and shall not be liable. ...” “It shall be incumbent on the King to: ... (h) exercise supreme command over the armed forces; (i) exercise the right of clemency in accordance with the law, but without the power to grant general pardons ...” 27. The relevant provisions of the Criminal Code (as amended by Institutional Act no. 10/1995 of 23 November 1995) read as follows: “Acts or expressions which undermine another’s dignity by attacking his or her reputation or self-esteem shall constitute insult. Only insults which, by virtue of their nature, effects and context, are generally acknowledged to be serious shall constitute an offence ...” “The offence of serious public insult shall be punishable by a day-fine payable for between six and fourteen months. Where the insult is not proffered publicly, the fine shall be payable for between three and seven months.” 28. With regard to the offence of insult against the King, Article 490 of the Criminal Code provides for the penalties indicated below: “... 3. Anyone who falsely accuses or insults the King or any of his ascendants or descendants, the Queen consort or the consort of the Queen, the Regent or any member of the Regency, or the Crown Prince, in the exercise of his or her duties or on account of or in connection with them, shall be liable to a term of imprisonment of between six months and two years if the false accusation or insult is of a serious nature, and otherwise to a day-fine payable for between six and twelve months.” This provision is contained in Title XXI of Book II of the Criminal Code (“Offences against the Constitution”), under Chapter II (“Offences against the Crown”). 29. Articles 496 and 504 of the Criminal Code deal with the offence of serious insult against Parliament, the government or other State institutions. These provisions feature in Title XXI of Book II of the Criminal Code (“Offences against the Constitution”), under Chapter III (“Offences against State institutions and the separation of powers”). “Anyone who seriously insults the Cortes Generales [Congress of Deputies and Senate] or the legislative assembly of an Autonomous Community ... shall be liable to a day-fine payable for between twelve and eighteen months ...” “Anyone who seriously threatens, falsely accuses or insults the nation’s government, the General Council of the Judiciary, the Constitutional Court, the Supreme Court, or the Governing Council or High Court of Justice of an Autonomous Community shall be liable to a day-fine payable for between twelve and eighteen months ...” 30. Reference should first be made to the Declaration on freedom of political debate in the media adopted by the Committee of Ministers of the Council of Europe on 12 February 2004, which provides: “The Committee of Ministers of the Council of Europe, ... Conscious that some domestic legal systems still grant legal privileges to political figures or public officials against the dissemination of information and opinions about them in the media, which is not compatible with the right to freedom of expression and information as guaranteed by Article 10 of the Convention; ... II. Freedom to criticise the State or public institutions The State, the government or any other institution of the executive, legislative or judicial branch may be subject to criticism in the media. Because of their dominant position, these institutions as such should not be protected by criminal law against defamatory or insulting statements. Where, however, these institutions enjoy such a protection, this protection should be applied in a restrictive manner, avoiding in any circumstances its use to restrict freedom to criticise. Individuals representing these institutions remain furthermore protected as individuals. ... VI. Reputation of political figures and public officials Political figures should not enjoy greater protection of their reputation and other rights than other individuals, and thus more severe sanctions should not be pronounced under domestic law against the media where the latter criticise political figures. ... ... VIII. Remedies against violations by the media Political figures and public officials should only have access to those legal remedies against the media which private individuals have in case of violations of their rights by the media. ... Defamation or insult by the media should not lead to imprisonment, unless the seriousness of the violation of the rights or reputation of others makes it a strictly necessary and proportionate penalty, especially where other fundamental rights have been seriously violated through defamatory or insulting statements in the media, such as hate speech.” 31. Parliamentary Assembly Resolution 1577 (2007), entitled “Towards decriminalisation of defamation”, is worded as follows: “... 11. [The Assembly] notes with great concern that in many member States the law provides for prison sentences for defamation and that some still impose them in practice – for example, Azerbaijan and Turkey. ... 13. The Assembly consequently takes the view that prison sentences for defamation should be abolished without further delay. In particular it exhorts States whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms. ... 17. The Assembly accordingly calls on the member States to: 17.1. abolish prison sentences for defamation without delay; 17.2. guarantee that there is no misuse of criminal prosecutions ...; 17.3. define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation; ... 17.6. remove from their defamation legislation any increased protection for public figures, in accordance with the Court’s case-law ...”

train

001-59998

ENG

AUT

CHAMBER

CASE OF BUCHBERGER v. AUSTRIA

Violation of Art. 8;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

Georg Ress

9. The applicant is the mother of two children: T., born on 8 April 1993, and A., born on 17 December 1994. 10. On 31 March 1995 the Youth Welfare Office (Jugendwohlfahrtsträger) at the Linz-Land District Administrative Authority (Bezirkshauptmannschaft), pursuant to section 215 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch), took T. and A. provisionally into their care. It noted that on the morning of that day, the applicant, who delivers newspapers, had come back late from work and her children had been at home without supervision for approximately 45 minutes. The applicant’s neighbour, who had seen T. alone in the garden at around 8.30 a.m., had contacted the District Administrative Authority. The Youth Welfare Office placed the children with a socio-pedagogical facility in Salzburg for an evaluation of their development. 11. On 4 April 1995 the Youth Welfare Office requested the formal transfer of the custody of the children to it before the Enns District Court (Bezirksgericht). The Youth Welfare Office, relying on section 215 of the Civil Code, claimed that the living conditions of the children were chaotic. It did not submit a formal statement of reasons, but promised to do so later. 12. On 24 April 1995 the applicant, assisted by counsel, requested the District Court to order the Youth Welfare Office to return T. and A. to her. 13. On 10 May 1995 the District Court rejected the Youth Welfare Office’s request and ordered that T. and A. be promptly returned to their mother’s custody. The District Court found that the removal of the children from their mother was unlawful, as the Youth Welfare Office had failed to submit a formal statement of reasons giving arguments in support of the children’s removal and the transfer of their custody. The court observed that, without such a statement, it could not take the evidence necessary to verify whether the Youth Welfare Office’s request was well-founded. Consequently, the court was not in a position to decide on the merits. 14. On 11 May 1995 the Youth Welfare Office appealed and refused to give T. and A. back to their mother. On 16 May 1995 it supplemented its appeal arguing that the applicant was incapable of bringing up T. and A. It submitted that on the early morning of 31 March 1995 the children had been at home alone. T. was wandering about in the garden alone at 0°C, wearing only pyjamas. In support of its arguments, the Youth Welfare Office filed, inter alia, a fax of the Enns rural police (Gendarmerieposten) of 31 March 1995, certificates of 5 April 1995 concerning the children’s condition of health issued by a medical officer (Amtsarzt), and the transcripts of the statements of the applicant’s neighbour before the District Administrative Authority. 15. On 6 June 1995 the Steyr Regional Court (Landesgericht) quashed the District Court’s decision and remitted the case back to the District Court, instructing the latter to take a new decision after having supplemented its proceedings (Verfahrensergänzung). The Regional Court found that, taking the ex officio character of the custody proceedings (Pflegschaftsverfahren) into account, it had been for the District Court to investigate the facts sufficiently in order to reach a decision. In particular the Youth Welfare Office should have been given the opportunity to correct its procedural mistake by submitting a formal statement of reasons. 16. On 27 June 1995 the Salzburg socio-pedagogical centre (Sozialpädagogisches Zentrum) submitted a report to the Enns District Court. 17. On 28 June 1995 the applicant was heard with regard to the events of 31 March 1995. She submitted that on the morning of that day, she had suffered from a migraine attack and therefore had been unable to return home in time. Normally she returned before her seventeen-year old son, H., who also lived with her, left for work. That day she had unsuccessfully tried to contact a friend of hers to look after her children. 18. On 30 June 1995 the District Court heard the father of T. and A., who did not live with them. He was opposed to the transfer of custody to the Youth Welfare Office as he considered that the applicant took care of the children satisfactorily. He himself was not in a position to take care of them. 19. On 31 July 1995 the District Court again dismissed the Youth Welfare Office’s request for the transfer of custody but ordered the applicant to undergo family therapy together with her children and their father. It instructed the Youth Welfare Office to ensure that the applicant complied with this condition. In refusing the transfer of custody, the District Court relied, inter alia, on the public health officer’s certificates according to which A. had been in a good physical and psychological state, as well as T., although the medical officer had also found a retardation in the latter’s linguistic skills and striking deficiencies in his social behaviour. The applicant’s approach to her children was positive in general. According to the District Court, there existed no danger that the incident of 31 March 1995 could recur, because two persons, Mr K. and Ms L., had accepted to look after A. and T. in case the applicant should come home late from work. 20. The District Court found that, under sections 176 a and 178 a of the Civil Code, the right of custody may only be withdrawn if the child’s well-being was endangered and if this was substantiated by compelling arguments. The court noted that the living conditions at the applicant’s place were below average. Nevertheless the children’s well-being was not in danger. The incident which led to the taking away of T. and A. was a unique one and the applicant cared sufficiently for her children, having regard both to their psychological and physical well-being. Moreover the applicant still breast-fed A. The court concluded that the requested transfer of custody was not justified. 21. On 31 July 1995 the Youth Welfare Office appealed. The Office argued, inter alia, that Mr K., a former life-companion of the applicant, was unsuitable to look after the children and that Ms L. had informed the District Administrative Authority that she had never promised the applicant to look after the children nor was she prepared to do so. 22. In the course of the appeal proceedings, the Youth Welfare Office submitted further evidence, namely a report dated 16 August 1995 with several annexes. Furthermore, the Regional Court obtained several court files all concerning the applicant: one file concerning custody proceedings relating to her son R., one concerning criminal proceedings against P.F. and the applicant for ill treatment of her son R., and one concerning eviction proceedings against the applicant. This evidence was not communicated to the applicant. 23. On 16 August 1995 the Steyr Regional Court granted the appeal and transferred custody of the applicant’s children to the Youth Welfare Office, pursuant to section 176 a of the Civil Code. The Regional Court found that the taking of evidence by the court of first instance had been incomplete. Since the courts had the obligation to safeguard the well-being of the children, it was necessary to decide not merely on the basis of the evidence which existed at first instance but to take into account all subsequent developments and, if necessary, to re-assess the evidence or to supplement the investigations. 24. On the basis of the evidence meanwhile obtained, the Regional Court found that the well-being of T. and A. would not be safeguarded if they were to stay with their mother. The children’s living conditions were desolate and chaotic; the applicant was apparently not willing to co-operate with the Youth Welfare Office and she did not make any efforts to undergo therapy, together with the children, as had been ordered by the District Court in its decision of 31 July 1995. Moreover, T. and A. no longer stayed with the applicant but with her “ex-companion”, as the applicant was due to be evicted from her apartment on 31 August 1995. As from 1 August 1995 the applicant had rented a house in Lambach. According to information obtained from the owner, the house was extremely desolate and hardly fit for habitation. On a visit to Lambach by a staff member of the Youth Welfare Office on 16 August 1995, the applicant had not permitted the official to enter her home on the grounds of desolate living conditions and the decrepit state of the building. She did not disclose the identity of the friend with whom she had placed the two children T. and A. in Linz. 25. The Regional Court also noted that the applicant’s elder sons, R. and H., had been placed in a children’s home from September 1989 to July 1991 as the applicant had not taken adequate care of them. After returning to the applicant, R. had been subject to systematic and repeated abuse by P.F., the applicant’s then companion, who had almost daily beaten R. and had treated him in a degrading manner. In 1993 R. had been committed to hospital because of injuries inflicted on him by P.F. Thereupon criminal proceedings against the applicant and P.F. for abuse of minors had been instituted. In November 1994 P.F. had been convicted of this offence and sentenced to six months’ imprisonment. The applicant had been acquitted. At the same time, custody of R. had been transferred to the Youth Welfare Office. He was no longer living with the applicant. In the Regional Court’s view these events, even though the applicant had been acquitted of the criminal charges, showed that she was incapable of effectively caring for her children. Having regard to the abuse and suffering of R., it was implausible that she had not noticed anything. 26. The Regional Court also considered that, having regard to the retardation in T.’s development and the deficiencies in his social behaviour, there was no guarantee that either he or his brother A. would develop normally if they were to remain with their mother. 27. On 9 November 1995, the Supreme Court (Oberster Gerichtshof) rejected the applicant’s extraordinary appeal on points of law (außerordentlicher Revisionsrekurs) on the ground that the case did not involve questions of law of fundamental importance. 28. Under section 215 § 1 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), the competent Youth Welfare Office shall apply for court orders regarding questions of custody which are necessary in order to ensure a child’s well-being. In case of imminent danger, the Youth Welfare Office shall also make the necessary provisional arrangements concerning care and custody until the competent court has decided. 29. Under section 176 a of the Civil Code, the competent court shall transfer custody to the Youth Welfare Office, even against the wish of the parents, if the well-being of a child is at risk and it is necessary to remove the child from his or her habitual environment, unless the child can be placed with a relative or other qualified persons close to the child.

train

001-67457

ENG

FIN

CHAMBER

CASE OF KARHUVAARA AND ILTALEHTI v. FINLAND

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

Nicolas Bratza

7. The first applicant was born in 1954 and lives in Helsinki, Finland. The second applicant (“the applicant company”) is a limited liability company based in Helsinki. 8. The applicant company publishes a newspaper called Iltalehti which has a circulation of approximately 120,000. On 31 October 1996 it published an article on a criminal trial concerning the drunken and disorderly behaviour, including an assault on a police officer, of Mr A., a lawyer practising in Seinäjoki. The article bore the title “His wife [is] the chairperson of the parliamentary Committee for Education and Culture – Lawyer from Seinäjoki hits policeman in restaurant” (“Vaimo eduskunnan sivistysvaliokunnan puheenjohtaja – Seinäjokelainen asianajaja iski poliisia ravintolassa”). Follow-up articles were published on 21 November and 10 December 1996 concerning the verdict whereby the defendant was convicted and sentenced to six months’ suspended imprisonment. It was reported that the defendant was the husband of Mrs A., a member of the Finnish parliament and the chairperson of its Committee for Education and Culture. The headline on 21 November read “... Husband of member of parliament hits policeman in restaurant” (“... Kansanedustajan aviomies löi poliisia ravintolassa”). The heading on 10 December 1996 read “... Husband of member of parliament receives harsh sentence for violence in restaurant” (“... Kansanedustajan miehelle kova tuomio ravintolassa riehumisesta”). 9. The trial of Mr A. had been widely publicised and discussed locally, and the role of Mrs A. – who was in no way involved in the criminal proceedings – had become the subject of, inter alia, political satire in a programme (“Iltalypsy”) broadcast on the main national television channel. 10. In April 1997 Mrs A., who did not dispute the facts as presented by Iltalehti, instituted proceedings against the applicants and two of the journalists involved on the grounds that the reporting by Iltalehti had been libellous and had invaded her privacy. She requested that the respondents be punished for invasion of privacy and defamation, and claimed compensation for non-pecuniary damage caused by the articles. Moreover, she relied on section 15 of the Parliament Act then in force (valtiopäiväjärjestys, riksdagsordningen) which stipulated that members of parliament as well as parliamentary officials were to enjoy special protection in the performance of their duties and for the duration of parliamentary sessions. Criminal offences, in the form of words or physical acts, that violated the rights of members of parliament or officials while Parliament was in session, or subsequent physical violence, were to be regarded as being committed in particularly aggravating circumstances. According to Mrs A., this provision was applicable both in relation to the criminal charges and in determining the amount of damages in her case. She argued that the articles had caused her particular suffering as she had been publicly associated with a criminal act that was in no way connected to her person or function as member of parliament. 11. As editor-in-chief of Iltalehti the first applicant, Mr Karhuvaara, admitted to being superficially aware of the type of material published but denied any detailed prior knowledge of the specific material in question. According to section 32 of the Freedom of the Press Act then in force (painovapauslaki, tryckfrihetslag; 1/1919, replaced by Act no. 460/2003 in 2004), an editor-in-chief was ultimately responsible for any original material published in his newspaper or periodical, regardless of whether he had in fact been aware of its contents. The defendants also argued that they had only mentioned in their articles that Mrs A. was married to Mr A., a fact which was not denied by Mrs A. She had not been otherwise mentioned in the articles. Moreover, the case had already been reported locally and their article contained no new information as such. They also argued that a member of parliament, as a public political figure, must tolerate more from the media than an “average citizen” and that it was particularly disturbing that a member of parliament was trying to limit the defendants’ freedom of expression. 12. On 27 March 1998 the Vantaa District Court (käräjäoikeus, tingsrätten) convicted the first applicant and the two other journalists on one count of invasion of privacy under particularly aggravating circumstances within the meaning of section 15 of the Parliament Act. The first applicant was ordered to pay eighty day-fines, amounting to 47,360 Finnish markkas (FIM) (approximately 7,965 euros (EUR)). The two other journalists were both ordered to pay fines amounting to approximately EUR 840. In addition, all the defendants, including both applicants, were ordered to pay damages as requested by the plaintiff (jointly and severally with a co-defendant, FIM 75,000 with interest from 31 October 1996, and jointly and severally with another co-defendant, FIM 100,000 with interest on FIM 50,000 from 21 November 1996 and with interest on FIM 50,000 from 10 December 1996), namely,. a total of FIM 175,000 (approximately EUR 29,400). All the defendants were ordered to reimburse Mrs A. jointly and severally in respect of her legal expenses of FIM 72,109 (EUR 12,128) with interest from 27 April 1998. The defamation charges were dropped. 13. The District Court found that, as a whole, the banner headlines, the front pages and the articles themselves were published with the purpose of drawing the readers’ attention principally to Mr A.’s marital relationship with Mrs A. and not with the purpose of depicting the events as such. It further found that the highlighted publication of Mrs A.’s name, picture and professional status was in no way necessary in order to report on the criminal trial of Mr A. It acknowledged that the protection of the private life of Mrs A., as a member of parliament, was narrower than that of other persons, but only in so far as the matters in question were connected to her public functions and there was a public interest justifying their publication. The fact that the conviction of the spouse of a politician could affect people’s voting intentions did not in itself render the matter of public interest such as to justify the publication. The District Court held that the fact that the actions of the plaintiff’s husband and the criminal proceedings against him had been well known in their home district and the fact that the local newspapers had been reporting the matter had no bearing on the defendants’ liability. According to the judgment, it was the nationwide publicity accorded by Iltalehti and the resultant infringement of the plaintiff’s protected private domain that had essentially constituted the criminal offence in question. It further held that, although the reasons underlying section 15 of the Parliament Act could be regarded as outdated, it was a mandatory provision, leading to conviction for an offence categorised as aggravated. As to the determination of the amount of compensation for suffering, the District Court noted that the plaintiff herself, especially as she was also a doctor and thus an expert, was best placed to assess her own situation and the damage she had sustained. 14. On 3 December 1998 the Helsinki Court of Appeal (hovioikeus, hovrätten) dismissed the joint appeal of the defendants and upheld the District Court’s judgment without any observations on the merits of the case, save for a minor correction of the lower court’s statement as to the alleged unlawful benefit accruing to the publishers. The Court of Appeal added that regardless of this correction the damages awarded to the plaintiff were not to be considered excessive. 15. On 25 May 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the defendants leave to appeal. 16. Section 8(1) (969/1995) of the 1919 Constitution (Suomen hallitusmuoto, regeringsformen för Finland), as in force at the relevant time, stipulated that the private life, honour and home of every person was to be protected. This provision corresponds to section 10 of the 2000 Constitution (perustuslaki, grundlagen; Act no. 731/1999), which came into force on 1 March 2000. 17. Section 10(1) (969/1995) of the 1919 Constitution, as in force at the relevant time, afforded everyone the right to freedom of expression. Freedom of expression entailed the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. This provision corresponds to Article 12 of the 2000 Constitution. 18. Section 15(1) of the Parliament Act (valtiopäiväjärjestys, riksdagsordningen), as in force at the relevant time, read as follows: “If a person, either in the course of a parliamentary session or while a member of parliament is travelling to or from Parliament, abuses the said member of parliament by any word or deed, knowing that the person so abused is a member of parliament, or if a person assaults a member of parliament after a parliamentary session because of the manner in which he or she has carried out his or her duties, the fact that the victim of the offence was a member of parliament shall be deemed to be a seriously aggravating circumstance.” This provision was later repealed by the 2000 Constitution (section 131). 19. Chapter 27 (908/1974), section 3a, of the Penal Code (rikoslaki, strafflagen), as in force at the relevant time, read as follows: “A person who unlawfully, through the use of the mass media or in another similar manner, publicly spreads information, an insinuation or an image depicting the private life of another person, such as to cause him or her damage or suffering, shall be convicted of invasion of privacy and sentenced to a maximum term of imprisonment of two years or to a fine. A publication that deals with a person’s behaviour in a public office or function, in professional life, in a political activity or in another comparable activity, shall not be considered an invasion of privacy if the reporting was necessary for the purpose of dealing with a matter of importance to society.” 20. According to the Government, persons in respect of whom the protection of private life is narrower in scope include public officials, politicians and persons with important positions in the business world (government bill, HE 239/1997, p. 32). 21. Chapter 27, section 3a, of the Penal Code was repealed in 2000 by section 8 of Chapter 24 (531/2000), which reads as follows: “Dissemination of information violating private life: A person who unlawfully (1) through the use of the mass media, or (2) in another manner publicly spreads information, an insinuation or an image of the private life of another person, such that the act is likely to cause that person damage or suffering, or subject that person to contempt, shall be convicted of damaging personal reputation and sentenced to a fine or a maximum term of two years’ imprisonment. The spreading of information, an insinuation or an image of the private life of a person in politics, business, public office or a public position, or in a comparable position, shall not constitute damage to personal reputation, if it may affect the evaluation of that person’s activities in the position in question and if it is necessary for the purposes of dealing with a matter of importance to society.” 22. According to a report by the parliament’s Law Committee (lakivaliokunta, lagutskottet), functions in respect of which the protection of private life is, under paragraph 2, narrower in scope, include political functions, business functions, and public functions or duties. Information on the private life of persons having such functions may be disclosed where the information may affect the assessment of the performance of their duties. Furthermore, the person’s consent to the disclosure of the information is relevant to the assessment of the lawfulness of the interference. Without explicit consent, there is usually no reason to believe that the person in question would have consented to the publication of information relating to their private life (see the report of the Law Committee, pp. 4-6). 23. According to section 39 (909/1974) of the 1919 Freedom of the Press Act (as in force at the relevant time), the Tort Liability Act was to be applied to the payment of compensation for damage resulting from the content of printed works. 24. Under the terms of Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; 412/1974), damages may also be awarded for the distress arising from an offence against someone’s liberty, honour or domestic peace or from another comparable offence. According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed. 25. Chapter 17, section 6 (571/1948), of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provides that if the issue relates to the quantum of damages and no evidence is available, or if evidence can only be presented with difficulty, the court shall have the power to assess the quantum having regard to what is reasonable. 26. On 11 June 1997 the Supreme Court delivered two judgments relating to articles which had given information on cases of arson. The first judgment (KKO 1997:80) concerned a newspaper article (summary from the Supreme Court’s Yearbook): “A newspaper published an article concerning cases of arson, in which it was said that the suspect was the wife of the head of a local fire department. As it was not even alleged that the head of the fire department had any role in the events, there was no justifiable reason for publishing the information on the marriage between him and the suspect. The publisher, the editor-in-chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life.” 27. The other judgment (KKO 1997:81) concerned an article published in a periodical, which was based on the aforementioned newspaper article (see paragraph 26 above) and on the records of the pre-trial investigation and the court proceedings, but did not indicate that the newspaper article had been used as a source (summary from the Yearbook): “Compensation was ordered to be paid for the reason that the article violated the right to respect for private life. Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation of the fact that the information had been reported in another publication at an earlier stage.” The article published in the periodical had also mentioned the name and profession of the head of the fire department, although the offence was not related to the performance of his duties. Thus, it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence. The Supreme Court considered that the fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure, before publishing the information again, that the article did not contain information insulting the persons mentioned in it. The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical. The Supreme Court further found that repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. The readers of the newspaper and the periodical were partly different, and the circulation of the newspaper apparently did not entirely coincide with that of the periodical. Therefore, and considering the differences in the content and tone of the articles, the Supreme Court found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering. The publisher and its partners were ordered jointly to pay FIM 100,000 (EUR 16,819) plus interest for the mental suffering caused to the head of the fire department. According to the Supreme Court, the events reported in the article did not concern the plaintiff’s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant’s name and profession for the purpose of discussing a matter involving significant public interest. It had not been necessary to refer to the complainant’s profession in order to report on the offences. By associating the complainant’s name and profession with the offences in question, the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering. The disclosure of the complainant’s name and the emphasis on his occupation had amounted to an insult. By again reporting on the matter two months after the events had occurred, the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid. 28. In another judgment (KKO 1980 II 123), the Supreme Court held as follows (summary from the Yearbook): “The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff’s consent. He was convicted of a violation of private life and ordered, jointly with the political organisations which had acted as publishers, to pay damages for mental suffering.”

train

001-88229

ENG

SWE

ADMISSIBILITY

A.J. v. SWEDEN

Inadmissible

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

1. The applicant is a Moroccan national who was born in 1979 and is currently in Sweden. He was represented before the Court by Mr A.-H. Alami, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr C. H. Ehrenkrona, of the Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 23 October 2002 the applicant entered Sweden and, on the following day, he applied to the Migration Board (Migrationsverket) for asylum and a residence permit. A first interview was scheduled in order to establish the grounds for the applicant’s request for asylum but he did not appear for this meeting. The Migration Board then called him to a new interview on 25 July 2003 which he attended. At the interview, the applicant claimed that he did not know where he had been born or raised and that he had never held a passport or an identification card. He did not know the whereabouts of his parents either but stated that he had been working as a shepherd in Western Sahara (a region under Moroccan authority). A friend, who had “felt sorry for him” and had wanted to give him the possibility of a better life, had helped him to leave his home country. 4. A language analysis, carried out in October 2003, showed that the applicant had tried to conceal his real dialect but that it still appeared from the test that he came from Morocco. He did not attend any further meetings with the Migration Board or his legal representative, despite being called repeatedly. 5. In April 2004 the Swedish Security Police (Säkerhetspolisen), in a submission to the Migration Board, stated that they had certain information about the applicant which indicated that he could become involved in activities that threatened the security of the nation. 6. On 9 November 2005 the Migration Board rejected the applicant’s application, essentially because he had failed to participate in the asylum investigation and had not stated that he risked being persecuted or harassed in his home country. Thus, the Board concluded that the applicant himself did not feel that he was in need of protection in Sweden. Since the applicant had disappeared, the decision could not be communicated to him. 7. In August 2006 the applicant was apprehended by the Austrian police when he tried to enter the country with a fake French passport and holding an airplane ticket to Syria. He had tried to conceal his identity by giving two other names, different from that given to the Swedish authorities, to the Austrian authorities but they had discovered this. Consequently, in accordance with the Dublin Convention, the applicant was accepted back in Sweden on 9 November 2006 and placed in custody since he had absconded once before and thus there was a risk that he would try to evade enforcement of a decision on deportation. Moreover, he was informed of the Migration Board’s negative decision in regard to his asylum request lodged in October 2002. 8. On 20 November 2006 he lodged a new application for asylum and a residence permit with the Migration Board, alleging that since he was from Western Sahara and had left the country illegally, the Moroccan authorities would automatically assume that he was part of the Polisario Front (an armed, political organisation which fights for the independence of Western Sahara from Morocco) and therefore arrest and torture him. However, he specified that he had never been politically active or supported the Polisario Front. Moreover, he claimed that he should be considered as a refugee sur place since the Swedish Security Police had accused him of being involved in security-threatening activities and the Moroccan authorities surely knew about it and would arrest him on this basis as well. 9. The applicant was interviewed by the Migration Board on 22 November 2006 at which point he added, essentially, the following. He had not been raised by his parents and he did not know from which country he hailed but he was a citizen of Polisario, which should be understood as Western Sahara. He had no passport or identity documents. His foster father had wanted him to join the Polisario Front but he had not wanted this himself. He had not had any contact with the Moroccan authorities. While in Sweden, he had had no choice but to live with people that the Swedish Security Police held under surveillance since he had had nowhere else to live. When he had been apprehended in Austria, he had been on his way to work in Spain. The fact that his ticket was to Syria was a mistake. If forced to return to Morocco, he would risk being imprisoned because he was from Western Sahara and because of the people he had socialised with while in Sweden. 10. In a submission from the applicant’s representative, dated 27 November 2006, he stressed that the applicant was not a member of the Polisario Front. However, since he had left Western Sahara illegally without any travel documents, this was enough for the Moroccan authorities to consider him a member of the Polisario Front. Moreover, he refuted the Swedish Security Police’s allegations that he was a security threat to Sweden as groundless. 11. On 4 December 2006 the Migration Board rejected the application. It first noted that the applicant had provided no evidence to support either his identity or any of his grounds for asylum but that the language analysis had shown that he came from Morocco. It then noted that the Security Police had maintained their earlier submission to the Board and, in a new submission of 25 October 2006, had recommended that the applicant should not be allowed to remain in Sweden because they considered that he posed a security risk to the nation. The Board then observed that the situation in Western Sahara was unstable due to the conflict with the Moroccan authorities but that the situation in itself was not so serious that it could justify granting a person asylum in Sweden. As concerned the applicant’s situation, it found his allegations to be groundless. There was no indication that the Moroccan authorities would consider him a member of the Polisario Front or otherwise show any interest in him since there was nothing to suggest that the Moroccan authorities had knowledge of the Swedish Security Police’s concerns. Moreover, it noted that the applicant himself had stated that he was not involved in any activities of a political, or other, nature. Having regard to the Security Police’s submissions, which the Board did not question, and all the above considerations, the Board concluded that the applicant’s request for asylum and a residence permit should be rejected. 12. The applicant appealed against the Migration Board’s decision. Since the case involved national security matters, the Board transferred the appeal to the Migration Court of Appeal (Migrationsöverdomstolen) in order for that court to give its opinion on whether there were any impediments to the enforcement of the deportation order before the case, together with the court’s opinion, were passed on to the Government for examination (see below under relevant domestic law and practice, § 29). 13. Before the Migration Court of Appeal, the applicant maintained his earlier claims and added that he believed that the Swedish Security Police had informed their Moroccan counterpart, in accordance with international obligations, about him and their suspicions about him. Moreover, in March 2004, he and a friend had been arrested by the police in a mosque in Stockholm. He had been questioned but released later the same day and no charges had been brought against him. However, he was convinced that the Moroccan security police had been in the mosque at the time of the arrest and therefore would immediately detain and question him if he were deported to Morocco. 14. On 26 January 2007 the Migration Court of Appeal held an oral hearing in the case and, on 2 February 2007, it submitted its opinion on the matter to the Government for them to examine the case and make a final decision. In its submission, the court recommended that the applicant should not be granted leave to remain in Sweden and that he should, moreover, be prohibited from returning within the next ten years. It noted, inter alia, that there was nothing to suggest that the Moroccan authorities would show any interest in him and that the applicant himself had stated that he had never been politically active. It also considered that he was very unreliable and questioned the veracity of his accounts as his story had escalated over time. Thus, the court was of the opinion that the applicant was not in need of protection in Sweden, either as a refugee or as a person otherwise in need of protection. Furthermore, it presumed that the Swedish Security Police had not, and would not, handle the case in such a way that it would render the enforcement of the deportation order impossible. The applicant disputed the Migration Court of Appeal’s opinion and maintained his claims. He further added that court had not taken into consideration his connection to one of the persons he had socialised with in Sweden and that the Migration Board and the Swedish Security Police could not guarantee his safety in Morocco, if he were returned. 15. On 22 March 2007 the Government rejected the appeal and decided that he should be deported to Morocco as soon as possible and with a prohibition on returning to Sweden before 22 March 2017. They first noted that they did not question the Security Police’s information that the applicant could become involved in activities threatening the security of the nation. They then considered that he was not credible and that there was no indication that he would risk persecution or torture by the Moroccan authorities upon return. Therefore there were no grounds on which to consider him a refugee or otherwise in need of protection and no other reasons to grant him leave to remain in Sweden had been established. Having regard to the submission made by the Swedish Security Police, the Government also decided to prohibit the applicant from returning to Sweden for ten years. This decision was final. 16. Subsequently, the applicant applied to the Migration Board for a re-examination of his application for asylum and a residence permit on the grounds that new circumstances had come to light which rendered an enforcement of the deportation order impossible. However, on 4 April 2007, the Migration Board found that no new circumstances had been presented and that the deportation order could be enforced. The applicant did not appeal against this decision. 17. In the meantime, on 27 March 2007, the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his deportation to Morocco. On the following day, 28 March 2007, the Court decided to apply Rule 39 and to suspend the deportation until 10 April 2007, on which date it was extended until further notice and the case communicated to the Swedish Government. 18. Following the request by the Court, the Migration Board stayed the enforcement of the deportation order until further notice. 19. In a letter of 20 June 2007 the Government informed the Court that new information had come to light in the case which might constitute an impediment to the enforcement of the deportation order. 20. Consequently, in accordance with the relevant rules in the Aliens Act, on 29 June 2007, the Migration Board handed the case over to the Government for examination since it considered that, due to certain new information presented in an internal note by a civil servant at the Ministry of Justice, there appeared to be an impediment to the enforcement of the deportation order in the applicant’s case. In its view, there was now adequate reason (skälig anledning) to believe that the applicant would risk being tortured if returned to his home country. It noted that although the human rights situation in the country had improved and some police officers had been convicted for having committee torture, allegations of torture and impunity remained. 21. The Government requested the Migration Court of Appeal to submit its opinion on the case, which it did on 10 August 2007, after having held an oral hearing where the applicant and his representative were present as well as representatives for the Migration Board and the Security Police. In its opinion, the court stated that there were no impediments to the enforcement of the deportation of the applicant since it was not probable that the Moroccan authorities had an interest in the applicant and he therefore did not risk torture or inhuman treatment. 22. The applicant submitted in reply that the Migration Court of Appeal’s opinion was incorrect and that the Swedish Government could not guarantee his safety in Morocco. He further submitted a copy of a newspaper article about him in which his name was mentioned and there was a photo of him. The article had been published in the daily newspaper Svenska Dagbladet on 18 August 2007 and included the following information. The applicant claimed that he had never been interested in politics and that he hoped that the Swedish authorities would believe his assurances that he was not a terrorist. He had left Western Sahara, where he had grown up, because the Polisario Front had wanted him to join as a soldier but he had refused. In the article is was further stated that the main reason that the applicant was regarded as a security risk in Sweden, allegedly was that he had socialised with another person, X., who was suspected of having ties to Al-Qaida in Iraq and who had led a group of extremists from an apartment in Stockholm. The applicant claimed that he had needed a cheap place to sleep when he arrived in Stockholm and that X. had offered him a room in his apartment. However, they had never discussed politics and the applicant had moved out as soon as he had started working. However, while he was living in the apartment, he and X. had been awoken one morning by the Security Police who had detained and questioned them for half a day before they had been released. According to the applicant, the Security Police had focused on questioning him about X. He further stated that if he had seen anything suspicious, he would have told the police since he had come to Sweden for protection and therefore also wanted to protect Sweden. 23. On 19 September 2007 the Government decided that there were no impediments to the enforcement of the deportation order. Although some new information had come to light, these circumstances were not such as to render the deportation of the applicant unenforceable. Moreover, the fact that the applicant himself had chosen to make public his name and photo in one Swedish media after the Migration Court of Appeal had submitted its opinion to the Government, did not alter the Government’s conclusion in the matter. Finally, the Government reiterated that the enforcement of the deportation order was still suspended due to the Court’s request under Rule 39 of the Rules of Court. 24. The basic provisions mainly applied in the present case, concerning the right of aliens to enter and to remain in Sweden are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). 25. Chapter 5, Section 1 of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1 of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group, and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of 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 4, Section 2). 26. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2). 27. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19). 28. A refugee or an alien otherwise in need of protection may be refused a residence permit in certain cases. Such a decision may be taken if there are exceptional grounds for not granting a residence permit, either following an assessment of what is known about the alien’s previous activities or with regard to national security (Chapter 5, Section 1, paragraph 2, points 1 and 2). However, it follows from Chapter 8, Section 17 of the 2005 Act that no person at risk of being tortured may be refused a residence permit. 29. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3 and Chapter 16, Section 9 of the 2005 Act). However, in a so called security case (defined in Chapter 1, Section 7, as a case in which the Swedish Security Police, for reasons relating to national security or otherwise bearing on public security, recommend that an alien be deported or expelled, or that his or her application for a residence permit should be rejected or that an alien’s residence permit be withdrawn), a decision of the Migration Board on deportation, expulsion, a residence permit or a work permit may not be appealed against to the Migration Courts, but may instead be appealed against to the Government (Chapter 14, Section 11). The Migration Board shall promptly turn over an appeal of such a decision to the Migration Court of Appeal. This court shall, if it is not clearly unnecessary, hold an oral hearing in the case and shall then pass on the case, along with its opinion, to the Government for examination The opinion shall specifically state whether there is an impediment to enforcement under Chapter 12, Section 1, 2 or 3. If the Migration Court of Appeal finds that there is such an impediment, the Government may not diverge from the assessment of the Migration Court of Appeal in its examination (Chapter 14, Section 12). If, during the enforcement of a deportation or expulsion order in a security case, information comes to light that might constitute an impediment to the enforcement of that order, the Migration Board shall also promptly turn the case over to the Government, after which the above procedure applies (Chapter 12, Section 20, paragraph 2). 30. The Swedish Security Police may only recommend that an alien be deported or expelled, or that his or her application for a residence permit should be rejected for reasons relating to national security or otherwise bearing on public security. This recommendation is only decisive for defining the case as a security case. The decision to deport or to reject an application for a residence permit for reasons relating to national security or otherwise bearing on public security lies with the Migration Board and, ultimately, with the Government. 31. Moroccan law prohibits torture and the Government denied its use. In March 2006 a specific anti-torture law was passed, which has clear classification of the crimes in line with relevant UN conventions. Moreover, the penal code stipulates sentences of up to life imprisonment for public servants who use, or allow the use of, violence against others in the exercise of their official duties. Furthermore, by law, pre-trial investigating judges must refer a detainee to a forensic medicine expert if asked to do so or if judges notice suspicious physical marks on a detainee. Still, according to domestic and international human right organisations, prisoners and detainees, members of the security forces abused individuals in their custody. According to the Moroccan Minister of Justice, during 2007, authorities prosecuted 17 members of the security forces for human rights violations, including torture, and two officers were convicted and sentenced to ten years’ imprisonment for beating to death a Western Saharan activist in 2005. 32. The law does not prohibit arbitrary arrest or detention. According to international sources, the police used both practices and the authorities denied defendants access to counsel or family members during the initial 96 hours of detention, during which police interrogated detainees and abuse or torture was most likely to occur. Under the anti-terrorism law, enacted in the aftermath of the 2003 Casablanca bombings, the authorities have the power to detain a person for up to 12 days without notifying a lawyer or the detainee’s family. Detention limits were exceeded when individuals were suspected of terrorism or were linked to terrorism. 33. The constitution provides for an independent judiciary. However, it appears from available sources that in practice the courts were not always independent and corruption remained prevalent. The law also stipulates that when a criminal penalty is more than five years in prison, a court-appointed attorney must be provided, if a defendant cannot afford private counsel. Furthermore, if a judge determines that a confession was obtained under duress, the law requires that it be excluded from evidence. However, human rights organisations claimed that judges often decided cases on the basis of forced confessions, especially in cases of Islamists accused of terrorism or in the cases of some Sahrawis (people from the region of Western Sahara). 34. The Moroccan Government permitted visits to prisons during the year by independent human rights observers and, throughout 2007, they also permitted the Moroccan Observatory of Prisons (an NGO that receives limited government funding) to visit prisons and detention centres unhindered to observe conditions and hear complaints. Moreover, individuals could complain of human rights abuses to the Conseil Consultatif des Droits de l’Homme (the CCDH), which was also done without problems. The CCDH presented regular reports on the country’s human rights situation. 35. The Government provided increased human rights training to prison officials, military officers, police and medical personnel. The authorities did not hamper foreign human rights organisations visiting Morocco and they generally tolerated the work of many national human rights organisations. Amnesty International opened its first office in Morocco in 1998 and has since then opened several more offices in the country. 36. Several of the sources noted that despite the clear efforts to improve the human rights situation in Morocco and strengthen the democratic process, the fight against terrorism risked having a negative impact on respect for human rights in Morocco. Since August 2006, police have arrested at least 500 suspected Islamist militants and, according to Human Rights Watch, the intelligence agencies have continued to use an unacknowledged detention centre at Temara to interrogate some of those suspected of serious offences. Suspects continued to allege that they had been tortured while under interrogation, although there were fewer complaints of torture and excessive incommunicado pre-arraignment detention in 2007 than in the immediate aftermath of the 2003 Casablanca bombings. Moreover, during 2007, law enforcement efforts focused more narrowly on counter terrorism investigations and arrests than the previous broad dragnets used following the 2003 Casablanca attacks. Still, according to the Association El Nacir (an NGO which advocates on behalf of jailed Islamists) an estimated 200 individuals remained in custody without charge at the end of 2007, as a result of terror-related dragnets. Amnesty International has reported that more than 100 suspected Islamist militants were arrested, mostly by police, and that most of the detainees were charged and some were tried on terrorism offences and sentenced to up to 15 years in prison. 37. The Moroccan authorities kept particularly tight control over the disputed Western Sahara region, resulting in many reports of police brutality, including torture. UN-mediated talks concerning the region were held in 2007 between the Moroccan Government and the Polisario Front but without reaching an agreement. Amnesty International reported that hundreds of Sahrawi activists suspected of participating in demonstrations against Moroccan rule were arrested and dozens of them alleged that they had been tortured during questioning by security forces. Some were tried on charges of violent conduct while others were released after questioning. The Government encouraged the return of Sahrawis as long as they acknowledged the Government’s claim to the Western Sahara territory. There were no restrictions on travelling within the country.

train

001-104816

ENG

FIN

ADMISSIBILITY

KARTTUNEN v. FINLAND

Inadmissible

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

1. The applicant, Ms Ulla Annikki Karttunen, is a Finnish national who was born in 1956 and lives in Helsinki. 2. 3. The applicant is an artist who exhibited her work “the Virgin-Whore Church” in an art gallery in Helsinki. On 14 February 2008 the exhibition was opened for invited guests and on 15 February 2008 it was opened to the public. The work included hundreds of photographs of teenage girls or otherwise very young women in sexual poses and acts. The pictures had been downloaded from free Internet pages and some of them were extremely violent or degrading. 4. On 15 February the police seized the pictures and the exhibition was closed down. On 21 February 2008 the police seized the applicant’s computer. 5. On 14 March 2008 the public prosecutor pressed charges against the applicant on two counts. His decision to press charges was based on the Deputy Prosecutor General’s (apulaisvaltakunnansyyttäjä, biträdande riksåklagaren) decision to press charges in the matter. He also requested, inter alia, that the seized pictures be confiscated. 6. On 21 May 2008 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant of possessing and distributing sexually obscene pictures depicting children. The court found, by referring, inter alia, to Article 10 of the Convention and other Council of Europe conventions, that everybody had the right to freedom of expression as well as to freedom of the arts unless the exercise of these rights constituted a crime. Finding the applicant guilty was justified for the protection of morals. Moreover, the faces of many of the children or young women in the pictures were clearly recognisable and their reputation and right to private life had to be protected. Even though the applicant’s intention had not been to commit a criminal act but, on the contrary, to criticise easy access to child pornography, possessing and distributing sexually obscene pictures depicting children were still criminal acts. Their criminalisation was based on the need to protect children against sexual abuse as well as against violation of their privacy. As to the sanctions, the court noted that the applicant had intended to provoke general discussion about child pornography. Taking into account also the other circumstances, inter alia, that the crimes were minor and excusable, the court did not impose any sanctions on the applicant. Instead, the court ordered all the pictures to be confiscated. 7. By letter dated 19 June 2008 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), requesting that the charges be dismissed. She claimed that her work as an artist had to be equated with the work of a journalist or a scientist, and that she had therefore had a justification for the possession and distribution of the pictures in question. 8. On 6 March 2009 the Helsinki Court of Appeal upheld the District Court’s judgment. It found, inter alia, that the protection of the privacy of children took precedence over the applicant’s right to freedom of expression. The fact that the identity of the children was not known or that the pictures could be illegally obtained elsewhere did not remove the applicant’s criminal liability nor justify her acts. 9. By letter dated 5 May 2009 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds for appeal already presented before the Court of Appeal. 10. On 29 June 2009 the Supreme Court refused the applicant leave to appeal. 11. The Constitution of Finland (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in its section 12 the following: “Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act. Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.” 12. In section 16 of the Constitution the freedom of science, the arts and higher education is guaranteed. 13. According to Chapter 17, section 18, of the Penal Code (rikoslaki, strafflagen; Act no. 39/1889, as amended by Act no. 650/2004): “A person who manufactures, offers for sale or for rent, exports, imports to or through Finland or otherwise distributes sexually obscene pictures or visual recordings depicting (1) children, (2) violence or (3) bestiality shall be sentenced for distribution of sexually obscene pictures to a fine or imprisonment for at most two years. An attempt is punishable. The provisions in section 17, subsection 2 apply also to the pictures and visual recordings referred to in this section. A person under 18 years of age and a person whose age cannot be determined but who can be justifiably assumed to be under 18 years of age is regarded as a child.” 14. Chapter 17, section 19, of the Penal Code provides that a person who unlawfully has in his or her possession a photograph, video tape, film or other realistic visual recording depicting a child referred to in section 18, subsection 4, having sexual intercourse or participating in a comparable sexual act or depicting a child in another obviously obscene manner shall be sentenced for possession of sexually obscene pictures depicting children to a fine or imprisonment for at most one year.

train

001-83639

ENG

TUR

ADMISSIBILITY

KANAT v. TURKEY

Inadmissible

The applicant, Mr Ali Kanat, is a Turkish national who was born in 1967 and lives in Istanbul. He was represented before the Court by Ms H. Çekiç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 May 1994 the applicant was arrested by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate. On 18 May 1994 he was brought before the Istanbul State Security Court public prosecutor, where he denied the charges against him. On the same day, the applicant was examined by a doctor at the Istanbul Forensic Medicine Institute. In his report, the doctor stated that the applicant suffered from inguinal hernia and that there were no signs of ill-treatment on his body. On 19 May 1994 the applicant was brought before the investigating judge at the Istanbul State Security Court, where he repudiated the content of his police statement, alleging that it was taken under duress. On the same day, the judge ordered the applicant’s detention on remand. The applicant was sent to Bayrampaşa Prison. On 1 June 1994 the public prosecutor of the Istanbul State Security Court filed an indictment against the applicant, accusing him of being a member of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party). He requested that the applicant be sentenced pursuant to Article 168 § 2 of the Criminal Code. On 21 July 1994 the applicant was examined by a doctor at the Eyüp Froensic Institute. According to the report, the applicant described pain on the inguinal region, on his shoulders, and weakness in his arms. He further complained that he had pain in his anus. The report stated that in order to be able to deliver a final report, further examinations were required. Having received further medical reports, on 29 July 1994 the Eyüp Forensic Institute issued its final report and concluded that the applicant suffered from an inguinal direct hernia. It was stated that this hernia might have been the outcome of an infirmity of the abdominal region, or it could be the result of an external trauma. It was also noted that if the hernia had been caused by an external trauma then this finding would prevent the applicant from working for fifteen days. The report finally stated that the other complaints would prevent the applicant from work for five days. On 1 December 1994, during its first hearing, the Istanbul State Security Court heard from the applicant. In his statement, the applicant denied the charges against him and gave the details about the ill-treatment he had been allegedly subjected to during his police custody. He stated that after he had been arrested by the police officers, he was put in a car; his head was covered with his coat, and he was beaten inside the car. After another two and a half hours’ drive, he was forced to lie on the ground face down. Someone stepped on his head and they shot two or three bullets near the left and right side of his head. He was then taken to the Istanbul Security Directorate building, where he was stripped naked and suspended from his arms. Electrics shocks were administered to his toes and genitals. He was also beaten on the soles of his feet. The applicant also submitted a copy of the medical report issued by the Eyüp Forensic Institute. At the end of the hearing, the court concluded that the applicant’s representative could file a complaint with the authorities about the applicant’s allegations of ill-treatment. On 8 December 1995 the applicant was allegedly beaten by the soldiers during his transfer from the Bayrampaşa Prison to the Ümraniye Prison. On 29 May 1997 the Istanbul State Security Court, which was composed of three judges including a military judge, found the applicant guilty as charged and sentenced him to twelve years and six months’ imprisonment. On 14 December 1998 the Court of Cassation quashed the applicant’s conviction on the ground that the Istanbul State Security Court had delivered its judgment without taking the applicant’s final statement. Between 14 December 1998 and 18 June 1999 the Istanbul State Security Court, to which the case file was remitted, held two hearings namely on 16 March 1999 and 27 May 1999, during which the judges dealt solely with procedural matters. On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Istanbul State Security Court was replaced by a civilian judge. In the meantime, in December 2000 a large number of prisoners started a hunger strike to protest against the F-Type prisons. On 19 December 2000 the security forces conducted an operation in several prisons to stop the protests. The applicant was allegedly beaten by the soldiers during this operation in the Ümraniye Prison. On 17 April 2001, after hearing the applicant in person to take his final defence submissions, the Istanbul State Security Court, composed of three civilian judges, adhered to its first judgment. Basing itself on the leaflets and the receipt vouchers of the organisation captured from the applicant’s residence, the witnesses’ statements, the cartridge clips and guns seized during the investigation, the court once again sentenced the applicant to twelve years’ and six months’ imprisonment. The applicant appealed against the judgment. In his petition, he maintained that the judgment of the first-instance court was based on his police statements which had been taken under duress. On 8 October 2001 the Court of Cassation upheld the judgment of the State Security Court. On 29 January 2004 the applicant’s lawyer provided the Registry with a medical report of 6 January 2004, which was drafted by a commission of medical experts of the Human Rights Foundation. The report noted that the applicant had applied to the Foundation on 7 November 2003 and complained about his continuing suffering as a result of ill-treatment on account of his previous detentions. The report concluded that the finding of 3 cm damaged tissue to the applicant’s head was in line with the applicant’s testimony about the operation dated 19 December 2000 and that the diagnoses of a right inguinal hernia were compatible with the story of physical pressure put on the abdominal region. According to the report, the applicant suffered from physical and psychological problems.

train

001-58291

ENG

GRC

GRANDCHAMBER

CASE OF PAPACHELAS v. GREECE

Preliminary objection rejected (six month period);No violation of Art. 6-1;No violation of P1-1 (amount of compensation);Violation of P1-1 (presumption);Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings;Just satisfaction reserved

Gaukur Jörundsson;Luzius Wildhaber;N. Valticos

8. On 9 January 1989 the Greek State, in a decision of the Minister for the Environment, Regional Development and Public Works and pursuant to Legislative Decree no. 797/1971 on expropriations and Law no. 653/1977 on the obligations of adjoining owners where major roads are built, expropriated more than 150 properties, some of which belonged to the applicants, in order to build a new major road between Stavros and Elefsina. The property expropriated from the applicants included an area of 8,402 sq. m that was part of a larger piece of land. Law no. 653/1977 creates a presumption that, on the building of a new major road, adjoining owners whose properties front the road derive benefit. It accordingly provides that on the expropriation of such properties the owners must contribute towards the costs thereof (see paragraphs 23-24 below). Applying that presumption, the authorities considered in the instant case that the applicants had derived an economic benefit from the building of the major road which offset their right to compensation for 1,440 sq. m of the expropriated land. Consequently, the applicants were compensated for only 6,962 sq. m. 9. On 5 June 1991 the Greek State brought an action in the Athens Court of First Instance for the assessment of a provisional unit amount for compensation per square metre. 10. On 20 November 1991 the Court of First Instance assessed the provisional unit amount for compensation at 52,000 drachmas (GRD) per square metre (judgment no. 696/1991). 11. On 5 March 1992 the applicants brought an action in the Athens Court of Appeal for the assessment of the final unit amount for compensation. 12. The hearing before the Court of Appeal took place on 9 March 1993. The applicants maintained that the real value of the land was GRD 100,000 per square metre and produced before the Greek courts two expert reports in which it was valued at between GRD 70,000 and 100,000 and at GRD 130,000 per square metre respectively. They also relied in support of their estimation on an official report of the Association of Sworn Valuers (Σώμα Ορκωτώv Εκτιμητώv), in which the land was valued at GRD 53,621 per square metre. 13. In a judgment of 24 June 1993 (no. 4055/1993) the Athens Court of Appeal assessed the final unit amount for compensation at GRD 52,000 per square metre. 14. On 20 December 1993 the applicants appealed to the Court of Cassation on points of law; however, they did not lodge their submissions with that court until 15 June 1994. In their submissions, they maintained that the Court of Appeal had not given sufficient reasons for its decision and had assessed the final amount for compensation without taking into account the special features of their properties. The hearing took place on 31 May 1995. 15. On 20 June 1995 the Court of Cassation dismissed the applicants’ appeal (in judgment no. 1060/1995). Its judgment was “finalised” (καθαρoγραφή) on 28 September 1995 and the applicants obtained a copy on 9 October 1995. The Court of Cassation does not serve its judgments. 16. The relevant Article of the 1975 Constitution reads as follows: “1. Property shall be protected by the State; rights deriving therefrom, however, may not be exercised contrary to the public interest. 2. No one may be deprived of his property unless it is for the public benefit, which must be duly proved, in the circumstances and manner laid down by law and only after full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional assessment of compensation. In cases in which an application is made for immediate final assessment of compensation, regard shall be had to the value of the expropriated property at the time of the court hearing of the application. 3. Any change in the value of the expropriated property occurring after and solely as a result of publication of the decision to expropriate shall not be taken into account. 4. Compensation shall in all cases be assessed by the civil courts. A court may even make a provisional assessment of compensation after the person entitled has been heard or his attendance requested and, at its discretion, require such person to furnish an appropriate guarantee before receiving the compensation, in accordance with law. Until either final or provisional compensation has been paid, all the rights of the owner shall remain intact, occupation of the property being prohibited. Compensation as assessed shall be paid within a year and a half of publication of the provisional assessment order or, if immediate final assessment is sought, of publication of the final assessment by the court, failing which the expropriation shall automatically lapse. ...” “1. Η ιδιοκτησία τελεί υπό την προστασία του Κράτους, τα δικαιώματα όμως που απορρέουν από αυτή δεν μπορούν να ασκούνται σε βάρος του γενικού συμφέροντος. 2. Κανένας δεν στερείται την ιδιοκτησία του, παρά μόνο για δημόσια ωφέλεια που έχει αποδειχθεί με τον προσήκοντα τρόπο, όταν και όπως ο νόμος ορίζει, και πάντοτε αφού προηγηθεί πλήρης αποζημίωση, που να ανταποκρίνεται στην αξία την οποία είχε το απαλλοτριούμενο κατά το χρόνο της συζήτησης στο δικαστήριο για τον προσωρινό προσδιορισμό της αποζημίωσης. Αν ζητηθεί απευθείας ο οριστικός προσδιορισμός της αποζημίωσης, λαμβάνεται υπόψη η αξία κατά το χρόνο της σχετικής συζήτησης στο δικαστήριο. 3. Η ενδεχόμενη μεταβολή της αξίας του απαλλοτριουμένου μετά την δημοσίευση της πράξης απαλλοτρίωσης, και μόνο εξαιτίας της, δεν λαμβάνεται υπόψη. 4. Η αποζημίωση ορίζεται πάντοτε από τα πολιτικά δικαστήρια. Μπορεί να οριστεί και προσωρινά δικαστικώς, ύστερα από ακρόαση ή πρόσκληση του δικαιούχου, που μπορεί να υποχρεωθεί κατά την κρίση του δικαστηρίου να παράσχει για την είσπραξή της ανάλογη εγγύηση, σύμφωνα με τον τρόπο που νόμος ορίζει. Πριν καταβληθεί η οριστική ή προσωρινή αποζημίωση διατηρούνται ακέραια όλα τα δικαιώματα του ιδιοκτήτη και δεν επιτρέπεται η κατάληψη. Η αποζημίωση που ορίστηκε καταβάλλεται υποχρεωτικά το αργότερο μέσα σε ενάμισι έτος από την δημοσίευση της απόφασης για τον προσωρινό προσδιορισμό της αποζημίωσης και, σε περίπτωση απευθείας αίτησης για οριστικό προσδιορισμό της αποζημίωσης, από τη δημοσίευση της σχετικής απόφασης του δικαστηρίου, διαφορετικά η απαλλοτρίωση αίρεται αυτοδικαίως. ...” 17. Legislative Decree no. 797/1971 of 30 December 1970 and 1 January 1971 is the main legislative provision governing expropriations. It applies the principles set out in the constitutional provisions. 18. Chapter A of the legislative decree lays down the procedures and prerequisites for announcing expropriations. Article 1 § 1 (a) provides that expropriations of urban or rural properties and claims to rights in rem over them, if authorised by law in the public interest, are made known by a joint decision of the Minister having authority in the sphere concerned by the intended expropriation and the Minister of Finance. Article 2 § 1 sets out the prerequisites for a decision announcing an expropriation: in particular, (a) a cadastral plan showing the area to be expropriated, and (b) a list of the owners of the land, its surface area, its boundaries and the main characteristics of the buildings on it. 19. Chapter B of the legislative decree specifies the procedures for carrying out an expropriation. Compensation must be paid to the person concerned in accordance with precisely worded conditions. The acquisition of ownership by the person for whose benefit the expropriation was ordered (Articles 7 § 1 and 8 § 1) starts on the date of payment or (in cases where the identification of the beneficiaries has not yet been completed, or where the property is charged or where the identity of the true beneficiary is in issue) on the date of publication of notice in the Official Gazette that compensation has been deposited with the Bank for Official Deposits. If the expropriation does not take place in accordance with the foregoing conditions within a period of one and a half years from the date of the judgment determining the compensation, it automatically lapses (Article 11 § 1). 20. Chapter D sets out in detail the procedure for assessing compensation. Article 14 provides that the parties to the proceedings are (a) any party required to pay compensation; (b) any party for whose benefit the expropriation is ordered; (c) any party who claims ownership of, or other rights in rem over, the property. Article 17 § 1 lays down that compensation is to be assessed by the courts. It expressly provides that the court determines only the unit amount of compensation and not who is entitled to compensation or who is obliged to pay it. By Article 13 § 1, compensation is calculated by reference to the real value of the expropriated property on the date of publication of the decision giving notice of the expropriation. Paragraph 4 of that Article provides: “Where part of a property is expropriated and the part remaining in the owner's possession suffers substantial depreciation in value or is rendered unusable, the judgment in which compensation is assessed shall also include a determination of the special compensation for that part. This special compensation shall be paid to the owner together with the compensation for the expropriated part.” “Εν περιπτώσει αναγκαστικής απαλλοτριώσεως τμήματος ακινήτου, ως εκ της οποίας το απομένον εις τον ιδιοκτήτην τμήμα υφίσταται σημαντικήν υποτίμησιν της αξίας αυτού, ή καθίσταται άχρηστον δια την δι’ην προορίζεται χρήσιν, δια της αυτής περί καθορισμού της αποζημιώσεως αποφάσεως προσδιορίζεται και παρέχεται ιδιαιτέρα δι’αυτήν αποζημίωσις εις τον ιδιοκτήτην. Η ιδιαιτέρα αυτή αποζημίωσις καταβάλλεται εις τον ιδιοκτήτην ομού μετά της καταβαλλομένης δια το απαλλοτριούμενον τμήμα.” 21. The procedure for assessing compensation may comprise two phases. Firstly, the provisional assessment phase, in respect of which a single judge of the court of first instance for the area in which the expropriated property is situated has jurisdiction once a party concerned has lodged an application (Article 18). Secondly, the final assessment phase, in respect of which the court of appeal for the area in which the expropriated property is situated has jurisdiction on application by the parties concerned within thirty days from the date on which the provisional assessment decision was served, or six months from the date of its publication if it is not served (Article 19 §§ 1 and 2). Paragraph 6 of that Article provides that only a person who has lodged such an application with a view to an increase or decrease in the provisionally assessed amount may benefit from it. The provisionally assessed amount becomes final for any person not filing an application expeditiously. Further, an application may be lodged directly with the court of appeal in order that a final decision may be obtained against which no appeal will lie (Article 20). 22. Chapter E of the legislative decree provides a special procedure for obtaining a court order identifying persons entitled to compensation. A single judge of the court of first instance for the area in which the expropriated property is situated has jurisdiction to make such an order (Article 26). Article 27 § 1 provides that entitlement is determined on the basis of information on the cadastral plan and on the list of landowners drawn up by a qualified engineer duly approved by the Ministry of Public Works, and any other information supplied by the parties or considered by the court of its own motion. No appeal lies against the decision taken at the end of this special procedure (Article 27 § 6). By paragraph 4 of Article 27, the court shall not give a decision if (a) it is established at the hearing or by means of a declaration by the State that a person can claim full ownership of the expropriated property or some other right in rem; (b) there is any dispute between one or more persons allegedly entitled to compensation as to ownership or any other right in rem such that an inquiry has to be made into the claims put forward, which inquiry must include a hearing for each party concerned who has brought an action; (c) it is established at the hearing that a party claiming to be entitled to compensation is unable to show that he has any right in rem. By paragraph 2 of Article 8 of Legislative Decree no. 797/1971, a final decision as to a given person’s entitlement is necessary before the Bank for Official Deposits can pay out a sum deposited as compensation following assessment by the courts. 23. The relevant provisions of section 1 of Law no. 653/1977 of 25 July and 5 August 1977 provide: “(1) Where a major road up to thirty metres wide is built in an area not covered by a town development plan, adjoining owners who derive a benefit shall be required to pay for an area fifteen metres wide, thus contributing to the cost of expropriating the properties bordering the road. However, the area to which this obligation applies shall not exceed half the surface area of the property concerned. ... (3) For the purposes of this section, adjoining owners whose properties front the roads that have been built shall be deemed to have derived benefit. (4) Where those entitled to compensation on account of an expropriation are themselves liable for payment of part of that expropriation, there shall be a set-off between rights and obligations. (5) The method and procedure for apportioning the compensation between the State and the adjoining owners shall be laid down in a decree to be published on a proposal by the Minister of Public Works. ...” “(1) Προκειμένου περί διανοίξεως, εκτός Σχεδίου πόλεων Εθνικών οδών πλάτους καταλήψεως μέχρι τριάκοντα μέτρων, οι ωφελούμενοι παρόδιοι ιδιοκτήται εκάστης πλευράς, υποχρεούνται εις αποζημίωσιν ζώνης πλάτους δεκαπέντε μέτρων, δια συμμετοχής των εις τας δαπάνας απαλλοτριώσεως των καταλαμβανομένων υπό των οδών τούτων ακινήτων. Η επιβάρυνσις αύτη δεν δύναται να υπερβαίνει το ήμισυ του εμβαδού του βαρυνομένου ακινήτου. ... (3) Ωφελούμενοι παρόδιοι ιδιοκτήται δια την εφαρμογήν του παρόντος άρθρου θεωρούνται εκείνοι των οποίων τα ακίνητα αποκτούν πρόσωπον επί των διανοιγομένων οδών. (4) Οσάκις οι δικαιούχοι αποζημιώσεως δια την απαλλοτρίωσιν είναι και υπόχρεοι δια την πληρωμήν αυτής, επέρχεται συμψηφισμός δικαιωμάτων και υποχρεώσεων. (5) Ο τρόπος και η διαδικασία καταμερισμού της αποζημιώσεως μεταξύ Δημοσίου και παροδίων ιδιοκτητών κανονίζονται δια Διαταγμάτων εκδιδομένων προτάσει του Υπουργού Δημοσίων Έργων ...” 24. Under the case-law, the presumption created by Law no. 653/1977 is irrebuttable. 25. The so-called “objective” value of property is calculated by reference to actual prices and indices, regard being had to the characteristic features of the property, and is determined periodically by the Ministry of Finance. This method of assessment must be used for calculating any taxes levied in connection with the purchase, possession or transfer of property.

train

001-76956

ENG

AUT

CHAMBER

CASE OF MOSER v. AUSTRIA

Violation of Art. 8;No violation of Art. 14+8;Violation of Art. 6 (no opportunity to comment);Violation of Art. 6 (no public hearing);Violation of Art. 6 (no publicly pronounced judgments);Non-pecuniary damage - financial award (first applicant);Non-pecuniary damage - finding of violation of Art. 8 sufficient (second applicant);Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Christos Rozakis

7. The first applicant, born in 1973, has been living in Austria since 1991 and had a residence and work permit until November 1997. On 27 August 1999 the Vienna Federal Police Authority (Bundespolizeidirektion) issued a five-year residence prohibition against her for illegal employment. The residence prohibition was lifted in 2004 (see below, C.). 8. On 20 December 1999 she married an Austrian citizen, Mr M. 9. On 8 June 2000 the first applicant gave birth to the second applicant in a hospital in Vienna. 10. On 9 June 2000 the Vienna Youth Welfare Office (Amt für Jugend und Familie) ordered that the second applicant should not accompany the first applicant upon her departure from hospital since her unclear personal and financial situation and lack of a residence permit would endanger the child’s welfare. 11. On 16 June 2000 the Youth Welfare Office, relying on Section 176a of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) requested the Vienna Juvenile Court (Jugendgerichtshof) that custody as regards the care and education of the second applicant be transferred to it. The Youth Welfare Office noted that the first applicant had, at first, incorrectly informed the hospital about her personal data, in particular on her name and residence. According to the Youth Welfare Office she had also expressed the wish to place the child with foster parents. One day after she had given birth, she had changed her mind and wanted to keep the child. Upon inquiries undertaken by the Youth Welfare Office, her real name, the periods of her lawful residence in Austria and her marriage to Mr M. had been discovered. Confronted with these facts, she had been very upset, had refused to give any further information and had insisted on keeping her child. Given her completely unclear situation, the means of existence of the second applicant were at risk and a transfer of custody to the Youth Welfare Office was necessary. 12. On the same day, the first applicant left the hospital. The second applicant was placed with foster parents. 13. On 11 August 2000 Mr M. instituted proceedings contesting paternity (Ehelichkeitsbestreitungsklage) of the second applicant. 14. On 3 December 2000 the Juvenile Court granted the Youth Welfare Office’s request of 16 June 2000. 15. It noted in its reasoning that, on 2 August 2000, the first applicant had appeared at the court of her own motion, had given her new address in the 20th District of Vienna and further information on her situation and had insisted to have her son back. She had alleged that she obtained financial support from her husband, although she was no longer living with him. 16. Relying on a report by the Youth Welfare Office of 1 September 2000, the court noted that the first applicant had not cooperated with that office. In particular, it had not been possible to arrange a visit at her husband’s address and she had not kept her appointments with the Youth Welfare Office. On 23 August 2000 the first applicant had contacted the Youth Welfare Office and had informed it about her address at the 20th District of Vienna, where she was allegedly supported by a Ms M. That Office’s subsequent visit at Ms M.’s apartment had shown that Ms M. was not prepared to further support the first applicant. Given that she was living with her three children in an apartment of 40 square meters, she could not accommodate the applicant and her son. 17. Relying further on a report by the Juvenile Court Assistance Office (Jugendgerichtshilfe) of 2 November 2000, the court noted that the first applicant had admitted in a meeting that a baby needed orderly conditions, which she could not offer at that moment. Otherwise, she had given evasive answers and, on questions she had been uncomfortable with, she had started crying or had complained that nobody was helping her. The Assistance Office’s visit at the foster parents’ home had shown that the second applicant had got accustomed to them. Until that date, the first applicant twice had a right of access at the parents-child centre (Eltern-Kind-Zentrum). The first time, she had not appeared at all, the second time she had been thirty minutes late. The foster parents had subsequently met her by chance and had arranged a short meeting at a nearby parking. 18. In sum, the court stated that the first applicant was still in a very unstable and obscure situation, which was not enhanced by her unlawful residence in Austria, and which did not entitle her to financial aid. It was also not possible to cooperate with her, as she partly did not keep appointments and lacked any willingness to make active contributions. In order to assure the second applicant’s positive development, it was necessary to transfer custody of the second applicant to the Youth Welfare Office and to have him in care of foster parents. 19. The Juvenile Court’s decision was served on the first applicant on 20 December 2000. 20. On 3 January 2001 the first applicant, now assisted by counsel, appealed against this decision, in which she made the following submissions. 21. She had been desperate when giving birth, due to the fact that her husband was not the second applicant’s father, but a certain Mr U. She stated, that being married to an Austrian national, she had a right to reside in Austria. According to the Administrative Court’s case-law the residence prohibition against her would have to be lifted. However, in her contacts with the Juvenile Court and the other authorities involved she had not obtained any support to regulate her residence status or any help to preserve her relationship with her child. She had gained the impression that from the very beginning they were determined to place her child with foster parents. 22. She had also wished to make use of her access rights. However, the first time, she had not found the address, the second time she had been late, had met the foster parents and had briefly seen her son. She had asked the foster parents to inform the authorities that she had been late on account of an unfortunate obstruction. 23. Finally, the applicant noted that the decision of 3 December had been served on her shortly before Christmas, namely on 20 December. It had been impossible to obtain legal advice from the service institutions. Not being familiar with legal matters, she had not been in a position to procure the case-file and had only handed out the decision to her newly appointed counsel, who had returned from holidays one day before the appeal was lodged. Once paternity of Mr U. was established, maintenance payments for the second applicant would be secured. As to her housing situation, she was still accommodated at her friend’s place. Finally, she requested that an expert opinion be obtained to prove that she was capable of taking care of her child and that meanwhile she be granted a right of access to the second applicant once a week. 24. On 19 January 2001 the Vienna Juvenile Court, sitting as an Appeal Court, dismissed the appeal against the decision of 3 December 2000 without holding a hearing and confirmed the lower court’s decision. 25. It noted that the first applicant had only disputed the facts established by the lower court by alleging that she had not received any support by the authorities. However, this reproach was to be rejected in the light of the reports by the Youth Welfare Office and the Assistance Office. The lower court had correctly decided on the basis of these facts and the first applicant’s situation at the time of its decision. Any positive developments concerning her situation, as alleged in her appeal, were not to be taken into consideration, but could be taken into account upon a new request. Under Section 176 of the Civil Code the court had to undertake measures to ensure the child’s welfare, if it was at risk due to the parents’ conduct. The court had to transfer custody, entirely or in part, to the Youth Welfare Office, even against the wish of the legal guardian, when a child’s entire dislocation from his or her habitual environment was necessary and a placement with relatives or other qualified persons close to the child was not possible. The first applicant’s completely unclear financial and personal situation, in particular as regards her residence, and her incapability to cooperate constructively with the Youth Welfare Office – as had been established by the lower court – constituted a situation, which endangered the child’s well-being. Referring to the Supreme Court’s case-law in custody matters, it did not allow an ordinary appeal on points of law (ordentlicher Revisionsrekurs), pursuant to Section 14 § 1 of the Non-Contentious Proceedings Act (Außerstreitgesetz). 26. On 12 February 2001 the first applicant requested the Appeal Court to allow her ordinary appeal on points of law (nachträgliche Zulassung des ordentlichen Revisionsrekurses). 27. She complained that she had not been sufficiently involved in the proceedings, in particular, that access to the court files had not been possible. She further complained that the courts’ decisions were not in line with this Court’s case-law under Article 8 of the Convention. She asserted that the authorities involved had not even attempted to take measures which would have allowed her son to stay with her, such as placing her in a mother-child centre for instance. 28. Furthermore, relying on Article 6 of the Convention, she complained that there were no public and oral hearings in the custody proceedings and the decisions were not pronounced publicly. The courts’ taking of evidence had been insufficient. As regards the second applicant, she complained that he had no legal standing in the proceedings, where he could claim his right to respect for family life with her, pursuant to Article 8 of the Convention, which was also in breach of Article 6 of the Convention. Relying on Article 14 in conjunction with Article 8 of the Convention, she complained of discrimination on the ground of her nationality. Had she been an Austrian citizen or citizen of any other member State of the European Union, she would have had the right to placement in a mother-child centre. 29. On 30 May 2001 the Liesing District Court allowed Mr M.’s action contesting paternity of the second applicant. This decision became final. 30. On 20 August 2001 the Vienna Juvenile Court, sitting as an Appeal Court, referring again to the Supreme Court’s case-law in custody matters, refused to allow the ordinary appeal on points of law, as in its decision of 19 January 2001, it had not departed from that case-law. There was no other reason to allow the ordinary appeal on points of law under Section 14 § 1 of the Non-Contentious Proceedings Act, as it did not raise any important legal issue. Further, it noted that access to the court file had been possible throughout the proceedings. The decision was served on 13 September 2001. 31. On 9 December 2002 the applicant requested the District Court to be granted the right to see the second applicant every other Friday from 1 p.m. until Sunday 6 p.m. 32. While the case was pending before the Liesing District Court the first applicant was allowed to see her son in the presence of a representative of the Youth Welfare Office once a month on Mondays from 1.30 p.m. until 3 p.m. in a visitors’ café (Besuchscafé) run by the Youth Welfare Office. 33. On 4 February 2004 the Liesing District Court dismissed the applicant’s request. Upon the first applicant’s appeal, the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) quashed this decision and ordered the court to issue a new decision. 34. During the District Court’s hearing on 15 July 2004, at which the first applicant, assisted by counsel, the foster parents and a social worker were present, the parties reached an agreement that the first applicant was allowed to see the second applicant in three-week-intervals in the presence of the foster mother on Wednesdays from 2.30 p.m. until 5 p.m. 35. On 6 October 2004 the court held another hearing and by a decision of 8 October 2004 amended the agreement of 15 July 2004 in that the meetings were to be held again in the visitors’ café. 36. On 11 March 2005 an expert in child psychology submitted an opinion, stating that the second applicant was caught in a loyalty conflict between this foster parents and the first applicant. Nevertheless, contacts with the first applicant in intervals of three to four weeks were in his interest. 37. On 5 April 2005 a further agreement was reached which grants the first applicant access rights once a month from 3 p.m. to 5 p.m. and in addition on her birthday on the second applicant’s birthday and at Christmas. The contacts take place at the visitors’ café. 38. The first applicant has so far not filed a request to re-transfer custody of the second applicant to her, but considers that regular visits serve to prepare a re-transfer of custody. 39. On 20 October 2000 the first applicant filed a request with the Vienna Federal Police Authority (Bundespolizeidirektion) that the residence prohibition be lifted. 40. On 17 January 2001 the first applicant supplemented her request that the residence prohibition be lifted and argued that leaving Austria would mean losing her child and would impede her efforts of obtaining custody of the second applicant. 41. On 17 April 2001 the Federal Police Authority dismissed the first applicant’s request of 20 October 2000. On 6 November 2001 the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the first applicant’s appeal. 42. On 24 February 2003 the Constitutional Court, allowing the first applicant’s complaint, quashed the Public Security Authority’s decision and remitted the case to it. The court found that the authority had failed to take proper account of the first applicant’s right under Article 8 of the Convention. 43. On 22 April 2003 the Public Security Authority quashed the Federal Police Authority’s decision of 17 April 2001. Subsequently, the residence prohibition was lifted and on 12 November 2004, the applicant was granted a residence permit for a limited duration. 44. Section 176 of the Civil Code empowers the courts to withdraw or restrict custody. So far as relevant, the version in force at the material time, read as follows: “1. If the parents put the well-being of the minor child at risk, on account of their conduct, the court shall take the decisions necessary to ensure the well-being of the child, ... In particular, the court may withdraw entirely or in part custody for the child, ...” 45. Section 176a of the Civil Code, in the version in force at the material time, read as follows: “If the child’s well-being is at risk, therefore requiring the complete removal of the child from his/her previous environment against the will of the person entitled to raise the child, and if the child cannot be accommodated with relatives or other suitable persons close to the child, the court shall transfer custody of the child entirely or in part to the youth welfare institution. The youth welfare institution may transfer the exercise of custody to third parties.” 46. Section 14 of the 1990 Vienna Youth Welfare Act (Wiener Jugend-wohlfahrtsgesetz) deals with social services for parents, babies and young children. Section 14 § 2 (3) mentions the placement of mothers/fathers with babies or young children in crisis apartments, specialised centres or other institutions as one of these services. According to Section 3 of that Act youth welfare is to be granted to all persons residing in Vienna. 47. There is no enforceable right to social services, such as a placement under Section 14 § 2 (3). Consequently, no legal remedy lies against the refusal or the failure to grant social services. 48. General social services, designed to help persons in an emergency situation, are provided for in the Vienna Social Services Act (Wiener Sozialhilfegesetz). Austrian nationals and certain groups of foreigners who are lawfully resident in Austria (e.g. nationals of countries having concluded a reciprocity agreement with Austria, persons with refugee status or nationals of member States of the European Economic Area) are entitled to benefits or services under this Act. 49. The Non-Contentious Proceedings Act 1854 (Außerstreitgesetz), in the version in force at the material time, did not contain any specific provision on hearings. It was the Austrian courts’ practice and the understanding of academic writers that hearings under this act were not public (see Fasching, Lehrbuch des österreichischen Zivilprozessrechts, Wien, 1984, marginal number 682, and Gögl, Der Beweis im Verfahren außer Streitsachen, ÖJZ 1956, 344 (347)). 50. On 1 January 2005 a new Non-Contentious Proceedings Act entered into force replacing the 1854 Act. It provides for the conduct of oral and public hearings (Sections 18 and 19) as a general rule and leaves it to the discretion of the court to decide whether or not the public should be excluded, for instance for the protection of the persons involved in a particular case. 51. In family-law and guardianship proceedings, Section 140 provides for oral hearings open only to the parties. The court may decide to hold a public hearing, unless protected details of a person’s private and family life are discussed, a party opposes a public hearing or if such a hearing would be incompatible with the child’s well-being.

train

001-85635

ENG

GBR

ADMISSIBILITY

COURTNEY v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Reginald Courtney, is a British national who was born in 1938 and lives in Bristol. 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 10 May 1989. On 4 April 2001 the applicant applied for widows’ benefits. On 26 April 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The applicant was not entitled to child benefit at the time of his claim. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

train

001-101915

ENG

RUS

CHAMBER

CASE OF KOVALEVA v. RUSSIA

Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1

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

5. The applicant was born in 1967 and lives in Taganrog, in the Rostov Region. 6. On 15 June 1998 a prosecutor opened a criminal investigation against the applicant. 7. On 18 December 1998 the applicant was arrested and allegedly beaten up by police officers. On 19 December 2002 the prosecutor refused to institute criminal proceedings against the police officers. 8. On 15 December 1999 she was released on bail. 9. On 14 March 2000 the Rostov Regional Court received the case file and commenced the trial against the applicant and four other persons. 10. On 13 June 2000 the Rostov Regional Court found the applicant guilty of fraud and extortion and conditionally sentenced her to five years' imprisonment. However, on 2 November 2000 the Supreme Court of the Russian Federation quashed the judgment on appeal and remitted the case for a retrial. 11. On 14 May 2001 the Rostov Regional Court found the applicant guilty of fraud, extortion, robbery, kidnapping, and theft and sentenced her to seven and a half years' imprisonment. She was taken into custody from the courtroom. 12. On 16 January 2002 the Supreme Court quashed the judgment of 14 May 2001 on appeal and remitted the case for a retrial. The applicant was remanded in custody pending the determination of the criminal charges against her. 13. On 1 July 2002 the Rostov Regional Court extended the applicant's detention until 1 October 2002. It found as follows: “The defendants [the applicant and four other persons] are charged with kidnapping, illegal deprivation of liberty, burglary and other crimes. They have been in custody: ..., [the applicant] – since 18 December 1998, ... The Prosecutor requested that the defendants' detention be extended by 3 months. Having examined the Prosecutor's request, and having heard the parties to the proceedings, the court considers it necessary to extend the defendants' detention by 3 months, that is, until 1 October 2002 inclusive, because they are charged with serious and particularly serious criminal offences. Under Articles 255 and 256 of the Russian Code of Criminal Procedure, the defendants' detention on remand is extended by 3 (three) months, that is, from 1 July 2002 to 1 October 2002.” 14. On 6 November 2002 the Supreme Court of Russia upheld the extension order, finding that it was sufficiently justified. 15. On 1 October and 31 December 2002 and 31 March, 26 June, 25 September and 15 December 2003 the Rostov Regional Court extended the applicant's detention until 1 January, 31 March, 30 June, 26 September, 25 December 2003 and 15 March 2004 respectively. The wording of the decisions was identical to that applied in the decision of 1 July 2002. 16. The applicant appealed against each of the above-mentioned extension orders to the Supreme Court, arguing that they were not sufficiently reasoned and that the court had not taken into consideration her individual situation. On 12 February, 14 May, 16 July, 16 October and 24 December 2003 and 31 March 2004 respectively, the Supreme Court of Russia upheld the above-mentioned decisions on appeal. 17. In the meantime, on 19 February 2004 the Rostov Regional Court extended the defendants' pre-trial detention until 19 May 2004, citing the gravity of the charges against them. The applicant appealed against the extension to the Supreme Court. 18. On 10 March 2005, that is, after the applicant's conviction by the Regional Court (see paragraph 20 below), the Supreme Court of Russia discontinued the examination of the applicant's appeal because she had been convicted by the Regional Court in the interim. 19. As regards the trial proceedings in the period from 27 February 2002 to 25 February 2004, the case was adjourned on over forty-two occasions: at the request of the applicant and her co-defendants, who wished to study the case file or the records of the hearings; at the requests of the applicant and her co-defendants for the replacement of their representatives and the need for their newly appointed representatives to study the case file; due to the illness of the defendants' representatives and their failure to appear before the court; and due to the illness of the applicant and co-defendants or following complaints made by them concerning their health. On one occasion the hearing was adjourned due to the failure of the authorities to transport the defendants to the courtroom. 20. On 17 May 2004 the Regional Court found the applicant guilty of multiple counts of fraud, multiple counts of kidnapping, extortion, theft and robbery and sentenced her to five years' imprisonment. 21. The applicant lodged an appeal. She claimed, in particular, that lay judges had sat on the bench unlawfully. The law had been changed and after 1 January 2004 lay judges were no longer permitted to take part in the administration of justice. 22. On 10 March 2005 the Supreme Court of the Russian Federation held an appeal hearing. The Supreme Court dismissed her appeal as unsubstantiated. As to her allegations about the allegedly unlawful composition of the tribunal, the court found that the trial had begun before 1 January 2004 and that the participation of two lay judges in the determination of the criminal charges against her had been in accordance with the principle of continuity of the trial. 23. From 14 May 2001 to 17 May 2005 the applicant had been held in detention facility IZ-61/1 of Rostov-on-Don (Следственный Изолятор ИЗ-61/1 Главного управления Федеральной службы исполнения наказаний по Ростовской области). Throughout this period the applicant had been held in the following cells: (a) cell no. 181 measuring 25.5 square metres and designed to accommodate 7 detainees; (b) cell no. 184 measuring 36.8 square metres and designed to accommodate 10 detainees; (c) cell no. 186 measuring 24.8 square metres and designed to accommodate 7 detainees; (d) cell no. 191 measuring 34.6 square metres and designed to accommodate 9 detainees; and (e) cell no. 84 (punishment cell) measuring 6.5 square metres and designed for one person. 24. The design capacity of the cells had not been exceeded. 25. In each cell the applicant had an individual bed and had been provided with bedding (a mattress, a pillow, a blanket, two bed sheets and a pillowcase), personal hygiene items, tableware, potable water and cleaning supplies. 26. Each cell had two windows measuring 1.14 by 1.32 meters, which allowed sufficient access of daylight. The cells had been equipped with filament lamps (four lamps per regular cell, one lamp per punishment cell) and security lights. The level of artificial lighting had corresponded to established sanitary norms and had allowed the inmates to read and write. 27. All cells had been ventilated by a system of extractor fans. Natural ventilation through windows had also been available. 28. The applicant had received food of adequate quality and quantity in accordance with established legal norms. 29. In support of their observations the Government provided several certificates issued by the director of IZ-61/1 in November 2006 and photographs of the cells in which the applicant had been held. 30. The cells in which the applicant had been held had always been overcrowded. They had accommodated up to twenty inmates at any given time. The inmates had slept in shifts. 31. The cells had been dimly lit by two filament lamps. Access to natural light had been limited because the windows had been heavily barred from both the inside and outside. It had been impossible to read or write in such light. The outside grids on the windows had not been removed until April 2003. 32. There had been no vents in the windows, and therefore, no access to fresh air. The air in the cells had always been stiff and heavy with smoke. Starting from April 2003 the window panes had been taken out in spring until late autumn. 33. Food had been scarce and of poor quality. The complaints raised by the applicant and other inmates in this regard had been to no avail. 34. The applicant had never been provided with any personal hygiene items. 35. The applicant claimed that the photographs of the cells in question provided by the Government had been taken after her departure from IZ61/1 and apparently after emergency repairs. 36. The Government submitted that the holding cells (конвойное помещение) of the Rostov Regional Court had been situated in the semibasement of the premises. The holding cells area had contained eight individual cells measuring four square metres and three collective cells measuring twenty square metres. The holding cells area had been equipped with one lavatory pan shared by the detainees and the wardens. All cells had been equipped with extractor fans. They had been illuminated with filament lamps. 37. The detainees had been provided with dry rations (сухой паек) when taken to the courthouse. They had received hot food in accordance with a schedule before their departure from, and after their return to, the detention facility. 38. The Government supported their submissions with certificates issued by the director of IZ61/1 on 26 November and 30 November 2006 and photographs of the holding cells area of the Rostov Regional Court (showing the corridor passage with barred doors and the bathroom unit). 39. At the courthouse the applicant had been detained in a badly lit damp windowless cell measuring one square meter without ventilation or heating. The furnishing of the cell had consisted of a small bench. The walls in the cell had been coated with “shuba”, a sort of abrasive concrete lining. The cell had not been equipped with a lavatory or a wash basin. The applicant had been obliged to beg the wardens to take her to the lavatory. 40. On the days of court hearings, the applicant had been taken to the “assembly section” of the detention facility before breakfast, and on most occasions she had been taken back to the detention facility after dinnertime had already passed. She had never been given any dry rations to take with her to the courthouse, and she had never seen other detainees receive any. The applicant's relatives had not been allowed to supply her with food on the days of court hearings. 41. The applicant noted that the Government had not provided photographs of the cells of the court's holding cells area. 42. On 15 October 1998 the applicant authorised Mr A. to sell her flat. On 29 December 1998 Mr A. sold the applicant's flat. The transfer of title to the flat was subsequently registered by the regional registrar's office. 43. On 18 March 2003 the police refused to institute criminal proceedings against the registrar on suspicion of an allegedly fraudulent sale of the applicant's flat. The applicant was also informed of the right to contest the sale before a civil court. 44. For a summary of the relevant domestic law governing various aspects of detention, proceedings for the examination of its lawfulness, time-limits for a trial to take place and conditions of detention, see Gubkin v. Russia, no. 36941/02, §§ 56-80, 23 April 2009. 45. Relevant international documents concerning the general conditions in Russian penitentiary establishments and the conditions of detention of women can be found in the judgment of 1 June 2006 in the case of Mamedova v. Russia (no. 7064/05, §§ 51-53).

train

001-91008

ENG

RUS

CHAMBER

CASE OF ANDREYEVSKIY v. RUSSIA

Violation of Article 3 - Prohibition of torture (Substantive aspect)

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

5. The applicant was born in 1982 and is now serving a prison sentence in the correctional facility USh/382/10 in the Saratov Region. 6. On 21 May 2002, at 9 a.m., the applicant was arrested on suspicion of having murdered M., the mother of his girlfriend, and was brought to the Severnoye Medvedkovo police station in Moscow. The arrest record indicated that the applicant had been arrested on suspicion of murder. The applicant countersigned the record, noting that he had been notified of his rights and had understood them. The applicant’s detention was subsequently extended by prosecutors and courts. 7. According to the applicant, upon arrival at the police station on 21 May 2002, he was placed in the office of Officer Mus. The latter and another officer started beating him up. They hit and kicked him in the solar plexus, on the head, in the kidney area and the groin with a view to extracting a confession to the murder. After their prolonged beatings the applicant was placed in a cell. After a while Officers S. and L. started beating him up again. They hit him on the head, on the body and in the groin, insisting that he confess to the murder. Despite the ill-treatment, he did not confess. Only when they threatened to rape his mother and girlfriend, the applicant’s psychological resistance was broken and he confessed. 8. On 21 May 2002, at 10 p.m., the applicant was examined by a forensic medical expert in the presence of the investigator in charge of the criminal case and two attesting witnesses. The expert detected and noted in the examination record the following injuries on the applicant’s body: a pinkish-bluish bruise on the left ear measuring 1.2 cm, two reddish-purple bruises on the left side of the thorax measuring around 2×2.25 cm and 2.2×0.6 cm and a cut on the back of the left wrist. According to the record, the persons present at the examination were apprised of their right to make declarations and objections in connection with the examination. The applicant made no observations and countersigned the examination record. 9. On 22 May 2002 the investigator questioned the applicant about the murder but he denied all accusations. Later on the same day he wrote a statement confessing to the murder. He noted that the confession had been made without any “moral or physical pressure” and that he had no complaints about police officers. 10. On 23 and 30 May 2002 the investigator questioned the applicant in the presence of his two lawyers. The applicant maintained the confession and described in detail how he had committed the murder. He again confirmed the confession while being questioned during a video-recorded inspection of the crime scene where he was also assisted by his lawyers. 11. At a questioning on 2 August 2002 the applicant retracted his previous statements and submitted that his confession of 22 May 2002 had been extracted from him by force and that he had not murdered M. 12. On 24 September 2002 the applicant requested the prosecutor’s office to institute criminal proceedings against Officer “Marat” who had allegedly beaten him up on 21 May 2002. 13. The applicant submitted a written statement by witness A. dated 26 July 2003 which, in its relevant parts, reads as follows: “...I was detained on 21 May 2002 ... at the [applicant’s] flat... together with [the applicant]....We have been together since 11 a.m. on 20 March 2002...The fact that we had spent that time together can be confirmed by Z., D., A. and K.... All those persons who could have confirmed [the applicant’s] alibi ... had been known to the investigation but were never questioned.... Since we were sleeping in the same flat, I saw [the applicant’s] underwear; there had been no traces of blood on it. Thus, the blood [stains] found on the applicant later could have appeared on his clothes only after we had been separated at the police station. [The applicant] was clam and reacted adequately. I am convinced in his innocence...” 14. On 2 August 2002 an investigator with the Babushkinskiy district prosecutor’s office of Moscow launched an inquiry into the applicant’s allegations of ill-treatment which he had submitted on the same day (see paragraph 11 above). According to the records of interview submitted by the Government, the investigator questioned Officer Mur. on 19 August 2002, Officer S. on 3 September 2002 and Officers L. and Mus. on 20 September 2002. The investigator also ordered a forensic expert examination of the applicant’s injuries. The examination was carried out on 18 September 2002. 15. By a decision of 20 September 2002, the investigator refused to institute criminal proceedings against them for lack of evidence of a criminal offence. The decision was based on the applicant’s forensic medical examination and the statements of Officers Mus., Mur., L. and S. According to the expert’s report, the bruises to the applicant’s chest and ear had been caused by a blunt object two to three days before his arrest on 21 May 2002 and the incised wound on his left hand could have been caused on 19 May 2002, the date when he had allegedly committed the murder. Officers Mus., Mur., L. and S. submitted that the applicant had confessed voluntarily and that they had never forced or threatened him. The applicant was given a copy of the decision in the presence of his lawyers on 11 October 2002. 16. By a decision of 3 October 2002, the investigator refused to institute criminal proceedings against Officer “Marat”, because no such person had ever served at the Severnoye Medvedkovo police station. 17. On 24 September and 9 October 2002 the applicant lodged further complaints with the Moscow City Prosecutor about the alleged beatings. 18. On 11 October 2002 the applicant complained to the Babushkinskiy District Court of Moscow about the prosecutor’s refusal to establish the persons who could have witnessed the victim on the date of the presumed murder. He also complained about the decisions of 20 September and 3 October 2002 refusing to institute criminal proceedings against the police officers. In particular, the applicant submitted that the colour of his bruises (rose and blue and not yellow and brown) had indicated that they were freshly inflicted and that the expert’s conclusion as to the date of their infliction had thus been wrong. The applicant further claimed that witness A. could have confirmed that he had not had any bruises on his body before his arrest. On 14 October 2002 the Babushkinskiy District Court disallowed the complaints for lack of territorial jurisdiction. 19. On an unspecified date the applicant lodged similar complaints with the Ostanskinskiy District Court. 20. On 24 October 2002 the Ostankinskiy District Court dismissed the complaints, finding that the inquiry case file had, at the applicant’s own request, been enclosed in the case file in the criminal proceedings against him and that the criminal case had been sent for trial to the Babushkinskiy District Court. Accordingly, the ill-treatment complaint was to be examined by the trial court. The applicant appealed, alleging that he had not been summoned to the hearing on 24 October 2002. 21. On 22 November 2002, the Moscow City Court heard the applicant’s counsel and upheld the decision. It found that since the applicant had complained in essence of inadmissibility of evidence in relation to the charge against him, the Ostankinskiy District Court had not been entitled to examine the issue, given that the case had been about to be tried by another court. It further noted that the applicant’s lawyer had been present at the hearing on 24 October 2002 and had submitted arguments on his behalf and that the applicant had never asked to be brought to the hearing. 22. On an unspecified date the applicant’s criminal case was transferred for trial to the Babushkinskiy District Court. On court hearing days the applicant was allegedly not provided with food. 23. On 8 December 2004 the District Court found the applicant guilty of murder and sentenced him to fifteen years’ imprisonment. The judgment referred to statements from twenty-nine witnesses, in particular a person who had found and identified the knives with which the applicant had allegedly stabbed the victim; three post-mortem examinations of the victim, several DNA tests establishing a match between the samples of the victim’s blood and the bloodstains found on the applicant’s clothes; statements from experts, and further material evidence. It did not refer to the applicant’s confession dated 22 May 2002. However, it took into account his statements of 23 and 30 May 2002 and the video record of the crime scene inspection. 24. The trial court dismissed as unfounded the applicant’s allegations of ill-treatment. It noted that Officers Mur., Mus.,, S. and L., when questioned in open court, denied having beaten the applicant up. In the same vein, attesting witnesses present during the crime scene inspection and the applicant’s medical examination on 22 May 2002 testified to the court that the applicant had not complained about the alleged ill-treatment in their presence. Furthermore, his submissions were contradicted by statements from independent witnesses A. and N., who had been arrested, brought to the police station and detained there together with the applicant, and who had testified to the court that nobody had beaten him up or threatened him in their presence. According to the forensic examination, the applicant’s injuries had been sustained two to three days before his arrest. Furthermore, the court considered that he had waited for several months before complaining about the alleged ill-treatment and, when questioned about it by the court, made contradictory statements about the circumstances in which he had sustained the injuries. Thus, he alleged once that he could have sustained the ear injury in a scuffle with skinheads prior to his arrest, on another occasion he claimed that nobody had beaten him up. Moreover, witness V. testified to the Court that he had seen the applicant on 19 May 2002 sleeping under a bench at a subway station in a state of intoxication. 25. According to the applicant, from 9 a.m. on 21 May 2002 until 6 a.m. on 24 May 2002 he was held in a cell at the Severnoye Medvedkovo police station. Throughout his detention there he was not given food or drink and had nowhere to sleep because the cell had no sleeping place. 26. On an unspecified date an investigator with the Babushkinskiy District prosecutor’s office requested the head of the temporary detention ward of the Losinoostrovskiy police station to provide him with information on, among other things, the date of the applicant’s admission to the ward. In response, the head of the ward certified that on 21 May 2002, at noon, the applicant had been placed in the Severnoye Medvedkovo police station and that on 23 May 2002, at 10.40 p.m., he had been admitted to the temporary detention facility of the Losinoostrovskiy police station. 27. On 24 September and 9 October 2002 the applicant complained to the Moscow City prosecutor’s office that from the moment of his arrest on 21 May 2002 he had been detained for more than two days at the Severnoye Medvedkovo police station without food or drink. His complaints were left without reply. Complaints in similar terms were raised by the applicant’s relatives in their open letter to the State Duma dated 27 January 2005. 28. According to the Government, from 21 to 23 May 2002 the applicant was held in the temporary detention facility of the Losinoostrovskiy police station and was brought to the Severnoye Medvedkovo police station for investigative action. On their completion he was brought back to the Losinoostrovskiy police station. 29. The applicant was detained in Moscow IZ-77/1 remand centre from 30 May 2002 to 28 March 2005. 30. For most of the period the applicant was held in cell no. 106 measuring around 50 square metres. It had thirty two-tier bunks and accommodated seventy-five to one hundred inmates. Two bunks were always occupied by the inmates’ bags, leaving twenty-eight sleeping places for the inmates. Detainees had to sleep in shifts, on the floor, under the bunks and under the table. Three or more inmates had to share one bunk. The cell space per detainee was reduced to 0.5 to 0.6 square metres. The situation was the same in other cells where the applicant was detained. The administration only once provided him with bedding and even when his relatives brought him bedding the wardens always seized it. 31. Cell no. 106 had two windows with metal bars and until November 2003 the windows were covered with metal shutters which barred natural light and airflow. The windows were glazed only in winter and sometimes detainees had to stuff them with wet linen, which served as a replacement for glass when it was frozen, permitting them to maintain the air temperature at around 0.5 ºC. The stuffing was routinely removed by the wardens. The lights and TV were on day and night. As there was no ventilation, it was particularly hot in summer. Allegedly, the administration seized the electric fans provided by the detainees’ relatives and then leased them to the inmates for money. 32. The sanitary conditions in the cells were unsatisfactory. The toilet was 60 cm high. It was separated from the living area by a partition measuring one metre in height and the inmates had to use the bedding supplied by their relatives to secure at least some privacy. The wardens routinely removed their hand-made partitions so that the applicant had to answer the needs of nature in view of other inmates. Moreover, because of the overcrowding the toilet was always occupied and he could not always have access to it in case of need. The toilet was two metres from the table at which the inmates had their meals. The food was of poor quality and had an unpleasant smell. The inmates went on hunger strike several times in protest at the poor quality of the food. 33. Detainees were allowed to take showers only once every eight to ten days, in a communal shower. Seventy-five to one hundred inmates were at the same time given half an hour for a shower while only ten to twelve taps were working properly. They could not wash themselves or their clothes properly and had to negotiate with wardens who agreed for money to extend the shower time to one hour. 34. The applicant received no medical treatment, in particular in respect of his acute tooth pain. He was first given dental treatment only when he arrived at the correctional colony in June 2005. 35. Once a day the applicant was allowed to take a forty-minute walk in a stone courtyard measuring 20-25 square metres, at the same time as up to ninety others. 36. On many occasions the applicant complained about the conditions of detention to the administration of the remand centre but his complaints were left without reply. 37. In support of his description of the conditions of detention the applicant produced written statements by Messrs N., D., Po. and Pe. who had been detained in the same remand centre at the relevant time and confirmed his submissions concerning, in particular, overcrowding, lack of individual sleeping places and bedding and inadequate medical assistance. The applicant also submitted sketched plans and photographs of cell no. 106 and the courtyard. He also furnished an article dated 28 December 2005 and published on the internet site newsru.com, summarising the results of the checks carried out by the Moscow City Prosecutor’s office in 2005 and concerning conditions of detention at remand centres in Moscow. With reference to the results of the check-ups, it was stated that although the overall number of inmates held in the six remand centres of Moscow had decreased over a five-year period, it was still twice the design capacity. A considerable number of detainees were not provided with individual sleeping places. 38. According to the Government, throughout his detention in the remand centre the applicant was held in the following cells: - cell no. 106 measuring 57.8 square metres, having 34 bunks and accommodating 34 inmates; - cell no. 118 measuring 32.3 square metres, having 34 bunks and accommodating 35 inmates; - cell. No.122 measuring 52.7 square metres, having 20 bunks and accommodating 20 inmates; - cell no. 146 measuring 46.57 square metres, having 22 bunks and accommodating 22 inmates; - cell no. 238 measuring 21.31 square metres, having 6 bunks and accommodating 6 inmates. 39. The cells had central heating, water supply and drainage; each cell was equipped with a toilet and a wash basin. The toilet was separated from the living area by a brick partition not less than one metre in height and fully securing the necessary privacy. Depending on their size, the cells had one or two windows with bars; the windows were glazed and permitted the inmates to read and work by natural light. The artificial lighting conformed to the relevant standards and at night its brightness was reduced to a level permitting supervision of the detainees. During the applicant’s detention there had been no artificial ventilation in the cells of the remand centre, but it was introduced subsequently. The air temperature, the humidity level and the quality of water in the applicant’s cells conformed to the relevant standards. 40. The applicant was properly fed and a medical assistant regularly checked the quality of food and the compliance with the requirements in force as regards its storage. The applicant was regularly examined by the medical staff of the facility and received adequate medical assistance. 41. The medical unit was equipped with all necessary medications. According to an excerpt of the applicant’s medical record submitted by the Government, he was examined by a dentist on 17 February 2005 and his condition was assessed as satisfactory. He was diagnosed with chronic caries of two teeth but no need for urgent medical intervention was established. Upon arrival at the correctional colony, the applicant was treated for caries of two teeth, which were filled. 42. To support their submissions, the Government furnished a number of certificates issued by the head of remand centre IZ-77/1 in April 2006 and several excerpts from the applicant’s medical record. 43. Section 23 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. Detainees should be given free of charge sufficient food to maintain them in good health in line with the standards established by the Government of the Russian Federation (Section 22). 44. The 1993 Judicial Review Act (Federal Law No. 4866-1 on challenging acts and decisions infringing individual rights and freedoms), as amended in 1995, provides for a judicial avenue for claims against public authorities. It states that any act, decision or omission by a state body or official can be challenged before a court if it encroaches on an individual’s rights or freedoms or unlawfully vests an obligation or liability on an individual. In such proceedings the court is entitled to declare the disputed act, decision or omission unlawful, to order the public authority to act in a certain way vis-à-vis the individual, to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom. If the court finds the disputed act, decision or omission unlawful this gives rise to a civil claim for damages against the State. 45. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) reads as follows: “42. Custody by the police is in principle of relatively short duration ...However, certain elementary material requirements should be met. All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets. Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day. 43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.” The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47). 46. The part of the Report to the Russian Government on the visit to the Russian Federation carried out by the CPT from 2 to 17 December 2001 (CPT/Inf (2003) 30) read, in so far as it concerned the conditions of detention in administrative-detention cells located within police stations, as follows: “25. Similar to the situation observed during previous visits, none of the district commands (RUVD) and local divisions of Internal Affairs visited were equipped with facilities suitable for overnight stays; despite that, the delegation found evidence that persons were occasionally held overnight at such establishments... The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench. Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for supplying detainees with food and drinking water, and access to a toilet was problematic. The CPT reiterates the recommendation made in its report on the 1999 visit (cf. paragraph 27 of document CPT (2000) 7) that material conditions in, and the use of, cells for administrative detention at district commands and local divisions of Internal Affairs be brought into conformity with Ministry of Internal Affairs Order 170/1993 on the general conditions and regulations of detention in administrative detention cells. Cells which do not correspond to the requirements of that Order should be withdrawn from service. Further, the Committee reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for longer than 3 hours.”

train

001-78427

ENG

GBR

CHAMBER

CASE OF BURDEN AND BURDEN v. THE UNITED KINGDOM

No violation of Art. 14+P1-1

Josep Casadevall;Nicolas Bratza

8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. The applicants are unmarried sisters, born on 26 May 1918 and 2 December 1925 respectively. They have lived together all their lives; for the last 30 years in a house built on land inherited from their parents in Wiltshire. 10. The house is owned by the applicants in their joint names. According to an expert valuation dated 12 January 2006, the property was worth GBP 425,000, or GBP 550,000 if sold together with the adjoining land. The sisters also jointly own two other properties, worth GBP 325,000 in total. In addition, each sister owns in her sole name shares and other investments worth approximately GBP 150,000. Each has made a will leaving all her property to the other. 11. The applicants submitted that the value of their jointly-owned property had increased to the point that each sister's one-half share was worth more than the current exemption threshold for inheritance tax (see paragraph 13 below), and that the survivor might have to sell the house in order to pay the tax. 12. By sections 3, 3A and 4 of the Inheritance Tax Act 1984 (“the 1984 Act”), inheritance tax is charged at 40% on the value of a person's property, including his or her share of anything owned jointly, passing on his or her death, and on lifetime transfers made within seven years of death. The charge is subject to a nil rate threshold of GBP 275,000 for transfers between 5 April 2005 and 5 April 2006; GBP 285,000 for transfers during the tax year 2006-2007; and GBP 300,000 for 2007-2008 (section 98 of the Finance Act 2005). 13. Interest is charged, currently at 4%, on any tax not paid within six months after the end of the month in which the death occurred, no matter what caused the delay in payment. Any inheritance tax payable by a person to whom land is transferred on death may be paid, at the tax-payer's election, in ten equal yearly instalments, unless the property is sold, in which case outstanding tax and interest must be paid immediately (1984 Act, section 227(1)-(4)). 14. Section 18(1) of the 1984 Act provides that property passing from the deceased to his or her spouse is exempt from charge. With effect from 5 December 2005, this exemption was extended to a deceased's “civil partner” (see paragraphs 16-18 below). 15. The purpose of the 2004 Act was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, and to confer on them, as far as possible, the same rights and obligations as entailed by marriage. 16. A couple is eligible to form a civil partnership if they are (i) of the same sex; (ii) not already married or in a civil partnership; (iii) over the age of 16; (iv) not within the prohibited degrees of relationship. 17. A civil partnership is, like marriage, indeterminate in nature and can end only on death, dissolution or annulment. The 2004 Act created a comprehensive range of amendments to existing legislation, covering inter alia pensions, tax, social security, inheritance and immigration. The courts have similar powers to control the ownership and use of the civil partners' property upon dissolution of a civil partnership as upon dissolution of a marriage. 18. When the Civil Partnership Bill was passing through Parliament, an amendment to it was passed in the House of Lords by 148 votes to 130, which would have had the effect of extending the availability of civil partnership, and the associated inheritance tax concession, to family members within the “prohibited degrees of relationship”, if (i) they were over 30 years of age; (ii) they had co-habited for at least 12 years; and (iii) they were not already married or in a civil partnership with some other person. The amendment was reversed when the Bill returned to the House of Commons. 19. During the course of the debate in the House of Lords, Lord Alli, a Labour Peer, stated: “I have great sympathy with the noble Baroness, Lady O'Caithlin [the Conservative Peer who proposed the amendment], when she talks about siblings who share a home or a carer who looks after a disabled relative. Indeed, she will readily acknowledge that I have put the case several times—at Second Reading and in Grand Committee—and I have pushed the Government very hard to look at this issue. There is an injustice here and it needs to be dealt with, but this is not the Bill in which to do it. This Bill is about same-sex couples whose relationships are completely different from those of siblings.” During the same debate, Lord Goodhart, Liberal Democrat Peer, stated: “There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties. But that is a different argument and this is not the place or the time for that argument. This Bill is inappropriate for dealing with that issue.” During the course of the debate in the Standing Committee of the House of Commons, Jacqui Smith MP, Deputy Minister for Women and Equality, stated: “As I suggested on Second Reading, we received a clear endorsement of the purpose of the Bill—granting legal recognition to same-sex couples, ensuring that the many thousands of couples living together in long-term committed relationships will be able to ensure that those relationships are no longer invisible in the eyes of the law, with all the difficulties that that invisibility brings. We heard a widespread agreement from Members across almost all parties that the Civil Partnership Bill is not the place to deal with the concerns of relatives, not because those concerns are not important, but because the Bill is not the appropriate legislative base on which to deal with them.” 20. The 1998 Act entered into force on 2 October 2000. Section 3(1) provides: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Section 4 of the 1998 Act provides (so far as relevant): “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ... (6) A declaration under this section ... - (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and (b) is not binding on the parties to the proceedings in which it is made.” Section 6 of the 1998 Act provides: “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if - (a) as a result of one or more provisions of primary legislation, the authority could not have acted any differently; or (b) in the case of one or more provisions of ... primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. ...” Section 10 of the 1998 Act provides: “(1) This section applies if – (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies – (i) all persons who may appeal have stated in writing that they do not intend to do so; or (ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or (iii) an appeal brought within that time has been determined or abandoned; or (b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention. (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.” 21. The Government submitted that the objective of giving the national courts the power under section 4 had been to provide a formal means for notifying the Government and Parliament about a situation in which legislation was found not to comply with the Convention, and to provide a mechanism for speedily correcting the defect. Once a declaration had been made (or once the European Court of Human Rights had found a violation based on a provision of domestic law), there were two alternative avenues for putting right the problem: either primary legislation could be introduced in Parliament, or the Minister concerned could exercise his summary power of amendment under section 10 of the 1998 Act. 22. When the Human Rights Bill passed through the House of Lords on 27 November 1997, the Lord Chancellor explained that: “we expect that the government and Parliament will in all cases almost certainly be prompted to change the law following a declaration of incompatibility.” One of the Ministers with responsibility for the 1998 Act explained to the House of Commons on 21 October 1998 that: “Our proposals [for remedial orders] safeguard parliamentary procedures and sovereignty, ensure proper supervision of our laws and ensure that we can begin to get the ability both to enforce human rights law and to create a human rights culture. They also ensure that we can do it in the context of not having to worry that if something is decided by the Strasbourg court or by our courts that creates an incompatibility, we do not have a mechanism to deal with it in the quick and efficient way that may be necessary.” The most recent report of the Joint Committee on Human Rights, published on 4 August 2006, showed that declarations of incompatibility had been made in twenty cases between December 2000 and December 2004. In seven of these cases the declaration had been overturned on appeal, or the judgment on appeal was pending. In ten cases the offending legislation had been amended or repealed (in one case by a remedial order), and in the remaining three cases, amendments to the offending legislation were pending or under consideration.

train

001-100461

ENG

RUS

CHAMBER

CASE OF VASILCHENKO v. RUSSIA

Remainder inadmissible (Article 35-3-b - No significant disadvantage);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

4. The applicant was born in 1959 and lives in Rostov-on-Don. 5. The applicant is a Russian Army colonel. 6. In September 1998 he was removed from his post. 7. On 2 October 1998 the applicant brought proceedings against his commanding officer claiming reinstatement, payment of salary and service-related benefits, and compensation of non-pecuniary damage sustained as a result of his removal. 8. On 26 October 1998 the Military Court of Rostov Garrison (“the Garrison Court”) dismissed his claims; the judgment was upheld on appeal. 9. In January 1999 a military disciplinary commission issued an appraisal report in respect of the applicant. The commission found that the applicant's performance was unsatisfactory. On this basis in March 1999 he was transferred from active military service to the reserve. 10. On 20 April 1999 the applicant challenged the transfer in court, but to no avail. On 10 November 1999 the Garrison Court dismissed his claim; the judgment was upheld on appeal. 11. On 27 April 2001 president of the Military Chamber of the Supreme Court of Russia granted the applicant's application for supervisory review and brought an extraordinary appeal against the above court decisions. 12. On 22 May 2001 the Military Chamber of the Supreme Court quashed the impugned decisions and remitted the cases for fresh examination. 13. On an unspecified date the Garrison Court joined the above cases. 14. On 21 January 2002 the Garrison Court granted the applicant's claims in part. It quashed the respective decisions of the applicant's superior officers and the appraisal report, reinstated him in his former post and awarded him non-pecuniary damages in the amount of 1,000 Russian roubles (RUB), to be recovered from the Ministry of Defence, and RUB 500 to be recovered from the Chief of the Headquarters of the North-Caucasus Military Command. The claims for pecuniary damages were rejected. 15. On 8 May 2002 the appeal court set aside the judgment in the part concerning rejection of the claims for pecuniary damages and required a new hearing. The remainder of the judgment was upheld. 16. On 27 September 2002 the Garrison Court issued a writ of execution in respect of the part of the judgment that had entered into force and forwarded it to the bailiff service of the Oktyabrskiy District of RostovonDon. 17. On 30 January 2003 the applicant was reinstated in his post. The damages in the amount of RUB 1,500 awarded by the judgment of 21 January 2002 remained unpaid. 18. On 19 June 2003 the Garrison Court granted the applicant's claims in part, awarding him RUB 650,510. However, on 11 February 2004 the appeal court overturned this judgment on procedural grounds and ordered the case for re-examination. 19. On 8 April 2004 the Garrison Court granted most of the applicant's claims. The court awarded him RUB 776,247 covering his salary, legal expenses and various service-related benefits due for the period of his necessary absence from work, in particular, compensation for clothing, food ration, sanatoria treatment and a lump-sum premium for 1997. 20. The court also found that the applicant's reinstatement ordered by the judgment of 21 January 2002 had been carried out with a significant delay, and that the applicant had not received RUB 1,500 awarded by the court in compensation of non-pecuniary damage. The applicant was awarded RUB 5,000 as compensation for the delayed enforcement. 21. This judgment was upheld on appeal by the Military Court of North Caucasus Command on 4 August 2004. 22. On 9 April 2004 the applicant received RUB 1,000 due to him under the decision of 21 January 2002. The award of RUB 500 remained unpaid. 23. On 30 August and 1 November 2004 the applicant received the amounts awarded to him by the court judgment of 8 April 2004. 24. The applicant brought proceedings claiming index-linking of the amounts paid to him with a delay. 25. On 28 January 2005 the Garrison Court granted his claims in part, awarding him RUB 2,750 as inflation losses resulted from the delay in the enforcement of the judgments of 21 January 2002 and 8 April 2004. However, without giving any specific reasons the court rejected the applicant's claim in the part concerning the failure to pay him RUB 500. 26. On 25 May 2005 the Military Court of North Caucasus Command upheld the judgment on appeal. 27. On 19 July 2005 the applicant received the amount awarded to him by the judgment of 28 January 2005. It appears that the applicant has not received the award of RUB 500 to date. 28. Federal Law № 68-ФЗ of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation. 29. Section 6.2 of the Federal Law № 68-ФЗ provides that everyone who has a pending application before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to bring the complaint to the domestic courts.

train

001-110497

ENG

HRV

ADMISSIBILITY

BUCKAL v. CROATIA

Inadmissible

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

1. The applicant, Mr Zdravko Bučkal, is a Croatian national who was born in 1968 and is currently serving a prison term in Lepoglava State Prison. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 2. The facts of the case as submitted by the parties may be summarised as follows. 3. On an unspecified date criminal proceedings were instituted against the applicant on charges of theft. He was detained in the Zagreb Prison Hospital (Bolnica za osobe lišene slobode; hereinafter “the ZPH”) in the period between 28 September 2009 and 27 November 2009 when he was transferred to the Zagreb Prison (Zatvor u Zagrebu). On 29 December 2009, following several convictions for theft, the applicant was transferred to the Lepoglava State Prison (Kaznionica u Lepoglavi; hereinafter: the “LSP”) where he is serving his prison term and is expected to remain until 30 April 2013. 4. In the period between 28 September 2009 and 27 November 2009 the applicant was placed in the ZPH, in a room measuring 21 square metres, with five other inmates. 5. According to the applicant, there were no sanitary facilities in the room and it was locked during the night. For that reason, to urinate at night the inmates had to use a plastic bottle. When they needed to defecate at night they had to ring for a guard to be able to go to the toilet. However, the guards would not always answer these calls and then the inmates had to use a plastic bag, in full view of the other inmates in the same room. These bags of faeces were then thrown out of the window. According to the Government, the sanitary conditions in the ZPH were good. The room where the applicant was accommodated did not have sanitary facilities but whenever an inmate had a need for personal hygiene he was able to call the security guards, who then escorted him to the sanitary facilities. Other general conditions of the accommodation were also good. The room had windows which provided fresh air and natural light; the inmates were served regular meals and they had the opportunity to walk around in the hospital hallways and in the fresh air for two hours during the day. 6. On 29 December 2009 the applicant was transferred to the LSP, where he has been an inmate ever since. He was first placed in a cell measuring 16 square metres, with six other inmates, where he remained until 1 February 2010, when he was transferred to another cell, measuring 33 square metres, with eleven other inmates. 7. On 16 June 2010 the applicant complained to the sentence-execution judge of the Varaždin County Court (Županijski sud u Varaždinu) about the conditions of his detention in the LSP. He alleged that his cell was inadequate and contrary to the guarantees offered by the Enforcement of Prison Sentences Act. 8. On 15 March 2011 the sentence-execution judge of the Varaždin County Court found that the conditions of the applicant’s detention in the LSP were inadequate as regards the individual space offered to the applicant in a cell measuring 33 square metres and accommodating twelve inmates, and ordered the LSP to take the necessary measures to remedy the situation. 9. On an unspecified date in March 2011 the LSP lodged an appeal against that decision with a three-judge panel of the Varaždin County Court. 10. On 19 March 2011 a three-judge panel of the Varaždin County Court dismissed the LSP’s appeal and upheld the decision of the sentence-execution judge. 11. On 13 April 2011 the LSP authorities offered the applicant a move to another cell. The applicant informed a security guard that he did not want to move from his current cell. He also provided a handwritten statement in which he reiterated that he did not want to leave his cell, because it had never been locked and he was satisfied with the accommodation there. He asked to be placed in a semi-open prison regime, which was refused. 12. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003), read as follows: “(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully refusing him, or limiting, any of the rights guaranteed by this Act. (2) Requests for judicial protection shall be decided by a sentence-execution judge.” (1) A sentence-execution judge protects the rights of prisoners, supervises lawfulness in respect of the execution of a prison term and ensures equality of prisoners before the law. (2) A sentence-execution judge takes actions and decisions in respect of: 2. judicial protection of those rights by deciding on appeals lodged against a decision by a prison governor in cases prescribed by this Act... “(1) Proceedings before a sentence-execution judge are initiated in the first instance at the request of a party or a judge and in the second instance upon an appeal. (2) A sentence-execution judge acts so as to, according to the basic principles, ensure effective protection of the rights and interests of the prisoner concerned. ... The judge shall allow the parties to submit observations about the facts [presented by] and allegations put forward by the opponent, and to present new facts and call for evidence. (3) Parties to proceedings are a prisoner and a prison or other penal institutions. (4) A prisoner has the right to a lawyer of his or her own choice. Such a lawyer shall have qualifications required for a defence lawyer in criminal proceedings. When a prisoner does not ensure legal representation within twenty-four hours, the proceedings shall continue without legal representation. (5) A prisoner may ask for a legal-aid lawyer when he does not have sufficient means to pay for legal representation and is not able to represent his own interests. (6) A sentence-execution judge may consult all official documents concerning a prisoner, pay a visit to the prison or other penal institution concerned, and establish the relevant facts in any other manner. (7) A sentence-execution judge may hold a hearing within appropriate and adequate premises in a prison or other penal institution.” “A prisoner may lodge an appeal to a sentence-execution judge against decisions of a prison governor within eight days ...” (1) Parties to the proceedings, a representative of a prisoner and persons listed in Article 380 §§ 1 and 2 of the Code on Criminal Procedure may lodge an appeal against a decision of a sentence-execution judge adopted in the first instance ... (2) The appeal shall be lodged with a sentence-execution judge, who shall immediately forward it to a judicial panel of a county court. That panel shall decide within eight days ...”

train

001-57563

ENG

DNK

CHAMBER

CASE OF RASMUSSEN v. DENMARK

No violation of Art. 14+6;No violation of Art. 14+8

C. Russo

8. The applicant, Mr. Per Krohn Rasmussen, is a Danish citizen, born in 1945. He currently works as a clerk and resides in Nyborg. He was married in 1966. During the marriage, two children were born, a boy in 1966 and a girl, Pernille, on 20 January 1971. The applicant had grounds, even before the latter's birth, for assuming that another man might be the father; however, in order to save the marriage, he took no steps to have paternity determined. 9. In June 1973, Mr. Rasmussen and his wife applied for a separation (separation ved bevilling), which they obtained on 9 August. In accordance with their agreement, Mrs. Rasmussen retained custody of the children and the competent authority issued a decision to the effect that Mr. Rasmussen should pay maintenance for them from 1 September 1973. He in fact did so from that date until 1 June 1975. 10. In March 1975, the applicant, who had previously still nurtured hopes of preserving the marriage, took some steps to institute proceedings to challenge his paternity of Pernille. To this end, he applied for legal aid. However, he did not pursue the matter since, on 28 April 1975, he and his wife signed an agreement whereby she waived all claims for maintenance for the child and he undertook to refrain from bringing any such proceedings. 11. In June 1975, the applicant and his wife applied for a divorce (skilmisse ved bevilling), which was granted on 16 July. On this occasion, he reaffirmed before the authorities that the mother should have sole custody of the children and was once more ordered to pay maintenance for them. He did not raise any objection. 12. On 16 January 1976, four days before Pernille's fifth birthday, the applicant's former wife wrote to him asserting that she was not bound by the agreement of 28 April 1975. She later lodged with the public authorities a renewed petition for maintenance, which was granted by order effective from 1 March 1976. Since then, Mr. Rasmussen has regularly paid the maintenance. 13. On 27 January 1976, Mr. Rasmussen sought leave from the Eastern Court of Appeal (Østre Landsret) to institute proceedings out of time to determine the paternity of the girl (see paragraph 19 below). In accordance with the normal procedure, the police, at the Court of Appeal's request, interviewed Mr. Rasmussen and his former wife in March 1976 and recorded their statements in a report. 14. The Court of Appeal refused the application on 12 April 1976, for the reason that the statutory conditions for granting leave at that time were not satisfied (see paragraph 19 below). The applicant did not appeal against the decision within the statutory time-limit. However, on 27 July 1976, he petitioned the Ministry of Justice for leave to appeal out of time to the Supreme Court (Højesteret), but this was refused on 3 September 1976. 15. On 20 November 1978, Mr. Rasmussen applied again to the Court of Appeal for leave to institute paternity proceedings. His former wife opposed the application, on the ground that such proceedings would have a detrimental effect on the child. By a decision of 11 December 1978, the Court of Appeal refused the application for the reason that the applicant had not brought the action contesting paternity within the time-limits provided for in section 5(2) of the 1960 Act on the Legal Status of Children ("the 1960 Act" - Lov nr. 200 af 18.5.1960 om børns retsstilling; see paragraph 19 below) and that there was no cause to grant him any exemption since the conditions laid down in section 5(3) were not met. A similar decision was given by the Supreme Court on 12 January 1979. 16. Prior to the enactment of the 1960 Act, which applied in Mr. Rasmussen's case, the status of children was regulated in the Illegitimacy Act of 1937 and the Legitimacy Act of the same year. Section 3 of the latter provided that proceedings to contest paternity of a legitimate child could be instituted by the mother, the husband, the child or a person appointed guardian of the child. No time-limit was laid down for the institution of such proceedings. 17. According to Danish case-law and legal writing, however, a husband could be estopped from contesting paternity of a child born in wedlock if, knowing that his wife had had sexual intercourse with another man during the relevant period, he had expressly or tacitly acknowledged after the child's birth that he was the father. The "doctrine of acknowledgement" (anerkendelseslaeren) was first established in 1956 by a judgment of the Supreme Court, reported in Ugeskrift for Retsvaesen (U.f.R.) 1956, p. 107. Although there was no case-law on the point, legal writers expressed the view that this doctrine applied also to mothers (see, for instance, Ernst Andersen, Aegteskabsret I, 1954, p. 95). 18. In December 1949, the Ministry of Justice set up a committee, called the "Paternity Committee", to consider, inter alia, certain aspects of the status of children born in wedlock. In June 1955, the Committee submitted its report (no. 126/1955) on the amendment of the rules regarding determination of paternity. As to the husband's right to institute proceedings to challenge paternity of a child born in wedlock, the Committee recommended the institution of a double time-limit of six months from the time when the husband became aware of the facts affording grounds for contesting his paternity and not later than three years from the birth of the child; but that the Ministry of Justice should be empowered to grant exemption from these time-limits in special circumstances. The Committee took the view that the welfare of the child (and of the marriage) required that his status should be established as soon as possible and that the husband's interests should yield to these considerations (page 60 of the report). One of the reasons given by the Committee for this recommendation was that a paternity suit instituted by the husband several years after the child's birth would place the child in a worse position than if proceedings had been instituted earlier: the court would possibly have to give judgment in the husband's favour on the basis of the blood-group determination, while it would be difficult to obtain a paternity and a maintenance order against another man. On the other hand, the Committee found that the child's right to institute proceedings should not be subject to any time-limit, since the views which might lead to restricting the husband's right to institute proceedings were not of relevance in the case of an action brought by the child. For the same reasons, there should likewise be no time-limit with regard to actions brought by the child's guardian or the mother (page 59 of the report). The Committee also discussed the question whether the doctrine of acknowledgement should be embodied in legislation. However, it considered that this was a matter which was better left to the courts to decide on a case-by-case basis. 19. The Government subsequently introduced a Bill which incorporated in part the recommendations of the Paternity Committee but increased the time-limits to twelve months and five years respectively and conferred competence to grant exemption on the Courts of Appeal. This legislation entered into force, as the 1960 Act, on 1 January 1961. It provided in section 5(1) that proceedings to challenge paternity of a child could be brought by the husband, the mother, the child or a guardian of the child. Sub-sections 2 and 3 of section 5 read as follows: "(2) Paternity proceedings must be instituted by the husband within twelve months after he becomes cognizant of the circumstances which may give grounds for his renunciation of paternity, and not later than five years after the birth of the child. (3) However, a Court of Appeal may, on the conditions set out in section 456r, sub-section 4, of the Administration of Justice Act, grant leave to institute proceedings after the expiry of the time-limits set out in sub-section 2 above." Section 456r, sub-section 4, of the Administration of Justice Act concerns re-opening of a paternity case after the expiry of the applicable time-limit or time-limits. The 1960 Act did not impose any restriction on the mother's right to institute paternity proceedings, nor did it refer to the doctrine of acknowledgement (see paragraph 17 above). 20. In case-law, however, the "doctrine of acknowledgement" continued to be applied and there were Court of Appeal and Supreme Court decisions confirming the earlier view that the doctrine also applied to mothers. 21. The circumstances which, under the doctrine of acknowledgement, estop the husband from contesting paternity will, as a general rule, also militate against granting him leave to institute proceedings out of time. However, a decision to grant leave is without prejudice to the outcome of the subsequent procedure (see the Eastern Court of Appeal's judgment of 1977, U.f.R. 1977, p. 907). 22. In 1969, the Ministry of Justice set up a committee, called the "Matrimonial Committee", to consider whether the evolution of social conditions, and notably the changes in the social status of women and the resultant changes in the conception of the institution of marriage since the introduction of the 1960 Act, called for amendment of, inter alia, the provisions governing the legal status, during marriage and after separation or divorce, of children born in wedlock. In fact, the proportion of women working outside their homes has increased to about 60 per cent. As a result, men are, to a much higher degree than before, looking after the children and are more frequently granted their custody in the event of separation or divorce. Mothers are therefore now more likely to challenge paternity in order to prevent custody being given to the husband. In a report on cohabitation without marriage (samliv uden aegteskab I - no 915/1980, p. 72), published in January 1981, the Matrimonial Committee stated: "There is consensus in the Committee that also the mother's right to institute paternity proceedings and request re-opening should be subject to a relatively short time-limit, for example corresponding to the time-limits which today apply to the father. Furthermore, the Committee is to some degree in favour of an absolute time-limit, applicable to all, for instituting and re-opening paternity proceedings." 23. On the basis of the recommendations of the Matrimonial Committee, the Government tabled a Bill before Parliament in March 1982, proposing certain amendments to the 1960 Act. The explanatory memorandum to this Bill referred to the Rasmussen case, then pending before the European Commission. On page 4, it mentioned that the Agent of the Government had declared in evidence before the Commission that new legislation on the matter would be introduced, establishing uniform time-limits within which both men and women could contest the husband's paternity; the memorandum added that the Ministry of Justice considered such legislation "desirable in the interest of the child's needs" (af hensyn til barnets tarv). 24. On 26 May 1982, the Danish legislature passed an Act amending the 1960 Act, which entered into force on 1 July 1982. Following this amendment, sub-sections 2 and 3 of section 5 of the 1960 Act now provide: "(2) Paternity proceedings must be instituted not later than three years after the birth of the child. This provision shall not apply, however, where proceedings are instituted by the child after having attained the age of 18. (3) A Court of Appeal may grant leave to institute proceedings after the expiry of the time-limit set out in the first sentence of sub-section 2 of this section where quite exceptional grounds are given as to why proceedings were not instituted at an earlier stage, in circumstances where institution of proceedings is especially warranted, and where it can be presumed that the proceedings will not cause the child any great inconvenience." The "doctrine of acknowledgement" is still applied by the Danish courts to estop spouses from contesting paternity of a child (see the Supreme Court's judgment of 17 January 1984).

train

001-85946

ENG

GBR

ADMISSIBILITY

LEWIS v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Trevor Lewis, is a British national who was born in 1942 and lives in Cornwall. 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 4 September 1997. They had no children from the marriage. On 18 September 2000, the applicant made a claim for widows’ benefits. Subsequently, he was informed that his claim had been disallowed as he was not a woman. On 21 October 2000 the applicant made a request for reconsideration. On 20 November 2000 the applicant was informed that the legislation had not changed and that he was not eligible for such benefits. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

train

001-95799

ENG

ROU

CHAMBER

CASE OF IEREMEIOV v. ROMANIA (No. 2)

Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - award

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

5. The applicant was born in 1967 and lives in Timişoara. 6. At the material time he was a journalist at the newspaper Ziua de Vest in Timişoara. 7. On 23 June 2000, following the local elections, the newspaper Ziua de Vest published an article by the applicant accusing A.V.I., the newly elected mayor of Buziaş, of having collaborated with the Securitate (the intelligence service during the communist period). The article, featured on the third page of the newspaper, was announced on the front page by the headline: “Mayor with file” (Primar cu dosar). 8. The relevant parts of the article read as follows: “Citizens' safety above State security The newly elected mayor, [A.V.I.], is suspected of having collaborated with the Securitate The first scandal concerning the Securitate files is about to burst in the town of Buziaş. The elected mayor, [A.V.I.] is suspected by some citizens – whose names will not be made public for obvious reasons – of having collaborated with the Securitate. Based on information from inside the Romanian Secret Service, our sources said that [A.V.I.] was under surveillance until 1989 as an irredentist chauvinist, which made it impossible for him to obtain a history teaching post in Buziaş... During the same period [A.V.I.] was allegedly persuaded to collaborate with the Securitate, and a file allegedly exists on this matter... Before the local elections, [A.V.I.] lodged a written statement with the Electoral Bureau... declaring that he had not been part of the former Securitate. He informed us yesterday that what he had written in that statement was true and that he had never collaborated in any way with the secret police before 1990.” 9. On 21 August 2000 A.V.I. lodged a criminal complaint for insult and defamation against the applicant with Timişoara District Court. His complaint also included the company which published the newspaper. 10. The District Court heard testimonies from two witnesses who confirmed that they had told the applicant about the rumours concerning the victim's collaboration with the Securitate. 11. On 31 October 2000 the applicant gave a statement to the court. He pleaded not guilty and relied in his defence on the right to freedom of expression and the right to provide information about public figures. 12. On 20 February 2001 the District Court gave judgment in the case. It considered that the applicant had not committed defamation, as he had not referred to any specific offences allegedly committed by the victim. It found that the expressions used by the applicant, including the headline on the front page, were manifestly insulting to the victim. However, the District Court noted that the applicant had not described any of the rumours as fact and that he had also presented the victim's point of view in the article. It further considered that a certain degree of aggressiveness was common in journalism and that therefore, although the facts met the legal criteria to constitute the and their consequences were not severe enough to come within the sphere of criminal law. The District Court acquitted the applicant of both defamation and insult and imposed an administrative fine of 500,000 Romanian lei (ROL). The court also found that the conditions had been met for the applicant's civil liability and that of the company publishing the newspaper, in respect of the prejudice caused to the victim. It thus ordered the applicant and the company to pay ROL 3,000,000 to A.V.I. as compensation for non-pecuniary damage. Lastly, the applicant was ordered to pay ROL 350,000 to the State in court fees. 13. All parties appealed. The victim contested the acquittal and sought to have the amount of damages increased. The company publishing the newspaper argued that the prejudice had not been proven by the victim. The applicant claimed that the legal requirements had not been fulfilled either for the existence of the offence of defamation or for the existence of insult. 14. On 27 April 2001 the parties' representatives presented the grounds for appeal orally before Timiş County Court. The applicant was invited to speak only before the end of the hearing (ultimul cuvânt al inculpatului). In his address he requested that A.V.I.'s appeal be dismissed. 15. The final decision was adopted on the same day. The County Court allowed the appeal lodged by A.V.I. It acquiesced in the statement of facts established by the District Court but considered that the first-instance court had failed to interpret them correctly. It found that the expressions used by the applicant, in particular, “the mayor is suspected of having collaborated with the Securitate”, “was allegedly persuaded to collaborate with the Securitate, and a file allegedly exists on this matter” and “was under surveillance as an irredentist chauvinist”, were manifestly defamatory and, if true, would expose the victim to public opprobrium at the least. It considered that the applicant's intention to denigrate was proved and that he was not therefore covered by the Constitution and the Convention, which guaranteed the right to freedom of expression only when it was exercised in good faith. However, for and their consequences were not severe enough to come within the sphere of criminal law. It therefore acquitted the applicant on both accounts and imposed on him an administrative fine of ROL 1,000,000. 16. The court also considered that the prejudice incurred by the victim had not been correctly evaluated by the District Court and increased the amount to be paid by the applicant and the newspaper company to ROL 20,000,000. It awarded A.V.I. ROL 5,000,000 for costs, to be paid jointly by the applicant and the company. Lastly, the court ordered the applicant to pay ROL 500,000 to the State for court fees. 17. On 3 October 2001 the applicant paid the administrative fine. 18. The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages in force at the material time are described in Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008. 19. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008). 20. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal from the Criminal Code of the Articles concerning insult and defamation. 21. Law no. 356/2006 amended the Criminal Code and made it mandatory for an appeal court to hear the accused where the first-instance court had acquitted him or her. Currently, where an appeal court quashes a judgment given by a first-instance court, it must decide on the evidence to be adduced and set a date on which it will take statements from the accused if the latter was not heard or if he or she was acquitted by the first-instance court (Articles 38514 § 11 and 38516, as amended).

train

001-68693

ENG

SVN

ADMISSIBILITY

KUDUZOVIC v. SLOVENIA

Inadmissible

David Thór Björgvinsson;John Hedigan

The applicant, Ismet Kuduzović, is a Bosnian national, who was born in 1966 and lives in Šoštanj, Slovenia. He is represented before the Court by the Verstovšek law office from Celje. The facts of the case, as submitted by the applicant, may be summarised as follows. On 14 February 1987 the applicant, a mine worker of Bosnian citizenship who has lived on the territory of Slovenia since 1984, had a work-related accident while working for »Rudnik lignita Velenje«, a mining enterprise. On 10 March 1992 the Pension and Disability Fund of Slovenia granted the applicant the status of partial (“third-degree”) disability, including the right to a reduced workload. In 1991, after Slovenia became an independent state, the applicant did not obtain Slovenian citizenship because, as he claims, he lived in a bachelor's home and did not, therefore, satisfy the statutory condition of “permanent residence”. He thus became an alien and lodged a request to obtain a work permit, which was issued for the period of one year, expiring on 8 October 1993. On 21 September 1993 the »Rudnik lignita Velenje« enterprise terminated the applicant's contract of employment on the ground that his work permit was about to expire. The termination was to take effect on 8 October 1993. On 6 October 1993 the applicant lodged an objection with the appellate authority of the enterprise, claiming that the enterprise could not dismiss him because he was a disabled worker with the right to a reduced workload. The objection was rejected on 18 November 1993. On 17 December 1993 the applicant instituted proceedings at the Celje Employment Tribunal, arguing that the legislation on the protection of disabled workers should have precedence over the legislation governing the employment of aliens. On 14 March 1994 the Tribunal held a hearing and adopted a decision on the same day, rejecting the applicant's claim on the ground that his employment contract had been terminated ex lege, as provided by the Aliens Employment Act 1992 in force at the material time. The Tribunal stated that the Act did not provide for any exception for disabled persons, nor did it require an employer to obtain a work permit for disabled persons. On 30 March 1994 the applicant lodged an appeal against the first-instance decision, but on 1 June 1995 the Higher Labour and Social Court rejected the appeal. On 24 July 1995 the applicant lodged an appeal on points of law, which was rejected by the Supreme Court on 28 May 1996. The Supreme Court held that the Aliens Employment Act 1992 was adopted later (lex posterior) and governed a more specific subject-matter (lex specialis) than the Basic Rights of Employees Act 1989, which regulates the protection of disabled workers. The applicant's employment had accordingly been lawfully terminated. On 2 August 1996, the applicant lodged a constitutional appeal with the Constitutional Court. The constitutional appeal was declared admissible on 23 June 1999 but was rejected on the merits on 20 January 2000. The Constitutional Court found that the interpretation of the legislation adopted by the Supreme Court did not infringe the applicant's human rights and fundamental freedoms (“fourth-instance”). One judge wrote a dissenting opinion. Further to two separate requests in April and July 2004, the applicant's lawyer informed the Court in December 2004 that the applicant and his two children had acquired the Slovenian citizenship on 29 April 2002 by virtue of a decision issued by the Ministry of Interior. It could also be understood from the lawyer's submissions that the applicant had been working on a temporary basis for different companies, including for the Velenje mining enterprise since the beginning of the nineties. Section 3 “An employer may not enter into an employment relation or a work contract with an alien who does not have a work permit ... A contract of employment or a work contract concluded with an alien who does not have a work permit is void.” Section 16 “An alien's employment relation with his employer is terminated if the work permit expires ... or if it is revoked ..., on the expiry date or on the date when the revocation decision becomes final respectively.” Section 48 “A disabled worker has the right to be transferred to an appropriate post with due regard to his remaining capacity to work, the right to retraining or additional training, the right to be transferred to a post appropriate to his skills, and the right to appropriate wage compensation related to the exercise of these rights according to the legislation on retirement and disability insurance. ... In all cases mentioned in the first ... paragraph of this section the organisation or the employer must provide the worker a post appropriate to his skills, under conditions and in the manner provided by an internal act or a collective agreement in accordance with the law.”

train

001-90445

ENG

HRV

CHAMBER

CASE OF SINICIC v. CROATIA

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 1948 and lives in Nova Kapela. 5. The applicant’s lorry was forfeited by the Sisak Police Department (Policijska postaja Sisak) on 23 August 1995 in connection with a suspicion held against the applicant of having committed an aggravated theft. The criminal complaint against the applicant was eventually dropped and on 26 February 1996 the police invited the applicant to take delivery of the vehicle. They also noted that the vehicle was not in good working order. For that reason the applicant refused to take delivery of the vehicle. 6. The applicant, represented by a lawyer, instituted civil proceedings on 13 June 1996 in the Zagreb Municipal Court (Općinski sud u Zagrebu) against the Ministry of Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, hereinafter “the Ministry”), seeking repossession of the vehicle and damages. 7. After holding a public hearing and hearing the evidence, in its judgment of 2 October 1997 the Zagreb Municipal Court (Općinski sud u Zagrebu) ordered the State to return the vehicle to the applicant in good working order within fifteen days after the judgment became final. It found that the applicant’s vehicle was in good working order at the time of its requisition. The Municipal Court also dismissed his claim for damages. The judgment was upheld by the Zagreb County Court (Županijski sud u Zagrebu) on 4 April 2000 and thus became final. Further appeals on points of law lodged by both parties were dismissed by the Supreme Court (Vrhovni sud Republike Hrvatske) on 23 March 2004. 8. The applicant’s subsequent constitutional complaint was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 19 January 2005. 9. The applicant lodged a request for an enforcement order in the Zagreb Municipal Court on 14 June 2000, seeking the enforcement of the above final judgment of 4 April 2000. On 9 October 2000 the Municipal Court issued an enforcement order requiring the applicant’s vehicle to be returned to him in good working order. 10. On 20 December 2000 the applicant withdrew his initial request and asked instead the Zagreb Municipal Court to order the Ministry to pay a penalty for not complying with the enforcement order. On 29 December 2000 the Ministry admitted that it had not complied with the initial enforcement order. In view of the applicant’s new request, the proceedings concerning the enforcement order of 9 October 2000 were terminated on 12 January 2001 and the proceedings upon the applicant’s request for penalty payments continued. 11. On 8 February 2001 the Municipal Court ordered the Ministry to return the vehicle to the applicant within two days, failing which it was to pay the applicant Croatian kuna (HRK) 1,500 for each day of default from that point on. The Ministry lodged an appeal and on 5 March 2002 the appellate court quashed the firstinstance decision, finding that the Zagreb Municipal Court lacked territorial jurisdiction in the matter. The case was transferred to the Sisak Municipal Court (Općinski sud u Sisku), which on 20 May 2002 ordered the Ministry to return the vehicle to the applicant within two days, failing which it was to pay HRK 1,500 for each day of default. The appellate court, however, quashed that decision and ordered the first-instance court to establish whether the parties were willing to settle the case. On 13 November 2003 the Ministry offered a settlement, which the applicant refused. 12. On 23 December 2003 the Sisak Municipal Court ordered the Ministry to comply with the judgement of 4 April 2000 within eight days failing which it was to pay HRK 1,500 for each day of default. This decision was upheld by the Sisak County Court (Županijski sud u Sisku) on 15 July 2004. 13. The parties met on 19 November 2004 in the presence of a court expert who established that the vehicle had been repaired and its value had increased. 14. The parties met again on 25 January 2005 in the presence of a court expert but the applicant refused to accept the vehicle, objecting that it had not been properly repaired. He sought payment of HRK 10,000 and 600 euros (EUR) in order to repair the vehicle and a further HRK 8,000 for its registration. 15. On 23 May 2006 a commission of the Sisak Municipal Court established in the presence of the parties and a court expert that the vehicle still had some defects, which had been in existence when the vehicle was examined on 19 November 2004. The applicant offered a settlement stipulating that the vehicle be driven to his address and that a sum of HRK 15,000 be paid to him for the costs of further repair and the registration of the vehicle. On 4 July 2006 the Ministry agreed to deliver the vehicle to the applicant’s home address, to remove all the remaining defects and pay the applicant a sum of HRK 15,000 for the costs of registration. 16. The Municipal Court held a hearing on 14 July 2006 with a view to assisting the parties to reach a settlement. However, the applicant declined the settlement because the Ministry refused to pay the court penalties ordered by the Sisak Municipal Court on 23 December 2003. 17. On 14 September 2006 a commission of the Sisak Municipal Court established in the presence of the parties and a court expert that the vehicle still had some defects. These were immediately removed, but the applicant nevertheless refused to take delivery. 18. On 2 October 2006 the Sisak Municipal Court ordered that the vehicle be kept by the Ministry in a closed garage at the applicant’s expense, at a rental of HRK 60 per day. The applicant appealed against this decision, arguing that the vehicle had not been properly repaired. On 29 June 2007 the Sisak County Court dismissed the applicant’s appeal finding that the vehicle was in good working order and fit to pass the technical test necessary for its registration. The thus vehicle remained in the possession of the Ministry as the applicant refused to take possession of it. 19. On 22 November 2004 the applicant also sought payment of the court penalties ordered in the Sisak Municipal Court’s decision of 23 December 2003 (see paragraph 12 above) up to 18 November 2004, in a total amount of HRK 454,500 together with costs of HRK 7,808. An enforcement order to that effect was issued on 3 January 2005 and the above amounts were paid to the applicant. 20. In its decision of 20 July 2006, the Sisak Municipal Court ordered the Ministry to pay the applicant HRK 625,500 on account of court penalties for the period between 23 February and 3 May 2006 as well as HRK 7,966.60 for the costs of the proceedings. In its decision of 3 October 2006, the same court ordered the Ministry to pay the applicant HRK 201,000 on account of court penalties for the period between 3 May and 13 September 2006 together with HRK 3,050 for costs. However, on 26 February 2007 the Sisak County Court quashed these orders and dismissed the applicant’s request for the court penalties to be enforced, on the ground that the Ministry had complied with their obligation to return the vehicle in good working order on 19 November 2004, that being the date when a court expert had found that the vehicle had been repaired. 21. On an unspecified date the applicant lodged a constitutional complaint against the Sisak County Court’s decision of 26 February 2007 arguing that further court penalties had to be paid to him. These proceedings are still pending.

train

001-88158

ENG

POL

ADMISSIBILITY

WOZNIAK v. POLAND

Inadmissible

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi

The applicant, Mr Patryk Woźniak, is a Polish national who was born in 1977 and lives in Bielsko-Biała. He was represented before the Court by Mr S. Sikora, a lawyer practising in Bielsko-Biała. 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 13 March 2002 the applicant was arrested on the charge of, inter alia, money laundering and attempted value added tax fraud. On 14 March 2002 the decision on presenting charges against the applicant was served on him and he was heard as a suspect. An interrogation report was prepared. On 21 March 2002 the grounds for the decision were given. The prosecutor listed documents and other evidence, which supported the charges brought against the applicant. They were served on the applicant and his defence counsel on 27 and 26 March 2002 respectively. On 15 March 2002 the Bielsko-Biała District Court held a hearing during which the applicant was questioned and a detention order was issued against him. In addition to such factors as the strong likelihood that the applicant had committed the offences he was charged with and the severity of the anticipated penalty, the court underlined that there were significant discrepancies in testimonies given by the applicant and two other suspects. These differences were found in particular in those on the manner in which the company’s transactions had been carried out. The court stressed that the detention of all co-accused was necessary to prevent them agreeing on one version of the events, which could have impeded the investigation. On 19 March 2002 the applicant’s defence counsel appealed. He challenged conclusions reached by the court and prosecutor and submitted several documents supporting the applicant’s plea of innocence. On several later dates the applicant was again summoned to testify, inter alia, on 4 April, 14 June, 9 and 25 July and 11 September 2002. He refused however to answer any of the prosecutor’s questions. On 8 April 2002 the Bielsko-Biała Regional Court held a hearing concerning the applicant’s detention during judicial proceedings, at which his defence counsel was present. The court upheld the detention order of 15 March 2002. The applicant’s detention was subsequently extended by orders of, inter alia, 11 June and 29 August 2002, each time after a hearing at which the applicant’s defence counsel was present. In the decisions’ reasoned grounds the courts referred to the strong probability that the applicant had committed the offences and to a risk of a severe sentence being imposed on him, in particular in view of the serious financial damage caused by the offences concerned. The courts further stressed contradictions in the testimonies of co-suspects. The applicant’s lawyer tried to challenge the applicant’s detention by using different legal avenues. He lodged appeals against the detention orders on, inter alia, 4 July and 5 September 2002. In addition, on 8 May 2002 he lodged a request for release from detention. All his applications were unsuccessful. He also requested the application of another preventive measure in place of detention (on 18 April, 31 July, 12 August, and 17 September 2002). His requests were all refused. On 17 April 2002, the applicant’s lawyer allegedly requested the Bielsko-Biała Prosecutor to give him access to the case file. He further requested a copy of the report of the applicant’s and two other suspects’ interrogations. The Government submitted that such requests had never been lodged with the prosecutor’s office. The applicant failed to submit any evidence thereof; neither had he submitted observations in this respect. On 13 June 2002 the applicant’s defence counsel (by a letter dated 11 June 2002) lodged requests for access to the case file and the copy of the record of interviews with the applicant. He further alleged that his request of 17 April 2002 had never been examined and he had been denied contact with his client. On 24 June 2002 the Bielsko-Biała Regional Prosecutor denied that the request for access to the case file of 17 April 2002 had ever been lodged and called the defence counsel to provide the relevant copy. Further, he failed to answer requests dated 11 June 2002, since the prosecutor examined only the defence counsel’s complaints that his previous request had not been replied to and that his contacts with his client had been impeded. Counsel was served with replies to his requests on 25 and 28 June 2002 respectively (see below). On 25 June 2002 the Bielsko-Biała Prosecutor refused counsel’s request of 13 June 2002 for access to the case file, without referring to his other request for a copy of the interrogation report (the prosecutor replied to the latter on 28 June 2002 – see below). He justified his decision by reference to the “important interests of the investigation” and referred to the need to carry out certain actions at the current stage of the proceedings, which made it impossible to grant the request. On 1 July 2002 the applicant’s lawyer lodged an appeal dated 27 June 2002 against the decision of 25 June 2002, arguing, inter alia, that the legal provision under which the authorities in charge of investigation authorised access to the case file, namely Article 156§5 of the Code of Criminal Proceedings, should not be interpreted in a way which allows for refusal of access to the case file, in particular with temporal restrictions. On 23 July 2002 the appeal was dismissed by the Katowice Appellate Prosecutor. He emphasised the need to secure the important interests of the investigation, in view of its “character” and “the links between the suspects”. On 28 June 2002 the counsel was informed by the BielskoBiała Regional Prosecutor, in reply to his request of 13 June 2002, that his request for a copy of the record of interview could not be satisfied as the case file had been transferred to the appellate court, together with the appeal. He was also informed that a requested copy would be sent to him as soon as the case file was returned by the court. On 12 August 2002 the applicant’s defence counsel repeated his request for access to the case file and the copy of the applicant’s record of interview. He relied on Article 42 § 2 of the Constitution and Article 156 § 5 of the Code of Criminal Proceedings. On 14 August 2002 the Bielsko-Biała Regional Prosecutor informed the defence counsel that his requests could not be examined as the case file had been transferred to the Katowice Appellate Prosecutor. On 10 September 2002 the Katowice Regional Prosecutor having examined the counsel’s request for access to the case file, dismissed it, relying on Article 156 § 5 of the Code of Criminal Proceedings. The decision was justified by reference to the “important interests of the investigation”. It was further stressed that since evidence proceedings were still pending it was not possible to grant the request. On 18 September 2002 the applicant’s defence counsel appealed, arguing that he had been requesting access to the case file for a long time and it was indispensible for the defence rights of the applicant. On 11 October 2002 the Katowice Appellate Prosecutor dismissed the appeal on the ground that if the suspects were given access to the case file the proper conduct of the investigation could be influenced, especially since the collection of the evidence had not been completed. On 14 October 2002 the Regional Prosecutor supplemented the charges against the applicant: he was also charged with acting in an organised criminal group. On 31 October 2002 the applicant’s defence counsel was acquainted with the case file. On 8 November 2002 certified copies of the applicant’s record of interview were sent to his defence counsel. On 12 November 2002 the investigation was closed. On 20 November 2002 the Regional Prosecutor lodged a bill of indictment numbering sixty-five pages with the Bielsko-Biała District Court. The applicant was charged on four counts, inter alia, money laundering, including participation in an organised criminal group. The bill listed thirty-seven witnesses to be summoned and 247 pieces of documentary evidence collected in the investigation. On 27 November 2002 a hearing was held by the Bielsko-Biała District Court in respect of the prosecutor’s request for a further extension of the applicant’s detention. In response, the applicant’s defence counsel requested a decision on bail. He proposed to make a deposit of 100,000 Polish zlotys (PLN). The court decided that the applicant could be released if he put up bail of PLN 200,000 by 29 November 2002. On 29 November 2002 the Bielsko-Biała District Court ordered the release of the applicant from detention and the application of another preventive measure in its place (bail). The court considered, inter alia, that there was no longer a risk that the applicant would tamper with evidence. The proceedings are currently pending before the Żyrardów District Court. Access to the file in the course of investigation is governed by Article 156 § 5 of the Code of Criminal Procedure of 1997, which provides, in so far as relevant, that leave to consult the file and to make copies of the documents in the file is granted only with the consent of the authority conducting the investigation.

train

001-60035

ENG

HRV

CHAMBER

CASE OF MIKULIĆ v. CROATIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Article 6-1 - Reasonable time);Non-pecuniary damage - award

Christos Rozakis

8. The applicant is a child born out of wedlock on 25 November 1996. On 30 January 1997 the applicant and her mother filed a civil suit against H.P. before the Zagreb Municipal Court (Općinski sud u Zagrebu) in order to establish paternity. 9. At the hearing on 17 June 1997 the Municipal Court pronounced judgment by default against the defendant. The adoption of such a judgment, however, is expressly prohibited by the Marriage and Family Act (Zakon o braku i porodičnim odnosima – 1977, 1980, 1982, 1984, 1987, 1989, 1990, 1992 and 1999) in “civil-status matters” (statusni sporovi). On 1 July 1997 the defendant appealed against that judgment. 10. At the hearing on 6 October 1997 the Zagreb Municipal Court annulled its own judgment. The next hearing was scheduled for 9 December 1997. 11. Meanwhile, H.P. filed a motion accusing the presiding judge of bias, which was allowed on 27 January 1998 by the President of the Zagreb Municipal Court. Consequently, on 23 February 1998 the case was transferred to another judge. 12. The hearing scheduled for 18 June 1998 was adjourned owing to the absence of H.P.'s counsel. 13. The hearing scheduled for 14 July 1998 was adjourned as H.P.'s counsel had died. 14. At the hearing on 14 October 1998 H.P.'s new counsel argued that the applicant's mother had had relations with persons other than H.P. at the relevant time (exceptio plurium concubentium) and invited the court to summon several witnesses. 15. At the hearing on 21 January 1999 only two witnesses were heard, as the other witnesses failed to appear. 16. At the next hearing on 18 March 1999 the court ordered a DNA blood test. The appointment at the relevant clinic was scheduled for 21 May 1999, but H.P. failed to appear. 17. The next appointment was scheduled for 18 June 1999, but H.P. informed the court that he would be absent from 1 June 1999 until 15 September 1999. 18. On 19 July 1999 the court ordered another appointment for the blood test, which was scheduled for 27 September 1999, but H.P. again failed to appear. 19. On 13 October 1999 the court ordered a fourth appointment, scheduled for 22 October 1999, but H.P. informed the court that he would be absent that day. 20. On 28 November 1999 the court ordered a fifth appointment, scheduled for 6 December 1999, and once again H.P. failed to appear. 21. The next hearing scheduled for 17 February 2000 was adjourned as H.P. did not appear. 22. At the hearing on 29 February 2000 the court heard testimonies from the parties and scheduled the sixth appointment for the DNA tests for 25 April 2000, at which H.P. failed to appear. 23. The next hearing, scheduled for 5 June 2000, was adjourned, as H.P. did not appear. 24. On 12 July 2000 the court concluded the trial. 25. On 3 October 2000 the applicant's counsel received the Municipal Court's judgment of 12 July 2000 establishing the defendant's paternity and granting the applicant maintenance. The first-instance court found that the fact that the defendant had been avoiding DNA tests supported the applicant's claim. On 27 November 2000 H.P. appealed against the judgment. 26. On 3 April 2001 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case for retrial. The appellate court found that the first-instance court had failed to establish all the relevant evidence and that H.P.'s paternity could not have been established primarily on his avoidance of DNA tests. It ordered the first-instance court to hear several witnesses who, as alleged by H.P., had had intimate relationships with the applicant's mother during the critical period. 27. On 15 May and 13 July 2001 the applicant requested the President of the Supreme Court to speed up the proceedings. 28. The hearings scheduled for 26 July and 30 August 2001 in the Zagreb Municipal Court were adjourned because H.P. and his counsel did not appear. 29. At the hearing on 27 September 2001 H.P.'s counsel accused the presiding judge of bias. 30. On 19 November 2001 the court of first instance concluded the trial and gave judgment, establishing the defendant's paternity and granting the applicant maintenance. It found that H.P.'s avoidance of DNA tests corroborated the applicant's mother's testimony that H.P. was the applicant's father. 31. On 7 December 2001 the applicant filed an appeal against the first-instance judgment, objecting to the amount of maintenance H.P. would have to pay her. H.P. also appealed against the judgment. 32. It appears that the proceedings are currently pending before the appellate court. 33. Section 8 of the Civil Procedure Act (Zakon o građanskom postupku – Official Gazette nos. 53/1991, 91/1992 and 112/1999) provides that courts are to determine civil matters according to their own discretion after carefully assessing all the evidence presented individually and as a whole and taking into consideration the results of the overall proceedings. 34. Section 59(4) of the Constitutional Act on the Constitutional Court (which entered into force on 24 September 1999 – “the Constitutional Court Act” (Ustavni zakon o Ustavnom sudu)) reads as follows: “The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party's constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.”

train

001-5087

ENG

GBR

ADMISSIBILITY

ITC (Isle of Man), P.S.W.H. AND A.G.S. v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The first applicant, ITC, is an Isle of Man registered company. The second applicant was until 1988 the managing director of the first applicant. The third applicant was at all material times the director of the first applicant. The second and third applicants are British citizens, born in 1948 and 1937 respectively. The second applicant lives in Solihull, England, and the third applicant lives in Girona, Spain. The applicants are all represented before the Court by Mr M. Maroney, a lawyer practising in the Isle of Man, United Kingdom. A number of companies and partnerships collectively known as “Barlow Clowes” had been engaged in the operation of investment schemes since 1976. However, it was only in 1985 that the Department of Trade and Industry (“DTI”), the responsible regulatory authority for the investment and other sectors, issued Barlow Clowes with a first licence. The DTI renewed the licence in October 1986 and in October 1987. Barlow Clowes collapsed in early 1988 with substantial losses to investors. From early 1884 onwards there was substantial and compelling evidence that Barlow Clowes' investment schemes were fraudulent. In the applicants' submission, the DTI had been advised of the dangers to investors posed by Barlow Clowes' investment activities. The sources included the London Stock Exchange and the Treasury. Of particular importance to the applicants is the fact that in July and August 1987 the London Stock Exchange drew the DTI's attention to the existence of a relationship between Barlow Clowes and a British Virgin Islands incorporated company, Ryeman Limited. The first applicant provided Ryeman Limited with a professional administration service. None of the applicants was ever contacted by the DTI at that stage about their association with Ryeman Limited. No action was taken by the DTI on receipt of the negative reports on Barlow Clowes and, as stated above, the company's licence was renewed in October 1986 and in October 1987. The DTI's decision to grant and then renew the Barlow Clowes licence in the face of the evidence against the company was severely criticised in a report of the Parliamentary Commissioner for Administration (“PCA”) published on 19 December 1989. The PCA found that Barlow Clowes would not have continued in business beyond the end of 1984 if it had been properly regulated by the DTI. The PCA's conclusion was that the DTI was guilty of “significant maladministration”. The DTI's handling of Barlow Clowes was also criticised in a report submitted in July 1995 to the Secretary of State by Inspectors appointed under the Companies Act 1985. In the Inspectors' conclusion, the DTI “did not demonstrate in relation to Barlow Clowes the characteristics of a competent regulatory authority.” Although there was some criticism of the applicants in this report, there was no finding that they had been dishonest as regards knowledge of the origins of investors' funds. Between July 1991 and February 1992 the main associate of Barlow Clowes (P.C.) stood trial on and was convicted of various charges relating to the conduct of the investment scheme. Following a recommendation in the PCA's report to the effect that investors in Barlow Clowes be compensated, the DTI set up a scheme under which investors who agreed to assign to the DTI their rights in relation to their investments with Barlow Clowes would receive compensation. Ninety per cent of investors accepted this offer with the result that the DTI became the principal beneficiary of any litigation aimed at recovering their investment funds. Barlow Clowes International Limited (“BCI”), a company registered in Gibraltar, belonged to the Barlow Clowes group and held investors' monies in funds identified as Portfolios 28, 68, 33 and 39. On 8 June 1988 the Supreme Court of Gibraltar ordered BCI's liquidation and appointed H. and R. as joint liquidators. On 10 June 1988 J. replaced H. as joint liquidator and, on the same date, both H. and J. were also appointed as joint receivers and managers of the portfolios cited, as well as of any other such funds promoted by BCI. The applicants insist that BCI was never placed in receivership and that the powers of H. and J. to act as Receivers were limited to the scope stated in the court's Order, which was restated by the Gibraltar Supreme Court as including powers to: “ ... issue and prosecute ... in the name of [BCI] and / or in their own names in their capacity as Receivers (whether on behalf of all or any of the investors or otherwise) any proceedings in any jurisdiction which the Receivers may think expedient or desirable in relation to the collection, recovery and management of any of the assets comprised in the receivership or otherwise in relation to the receivership ... .” The representatives of J. and H., the Receivers, made enquiries with the second and third applicants about the affairs of Ryeman Limited soon after their appointment. According to the applicants, they co-operated fully with these enquiries. However, J. asserted in the press that the money belonging to Barlow Clowes had been improperly transferred to the Isle of Man and named the applicants in this connection. Subsequent press reporting on the subject had a damaging effect on the applicants' business, as well as their professional and personal reputations. The first applicant ceased to trade by 31 December 1989 as a result of persistent adverse publicity. On 21 July 1988 the Receivers petitioned the High Court of Justice of the Isle of Man (“the Manx High Court”) for an ex parte order against inter alia Ryeman Limited and the first applicant on the basis that the sum of GBP 7,000,000 belonging to BCI investors had been misappropriated. ITC was joined as a party for the purpose of obtaining documents and no substantive relief was sought against it. On 22 July 1988 the Manx High Court made an interim order restraining Ryeman Limited from removing any of its assets from outside its jurisdiction or otherwise disposing of its assets. The Order applied to the second and third applicants since they were deemed to be agents of Ryeman Limited on account of the fact that they were joint authorised security signatories on Ryeman's bank accounts in the Isle of Man. The court also ordered that the first applicant's solicitors permit the Receivers or their representatives to enter their offices and to search for and remove any documents relating to Ryeman Limited. Under the terms of the Order the Receivers were authorised to use any such documents for the purposes of their intended action against, inter alia, Ryeman Limited and the first applicant, and for investigating, tracing or making proprietary claims in other jurisdictions. By summons issued on 8 August 1988, the Receivers commenced an action (CH 1988/27) against Ryeman Limited, the first applicant and its solicitors and four banks. The only claim against ITC was for discovery of documents. On 16 August 1988 the Manx High Court granted the Receiver's ex parte request for an interim order against a certain C. who had been closely connected with the running of Barlow Clowes. It was alleged by the Receivers that C. owned and controlled Ryeman Limited and must have appreciated that the funds which he received either directly or through Ryeman Limited were the proceeds of the misapplication of BCI's investors' funds. The Receivers further alleged that a sum of money belonging to BCI investors had been transferred on 3 March 1987 from the first applicant's account to Ryeman Limited's account on the instructions of the second and third applicants. Also on 16 August 1988 a copy of the Manx High Court's Order of 22 July 1988 was served on the first applicant's solicitors. Pursuant to the terms of the Order the first applicant's solicitors delivered up documents relating to Ryeman Limited and the applicants. The applicants maintain that they did not receive copies of any documents either seized or handed over voluntarily until May 1995, and that the final copies were not returned until 14 January 1998. On 16 September 1988 the Manx High Court made an Order in favour of the Receivers and on an ex parte application by them. The Order empowered the Receivers to provide the Serious Fraud Office with documents obtained from the first applicant's solicitors. On the same date the court amended its Order of 22 July 1988 so as to stipulate that any information disclosed under that Order be only used against the first applicant or its solicitors with the leave of the court. According to the applicants the terms of the amended Order indicated that one of the purposes for which the Receivers obtained the Order of 22 July 1988 was to obtain documents for use against the first applicant. On 25 April 1990 the Manx High Court made two Orders on the application of the Receivers. Both Orders permitted the Receivers to disclose the documents which they had obtained from the first applicant's solicitors to DTI officials, provided the latter gave an undertaking as to the purposes for which the documents would be used. The Orders were later replaced by a new Order dated 21 October 1990 which committed a DTI official to undertake that any information lawfully disclosed by the Receivers would not be used in any proceedings against, inter alia, the first applicant without the leave of the court, and that no such information would be communicated to any other DTI official unless the latter gave a similar written undertaking. On 15 November 1990 the first applicant and its solicitors applied for an Order striking out action CH 1988/27 for want of prosecution. On 21 November 1990 the Manx High Court, with the consent of the parties, ordered that the proceedings be stayed, subject to respect by the Receivers of the above-mentioned undertaking. Between November 1990 and March 1993 neither the Receivers nor the DTI took any further steps in action CH 1988/27 or in other proceedings against the applicants. On 3 March 1993 the Receivers issued a summons against the first applicant in the Manx High Court in which they claimed damages for breach of constructive trust on the part of the first applicant in relation to the sum of GBP 1,886,415 which it had received and transferred on the instructions of the second and third applicants to the account of Ryeman Limited on 3 March 1987. This action was listed as Action CLA 1993/43. On 16 June 1993 the Receivers commenced another action (Action CLA 1993/120) in the Manx High Court against the first applicant in which they claimed damages for breach of constructive trust in relation to the sum of GBP 7,000,000 received by Ryeman Limited on 17 June 1987. On 24 February 1994 the Manx High Court granted the Receiver's ex parte application to join the second and third applicants to the proceedings against the first applicant. Summonses were eventually served without prior notice on the first and second applicants on 28 February 1994, almost seven years after the impugned transactions of 3 March and 17 June 1987 and over five and a half years after the Receivers first commenced proceedings against the first applicant. The Receivers were granted leave to serve a summons on the third applicant out of the jurisdiction of the Manx High Court since the third applicant, on account of the adverse publicity to which he had been subjected as a result of the Receivers' investigation, had taken up residence in Spain. The summons was served on the third applicant in January 1995. On 29 April 1994 the Receivers served a consolidated statement of case following the decision of the Manx High Court to join Actions CLA 1993/43 and CLA 1993/120. The consolidated statement of case contained allegations dating back to events which had occurred in May 1986. On 19 July 1994 the first and second applicants applied for the consolidated action to be struck out on grounds of abuse of process and want of prosecution. They also requested that the Order of 24 February 1994 adding the second and third applicants to the action be set aside since the six-year limitation period contained in section 21 (3) of the Manx Limitation Act 1984 had expired. On 20 and 21 March 1995 the Manx High Court heard argument on the applicants' striking out application. On 4 May 1995 His Honour Deemster Corrin ruled that the application was refused. Nevertheless, the judge stated that he was sympathetic to the plight of the applicants given that the subject matter of the 1993 proceedings could well have been initiated against them in 1988. However, he expressed the view that: “... the plain fact is that the 1988 proceedings have never been adjudicated upon and the 1993 proceedings specify, for the first time, the substantive claims against [the applicants]. This court therefore, in its discretion, is not prepared to strike out the 1993 proceedings. ...”. In the judge's opinion the period of inaction by the Receivers, between 3 March 1993 and 28 February 1994, amounted to a period of inordinate and inexcusable delay. However, with reference to the rules of court, the judge concluded that he had no option but to hold that a plaintiff was permitted to wait for twelve months after commencing an action before serving a summons or even informing the latter that the summons had been issued. Furthermore, he observed that it was likely that there had been a breach of undertakings as to the use to be made of the documents obtained from the first applicant's solicitors, since they may well have been used to prepare the consolidated statement of claim. However, the judge did not regard the breaches in a serious light. On 8 July 1996 the Manx High Court heard two applications arising out of the fact that the Receivers had incorrectly described themselves as Receivers and Managers of BCI in the summonses initiating Actions CLA 1993/43 and CLA 1993/120, since BCI had never in fact been placed in receivership. Although resisted by the applicants, His Honour Deemster Corrin granted the Receivers leave on 9 July 1996 to amend the consolidated statement of claim in order to correct the errors in the summonses. On 26 July 1996 His Honour Deemster Corrin dismissed the applicants' application to set aside the Order of 24 February 1994, on the grounds that section 21(3) of the Manx Limitation Act 1984 did not apply to the claims against the second and third applicants. On 31 May 1995 the applicants appealed to the Manx Court of Appeal against the judge's ruling on the striking-out application and, on 8 August 1996, against the rulings handed down on 9 and 26 July 1996. Over a period of seven days, between 1 December 1997 and 14 January 1998, the Manx Court of Appeal heard argument on the merits of the applicants' appeals including a new contention that the consolidated action could not be maintained unless the DTI, the principal beneficiary of the action, was a party to it. On 31 March 1998 the Manx Court of Appeal dismissed the applicants' appeals. It found that His Honour Deemster Corrin had jurisdiction to rectify the error in the description of the Receivers in the initial summonses and that he had properly exercised his discretion to correct a bona fide misdescription of which the applicants were well aware and which had caused them no prejudice. On the limitation point, the Court of Appeal reviewed the relevant domestic and Commonwealth authorities, as well as legal literature in this area, including that on constructive trusts and fraud on pre-existing trusts, and concluded that the action against the second and third applicants was not statute-barred as alleged. As to the applicants' argument that the delay in bringing the proceedings justified dismissal of the action for want of prosecution, the Court of Appeal noted that the applicants conceded that the only period of delay to be considered was that between 3 March 1993 and 28 February 1994, that this delay related only to the first applicant and that the second and third applicants did not contend that there was any inordinate or inexcusable delay in serving summonses on them. The Court of Appeal stated: “It seems to us plain that [the first applicant] was not served with all convenient speed. Such summonses should have been served promptly and manifestly they were not. We think it beyond any doubt that the delay relied on by the [applicants] was both inordinate and inexcusable. Deemster Corrin found that the 'the period of inaction by the [Receivers] between 3 March 1993 and 28 February 1984 amounted to a period of inordinate and inexcusable delay'. We agree with him save only that (a) in respect of the second summons against the [first applicant] the period could only begin on 16 June 1993 when it was issued and (b) in respect of both summonses the period of such delay should be reduced to reflect a relatively short time during which the summonses could have been served with all convenient speed.” The Court of Appeal next considered whether in the case of the first applicant such delay could prejudice its right to a fair hearing. The Court of Appeal took note of the applicants' submissions that the recollection of the second and third applicants as to the events in 1987 would be impaired with the result that the value of their oral testimony at the hearing would be diminished. In addition, the person responsible for the affairs of Ryeman Limited and who was at the centre of one of the impugned transactions had died in 1992. In consequence a vital witness had been lost through the delay. The Court of Appeal rejected these submissions. It considered inter alia that on the facts of the case the issues would largely turn on documentary evidence and that recollections as to whether the transactions, which were substantial, were regarded as proper were most unlikely to be diminished. Accordingly, the Court of Appeal, agreeing with the conclusion of His Honour Deemster Corrin on this issue, was satisfied that a fair hearing was possible. The Court of Appeal also rejected the applicants' argument that the 1993 action should be struck out on the ground that it could have been brought within the 1988 action. In the Court of Appeal's view the High Court judge was correct to rule that, with respect to the first applicant, the 1988 action only related to the production of documents and that the second and third applicants were never parties to that action. The Court of Appeal further ruled that the delay, even if inexcusable, could not be considered an abuse of process. In addition, the court found that while there had been a breach of the undertakings entered into by the Receivers in that the documents obtained from the first applicant had been used to formulate the statement of case in the proceedings, the breach was not of a serious nature and that no significant prejudice would be caused to the applicants since they would in any event be obliged to disclose all their documents on discovery. Finally, the Court of Appeal rejected the applicants' submission that the DTI was the assignee of the litigation and, given their absence from the proceedings, the action was improperly constituted. In the court's opinion, and with reference to the Order made by the Supreme Court of Gibraltar, the Receivers had properly brought the proceedings in a representative capacity on behalf of all investors, not just those who had assigned their rights to the DTI, and the Receivers operated with the authority to compromise the action, again on behalf of all investors. On 30 June 1998 the Privy Council, without giving reasons, refused the applicants' application for leave to appeal. The second and third applicants renewed their application for leave to appeal to the Privy Council on the strength of an English Court of Appeal judgment delivered on 21 July 1998 wherein it was stated that the Manx Court of Appeal appeared to have misunderstood one of the decided cases on which it relied in interpreting the limitation point under section 21 (3) of the Manx Limitation Act 1984. On 2 November 1998 the Privy Council, without giving reasons, refused the second and third applicants' renewed application.

train

001-82453

ENG

RUS

CHAMBER

CASE OF DZHAVADOV v. RUSSIA

Violation of Art. 10

Christos Rozakis

6. The applicant was born in 1959 and lives in Belgorod. 7. On 23 October 2002 the applicant filed an application with the Ministry for the Press, Television and Radio Broadcasting and Mass Communications (hereafter “the Ministry”), for registration of a newspaper entitled Letters to the President (Письма Президенту). 8. By letter of 23 January 2003, the deputy head of the Ministry's Department for Registration and Licensing informed the applicant that, judging by its title, the newspaper could be perceived as an official bulletin published by a competent State authority. As that was likely to mislead potential readers, the applicant was advised to “obtain the approval of the competent authorities”. 9. The applicant replied to the deputy head and to the Minister, insisting that either the newspaper be registered or an official refusal be issued. 10. On 3 July 2003 the applicant challenged the Ministry's failure to act before the Tverskoy District Court of Moscow. He claimed that he had satisfied the legal requirement to be the founder of a newspaper and that the Ministry's procrastination was unlawful. 11. On 9 July 2003 the applicant received the Ministry's official refusal to register the newspaper, based on two grounds. First, it was said that the information in the application was “inconsistent with the real state of affairs” (сведения, не соответствующие действительности) because the newspaper purported to cover a broader range of subjects than its title suggested. Second, the Ministry considered that only the Administration of the President of the Russian Federation could consent to the publication of letters to the President or be a founder of a newspaper with such a title. 12. On 15 July 2003 the applicant amended his claim, seeking to have the Ministry's refusal overturned. 13. On 3 September 2003 the Tverskoy District Court of Moscow upheld the refusal on the following grounds: “... The court considers it possible to agree with the argument [of the Ministry] that the title of a newspaper denotes its specialisation which [in this case] could be perceived by the readership as an official publication founded by a competent State body ... which prepares the President's direct answers to incoming letters from citizens. The court considers that the above fact may give rise to incompatibility of the actual specialisation of the publication under the title Letters to the President with the current legislation. In this connection the court concludes that the Ministry's argument as regards the specialisation of the newspaper in question is a sufficient ground to refuse its registration ... under section 13(1)(2) of the Mass Media Act, which does not violate [the applicant's] rights to found a newspaper and to choose its title ...” 14. On 22 December 2003 the Moscow City Court upheld the judgment of the district court, endorsing the above reasoning. The court also held: “...the [first-instance] court rightly concluded that [the applicant] had failed to comply with the time-limit for bringing court proceedings without a valid excuse. Having received on 23 January 2003 the refusal to register his newspaper, he lodged his claim before a court only on 3 July 2003 ... The expiry of the three-month time-limit for lodging such claim is an independent reason for rejecting the applicant's claims (Article 256 § 2 of the Code of Civil Procedure).” 15. A newspaper may be founded by an adult who has not been convicted or declared legally incapable (section 7). The editor's office may begin functioning upon registration of a newspaper; an application for registration is to be examined within one month of being lodged (section 8). 16. An application for registration must specify, in particular, the title of the newspaper and an approximate list of subjects and/or specialisation (section 10(2) and (7)). 17. Registration may only be refused on the following grounds: (1) the application is lodged by an individual who cannot be a founder; (2) the information in the application is “inconsistent with the real state of affairs”; (3) the title, range of subjects and/or specialisation represent an abuse of the freedom of mass media as defined in section 4; (4) if an existing newspaper with the same title has been registered earlier (section 13). 18. Section 4 prohibits using the mass media for the commission of criminal offences, the disclosure of State secrets or protected information, for extremist activities, or for the dissemination of pornography or the promotion of violence and cruelty. 19. An individual may bring a complaint within three months of the date when he or she became aware of a violation of his or her rights or freedoms (Article 256 § 1). The court must examine the reasons for any failure to comply with the three-month period and may reject the complaint on that ground (Article 256 § 2). 20. If the complaint is rejected owing to failure to comply with the time-limit for lodging the complaint before a court without a valid reason, the court's reasoning must be limited to the indication of the circumstances confirming the above (Article 198 § 4).

train

001-5458

ENG

GBR

ADMISSIBILITY

ANDREWS v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is engaged in the retail sale of handguns from shop premises and by mail order in Yorkshire. He trades in partnership with his wife. The business made a profit of £6,511 in the financial year ending 30 April 1994, a profit of £3,696 in the year ending 30 April 1995, and no profit in the year ending 30 April 1996. The consequences of the 1997 Firearm Amendment legislation - the Firearms (Amendment) Act 1997 and the Firearms (Amendment) (No. 2) Act 1997 (“the 1997 Amendment Acts”; see below) - are that the applicant is unable to derive handgun-related income from his business, and that the value of the goodwill and assets of the business has depreciated. The applicant claimed compensation pursuant to the legislative schemes in respect of his stock of handguns. No compensation is payable for the reduction in value of the applicant’s business. By the beginning of 1999, approximately £22 million had been paid to some 1,500 dealers under the compensation schemes, of a total of approximately £67 million which had been paid to individuals, dealers and others. The Government estimated the total costs which would be involved in paying compensation under the schemes to be approximately £120 million. B. Domestic law and practice The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of the control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act. Section 5 of the Act of 1968, as amended by the First Amendment Act, provided: “(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers - ... (aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.” The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect. The First Amendment Act provides as follows, so far as material: “15 Surrender of prohibited small firearms and munitions (1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above. ... 16 Payments in respect of prohibited small firearms and ammunition (1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above. (2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition - (a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or (b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers, and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above. 17 Payments in respect of ancillary equipment (1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme. (2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which- (a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and (b) has no practicable use in connection with any firearm which is not a prohibited weapon. (3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment- (a) which they had in their possession on 16th October 1996; or (b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date. ... 18 Parliamentary control of compensation schemes (1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament. (2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House. (3) This section applies to any alteration to the scheme as it applies to a compensation scheme. (4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.” The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items, Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report). Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%. By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns.

train

001-84649

ENG

CZE

ADMISSIBILITY

BOHAC v. THE CZECH REPUBLIC

Inadmissible

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

The applicant, Mr Josef Boháč, is a Czech national who was born in 1926 and lives in Ústí Nad Labem. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. i. Proceedings against T.N. According to the Government, on 4 March 1993 the applicant sued a certain T.N. in the Ústí nad Labem District Court (okresní soud). On 21 September 2004 the District Court granted the applicant’s action ordering T.N. to pay CZK 7,500 (EUR 263) to the applicant. According to the applicant, as T.N. had not paid the sum at issue, he requested the District Court, in April 2005, to execute the judgment. Apparently, the execution proceedings have not yet been terminated. ii. Proceedings against B.K. In his application form, the applicant submitted that in 1996, he had brought an action for damages against a certain B.K. The Government denied that such an action had been filed. In his observations in reply, the applicant said that he had filed a criminal complaint against B.K. at the Ústí nad Labem Town Police Office (Policie – město) which subsequently instituted criminal proceedings against B.K.’s accomplice. 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

001-23735

ENG

TUR

ADMISSIBILITY

ERDEMLI v. TURKEY

Inadmissible

Georg Ress

The applicant, Mr Hasan Erdemli, is a Turkish national, who was born in 1960 and was serving a prison sentence at the time of the application. He was represented before the Court by Mr M. Erdemli, his father. On 30 November 1994 the Ankara State Security Court convicted the applicant of membership of an illegal organisation, THKP/C-DEV-SOL, under Article 168 §1 of the Criminal Code. On 4 January 1995 the applicant lodged an appeal against the Ankara State Security Court's judgment. On 15 June 1995 the Court of Cassation upheld the judgment of 30 November 1994. On 13 October 1995 the applicant introduced an application with the European Commission of Human Rights. He complained under Article 6 § 1 of the Convention that he was deprived of his right to a fair trial in that he had not been assisted by a lawyer during his questioning by the police, the public prosecutor and the magistrate. On 21 August 2001, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 13 September 2001 and on 17 September 2001 the Government and the applicant's representative respectively submitted formal declarations accepting a friendly settlement of the case. On 30 October 2001 the Court struck the case out of the list. On 23 January 2003 Law no. 4793 came into force, which provided, inter alia, re-opening of the criminal proceeding if the European Court of Human Rights holds in a final judgment that a decision in criminal proceedings has violated the European Convention on Human Rights or its protocols. On 31 March 2003 the applicant requested the 1st Chamber of the Ankara State Security Court to re-open the criminal proceedings against him. On 9 April 2003 the 1st Chamber of the Ankara State Security Court dismissed the applicant's request holding that the European Court of Human Rights had not found a violation of the European Convention of Human Rights concerning the criminal proceedings against the applicant. On 28 April 2003 the applicant filed an objection with the 2nd Chamber of the Ankara State Security Court against the decision of 9 April 2003. On 8 May 2003 the 2nd Chamber of the Ankara State Security Court dismissed the applicant's objection on the same grounds with the 1st Chamber of the Ankara State Security Court. Article 327 of the Code of Criminal Procedure lists the circumstances in which “a person convicted in a judgment that has become final may be granted a re-trial”. It was amended by Article 3 of Law no. 4793, which added a sixth set of circumstances in which the proceedings could be re-opened: “where it has been held in a final judgment of the European Court of Human Rights that a decision in criminal proceedings was given in breach of the Convention for the Protection of Human Rights and Fundamental Freedoms or its Protocols. In such cases, an application to re-open the proceedings may be lodged within one year of the date on which the judgment of the European Court of Human Rights became final.” Law no. 4793 came into force on 4 February 2003. By provisional Article 1 of the Law, Article 3 is applicable in only two sets of circumstances: where the Court has delivered a judgment that became final before the Law came into force, and where the Court delivers a final judgment on an application lodged after the Law came into force.

train

001-61410

ENG

NLD

CHAMBER

CASE OF STEUR v. NETHERLANDS

Violation of Art. 10

9. The applicant is a Netherlands national who was born in 1951 and lives in Oegstgeest. He is a practising lawyer (advocaat en procureur). He was not represented before the Court. 10. On 26 November 1992 the social security investigating officer (sociaal rechercheur) Mr W. took and recorded a statement from one Mr B., a person of Surinamese origin who was suspected of having unjustly received social security benefits and, in this context, of having committed forgery. Mr B. was alone with Mr W. at the time and did not have the assistance of either a lawyer or an interpreter. 11. Subsequently, Mr B. was prosecuted for social security fraud. In addition, civil proceedings were instituted against him by the social security authorities for the recovery of the excess benefits paid to him. The applicant acted as Mr B.'s counsel in both sets of proceedings. 12. In the civil proceedings, the applicant declared, inter alia: “The statement recorded in writing by Mr W. cannot have been obtained in any other way than by the application of pressure in an unacceptable manner in order to procure incriminating statements, the significance of which was not or not sufficiently understood by Mr B. given the absence of an interpreter.” This passage appears in pleading notes submitted to the Hague Regional Court (arrondissementsrechtbank) at a hearing held on 27 June 1994. 13. Having learned of this statement in May 1995, Mr W. filed a disciplinary complaint within the meaning of section 46c of the Legal Profession Act (Advocatenwet) against the applicant to the Dean (deken) of the local Bar Association (Orde van Advocaten). He complained that the applicant's unfounded insinuations had tarnished his professional honour and good reputation, that the applicant had transgressed the limits of decency, and that the applicant had accused him obliquely of having committed perjury in drawing up the record in question. 14. Following an exchange of correspondence, the Dean forwarded Mr W.'s complaint to the Disciplinary Council (Raad van Discipline) of The Hague. 15. In its decision of 1 July 1996, following adversarial proceedings, the Disciplinary Council rejected as unfounded the complaint that the applicant had, in veiled terms, accused Mr W. of perjury. It did, however, consider that the applicant, by contending that Mr W. had exerted unacceptable pressure on Mr B., had made an assertion that was not supported by any facts. It concluded that the applicant had thus transgressed the limits of acceptable behaviour and failed to observe the standards expected from a lawyer (“... de grenzen van het toelaatbare overschreden en heeft hij in strijd gehandeld met hetgeen een behoorlijk advocaat betaamt”). Noting the nature and the limited degree of seriousness of the applicant's conduct, the Disciplinary Council considered it sufficient to declare the complaint of Mr W. partially well-founded without imposing any sanction. 16. The applicant lodged an appeal with the Disciplinary Appeals Tribunal (Hof van Discipline). He submitted that Mr B. had not had the assistance of a lawyer before he signed his written statement, despite having asked for a lawyer to be present, that no interpreter had been present at the interrogation, that Mr B. was a drug addict and that he had told him that pressure had been brought to bear. The applicant also referred to a statement taken by the investigating judge (rechter-commissaris) from Mr B. on 5 December 1994, which reads as follows: “In reply to the question why I stated to the police that I had lived together with my ex-wife during the relevant period ... I say that I was pressured during that interrogation. This pressure consisted of kicking against the table and kicking motions in my direction. I was also verbally abused. When it came to signing the statement, I asked for the chief, but he was said to have already gone home. I then asked for a lawyer because I wanted an interpreter to come and read my statement to me. The police said, however, that no lawyer could come. So in the end I just signed the statement.” 17. The applicant argued that in defending his client he should have been free to conclude, as he had, that his client's confession could only have resulted from unacceptable pressure being brought to bear by the investigating officer. It would then have been for the court to which this conclusion was presented to decide whether or not it hat been established that such unacceptable pressure was in fact exerted. But it was not for a disciplinary tribunal to find that a statement made at a trial in defence of his client was unacceptable because it had not been sufficiently verified. 18. In its decision of 26 May 1997, following adversarial proceedings, the Disciplinary Appeals Tribunal dismissed the applicant's appeal and upheld the decision of 1 July 1996 in its entirety. 19. It noted that, in the civil proceedings involving Mr B., the allegation in issue had been made in the applicant's submissions during the first-instance proceedings as well as in the proceedings on appeal before the Hague Regional Court (in the latter proceedings in the course of a hearing held on 27 June 1994). It did not find it established that, at the material time, the applicant had in fact been informed by Mr B. that he considered that unacceptable pressure had been exerted on him when Mr W. took his statement. It further noted that the applicant's contention had remained wholly unsubstantiated at the material time. 20. The Disciplinary Appeals Tribunal agreed with the Disciplinary Council that a lawyer was not entitled to express reproaches of the kind in issue without any factual support, which implied that a lawyer, prior to raising such allegations, should seek information from his client as to the circumstances constituting the unacceptable pressure allegedly exerted. 21. Section 46 of the Legal Profession Act provides as follows: “Advocates shall be subject to disciplinary proceedings regarding any act or omission which is in breach of the due care they ought to exercise as advocates visàvis those whose interests they look after, or ought to look after, any breach of the Regulations of the National Bar, and any act or omission not befitting a respectable advocate. This disciplinary justice is dispensed in the first instance by the Disciplinary Councils, and, on appeal, by the Disciplinary Appeals Tribunal, which is also the highest instance.” 22. A complaint against an advocate is submitted to the Dean of the local Bar Association (section 46c(1)), who shall investigate it (section 46c(2)). He may forward it to the Supervisory Board (Raad van Toezicht) for further action (section 46c(3)). 23. If a friendly settlement cannot be reached, the matter is referred to the Disciplinary Council by the Dean of the Bar Association (or the Supervisory Board as the case may be), either at the request of the complainant or ex officio (section 46c(3) and section 46d). 24. The sanctions available to the Disciplinary Councils and the Disciplinary Appeals Tribunal are: mere admonition; reprimand; suspension from practising for a period not exceeding one year; and disbarment (section 48). 25. Guidance on the nature of an “act or omission not befitting a respectable advocate” is found in the Rules of Conduct for Advocates (Gedragsregels voor advocaten), the most recent version of which dates from 1992. Rule 1 reads as follows: “Advocates should behave in such a way that confidence in the profession or in their own exercise of the profession is not harmed.”

train

001-57705

ENG

GBR

CHAMBER

CASE OF OBSERVER AND GUARDIAN v. THE UNITED KINGDOM

Violation of Art. 10;No violation of Art. 13 or 14+10;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

C. Russo;N. Valticos;R. Pekkanen

9. The applicants in this case (who are hereinafter together referred to as "O.G.") are (a) The Observer Ltd, the proprietors and publishers of the United Kingdom national Sunday newspaper Observer, Mr Donald Trelford, its editor, and Mr David Leigh and Mr Paul Lashmar, two of its reporters; and (b) Guardian Newspapers Ltd, the proprietors and publishers of the United Kingdom national daily newspaper The Guardian, Mr Peter Preston, its editor, and Mr Richard Norton-Taylor, one of its reporters. They complain of interlocutory injunctions imposed by the English courts on the publication of details of the book Spycatcher and information obtained from its author, Mr Peter Wright. 10. In litigation where the plaintiff seeks a permanent injunction against the defendant, the English courts have a discretion to grant the plaintiff an "interlocutory injunction" (a temporary restriction pending the determination of the dispute at the substantive trial) which is designed to protect his position in the interim. In that event the plaintiff will normally be required to give an undertaking to pay damages to the defendant should the latter succeed at the trial. The principles on which such injunctions will be granted - to which reference was made in the proceedings in the present case - were set out in American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396) and may be summarised as follows. (a) It is not for the court at the interlocutory stage to seek to determine disputed issues of fact or to decide difficult questions of law which call for detailed argument and mature consideration. (c) If damages would be an adequate remedy for the plaintiff if he were to succeed at the trial, no interlocutory injunction should normally be granted. If, on the other hand, damages would not provide an adequate remedy for the plaintiff but would adequately compensate the defendant under the plaintiff’s undertaking if the defendant were to succeed at the trial, there would be no reason to refuse an interlocutory injunction on this ground. (d) It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience arises. (e) Where other factors appear evenly balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo. 11. Mr Peter Wright was employed by the British Government as a senior member of the British Security Service (MI5) from 1955 to 1976, when he resigned. Subsequently, without any authority from his former employers, he wrote his memoirs, entitled Spycatcher, and made arrangements for their publication in Australia, where he was then living. The book dealt with the operational organisation, methods and personnel of MI5 and also included an account of alleged illegal activities by the Security Service. He asserted therein, inter alia, that MI5 conducted unlawful activities calculated to undermine the 1974-1979 Labour Government, burgled and "bugged" the embassies of allied and hostile countries and planned and participated in other unlawful and covert activities at home and abroad, and that Sir Roger Hollis, who led MI5 during the latter part of Mr Wright’s employment, was a Soviet agent. Mr Wright had previously sought, unsuccessfully, to persuade the British Government to institute an independent inquiry into these allegations. In 1987 such an inquiry was also sought by, amongst others, a number of prominent members of the 1974-1979 Labour Government, but in vain. 12. Part of the material in Spycatcher had already been published in a number of books about the Security Service written by Mr Chapman Pincher. Moreover, in July 1984 Mr Wright had given a lengthy interview to Granada Television (an independent television company operating in the United Kingdom) about the work of the service and the programme was shown again in December 1986. Other books and another television programme on the workings and secrets of the service were produced at about the same time, but little Government action was taken against the authors or the media. 13. In September 1985 the Attorney General of England and Wales ("the Attorney General") instituted, on behalf of the United Kingdom Government, proceedings in the Equity Division of the Supreme Court of New South Wales, Australia, to restrain publication of Spycatcher and of any information therein derived from Mr Wright’s work for the Security Service. The claim was based not on official secrecy but on the ground that the disclosure of such information by Mr Wright would constitute a breach of, notably, his duty of confidentiality under the terms of his employment. On 17 September he and his publishers, Heinemann Publishers Australia Pty Ltd, gave undertakings, by which they abided, not to publish pending the hearing of the Government’s claim for an injunction. Throughout the Australian proceedings the Government objected to the book as such; they declined to indicate which passages they objected to as being detrimental to national security. 14. Whilst the Australian proceedings were still pending, there appeared, on Sunday 22 and Monday 23 June 1986 respectively, short articles on inside pages of the Observer and The Guardian reporting on the forthcoming hearing in Australia and giving details of some of the contents of the manuscript of Spycatcher. These two newspapers had for some time been conducting a campaign for an independent investigation into the workings of the Security Service. The details given included the following allegations of improper, criminal and unconstitutional conduct on the part of MI5 officers: (a) MI5 "bugged" all diplomatic conferences at Lancaster House in London throughout the 1950’s and 1960’s, as well as the Zimbabwe independence negotiations in 1979; (b) MI5 "bugged" diplomats from France, Germany, Greece and Indonesia, as well as Mr Kruschev’s hotel suite during his visit to Britain in the 1950’s, and was guilty of routine burglary and "bugging" (including the entering of Soviet consulates abroad); (c) MI5 plotted unsuccessfully to assassinate President Nasser of Egypt at the time of the Suez crisis; (d) MI5 plotted against Harold Wilson during his premiership from 1974 to 1976; (e) MI5 (contrary to its guidelines) diverted its resources to investigate left-wing political groups in Britain. The Observer and Guardian articles, which were written by Mr Leigh and Mr Lashmar and by Mr Norton-Taylor respectively, were based on investigations by these journalists from confidential sources and not on generally available international press releases or similar material. However, much of the actual information in the articles had already been published elsewhere (see paragraph 12 above). The English courts subsequently inferred that, on the balance of probabilities, the journalists’ sources must have come from the offices of the publishers of Spycatcher or the solicitors acting for them and the author (see the judgment of 21 December 1987 of Mr Justice Scott; paragraph 40 below). 15. The Attorney General instituted proceedings for breach of confidence in the Chancery Division of the High Court of Justice of England and Wales against O.G., seeking permanent injunctions restraining them from making any publication of Spycatcher material. He based his claim on the principle that the information in the memoirs was confidential and that a third party coming into possession of information knowing that it originated from a breach of confidence owed the same duty to the original confider as that owed by the original confidant. It was accepted that an award of damages would have been an insufficient and inappropriate remedy for the Attorney General and that only an injunction would serve his purpose. 16. The evidential basis for the Attorney General’s claim was two affidavits sworn by Sir Robert Armstrong, Secretary to the British Cabinet, in the Australian proceedings on 9 and 27 September 1985. He had stated therein, inter alia, that the publication of any narrative based on information available to Mr Wright as a member of the Security Service would cause unquantifiable damage, both to the service itself and to its officers and other persons identified, by reason of the disclosures involved. It would also undermine the confidence that friendly countries and other organisations and persons had in the Security Service and create a risk of other employees or former employees of that service seeking to publish similar information. 17. On 27 June 1986 ex parte interim injunctions were granted to the Attorney General restraining any further publication of the kind in question pending the substantive trial of the actions. On an application by O.G. and after an inter partes hearing on 11 July, Mr Justice Millett (sitting in the Chancery Division) decided that these injunctions should remain in force, but with various modifications. The defendants were given liberty to apply to vary or discharge the orders on giving twenty-four hours’ notice. 18. The reasons for Mr Justice Millett’s decision may be briefly summarised as follows. (a) Disclosure by Mr Wright of information acquired as a member of the Security Service would constitute a breach of his duty of confidentiality. (b) O.G. wished to be free to publish further information deriving directly or indirectly from Mr Wright and disclosing alleged unlawful activity on the part of the Security Service, whether or not it had been previously published. (c) Neither the right to freedom of speech nor the right to prevent the disclosure of information received in confidence was absolute. (d) In resolving, as in the present case, a conflict between the public interest in preventing and the public interest in allowing such disclosure, the court had to take into account all relevant considerations, including the facts that this was an interlocutory application and not the trial of the action, that the injunctions sought at this stage were only temporary and that the refusal of injunctive relief might cause irreparable harm and effectively deprive the Attorney General of his rights. In such circumstances, the conflict should be resolved in favour of restraint, unless the court was satisfied that there was a serious defence of public interest that might succeed at the trial: an example would be when the proposed publication related to unlawful acts, the disclosure of which was required in the public interest. This could be regarded either as an exception to the American Cyanamid principles (see paragraph 10 above) or their application in special circumstances where the public interest was invoked on both sides. (e) The Attorney General’s principal objection was not to the dissemination of allegations about the Security Service but to the fact that those allegations were made by one of its former employees, it being that particular fact which O.G. wished to publish. There was credible evidence (in the shape of Sir Robert Armstrong’s affidavits; see paragraph 16 above) that the appearance of confidentiality was essential to the operation of the Security Service and that the efficient discharge of its duties would be impaired, with consequent danger to national security, if senior officers were known to be free to disclose what they had learned whilst employed by it. Although this evidence remained to be tested at the substantive trial, the refusal of an interlocutory injunction would permit indirect publication and permanently deprive the Attorney General of his rights at the trial. Bearing in mind, inter alia, that the alleged unlawful activities had occurred some time in the past, there was, moreover, no compelling interest requiring publication immediately rather than after the trial. In the subsequent stages of the interlocutory proceedings, both the Court of Appeal (see paragraphs 19 and 34 below) and all the members of the Appellate Committee of the House of Lords (see paragraphs 35-36 below) considered that this initial grant of interim injunctions by Mr Justice Millett was justified. 19. On 25 July 1986 the Court of Appeal dismissed an appeal by O.G. and upheld the injunctions, with minor modifications. It referred to the American Cyanamid principles (see paragraph 10 above) and considered that Mr Justice Millett had not misdirected himself or exercised his discretion on an erroneous basis. It refused leave to appeal to the House of Lords. It also certified the case as fit for a speedy trial. As amended by the Court of Appeal, the injunctions ("the Millett injunctions") restrained O.G., until the trial of the action or further order, from: "1. disclosing or publishing or causing or permitting to be disclosed or published to any person any information obtained by Peter Maurice Wright in his capacity as a member of the British Security Service and which they know, or have reasonable grounds to believe, to have come or been obtained, whether directly or indirectly, from the said Peter Maurice Wright; 2. attributing in any disclosure or publication made by them to any person any information concerning the British Security Service to the said Peter Maurice Wright whether by name or otherwise." The orders contained the following provisos: "1. this Order shall not prohibit direct quotation of attributions to Peter Maurice Wright already made by Mr Chapman Pincher in published works, or in a television programme or programmes broadcast by Granada Television; 2. no breach of this Order shall be constituted by the disclosure or publication of any material disclosed in open court in the Supreme Court of New South Wales unless prohibited by the Judge there sitting or which, after the trial there in action no. 4382 of 1985, is not prohibited from publication; 3. no breach of this Order shall be constituted by a fair and accurate report of proceedings in (a) either House of Parliament in the United Kingdom whose publication is permitted by that House; or (b) a court of the United Kingdom sitting in public." 20. On 6 November 1986 the Appellate Committee of the House of Lords granted leave to appeal against the Court of Appeal’s decision. The appeal was subsequently withdrawn in the light of the House of Lords decision of 30 July 1987 (see paragraphs 35-36 below). 21. The trial of the Government’s action in Australia (see paragraph 13 above) took place in November and December 1986. The proceedings were reported in detail in the media in the United Kingdom and elsewhere. In a judgment delivered on 13 March 1987 Mr Justice Powell rejected the Attorney General’s claim against Mr Wright and his publishers, holding that much of the information in Spycatcher was no longer confidential and that publication of the remainder would not be detrimental to the British Government or the Security Service. The undertakings not to publish were then discharged by order of the court. The Attorney General lodged an appeal; after a hearing in the New South Wales Court of Appeal in the week of 27 July 1987, judgment was reserved. The defendants had given further undertakings not to publish whilst the appeal was pending. 22. On 27 April 1987 a major summary of certain of the allegations in Spycatcher, allegedly based on a copy of the manuscript, appeared in the United Kingdom national daily newspaper The Independent. Later the same day reports of that summary were published in The London Evening Standard and the London Daily News. On the next day the Attorney General applied to the Queen’s Bench Division of the High Court for leave to move against the publishers and editors of these three newspapers for contempt of court, that is conduct intended to interfere with or prejudice the administration of justice. Leave was granted on 29 April. In this application (hereinafter referred to as "the Independent case") the Attorney General was not acting - as he was in the breach of confidence proceedings against O.G. - as the representative of the Government, but independently and in his capacity as "the guardian of the public interest in the due administration of justice". Reports similar to those of 27 April appeared on 29 April in Australia, in The Melbourne Age and the Canberra Times, and on 3 May in the United States of America, in The Washington Post. 23. On 29 April 1987 O.G. applied for the discharge of the Millett injunctions (see paragraph 19 above) on the ground that there had been a significant change of circumstances since they were granted. They referred to what had transpired in the Australian proceedings and to the United Kingdom newspaper reports of 27 April. The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to hear these applications on 7 May but adjourned them pending the determination of a preliminary issue of law, raised in the Independent case (see paragraph 22 above), on which he thought their outcome to be largely dependent, namely "whether a publication made in the knowledge of an outstanding injunction against another party, and which if made by that other party would be in breach thereof, constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction". On 11 May, in response to the Vice-Chancellor’s invitation, the Attorney General pursued the proceedings in the Independent case in the Chancery Division of the High Court and the Vice-Chancellor ordered the trial of the preliminary issue. 24. On 14 May 1987 Viking Penguin Incorporated, which had purchased from Mr Wright’s Australian publishers the United States publication rights to Spycatcher, announced its intention of publishing the book in the latter country. 25. On 2 June 1987 the Vice-Chancellor decided the preliminary issue of law in the Independent case. He held that the reports that had appeared on 27 April 1987 (see paragraph 22 above) could not, as a matter of law, amount to contempt of court because they were not in breach of the express terms of the Millett injunctions and the three newspapers concerned had not been a party to those injunctions or to a breach thereof by the persons they enjoined. The Attorney General appealed. 26. On 15 June 1987 O.G., relying on the intended publication in the United States, applied to have the hearing of their application for discharge of the Millett injunctions restored (see paragraph 23 above). The matter was, however, adjourned pending the outcome of the Attorney General’s appeal in the Independent case, the hearing of which began on 22 June. 27. On 12 July 1987 the United Kingdom national Sunday newspaper The Sunday Times, which had purchased the British newspaper serialisation rights from Mr Wright’s Australian publishers and obtained a copy of the manuscript from Viking Penguin Incorporated in the United States, printed - in its later editions in order to avoid the risk of proceedings for an injunction - the first instalment of extracts from Spycatcher. It explained that this was timed to coincide with publication of the book in the United States, which was due to take place on 14 July. On 13 July the Attorney General commenced proceedings for contempt of court against Times Newspapers Ltd, the publisher of The Sunday Times, and Mr Andrew Neil, its editor (hereinafter together referred to as "S.T."), on the ground that the publication frustrated the purpose of the Millett injunctions. 28. On 14 July 1987 Viking Penguin Incorporated published Spycatcher in the United States of America; some copies had, in fact, been put on sale on the previous day. It was an immediate best-seller. The British Government, which had been advised that proceedings to restrain publication in the United States would not succeed, took no legal action to that end either in that country or in Canada, where the book also became a best-seller. 29. A substantial number of copies of the book were then brought into the United Kingdom, notably by British citizens who had bought it whilst visiting the United States or who had purchased it by telephone or post from American bookshops. The telephone number and address of such bookshops willing to deliver the book to the United Kingdom were widely advertised in that country. No steps to prevent such imports were taken by the British Government, which formed the view that although a ban was within their powers, it was likely to be ineffective. They did, however, take steps to prevent the book’s being available at United Kingdom booksellers or public libraries. 30. On 15 July 1987 the Court of Appeal announced that it would reverse the judgment of the Vice-Chancellor in the Independent case (see paragraph 25 above). Its reasons, which were handed down on 17 July, were basically as follows: the purpose of the Millett injunctions was to preserve the confidentiality of the Spycatcher material until the substantive trial of the actions against O.G.; the conduct of The Independent, The London Evening Standard and the London Daily News could, as a matter of law, constitute a criminal contempt of court because publication of that material would destroy that confidentiality and, hence, the subject-matter of those actions and therefore interfere with the administration of justice. The Court of Appeal remitted the case to the High Court for it to determine whether the three newspapers had acted with the specific intent of so interfering (sections 2(3) and 6(c) of the Contempt of Court Act 1981). 31. The Court of Appeal refused the defendants leave to appeal to the House of Lords and they did not seek leave to appeal from the House itself. Neither did they apply to the High Court for modification of the Millett injunctions. The result of the Court of Appeal’s decision was that those injunctions were effectively binding on all the British media, including The Sunday Times. 32. S.T. made it clear that, unless restrained by law, they would publish the second instalment of the serialisation of Spycatcher on 19 July 1987. On 16 July the Attorney General applied for an injunction to restrain them from publishing further extracts, maintaining that this would constitute a contempt of court by reason of the combined effect of the Millett injunctions and the decision in the Independent case (see paragraph 30 above). On the same day the Vice-Chancellor granted a temporary injunction restraining publication by S.T. until 21 July 1987. It was agreed that on 20 July he would consider the application by O.G. for discharge of the Millett injunctions (see paragraph 26 above) and that, since they effectively bound S.T. as well, the latter would have a right to be heard in support of that application. It was further agreed that he would also hear the Attorney General’s claim for an injunction against S.T. and that that claim would fail if the Millett injunctions were discharged. 33. Having heard argument from 20 to 22 July 1987, the Vice-Chancellor gave judgment on the last-mentioned date, discharging the Millett injunctions and dismissing the claim for an injunction against S.T. The Vice-Chancellor’s reasons may be briefly summarised as follows. (a) There had, notably in view of the publication in the United States (see paragraphs 28-29 above), been a radical change of circumstances, and it had to be considered if it would be appropriate to grant the injunctions in the new circumstances. (b) Having regard to the case-law and notwithstanding the changed circumstances, it had to be assumed that the Attorney General still had an arguable case for obtaining an injunction against O.G. at the substantive trial; accordingly, the ordinary American Cyanamid principles (see paragraph 10 above) fell to be applied. (c) Since damages would be an ineffective remedy for the Attorney General and would be no compensation to the newspapers, it had to be determined where the balance of convenience lay; the preservation of confidentiality should be favoured unless another public interest outweighed it. (d) Factors in favour of continuing the injunctions were: the proceedings were only interlocutory; there was nothing new or urgent about Mr Wright’s allegations; the injunctions would bind all the media, so that there would be no question of discrimination; undertakings not to publish were still in force in Australia; to discharge the injunctions would mean that the courts were powerless to preserve confidentiality; to continue the injunctions would discourage others from following Mr Wright’s example. (e) Factors in favour of discharging the injunctions were: publication in the United States had destroyed a large part of the purpose of the Attorney General’s actions; publications in the press, especially those concerning allegations of unlawful conduct in the public service, should not be restrained unless this was unavoidable; the courts would be brought into disrepute if they made orders manifestly incapable of achieving their purpose. (f) The matter was quite nicely weighted and in no sense obvious but, with hesitation, the balance fell in favour of discharging the injunctions. The Attorney General immediately appealed against the Vice-Chancellor’s decision; pending the appeal the injunctions against O.G., but not the injunction against S.T. (see paragraph 32 above), were continued in force. 34. In a judgment of 24 July 1987 the Court of Appeal held that: (a) the Vice-Chancellor had erred in law in various respects, so that the Court of Appeal could exercise its own discretion; (b) in the light of the American publication of Spycatcher, it was inappropriate to continue the Millett injunctions in their original form; (c) it was, however, appropriate to vary these injunctions to restrain publication in the course of business of all or part of the book or other statements by or attributed to Mr Wright on security matters, but to permit "a summary in very general terms" of his allegations. The members of the Court of Appeal considered that continuation of the injunctions would: serve to restore confidence in the Security Service by showing that memoirs could not be published without authority (Sir John Donaldson, Master of the Rolls); serve to protect the Attorney General’s rights until the trial (Lord Justice Ralph Gibson); or fulfil the courts’ duty of deterring the dissemination of material written in breach of confidence (Lord Justice Russell). The Court of Appeal gave leave to all parties to appeal to the House of Lords. 35. After hearing argument from 27 to 29 July 1987 (when neither side supported the Court of Appeal’s compromise solution), the Appellate Committee of the House of Lords gave judgment on 30 July, holding, by a majority of three (Lord Brandon of Oakbrook, Lord Templeman and Lord Ackner) to two (Lord Bridge of Harwich - the immediate past Chairman of the Security Commission - and Lord Oliver of Aylmerton), that the Millett injunctions should continue. In fact, they subsequently remained in force until the commencement of the substantive trial in the breach of confidence actions on 23 November 1987 (see paragraph 39 below). The majority also decided that the scope of the injunctions should be widened by the deletion of part of the proviso that had previously allowed certain reporting of the Australian proceedings (see paragraph 19 above), since the injunctions would be circumvented if English newspapers were to reproduce passages from Spycatcher read out in open court. In the events that happened, this deletion had, according to the Government, no practical incidence on the reporting of the Australian proceedings. 36. The members of the Appellate Committee gave their written reasons on 13 August 1987; they may be briefly summarised as follows. (i) The object of the Attorney General’s actions against O.G. was the protection of an important public interest, namely the maintenance as far as possible of the secrecy of the Security Service; as was recognised in Article 10 para. 2 (art. 10-2) of the Convention, the right to freedom of expression was subject to certain exceptions, including the protection of national security. (ii) The injunctions in issue were only temporary, being designed to hold the ring until the trial, and their continuation did not prejudge the decision to be made at the trial on the claim for final injunctions. (iii) The view taken in the courts below, before the American publication, that the Attorney General had a strong arguable case for obtaining final injunctions at the trial was not really open to challenge. (iv) Publication in the United States had weakened that case, but it remained arguable; it was not clear whether, as a matter of law, that publication had caused the newspapers’ duty of non-disclosure to lapse. Although the major part of the potential damage adverted to by Sir Robert Armstrong (see paragraph 16 above) had already been done, the courts might still be able to take useful steps to reduce the risk of similar damage by other Security Service employees in the future. This risk was so serious that the courts should do all they could to minimise it. (v) The only way to determine the Attorney General’s case justly and to strike the proper balance between the public interests involved was to hold a substantive trial at which evidence would be adduced and subjected to cross-examination. (vi) Immediate discharge of the injunctions would completely destroy the Attorney General’s arguable case at the interlocutory stage, without his having had the opportunity of having it tried on appropriate evidence. (vii) Continuing the injunctions until the trial would, if the Attorney General’s claims then failed, merely delay but not prevent the newspapers’ right to publish information which, moreover, related to events that had taken place many years in the past. (viii) In the overall interests of justice, a course which could only result in temporary and in no way irrevocable damage to the cause of the newspapers was to be preferred to one which might result in permanent and irrevocable damage to the cause of the Attorney General. (i) The appeal involved a conflict between the right of the public to be protected by the Security Service and its right to be supplied with full information by the press. It therefore involved consideration of the Convention, the question being whether the interference constituted by the injunctions was, on 30 July 1987, necessary in a democratic society for one or more of the purposes listed in Article 10 para. 2 (art. 10-2). (ii) In terms of the Convention, the restraints were necessary in the interests of national security, for protecting the reputation or rights of others, for preventing the disclosure of information received in confidence and for maintaining the authority of the judiciary. The restraints would prevent harm to the Security Service, notably in the form of the mass circulation, both now and in the future, of accusations to which its members could not respond. To discharge the injunctions would surrender to the press the power to evade a court order designed to protect the confidentiality of information obtained by a member of the Service. (i) It was accepted by all members of the Appellate Committee that: the Attorney General had an arguable case for a permanent injunction; damages were a worthless remedy for the Crown which, if the Millett injunctions were not continued, would lose forever the prospect of obtaining permanent injunctions at the trial; continuation of the Millett injunctions was not a "final locking-out" of the press which, if successful at the trial, would then be able to publish material that had no present urgency; there was a real public interest, that required protection, concerned with the efficient functioning of the Security Service and it extended, as was not challenged by the newspapers, to discouraging the use of the United Kingdom market for the dissemination of unauthorised memoirs of Security Service officers. (ii) It would thus be a denial of justice to refuse to allow the injunctions to continue until the trial, for that would sweep aside the public-interest factor without any trial and would prematurely and permanently deny the Attorney General any protection from the courts. (i) The case in favour of maintaining the Millett injunctions - which had been properly granted in the first place - would not be stronger at the trial than it was now; it would be absurd to continue them temporarily if no case for permanent injunctions could be made out. (ii) Since the Spycatcher allegations were now freely available to the public, it was manifestly too late for the injunctions to serve the interest of national security in protecting sensitive information. (iii) It could be assumed that the Attorney General could still assert a bare duty binding on the newspapers, but the question was whether the Millett injunctions could still protect an interest of national security of sufficient weight to justify the resultant encroachment on freedom of speech. The argument that their continuation would have a deterrent effect was of minimal weight. (iv) The attempt to insulate the British public from information freely available elsewhere was a significant step down the road to censorship characteristic of a totalitarian regime and, if pursued, would lead to the Government’s condemnation and humiliation by the European Court of Human Rights. (i) Mr Justice Millett’s initial order was entirely correct. (ii) The injunctions had originally been imposed to preserve the confidentiality of what were at the time unpublished allegations, but that confidentiality had now been irrevocably destroyed by the publication of Spycatcher. It was questionable whether it was right to use the injunctive remedy against the newspapers (who had not been concerned with that publication) for the remaining purpose which the injunctions might serve, namely punishing Mr Wright and providing an example to others. (iii) The newspapers had presented their arguments on the footing that the Attorney General still had an arguable case for the grant of permanent injunctions and there was force in the view that the difficult and novel point of law involved should not be determined without further argument at the trial. However, in the light of the public availability of the Spycatcher material, it was difficult to see how it could be successfully argued that the newspapers should be permanently restrained from publishing it and the case of the Attorney General was unlikely to improve in the meantime. No arguable case for permanent injunctions at the trial therefore remained and the Millett injunctions should accordingly be discharged. 37. On 24 September 1987 the New South Wales Court of Appeal delivered judgment dismissing the Attorney General’s appeal (see paragraph 21 above); the majority held that his claim was not justiciable in an Australian court since it involved either an attempt to enforce indirectly the public laws of a foreign State or a determination of the question whether publication would be detrimental to the public interest in the United Kingdom. The Attorney General appealed to the High Court of Australia. In view of the publication of Spycatcher in the United States and elsewhere, that court declined to grant temporary injunctions restraining its publication in Australia pending the hearing; it was published in that country on 13 October. The appeal was dismissed on 2 June 1988, on the ground that, under international law, a claim - such as the Attorney General’s - to enforce British governmental interests in its security service was unenforceable in the Australian courts. Further proceedings brought by the Attorney General against newspapers for injunctions were successful in Hong Kong but not in New Zealand. 38. In the meantime publication and dissemination of Spycatcher and its contents continued worldwide, not only in the United States (around 715,000 copies were printed and nearly all were sold by October 1987) and in Canada (around 100,000 copies printed), but also in Australia (145,000 copies printed, of which half were sold within a month) and Ireland (30,000 copies printed and distributed). Nearly 100,000 copies were sent to various European countries other than the United Kingdom and copies were distributed from Australia in Asian countries. Radio broadcasts in English about the book were made in Denmark and Sweden and it was translated into twelve other languages, including ten European. 39. On 27 October 1987 the Attorney General instituted proceedings against S.T. for breach of confidence; in addition to injunctive relief, he sought a declaration and an account of profits. The substantive trial of that action and of his actions against O.G. (see paragraph 15 above) - in which, by an amendment of 30 October, he now claimed a declaration as well as an injunction - took place before Mr Justice Scott in the High Court in November-December 1987. He heard evidence on behalf of all parties, the witnesses including Sir Robert Armstrong (see paragraph 16 above). He also continued the interlocutory injunctions, pending delivery of his judgment. 40. Mr Justice Scott gave judgment on 21 December 1987; it contained the following observations and conclusions. (a) The ground for the Attorney General’s claim for permanent injunctions was no longer the preservation of the secrecy of certain information but the promotion of the efficiency and reputation of the Security Service. (b) Where a duty of confidence is sought to be enforced against a newspaper coming into possession of information known to be confidential, the scope of its duty will depend on the relative weights of the interests claimed to be protected by that duty and the interests served by disclosure. (c) Account should be taken of Article 10 (art. 10) of the Convention and the judgments of the European Court establishing that a limitation of free expression in the interests of national security should not be regarded as necessary unless there was a "pressing social need" for the limitation and it was "proportionate to the legitimate aims pursued". (d) Mr Wright owed a duty to the Crown not to disclose any information obtained by him in the course of his employment in MI5. He broke that duty by writing Spycatcher and submitting it for publication, and the subsequent publication and dissemination of the book amounted to a further breach, so that the Attorney General would be entitled to an injunction against Mr Wright or any agent of his, restraining publication of Spycatcher in the United Kingdom. (e) O.G. were not in breach of their duty of confidentiality, created by being recipients of Mr Wright’s unauthorised disclosures, in publishing their respective articles of 22 and 23 June 1986 (see paragraph 14 above): the articles were a fair report in general terms of the forthcoming trial in Australia and, furthermore, disclosure of two of Mr Wright’s allegations was justified on an additional ground relating to the disclosure of "iniquity". (f) S.T., on the other hand, had been in breach of the duty of confidentiality in publishing the first instalment of extracts from the book on 12 July 1987 (see paragraph 27 above), since those extracts contained certain material which did not raise questions of public interest outweighing those of national security. (g) S.T. were liable to account for the profits accruing to them as a result of the publication of that instalment. (h) The Attorney General’s claims for permanent injunctions failed because the publication and worldwide dissemination of Spycatcher since July 1987 had had the result that there was no longer any duty of confidence lying on newspapers or other third parties in relation to the information in the book; as regards this issue, a weighing of the national security factors relied on against the public interest in freedom of the press showed the latter to be overwhelming. (i) The Attorney General was not entitled to a general injunction restraining future publication of information derived from Mr Wright or other members of the Security Service. After hearing argument, Mr Justice Scott imposed fresh temporary injunctions pending an appeal to the Court of Appeal; those injunctions contained a proviso allowing reporting of the Australian proceedings (see paragraphs 19 and 35 above). 41. On appeal by the Attorney General and a cross-appeal by S.T., the Court of Appeal (composed of Sir John Donaldson, Master of the Rolls, Lord Justice Dillon and Lord Justice Bingham) affirmed, on 10 February 1988, the decision of Mr Justice Scott. However, Sir John Donaldson disagreed with his view that the articles in the Observer and The Guardian had not constituted a breach of their duty of confidence and that the claim for an injunction against these two newspapers in June 1986 was not "proportionate to the legitimate aim pursued". Lord Justice Bingham, on the other hand, disagreed with Mr Justice Scott’s view that S.T. had been in breach of duty by publishing the first instalment of extracts from Spycatcher, that they should account for profits and that the Attorney General had been entitled, in the circumstances as they stood in July 1987, to injunctions preventing further serialisation. After hearing argument, the Court of Appeal likewise granted fresh temporary injunctions, pending an appeal to the House of Lords; O.G. and S.T. were given liberty to apply for variation or discharge if any undue delay arose. 42. On 13 October 1988 the Appellate Committee of the House of Lords (Lord Keith of Kinkel, Lord Brightman, Lord Griffiths, Lord Goff of Chieveley and Lord Jauncey of Tullichettle) also affirmed Mr Justice Scott’s decision. Dismissing an appeal by the Attorney General and a cross-appeal by S.T., it held: "(i) That a duty of confidence could arise in contract or in equity and a confidant who acquired information in circumstances importing such a duty should be precluded from disclosing it to others; that a third party in possession of information known to be confidential was bound by a duty of confidence unless the duty was extinguished by the information becoming available to the general public or the duty was outweighed by a countervailing public interest requiring disclosure of the information; that in seeking to restrain the disclosure of government secrets the Crown must demonstrate that disclosure was likely to damage or had damaged the public interest before relief could be granted; that since the world-wide publication of Spycatcher had destroyed any secrecy as to its contents, and copies of it were readily available to any individual who wished to obtain them, continuation of the injunctions was not necessary; and that, accordingly, the injunctions should be discharged. (ii) (Lord Griffiths dissenting) that the articles of 22 and 23 June [1986] had not contained information damaging to the public interest; that the Observer and The Guardian were not in breach of their duty of confidentiality when they published [those] articles; and that, accordingly, the Crown would not have been entitled to a permanent injunction against both newspapers. (iii) That The Sunday Times was in breach of its duty of confidence in publishing its first serialised extract from Spycatcher on 12 July 1987; that it was not protected by either the defence of prior publication or disclosure of iniquity; that imminent publication of the book in the United States did not amount to a justification; and that, accordingly, The Sunday Times was liable to account for the profits resulting from that breach. (iv) That since the information in Spycatcher was now in the public domain and no longer confidential no further damage could be done to the public interest that had not already been done; that no injunction should be granted against the Observer and The Guardian restraining them from reporting on the contents of the book; and that (Lord Griffiths dissenting) no injunction should be granted against The Sunday Times to restrain serialising of further extracts from the book. (v) That members and former members of the Security Service owed a lifelong duty of confidence to the Crown, and that since the vast majority of them would not disclose confidential information to the newspapers it would not be appropriate to grant a general injunction to restrain the newspapers from future publication of any information on the allegations in Spycatcher derived from any member or former member of the Security Service." 43. The substantive trial of the Attorney General’s actions for contempt of court against The Independent, The London Evening Standard, the London Daily News (see paragraph 22 above), S.T. (see paragraph 27 above) and certain other newspapers took place before Mr Justice Morritt in the High Court in April 1989. On 8 May he held, inter alia, that The Independent and S.T. had been in contempt of court and imposed a fine of £50,000 in each case. 44. On 27 February 1990 the Court of Appeal dismissed appeals by the latter two newspapers against the finding that they had been in contempt but concluded that no fines should be imposed. A further appeal by S.T. against the contempt finding was dismissed by the Appellate Committee of the House of Lords on 11 April 1991.

train

001-21955

ENG

CHE

ADMISSIBILITY

G.M.B. AND K.M. v. SWITZERLAND

Inadmissible

Christos Rozakis

The applicants are Swiss nationals, born in 1953 and 1951, respectively, and living in Zürich in Switzerland. The respondent Government are represented by their Agent, Mr P. Boillat, Head of the International Affairs Division of the Federal Office of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants married in 1989. They have a daughter L.G.M. born on 14 August 1995. As the daughter’s surname the parents wished to give her the mother’s, i.e. the first applicant’s surname B. This was refused on 18 November 1995 by the Zürich Registry Office. Based on Section 270 § 1 of the Swiss Civil Code (Zivilgesetzbuch, henceforth referred to as CC; see below, Relevant domestic law), the Office found that the child would obtain the family name which in the present case was the second applicant’s, i.e. the father’s surname M. The applicants’ appeal against this decision was dismissed by the Directorate for the Interior (Direktion des Inneren) of the Canton of Zürich on 15 July 1996. The decision stated: “1. If the parents of the child are married, the child obtains the family name (Section 270 § 1 CC). As a rule this is the name of the husband, exceptionally it will be the name of the mother if the parents have chosen this name as the family name according to Section 30 § 2 CC. If the mother puts her name first according to S. 160 § 2 CC, this will have no effect on the name of the common child ... 2. There is agreement with the parents that there would be discrimination contrary to Article 14 of the Convention if the family name was based solely on the name of the husband. But no right can be deduced for the parents freely to chose the family name of their common child. The applicants overlook in their argumentation that the reform of matrimonial law considered the equality of man and woman to the extent that the spouses may obtain, according to S. 30 § 2 CC, the authorisation to have the woman’s name as the family name, following an administrative procedure to change the name, if there are commendable grounds. This possibility to change names in case of commendable grounds, in respect of which only minor conditions (geringe Anforderungen) may be attached, is more easily attained than the one stated in Section 30 § 1 CC. Justification herefor is that marriage in any event will oblige one partner to renounce her/his name, for which reason there is less public interest in the irreversibility of a family name than in the case of Section 30 § 1 CC ... A commendable ground can be seen in every, even only remotely understandable, not clearly unlawful or immoral reason ... Even if Section 160 CC continues to uphold the principle of the unity of the family name, the spouses are free to apply, with the Government of their Canton of residence, for the authorisation to employ the woman’s name as the family name. The legislator thus enabled the spouses to choose as a family name the woman’s name and to pass this name on to any common children ... The only difference in Section 30 § 2 CC to a complete freedom of choice lies in the envisaged administrative procedure which, according to Section 179 § 1(2) of the Civil States Ordinance is free of costs. Contrary to the applicants’ opinion, this merely formal difference cannot amount to a breach of the prohibition of discrimination within the meaning of Article 14 of the Convention. 3. Upon announcing their marriage the applicants renounced filing a request within the meaning of Section 30 § 2 CC. As a result, they have opted for the name of the husband as the family name. According to Section 270 § 1 CC, their common daughter L.G.M. obtains the family name of the parents ...” The applicants’ further appeal was dismissed on 7 November 1996 by the Federal Court (Bundesgericht), the decision being served on 24 December 1996. In its decision the Court recalled that the applicants had not opted for the possibility to choose the wife’s name as the family name. The case concerned not only the interests of the parents but, above all, the interests of the child who had an independent right to a family name and to be attached to the family. It would not be possible to grant parents with more than one child the right freely to choose the family name for every child. It was not clear why a child’s right to identity and individuality should demand the free choice of name for the parents, and Article 8 of the Convention did not grant such a freedom of choice. Insofar as the applicants pointed out that there would be discrimination in respect of whichever name was chosen as the family name that of the husband or that of the wife , the Court considered that it lay in the nature of things that parents had to agree on one name for the child. Section 30 §§ 1 and 2 of the Swiss Civil Code state: “(1) The Government of the Canton of residence may grant a person the change of name, if there are important reasons herefor. (2) The request of the spouses to have the name of the wife as the family name is to be granted if there are commendable reasons (achtenswerte Gründe, intérêts légitimes). ....” In practice, such “commendable reasons” are assumed if they are worthy of consideration and reasonable. The procedure envisaged under § 2 is free of charge (see BGE [Bundesgerichtsentscheid] 126 I p. 1). After marriage, the name may only be changed if the conditions of § 1 of Section 30 have been met. Section 160 §§ 1 and 2 CC state: “(1) The name of the husband is the family name of the couple. (2) The bride may, however, declare before the Civil Registrar that she wishes to place her previous name before the family name. ...” Section 270 § 1 CC provides: “(1) If the parents are married, the child obtains their family name. ... Section 177a § 1 of the Ordinance on Civil Status (Zivilstandsverordnung), which was introduced after the Court’s Burghartz v. Switzerland judgment of 22 February 1994, Series A no. 280-B, states: “(1) The bride may declare to the Civil Registrar that she wishes to keep her previous name, followed by the family name (Section 160 §§ 2 and 3 CC). The bridegroom has the same possibility, if the spouses file the request to have the wife’s name as the family name after the marriage. ...” According to 179 § 1(2) of the Ordinance, no costs will be imposed if, upon marriage, bride and bridegroom issue declarations as to their names.

train

001-94200

ENG

TUR

CHAMBER

CASE OF STRATI v. TURKEY

Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 8 - Right to respect for private and family life;Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial;No violation of Article 7 - No punishment without law;No violation of Article 11 - Freedom of assembly and association;No violation of Article 13 - Right to an effective remedy;No violation of Article 14 - Prohibition of discrimination read in the light of Article 5 - (Art. 5) Right to liberty and security;No violation of Article 14 - Prohibition of discrimination read in the light of Article 6 - (Art. 6) Right to a fair trial;No violation of Article 14 - Prohibition of discrimination read in the light of Article 7 - (Art. 7) No punishment without law

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

7. The applicant was born in 1964 and lives in Larnaca. 8. The applicant claimed that his home had been in the village of Marathovounos in the District of Famagusta (northern Cyprus). His family had owned considerable immovable property in northern Cyprus and was one of the wealthiest families in the village. The applicant's parents had intended to transfer to him a quarter share in their immovable properties when he reached the age of 18. However, because of the 1974 Turkish intervention this did not happen. The applicant considered that, even though the formal registration process was not completed, he had been the “beneficial owner” of the said share in the properties from the age of 18. 9. The properties listed below were all transferred to the applicant by way of gift from his parents on 6 August 1996 (declarations of transfer nos. D-1534, D-1535, D-1537 and D-1538): (a) Famagusta, Marathovounos, Rashies, plot no. 149, sheet/plan: 22/24; description: house (area: approximately 250 square metres) and yard (ground floor); use: residence; area 2,339 sq. m; share: ¼; (b) Famagusta, Marathovounos, plot no. 223, sheet/plan: 22/24; description: field; area 2,161 sq. m; share: ¼; (c) Famagusta, Marathovounos, plot no. 170, sheet/plan: 22/24; description: field; area 1,339 sq. m; share: ¼; (d) Famagusta, Marathovounos, Rashies, plot no. 188, sheet/plan: 22/24; description: field; area 2,190 sq. m; share: ¼; (e) Famagusta, Marathovounos, plot no. 303/1/1, sheet/plan: 22/24.V.1; description: field; area 276 sq. m; share: ¼; (f) Famagusta, Marathovounos, Xylogefyro, plot no. 130, sheet/plan: 23/26; description: field; area 26,127 sq. m; share: ¼; (g) Famagusta, Marathovounos, Landes, plot no. 406, sheet/plan: 22/32; description: field; area 4,925 sq. m; share: ¼; (h) Famagusta, Marathovounos, Paneloporta, plot no. 274, sheet/plan: 22/32; description: field; area 4,076 sq. m; share: ¼; (i) Famagusta, Marathovounos, Paneloporta, plot no. 275, sheet/plan: 22/32; description: field; area 4,413 sq. m; share: ¼; (j) Famagusta, Marathovounos, Pallourokampos, plot no. 403, sheet/plan: 22/31; description: field; area 9,382 sq. m; share: ¼; (k) Famagusta, Angastina, plot no. 439/1, sheet/plan: 22/31; description: field; area 7,055 sq. m; share: ¼; (l) Famagusta, Angastina, plot no. 439/2, sheet/plan: 22/31; description: field; area 974 sq. m; share: ¼; (m) Famagusta, Marathovounos, Parraka, plot nos. 330/2/1, 330/3, 335/1, sheet/plan: 22/7; description: field; area 8,758 sq. m; share: ¼; (n) Famagusta, Marathovounos, Tzaetika, plot no. 135, sheet/plan: 22/16; description: field; area 3,145 sq. m; share: ¼; (o) Famagusta, Marathovounos, Hepipis, plot no. 236, sheet/plan: 22/16; description: field; area 2,703 sq. m; share: ¼; (p) Famagusta, Marathovounos, Vitsada Road, plot no. 269, sheet/plan: 22/16; description: field; area 2,325 sq. m; share: ¼; (q) Famagusta, Marathovounos, Tzaetika, plot no. 246/1, sheet/plan: 22/16; description: field; area 1,994 sq. m; share: ¼; (r) Famagusta, Marathovounos, Tzaetika, plot no. 246/2, sheet/plan: 22/16; description: field; area 1,918 sq. m; share: ¼. 10. The properties listed below were all transferred to the applicant by way of gift from his parents on 12 January 2000 (declaration of transfer no. D-36): (a) Famagusta, Marathovounos, plot no. 321, sheet/plan: 22/24.V.1; description: house and yard (ground floor); area 1,238 sq. m; share: ¼; (b) Famagusta, Marathovounos, Limni, plot no. 147, sheet/plan: 22/32; description: field; area 1,370 sq. m; share: ¼; (c) Famagusta, Marathovounos, Limni, plot no. 140/1, sheet/plan: 22/32; description: field; area 11,050 sq. m; share: ¼; (d) Famagusta, Marathovounos, Mazeri, plot no. 180/1, sheet/plan: 23/17; description: field; area 13,500 sq. m; share: 1/8; (e) Famagusta, Marathovounos, Toumpa, plot no. 34, sheet/plan: 23/17; description: field; area 17,827 sq. m; share: 1/32. 11. The properties listed below were all transferred to the applicant by way of gift from his parents on 13 January 2000 (declarations of transfer nos. D-45 and D-46): (a) Famagusta, Marathovounos, Trachonas, plot no. 805, sheet/plan: 22/24; description: field; area 11,542 sq; m; share: 1/8; (b) Famagusta, Angastina, Angoulos, plot no. 267, sheet/plan: 22/30; description: field; area 13,925 sq. m; share: 1/16; (c) Famagusta, Angastina, Angoulos, plot no. 152, sheet/plan: 22/38; description: field; area 3,295 sq. m; share: 1/16. 12. In order to substantiate his claim to ownership, the applicant produced the relevant certificates of ownership of Turkish-occupied immovable property issued by the Republic of Cyprus. 13. The applicant alleged that since the 1974 Turkish intervention he had been deprived of his property rights, as his property was located in the area that was under the occupation and control of the Turkish military authorities. They had prevented him from having access to and from using his properties. 14. On 19 July 1989, the applicant joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases (see below) also took part. 15. According to an affidavit sworn by the applicant before the “TRNC” Nicosia District Court on 7 August 2000, the demonstration of 19 July 1989 was peaceful and was held on the fifteenth anniversary of the Turkish intervention in Cyprus, in support of the missing persons and to protest against human-rights violations. 16. The applicant heard about the demonstration from the local radio and press. During the afternoon of 19 July 1989 the radio announced that Turkish soldiers and policemen had started to cruelly beat the demonstrators. The applicant, a nursing officer, decided to go to the area where the events were taking place. He took with him a special bag containing first-aid equipment and wore an armband marked with the Red Cross sign. 17. The applicant told UN officers that he was a nurse and they informed him that they needed his help for a woman who had received an injury to the head and was lying on the ground. While he was trying to attend to the woman, the applicant was beaten with clubs about the head and body by Turkish military personnel and/or other personnel acting under Turkish control. Despite his attempts to explain that he was a nurse, they continued to hit him. He felt a powerful blow to the head and started bleeding. He was led away at gunpoint through an angry crowd that shouted abuse and threats and was then taken by bus to the so-called “Pavlides Garage”. The crowd had encircled the bus and was hitting it with sticks and throwing stones at the arrested persons. 18. At the garage a body search was carried out and all the applicant's personal effects were taken. The crowd was shouting and throwing stones at the garage, some of which came through the roof. Some hours later he was taken to hospital where he had stitches to his head. He was then taken back to the garage. He was still bleeding and his clothes were soaked with blood. Sometime after midnight he was interrogated by a Greek-speaking officer. The applicant declared that he had joined the demonstration voluntarily for humanitarian reasons. He was told to sign a statement in Turkish but refused as he did not understand Turkish and signing would have been tantamount to recognising the “Turkish Republic of Northern Cyprus” (the “TRNC”). 19. In the morning of 20 July 1989 he was taken to Seray Police Station and put in a cell that was dark, damp and dirty. While at the station he was beaten and threatened. 20. On 20 July 1989 he was given back his personal effects and taken to court, where an interpreter explained the charges to the accused. The applicant understood that he was accused of having violated the borders of the “TRNC”. He informed the judge that he had attended the demonstration only in order to offer humanitarian aid as a member of the Red Cross. The court remained completely indifferent to what he said. 21. He was remanded in custody for two days and then taken to Ortakeuy Prison where all his personal effects were taken away again. He was blindfolded and led to another area of the prison where he was interrogated and punched. The interrogation was aimed solely at eliciting military information and the applicant lied about certain details. He was forced to wash the blood from his clothes before appearing in court the next day. After the interrogation he was taken to the central prison. 22. On 21 July 1989 he was taken to court. Foreign journalists and UN officers were present in the courtroom. The accused had no legal representation and the quality of the interpretation was poor; the applicant felt that the interpreter was not translating all of what was being said. One of the accused (the Bishop of Kitium) spoke on behalf of the others and said that they would agree to be defended only by a Greek-Cypriot or UN lawyer. The judge replied that she could only appoint a lawyer registered with the “TRNC” bar association. The accused pleaded not guilty and stated that they did not recognise the legitimacy of the “TRNC” or its tribunals. Four witnesses were called by the prosecution. The Bishop of Kitium put some questions to the first witness. However, the judge refused to allow some of the questions and the Bishop accordingly declined to cross-examine any other witness. The prosecution witnesses lied about basic facts surrounding the demonstration and the arrest of the accused. One of the persons present in the courtroom spoke briefly to the Bishop, who became frightened as a result. After the trial the applicant and his co-accused were taken back to prison. Their pictures were taken. 23. On 22 July 1989 the applicant was again taken to court. A hostile crowd gathered outside the courtroom. The applicant was sentenced to three days' imprisonment and a fine of 50 Cyprus pounds (CYP) – approximately 85 euros (EUR) – with five additional days in prison in default of payment within 24 hours. This decision was translated into Greek and the accused stated that they would not pay the fine. An angry crowd had assembled within the precinct of the court and was shouting, swearing and making obscene gestures at the accused. The applicant had the impression that the crowd's presence and actions were being orchestrated and controlled by the police. 24. From 24 until 28 July 1989 the applicant went on a hunger strike to protest about the prison director's refusal to give the Bishop of Kitium church vestments and holy vessels with which to celebrate mass. He was put in an isolation cell as punishment but continued his strike notwithstanding the pressure exerted by the prison staff. 25. On 28 July 1989 the applicant was released and taken back to southern Cyprus. 26. On 29 July 1989 he went to the police headquarters in Nicosia and made a complaint about his arrest and ill-treatment. He was referred to Nicosia General Hospital, where he was examined by a doctor. 27. In support of his claim of ill-treatment, the applicant produced a medical certificate issued on 29 July 1989 by Dr A. Hadjihannas, a medical officer at Nicosia Hospital. This document reads as follows: “I have examined today 29.7.89 Costas Stratis and found a head injury (left frontal bone). Four stitches. B.P. = 120/80. Removal of stitches and cleaning of wound was recommended. He complains about mild pain in the epigastrium and nausea. Treatment was provided and urine culture was recommended for old nephritis.” 28. The Government alleged that the applicant had participated in a violent demonstration with the aim of inflaming anti-Turkish sentiment. The demonstrators, supported by the Greek-Cypriot administration, were demanding that the “Green Line” in Nicosia should be dismantled. Some carried Greek flags, clubs, knives and wire-cutters. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the laws of the “TRNC”. The applicant was arrested by the Turkish-Cypriot police after crossing the UN buffer zone and entering the area under Turkish-Cypriot control. The Turkish-Cypriot police intervened in the face of the manifest inability of the Greek-Cypriot authorities and the UN Force in Cyprus to contain the incursion and its possible consequences. 29. No force was used against demonstrators who did not intrude into the “TRNC” border area and, in the case of demonstrators who were arrested for violating the border, no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned. No one was ill-treated. It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing. Had the Turkish police, or anyone else, assaulted or beaten any of the demonstrators, the UN Secretary General would no doubt have referred to this in his report to the Security Council. 30. The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. He pleaded not guilty, but did not give evidence and declined to use the available judicial remedies. He was asked if he required assistance from a lawyer registered in the “TRNC”, but refused and did not ask for legal representation. Interpretation services were provided at the trial by qualified interpreters. All the proceedings were translated into Greek. 31. In his report of 7 December 1989 on the UN operations in Cyprus, the UN Secretary General stated, inter alia: “A serious situation, however, arose in July as a result of a demonstration by Greek Cypriots in Nicosia. The details are as follows: (a) In the evening of 19 July, some 1,000 Greek Cypriot demonstrators, mostly women, forced their way into the UN buffer zone in the Ayios Kassianos area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further. A short while later, Turkish-Cypriot police and security forces elements forced their way into the area and apprehended 111 persons, 101 of them women; (b) The Ayios Kassianos school complex is situated in the UN buffer zone. However, the Turkish forces claim it to be on their side of the cease-fire line. Under working arrangements with UNFICYP, the Turkish-Cypriot security forces have patrolled the school grounds for several years within specific restrictions. This patrolling ceased altogether as part of the unmanning agreement implemented last May; (c) In the afternoon of 21 July, some 300 Greek Cypriots gathered at the main entrance to the UN protected area in Nicosia, in which the UN headquarters is located, to protest the continuing detention by the Turkish-Cypriot authorities of those apprehended at Ayios Kassianos. The demonstrators, whose number fluctuated between 200 and 2,000, blocked all UN traffic through this entrance until 30 July, when the Turkish-Cypriot authorities released the last two detainees; (d) The events described above created considerable tension in the island and intensive efforts were made, both at the UN headquarters and at Nicosia, to contain and resolve the situation. On 21 July, I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the UN buffer zone as well as their responsibility to ensure that that area was not violated. I also urged the Turkish-Cypriot authorities to release without delay all those who had been detained. On 24 July, the President of the Security Council announced that he had conveyed to the representatives of all the parties, on behalf of the members of the Council, the Council's deep concern at the tense situation created by the incidents of 19 July. He also stressed the need strictly to respect the UN buffer zone and appealed for the immediate release of all persons still detained. He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations.” 32. The applicant produced 21 photographs taken at different times during the demonstration on 19 July 1989. Photographs 1 to 7 were intended to show that, notwithstanding the deployment of the Turkish-Cypriot police, the demonstration was peaceful. In photographs 8 to 10 members of the Turkish-Cypriot police are seen breaking up the UNFICYP cordon. The final set of photographs show members of the Turkish-Cypriot police using force to arrest some of the demonstrators. 33. The English translation of the “TRNC” Nicosia District Court's judgment of 22 July 1989 indicates that the applicant, together with 9 other men, was charged with two offences: entering “TRNC” territory without permission (contrary to sections 2, 8 and 9 of Law no. 5/72 – see paragraph 40 below) and entering “TRNC” territory other than through an approved port (contrary to subsections 12(1) and (5) of the Aliens and Immigration Law – see paragraph 41 below). 34. The judgment was given in the presence of the accused and of an interpreter. The trial judge noted the following: (i) the accused did not accept the charges against them and stated that they did not wish to use the services of a lawyer registered in the “TRNC”; (ii) the public prosecutor called five witnesses, whose statements were translated into Greek for the accuseds' benefit; (iii) the witnesses (mainly police officers on duty at the time of the demonstration) declared that the accused had illegally crossed the “TRNC” border, shouted abuse at the Turkish-Cypriot forces and resisted arrest by pulling and pushing; knives and other cutting objects had been found in the bags of some of the demonstrators who had been arrested; (iv) the accused had been told that they could cross-examine witnesses in turn and, if they so wished, choose one of their number to cross-examine the witnesses on behalf of all the accused; during the hearing of evidence, one of the accused put a few questions to one of the prosecution witnesses; (v) the applicant had stated that he considered the Cypriot coast to be the border and for that reason did not accept that he had violated the border; before the District Court gave its sentence, the Bishop of Kitium, speaking on behalf of all the accused, had made a statement saying that their struggle had been peaceful, that their aim was to have Greek-Cypriots and Turkish-Cypriots living together in peace, that they had not been carrying weapons and that they had asked for UN protection; (vi) relying on statements by the prosecution witnesses, which were not undermined by the statements made by some of the accused, the District Court came to the conclusion that the accused had crossed the borders of the “TRNC” at an unapproved entry point and without permission and had resisted by various means the UN and Turkish forces which had tried to stop them; (vii) the prosecution had proved its case beyond reasonable doubt, so that the accused were guilty on both counts; (viii) in deciding on the sentence, the District Court had taken into account the seriousness of the offence, and the fact that the accused had shown no remorse and continued to deny the validity of the “TRNC”. 35. Section 70 of the Cypriot Criminal Code reads as follows: “Where five or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly. It is immaterial that the original assembly was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid. When an unlawful assembly has begun to execute the purpose, whether of a public or of a private nature, for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.” 36. According to section 71 of the Criminal Code, any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for one year. 37. Section 80 of the Criminal Code provides: “Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for two years, and his arms or weapons shall be forfeited.” 38. According to section 82 of the Criminal Code, it is an offence to carry a knife outside the home. 39. The relevant part of Chapter 155, section 14 of the Criminal Procedure Law states: “(1) Any officer may, without warrant, arrest any person - ... (b) who commits in his presence any offence punishable with imprisonment; (c) who obstructs a police officer, while in the execution of his duty...” 40. Section 9 of Law No. 5/72 states: “... Any person who enters a prohibited military area without authorization, or by stealth, or fraudulently, shall be tried by a military court in accordance with the Military Offences Act; those found guilty shall be punished.” 41. Subsections 12 (1) and (5) of the Aliens and Immigration Law read as follows: “1. No person shall enter or leave the Colony except through an approved port. ... 5. Any person who contravenes or fails to observe any of the provisions of subsections (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine.”

train

001-71700

ENG

UKR

ADMISSIBILITY

ZHOVTAN v. UKRAINE

Inadmissible

The applicant, Mr Anatoliy Vasiliyevich Zhovtan, is a Ukrainian national who was born in 1960 and lives in Lugansk. The facts of the case, as submitted by the parties, may be summarised as follows. Between 26 and 29 November 1998, the applicant was detained in a cell at the Lugansk City Police Station, where he was beaten by police officers, who forced him to confess to the murder of a certain Mr Z. On 14 January 2000 the Leninsky District Court of Lugansk sentenced the police officers concerned to imprisonment for an aggravated abuse of power. The court also awarded the applicant a total of UAH 7,000 against the officers in moral damages. In February 2001 the applicant instituted proceedings against the Lugansk Regional and City Police Departments claiming compensation for material and moral damage suffered as the result of the ill-treatment. On 24 May 2001 the Leninsky District Court partly allowed this claim, ordering the Lugansk City Police Department to pay the applicant a total of UAH 4,249 in compensation for material damage. The court, however, rejected the claim for moral suffering as it had already been redressed by the award against the convicted officers in the criminal proceedings. The applicant appealed against the latter finding. On 13 September 2001 the Lugansk Regional Court of Appeal upheld the judgment of 24 May 2001. On 18 December 2001 the Supreme Court rejected the applicant’s request for leave to appeal under the cassation procedure. On 8 November 2001 the Leninsky District Bailiffs’ Service instituted enforcement proceedings in respect of the judgment of 24 May 2001. According to a letter of the Lugansk City Bailiffs’ Service of 10 July 2002, the enforcement proceedings were impeded by the lack of budgetary funds earmarked for such purposes. Nevertheless, from March 2002 onwards the applicant received from the debtor monthly instalments of UAH 500. Thus, by 28 November 2002, when the enforcement proceedings were formally terminated, the applicant had been repaid the full amount of the award (the last payment of UAH 749 being made on 9 October 2002). The relevant domestic law is set out in the judgments of 29 June 2004 in the case of Voytenko v. Ukraine (no. 18966/02, §§ 20-25) and of 5 April 2005 in the case of Afanasyev v. Ukraine (no. 38722/02, §§ 47-52). According to Article 231 of the Code of Civil Procedure of 1963, the first instance judgment becomes final upon the expiry of the time limit for appeal or, if an appeal is lodged, after the examination of the case by the appellate court.

train

001-110206

ENG

RUS

CHAMBER

CASE OF SHCHEBETOV v. RUSSIA

Remainder inadmissible;No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

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

6. The applicant was born in 1972 and lived until his arrest in the town of Yakutsk. 7. According to the applicant, in June 1997 he was arrested, beaten up by the police and released several days later. In September 1997 he was again arrested and charged with theft and robbery. On 20 February 1998 the Yakutsk Town Court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. The applicant was conditionally released on 1 June 2004, having served two-thirds of his sentence. However, two and a half months later he was arrested again on suspicion of aggravated robbery. By a judgment of 8 April 2005 of the Yakutsk Town Court he was found guilty as charged and sentenced to nine years’ imprisonment, to be served in correctional colony no. 7. 8. On 1 October 1997 the applicant was admitted to temporary detention facility no. IZ-14/1 in Yakutsk. According to the Government, who relied on a medical record drawn up by the head of the facility on 14 October 2005, together with the applicant’s medical history, the applicant was examined by the prison doctor on 2 October 1997. In addition, the necessary medical tests were performed, in particular blood tests for HIV and syphilis, which showed no presence of infection. A chest X-ray examination did not reveal any problems with the applicant’s lungs. Having been found to be in good health, he was placed in cell no. 1 with other healthy inmates. According to the Government, inmates suffering from tuberculosis were detained in a separate wing of the detention facility. 9. The next chest X-ray examination, on 30 April 1998, showed a lowintensity focal shade on the upper lobe of the applicant’s lung. On this basis he was diagnosed with focal tuberculosis. Additional examinations were recommended. 10. On 15 May 1998 a prison tuberculosis specialist examined the applicant and prescribed treatment. It follows from the medical record that it was not until 29 July 1998 that the applicant was admitted to the tuberculosis ward of the Sakha (Yakutiya) Republic prison hospital in correctional colony no. 7 (hereinafter “the colony hospital”), the reason being that his transfer to the hospital could only be effected after his conviction became final. The applicant was diagnosed with focal tuberculosis of the right lung in the infiltration stage and post-traumatic encephalopathy. He was released from the hospital on 28 October 1998 after an intensive course of anti-tuberculosis treatment with the recommendation that he continue with the drug therapy. It appears from the documents submitted to the Court that the recommendation was fully complied with. 11. The applicant was re-admitted to the colony hospital on six occasions – from 10 to 31 March 1999, from 12 May to 26 July 2000, from 6 March to 1 June 2001, from 13 December 2001 to 23 January 2002, from 28 November to 4 December 2002, and from 25 March to 5 May 2004 – where he was placed on an antibacterial chemotherapy regimen. Relying on the applicant’s medical record, the Government stressed that after continuous tuberculosis treatment and clinical testing, on 23 July 2000 the applicant was diagnosed with infiltrative tuberculosis of the upper lobe of the right lung in the resolution stage and assessed as requiring regular medical check-ups. The results of microbiological tests on bodily fluids performed in 1999 and 2000 identified no presence of mycobacterium tuberculosis. A chest X-ray examination carried out on 19 September 2001 revealed isolated small dense nidi on the upper lobe of the applicant’s right lung, accompanied by restricted pneumosclerosis. On 13 December 2001, following a medical examination by the head of the in-patient department of the Yakutsk Town Medical Institute for Scientific Research, the applicant was assigned for less intensive medical supervision, with the diagnosis of focal pulmonary tuberculosis at the consolidation stage. The applicant no longer required active clinical assessment and was to receive prophylactic treatment to prevent a relapse. 12. The applicant’s medical record contained a number of entries made by tuberculosis specialists recording his negative, and occasionally aggressive, attitude towards the treatment and the medical personnel. The attending doctors spoke with the applicant, explaining the necessity for and content of the treatment and persuading him to continue with it. The medical records provided by the Government further show that he received regular medical attention in respect of his tuberculosis, as well as medical examinations by prison doctors. The tuberculosis specialists consistently found his state of health to be satisfactory following successful courses of anti-relapse therapy. The applicant seemed to agree with the evaluation of his health, and made no complaints to the tuberculosis specialists. His complaints to the prison medical personnel were mostly of a psychological character, including sleep disorder, extreme nervousness, and fears of an unspecified nature. Those grievances were promptly addressed by the prison psychologist or neuropathologist, as well as by the prescription of medicines. The Government also provided the Court with extracts from hospital logs recording the intake of medicines by the applicant, their dosage and frequency. 13. In 2001 the applicant sued the Ministry of Justice and the detention facility, seeking compensation for damage sustained as a result of his being infected with tuberculosis. He claimed that he had contracted tuberculosis in detention, having been placed in a cell with a person infected with the active form of that illness, and that the administration of the detention facility had remained deaf to his complaints about the risk of infection. 14. The defendants submitted observations in reply. They insisted that there was no evidence that the applicant had contracted tuberculosis in detention because he was a long-term offender and had been in and out of prison since 1989. The applicant’s “way of life” was at the root of his contraction of the illness. 15. On 12 October 2001 the Yakutsk Town Court dismissed the applicant’s action, holding as follows: “... the defendants’ fault for the damage to the plaintiff’s health was not proved. Under Article 151 of the Civil Code of the Russian Federation compensation for nonpecuniary damage, as a general rule, is awarded in cases when the fault of the defendant is established. The fact of [the applicant] contracting tuberculosis in the detention facility was not proved in open court: the mere fact that he had been detained in the cell with Mr S., who was suffering [from tuberculosis], cannot serve as a ground for finding the defendants responsible for the damage caused and does not prove their fault because this is only the plaintiff’s conjecture. Having regard to the character of the illness, the court considers it possible that the applicant contracted tuberculosis prior to his detention in 1997 because he had, in fact, been detained before and had only been at liberty for several months after his release. As was established in open court, during the plaintiff’s first medical examination on 2 October 1997 no evidence of [tuberculosis] was found, but on 30 April 1998 the results of an X-ray examination were positive: the plaintiff was diagnosed with focal tuberculosis of the right lung and treatment was prescribed, [the treatment] was a success, the plaintiff clinically recovered ...” 16. On 4 February 2002 the Supreme Court of the Sakha (Yakutiya) Republic upheld the judgment of 12 October 2001 on appeal, endorsing the Town Court’s findings. 17. According to the applicant, at the end of December 2001 a colony medical assistant, Mr P., who was drunk, took a blood sample from an HIVpositive inmate, Mr G. The assistant used the same syringe to draw the applicant’s blood. The Government disputed the applicant’s version of events. According to them, on 13 December 2001 the applicant and six other inmates were admitted to the colony hospital for clinical assessment and anti-tuberculosis prophylactic treatment. On the following day a colony nurse, Ms Z., took blood samples from all the newcomers, including the applicant. Disposable syringes and needles were used for the blood tests. The results of the tests received on 18 December 2001 showed no presence of HIV antibodies in the blood of any of the inmates. Another colony nurse, Ms S., took a blood sample from inmate G. on 26 December 2001, the day of his arrival at the colony hospital. The Government stressed that the records of the colony hospital personnel showed that medical assistant P. had been on sick leave from 12 to 18 December 2001. 18. In March 2002 a blood sample was taken from the applicant to be tested for HIV. The results were unclear. Two further blood tests were carried out in July and September 2002. Medical experts also interpreted the results of those two tests as contradictory. 19. In November 2002, following another blood test, the applicant was diagnosed with HIV. When informing the applicant that he had contracted HIV, the prison doctor explained the results of the test and described various aspects of the infection, its assessment and treatment. It appears from the medical record that the prison psychologist had a number of meetings with the applicant to provide psychological support. The record also reveals that the applicant was subjected to regular clinical assessment to determine whether there was a need to start antiretroviral drug treatment for HIV. Moreover, the doctors constantly reminded the applicant, a heavy smoker and alcohol abuser, of the necessity to adhere to a healthy life style. Following the detection of the virus, the applicant was assigned an enriched food regimen and was prescribed courses of multivitamins and hepatoprotective medicine. On a number of occasions he was admitted to the therapeutic department of the colony hospital for a more in-depth evaluation of his state of health, the stage of the HIV infection and his readiness for drug treatment. However, the medical record shows that in September 2005 the applicant, without any explanation, refused to be transferred to the colony hospital for further medical assessment. 20. The applicant complained to various domestic officials that he had been infected with HIV. 21. The doctors of the detention facility filed a report on the state of the applicant’s health. The report stated as follows: “At the material time [the applicant] is detained in colony no. YaD-40/5. He is given regular medical check-ups in medical department no. IK-5 and he has been diagnosed with: focal tuberculosis of the upper lobe of the right lung in the carnification phase ... Clinical recovery ... HIV-infection (since November 2002). ... [The applicant] was diagnosed and treated in [the colony hospital] from 13 December 2001 to 12 February 2002 ... It is established on the basis of the record of the blood tests that on 14 December 2001 he was tested for HIV infection. The blood test was performed by a colony nurse, Ms Z., ... who used disposable syringes and needles ...” 22. On 6 January 2003 an investigator of the Yakutsk Town prosecutor’s office refused to open a criminal case, finding that the applicant’s blood sample had not been taken by Mr P. on 14 December 2001. 23. On 11 April 2003 the Yakutsk Town Court ordered an additional inquiry into the applicant’s complaints. The Town Court’s reasoning was as follows: “Having studied the case-file materials, [the applicant’s] personal file and his medical record, the court considers that the decision refusing the institution of criminal proceedings is manifestly ill-founded; [the applicant’s] statements about the date when his blood sample was taken and the recording of the date of the test in his medical record are contradictory ... It is also necessary to take into account the medical history of inmate G ... It is impossible to give a definite answer to the question whether [the applicant’s] blood was taken immediately after the blood had been taken from inmate G. without an examination of [the applicant’s] and inmate G.’s medical records drawn up during their stay in [the colony] hospital ...” 24. On 25 April 2003 the prosecutor refused to institute criminal proceedings, finding that the applicant had not been subjected to the blood test together with any HIV-positive detainee and that Mr P. had not taken the applicant’s blood sample. The prosecutor’s findings were based on the applicant’s and inmate G.’s medical records, hospital registration logs and statements by the colony medical personnel, including the colony nurses Ms Z. and Ms S., and the colony medical assistant, Mr P. Inmate G. refused to give any statements to the investigators. 25. The applicant appealed against the decision of 25 April 2003 to a court, arguing that in December 2001 his blood had been taken for testing twice. On the second occasion, at some point after 20 December 2001, assistant P. had taken his blood sample with the same syringe he had used to take a blood sample from inmate G. 26. On 9 July 2003 the Yakutsk Town Court quashed the decision of 25 April 2003 and ordered that criminal proceedings should be opened, giving the following reasoning: “On two occasions the investigators refused to institute criminal proceedings because there was no indication of a criminal offence, although [they] did not establish the circumstances and the source of the HIV-infection even though the crime had taken place – [the applicant] had been infected with HIV – in the detention facility”. The Town Court drew up a list of actions to be taken during the investigation, including a medical expert examination, confrontation interviews between the applicant and staff members of the colony hospital, including Mr P., and inmate G., and verification of Mr P.’s whereabouts. 27. On 7 August 2003 the Supreme Court of the Sakha (Yakutiya) Republic quashed the decision of 9 July 2003, acting on appeal by prosecution authorities, and remitted the case for fresh examination, finding that it was necessary for the Town Court to hear inmate G. as a witness in order to arrive at the correct decision. 28. The Yakutsk Town Court summoned witness G. to a hearing on 15 December 2003. He refused to testify, invoking his constitutional right to remain silent. Holding that the applicant’s and inmate G.’s blood samples had been taken by the two colony nurses on two separate occasions and that there was no evidence that Mr P. had performed blood tests, the Town Court dismissed the applicant’s complaint. 29. On 3 February 2004 the Supreme Court of the Sakha (Yakutiya) Republic upheld the decision of 15 December 2003, endorsing the Town Court’s reasoning. 30. According to the applicant, the administration of the correctional colony had delayed the dispatch of his correspondence to the European Court of Human Rights or had not sent his letters at all. He initially cited a delay in dispatching his letter of 13 November 2003 as an example of the authorities’ failure to duly comply with their obligation not to interfere with his communication with the Court. However, following the notification of the case to the Government, he no longer relied on the incident involving the letter of 13 November 2003 but offered two other examples. In particular, he insisted that on 28 November 2002 he had handed a sealed envelope to the head of the special unit of the correctional colony to be sent to the Court. The envelope contained a letter and a number of documents in support of his complaints. However, the letter was mistakenly sent to the Sakha (Yakutiya) Republic Service for the Execution of Sentences (hereinafter “the Service”). The colony administration notified the applicant of the mistake and assured him that the Service would redirect the letter to the Court. Nevertheless, another mistake occurred and the applicant’s letter was sent to the Russian Ombudsman. The applicant insisted that before dispatching his letter an employee of the Service had seized the attachments to it. The letter was finally sent to the Court on 13 January 2003. The applicant stressed that he had learned that the documents had been seized when by a letter of 16 December 2004 the Court had asked him to submit copies of the two domestic court decisions which he had already enclosed with his letter of 28 November 2002. In addition, the applicant submitted that the prison authorities had delayed the dispatch of his letter of 25 November 2003. 31. The Government disputed the applicant’s submissions, arguing that according to correspondence logs drawn up in the facilities where the applicant was detained since 2002 and until 2004, he had sent twenty letters to the Court and more than three hundred letters to various Russian officials. Every letter had been successfully dispatched in a sealed envelope, save for the one sent by the applicant to the Court on 13 November 2003. That letter, by mistake, had been sent to the Supreme Court of the Russian Federation as the applicant had indicated that it was to be sent to the “last judicial instance”. On 18 November 2003 the head of the detention facility had asked the President of the Supreme Court to return the applicant’s letter immediately. On the following day the letter had been sent to the Court. The applicant, against his signature, had been informed about the delay in its dispatch. The Government provided the Court with extracts from the correspondence logs of the detention facilities, the letter of the head of the detention facility to the Supreme Court, and the letter to the European Court of Human Rights, showing that the applicant’s letter of 13 November 2003 had been dispatched on 19 November 2003 and that the applicant had been duly informed about the delay. 32. In December 2005 the applicant complained to the Service about the seizure of the attachments to his letter of 28 November 2002. By a letter of 28 December 2005 the Service informed him that it was no longer possible to establish the fact of the loss of the attachments, let alone which officials could have been responsible. 33. The applicant lodged a similar complaint with the Sakha (Yakutiya) Republican Prosecutor, seeking institution of criminal proceedings against the employees of the Service. By a decision of 27 March 2006 the request was dismissed, as the prosecutor found that there was no evidence in support of the applicant’s allegations. 34. Between the date of the applicant’s first letter to the Court in April 2002 and the communication of the case to the Government, the Court received more than twenty-five letters from the applicant, including the twenty letters mentioned by the Government. Almost every letter arrived with voluminous enclosures. On 20 January 2004 it received the applicant’s letter of 13 November 2003. On 10 March 2005 the applicant provided the Court with copies of the two court decisions requested by it on 16 December 2004. 35. The relevant provisions of the domestic and international law on health care of detainees, including those suffering from HIV and tuberculosis, are set out in the following judgments: A.B. v. Russia, no. 1439/06, §§ 77-84, 14 October 2010; Yevgeniy Alekseyenko v. Russia, no. 41833/04, §§ 60-66 and 73-80, 27 January 2011; and Pakhomov v. Russia, no. 44917/08, §§ 33-39 and 42-48, 30 September 2011.

train

001-128036

ENG

TUR

CHAMBER

CASE OF BENZER AND OTHERS v. TURKEY

Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award;Respondent State to take individual measures (Article 46-2 - Individual measures)

András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

5. Until 1994 the applicants lived and worked as farmers in the villages of Kuşkonar and Koçağılı, which were located close to each other in a mountainous area within the administrative jurisdiction of the province of Şırnak, in south-east Turkey. 6. The events which took place on 26 March 1994 are disputed by the parties. Thus, the parties’ submissions will be set out separately. The facts as presented by the applicants are set out in Section B below (paragraphs 7-19). The Government’s submissions concerning the facts are summarised in Section C below (paragraph 20). The documentary evidence submitted by the parties is summarised in Section D (paragraphs 21-87). 7. In 1994 PKK activity in the area where the applicants’ villages were located was at its peak and frequent armed clashes were taking place between PKK members and the Turkish security forces. A number of the surrounding villages whose residents had refused to become village guards were evacuated by the security forces who suspected that those villagers had been providing logistical support to the PKK. Villages whose residents had become village guards, on the other hand, were being subjected to armed attacks by members of the PKK. The applicants and other residents of their two villages had refused to become village guards and the security forces believed that the PKK was being assisted by them. 8. The military considered that, so long as the villages in the area continued to exist, their fight against the PKK would not be successful, and carried out a big military operation in order to evacuate the villages forcibly. During the operation almost all the villages in the area were either bombed or set on fire by the soldiers and their residents were forced to flee. The circumstances surrounding the destruction of one such village in that particular region were examined by the Court in its judgment in the case of Ahmet Özkan and Others v. Turkey (no. 21689/93, §§ 404-408, 6 April 2004). According to a report prepared by the Turkish Parliament, 3,428 villages had been evacuated in east and south-east Turkey between 1987 and1996. 9. In the morning of 26 March 1994 most male residents of the applicants’ two villages were working in the fields outside the villages. As the weather was sunny, most of the children were playing outside. The women and the elderly were either in their homes or sitting on the terraces outside their houses. When they first heard aircraft flying nearby at around 10.30 a.m. and 11.00 a.m. they did not get scared because military planes and helicopters often flew in the area for reconnaissance and bombing missions against the PKK on the mountains. Such missions had never caused any damage to the villagers or to their villages. Furthermore, there were no PKK members in the village at the time. 10. That day, however, military planes and a helicopter circled the applicants’ two villages and then started to bomb them. The bombs dropped from the planes were very large; some villagers described them “as big as a table”. Subsequently, machine gun fire was opened from the helicopter. Some of the people were hit directly and some were trapped under the rubble of the houses that were destroyed in the bombing. Those who survived tried to take cover. The men working in the nearby fields ran to the village and tried to rescue people from underneath the rubble. 11. As a result, 13 people in Koçağılı village and 25 people in Kuşkonar village lost their lives. Most of those who were killed were children, women or elderly. Thirty four of the dead, including seven babies and a number of older children, were the applicants’ close relatives. In addition, a total of 13 people, including some of the applicants, were injured. Most of the houses and livestock belonging to the applicants were also destroyed in the bombing. The names of those killed and their relationship to the applicants, as well as the names of the applicants who were injured, are set out below (see paragraphs 92 and 93). 12. The bombing from the aircraft continued in the surrounding areas. Although the local gendarmerie and local prosecutors became aware of the bombing, they did not go to the applicants’ villages to establish the identities of the deceased and to carry out post-mortem examinations. No national authority offered the villagers any help. Villagers from the nearby Kumçatı village went to the applicants’ villages and helped the surviving villagers to take their injured relatives to hospitals in their tractors. 13. The surviving residents of Kuşkonar village put the remains of their deceased relatives in plastic bags and buried them in a mass grave without any religious ceremony. 14. As the village of Koçağılı was located close to a main road, the villagers there were able to take the bodies of their relatives to the nearby Kumçatı village and bury them in the cemetery there. 15. After having buried their dead, all surviving villagers quickly abandoned their villages and what was left of their houses and belongings, and moved to different parts of the country. Some of them stayed behind but settled in the nearby Kumçatı village. The applicants’ two villages are still uninhabited. 16. When the bombing was widely reported in the national and international media and was condemned by human rights organisations, members of the military exerted pressure on the villagers and warned them not to make official complaints to the judicial authorities. Journalists were prevented from entering the hospitals where the injured were being treated, and from speaking to the villagers. Although it would have been impossible for the Air Force of another State to carry out the bombing, and despite the fact that the PKK could obviously not have any fighter jets in its armoury, the then Prime Minister of Turkey Ms Tansu Çiller declared that “the military aircraft which bombed the villages did not belong to the State”. 17. Subsequently, gendarmes questioned the villagers who had resettled in Kumçatı village. Some of the villagers were so traumatised as a result of the bombings and scared in the presence of the gendarmes that they did not tell the gendarmes that their villages had been bombed by military aircraft, but merely referred to the bombing as the “incident”. Some told the gendarmes that “bombs had fallen on [their] village but that [they] did not want to make any complaints”. The headman of Koçağılı village, Halil Seyrek, however, informed the Şırnak prosecutor on 1 April 1994 that military aircraft had bombed the villages. 18. Despite the fact that the prosecutors were informed about the incident, and the widespread coverage of the bombings in the media, no investigating authority ever visited the villages or opened any investigations. 19. Even after they appointed a lawyer in October 2004 and that lawyer made a number of representations on their behalf, no effective investigatory steps were taken by the national authorities. The investigation file was being repeatedly transferred between prosecutors without any active steps being taken. 20. In their observations the Government summarised a number of the steps taken by the national authorities (which are also summarised below), and submitted that the applicants’ villages had been under pressure from PKK members and had subsequently been attacked by the PKK because the villagers had refused to help them. There was no evidence to show any State involvement in the incident and the applicants had made their allegations under the influence of their legal representative. 21. The following information appears from the documents submitted by the parties. 22. According to a report prepared by three gendarmes on 26 March 1994, it had not been possible for the gendarmes to go to Koçağılı village to investigate the “explosion” which had killed 13 and injured another 13 persons, because the village had been too far and there had been insufficient gendarmes and vehicles at their disposal. 23. The same day the fortieth applicant Mehmet Aykaç was questioned by two police officers. Mr Aykaç stated that there had been an operation and an explosion in his village of Koçağılı during which he was injured. 24. Also on the same day a large number of injured people were examined at the local hospital in the town of Cizre. Some of the injured persons whose condition was deemed to be critical were referred to Mardin State Hospital. These included the thirty-ninth to forty-first applicants, Cafer Kaçar, Mehmet Aykaç and Fatma Benzer; the twenty-first applicant Kasım Kiraç’s daughter and the twenty-second applicant İbrahim Kiraç’s sister Zahide Kıraç, who was three years old; the twenty-ninth applicant Yusuf Bengi’s partner and the thirty-fifth applicant Adil Bengi’s mother Zülfe Bengi; the thirty-fourth applicant Mustafa Bengi’s five-year-old daughter Bahar Bengi; and the thirty-eighth applicant Mahmut Erdin’s wife Lali Erdin. The thirty-sixth applicant Mahmut Bayı’s mother Hatice Bayı, who had sustained a leg injury, was also examined by a doctor, who concluded that her condition was not life-threatening. She was also transferred to the Mardin Hospital. 25. Later that same day three-year-old Zahide Kıraç died before she could be transferred to the hospital in Mardin, and her body was examined by a doctor at the Şırnak Hospital in the presence of the Şırnak prosecutor. According to the post-mortem report, Zahide’s skull had been shattered. There were no injuries on her body caused by a firearm or by a sharp object. A villager officially identified Zahide’s body and told the prosecutor present there that, according to the information he had received, Zahide’s village Koçağılı had been bombed by aircraft. The bombing had caused the deaths of many people. The same day the prosecutor instructed the local gendarmerie to investigate Zahide’s death. 26. On 29 March 1994 the Şırnak prosecutor forwarded to the Şırnak Gendarmerie Command a cutting from a national newspaper detailing the bombing of Koçağılı village by aircraft at midday on 26 March, and asked for an investigation to be carried out. 27. Two gendarmes questioned the headman of Koçağılı village, Halil Seyrek, on 31 March 1994. Mr Seyrek told the gendarmes that he had not been in the village at the time of the incident but had subsequently been informed about it by his fellow villagers. According to the information provided to him, a helicopter and a plane had flown over the village and some 5-10 minutes later explosions had taken place in and outside the village. A total of 13 persons had been killed in his village and a number of people had been injured and taken to hospitals. 28. On 1 April 1994 the twenty-first applicant, Kasım Kiraç, told two gendarmes that at the time of the incident he had been on the outskirts of Koçağılı village but had returned to the village immediately after he had heard “loud explosions”. On his arrival at the village he had found the body of his wife Hazal and his injured daughter Zahide. Many of his fellow villagers had also been killed. He had taken his injured daughter Zahide to a hospital but she had not survived. 29. On 1 April 1994 another statement was taken from Koçağılı village headman Halil Seyrek, this time by the Şırnak prosecutor. Mr Seyrek told the prosecutor that the villagers from his village did not support the PKK but took sides with the State. Earlier that year the villagers had refused to take part in Newroz celebrations and had subsequently been threatened by the PKK. He had heard that PKK members had been talking about “punishing” the villagers. In his statement Mr Seyrek also added that, according to the information he had received from his fellow villagers, the village had been bombed by aircraft. A total of four bombs had been dropped. One bomb had hit the village square and another one had hit the school. The remaining two bombs had hit houses. 13 villagers had been killed and 13-14 persons injured. Although the security forces had been informed about the incident, no one had visited the village. No post-mortem examinations of the deceased had been carried out. The villagers had buried their dead relatives themselves. 30. On 4 April 1994 the chief doctor at Diyarbakır State Hospital informed the Şırnak prosecutor that 13 persons had been treated at his hospital for injuries caused by explosives. 31. On 7 April 1994 the Şırnak prosecutor decided that the bombing of the village of Koçağılı had been carried out by members of the PKK, and forwarded the case file to the prosecutor’s office at the Diyarbakır State Security Court which had jurisdiction to investigate terrorism-related incidents. According to the prosecutor, PKK members had attacked the village with “mortars and other explosives”, killing 13 persons and injuring another 13. 32. On 10 April 1994 the prosecutor at the Diyarbakır State Security Court instructed the gendarmerie and the police to investigate the “killings perpetrated by members of the PKK”. 33. Between 20 April and 8 June 1994 gendarmes questioned nine villagers, mostly from Koçağılı village. These included the applicants Ata Kaçar, Mehmet Aykaç and Cafer Kaçar. The villagers told the gendarmes that there had been explosions in their villages which had killed and injured people. In the statements the villagers were also quoted as having stated in identical sentences that they did not know the “cause or source” of the explosions. 34. The prosecutor at the Diyarbakır State Security Court observed on 13 March 1996 that there was no evidence showing PKK involvement, and returned the file to the Şırnak prosecutor’s office. In the prosecutor’s decision of non-jurisdiction the subject matter of the investigation was stated as “the killing of a number of persons as a result of a bomb dropped on the village”. 35. On 22 April 1996 eight of the nine villagers who had been questioned by gendarmes between 20 April and 8 June 1994 (see paragraph 33 above) were questioned once more, this time by the Şırnak prosecutor. The villagers said that bombs had “fallen” on their village, killing a number of people and injuring a number of others, but that they did not want to make an official complaint. 36. On 7 August 1996 the Şırnak prosecutor returned the file to the Diyarbakır State Security Court prosecutor, insisting that the bombings in the Koçağılı village had been carried out by members of the PKK. 37. The Diyarbakır State Security Court prosecutor instructed the gendarmerie on 15 August 1996 to find the PKK members “responsible for the attacks” on Koçağılı village. 38. In its letter of 22 October 1997 the Şırnak governor’s office asked the local gendarmerie whether Adil Oygur, who is the brother of the twelfth applicant Abdulhadi Oygur, was alive or dead. On 14 November 1997 a gendarme captain, who was the commander of the Şırnak gendarmerie, sent a reply to the Şırnak governor’s office. The captain stated in his letter that, according to their investigation, Mr Oygur and all members of his family had been killed during “the aerial bombing” of Kuşkonar village and buried there. 39. There are no documents in the Court’s possession to detail any of the steps, if any, taken in the investigation between November 1997 and June 2004. 40. On 4 June 2004 the prosecutor at the Diyarbakır State Security Court sent a letter to the Şırnak gendarmerie command, urging for the investigation into “the armed attacks by the PKK” on Koçağılı village to be continued until the expiry of the prescription period on 27 March 2014. 41. On 4 and 5 October 2004 the applicants, with the assistance of their newly appointed lawyer, filed official complaints with the offices of the Şırnak and Diyarbakır prosecutors. They submitted that two planes and a helicopter had bombed their villages. The holes made by the bombs were still visible and the bodies of the people who had been killed were in the mass grave. The applicants asked the prosecutors to investigate the bombing of their villages and prosecute those responsible. 42. The applicants also argued in their petitions that when they were questioned in the aftermath of the bombing they had been so scared that they could not tell the authorities that their villages had been bombed by aircraft. In any event, on account of the wide coverage of the incident in the national and international media, it was public knowledge that the villages had been bombed by military aircraft. 43. On 19 October 2004, on the basis of the documents in the investigation files and the statements taken from the villagers, the chief prosecutor in Diyarbakır concluded in a decision of non-jurisdiction that the bombings had been carried out not by PKK members but by planes and helicopters. The chief prosecutor forwarded the applicants’ petitions to the Şırnak prosecutor and requested him to carry out an effective investigation “so that our country would not encounter problems from the standpoint of Articles 2 and 13 of the European Convention on Human Rights”. The prosecutor asked his opposite number in Şırnak personally to take a number of investigative steps, such as visiting the villages with a view to establishing how many bombs had been dropped in each village and how many persons had been killed. 44. The decision reached by the Diyarbakır chief prosecutor was widely publicised in the national media and the lawyer representing the applicants was quoted in a newspaper as having stated that this was a “promising development”. 45. On 31 January 2005 police officers questioned three of the applicants, namely Abdullah Borak, Zeynep Kalkan and Şahin Altan, and another villager, Salih Oygur. Abdullah Borak, who had lost his father in the incident, and Salih Oygur, who had lost a number of his relatives, told the police officers that they had not been in the village on 26 March 1994. 46. Zeynep Kalkan, who had lost her husband, told the police officers that she had been living in Kuşkonar village at the time and had seen a plane and a helicopter. When she had heard a loud explosion she had hidden in the cellar of her house. When she had come out she had seen that everything in the village had been destroyed and that bodies of villagers were lying around. 47. Şahin Altan, who had lost his wife and two children aged twelve and three, told the police officers on 31 January 2005 that he had been hunting outside Kuşkonar village at the time when he had seen a plane and a helicopter over his village. The plane had then dropped three bombs and he had immediately returned to the village. When he had reached the village he had seen that most of the houses had been destroyed and a large number of his fellow villagers had been killed. 48. On 3 February 2005 the applicant Ahmet Yıldırım was also questioned by the police officers. Mr Yıldırım told the police officers that he and his wife Elmas had been outside their house in Kuşkonar at the time when they had heard the planes flying over the village. They had run towards their cellar but his wife had not made it. When he had come out of the cellar he had seen his wife’s dismembered body lying by the door. He and his fellow villagers had then buried the dead and left the village. He had never returned to the village since then. 49. On 28 March 2005 the applicant Hatice Benzer was heard by a prosecutor. She told the prosecutor that she had been gathering wood outside her village of Kuşkonar at the time of the bombing and had heard planes and subsequently explosions. On her return she had seen that her village had been bombed and her two sons, her daughter-in-law Ayşe, and her grandchildren had been killed. 50. The applicant Selim Yıldırım was also questioned by a prosecutor, on 8 April 2005. He told the prosecutor that he had been in his village of Kuşkonar on the day of the bombing and seen a helicopter flying overhead at 11.00 a.m. The helicopter had continued to fly around for a period of 15-20 minutes and then two planes had arrived. The planes, which had been flying in formation, had then dropped two bombs each over the village. The bombs had been as big as tables. His wife and their 3-month-old daughter, as well as their three other children, aged 3, 4 and 10 years, had all been killed in the bombing. There had been twenty houses in the village and during the bombing seven or eight of them had been destroyed completely and the remainder had been damaged. After the bombing he and the other villagers had abandoned their village. 51. On 11 April 2005, in a written petition, the applicants urged the prosecutor to expedite the investigation and to pay a visit to their villages in order to examine the scale of the devastation and search for evidence. They stated that the craters caused by the bombs were still clearly visible. 52. The Şırnak prosecutor joined the two separate complaints lodged by the applicants on 4 and 5 October 2004, and between 30 January 2005 and 10 June 2005 he questioned a number of the applicants who were by then living in different parts of the country. The applicants Sadık Kaçar, Mahmut Erdin, Mustafa Bengi, Hasan Bedir, Haci Kaçar, Ahmet Bengi, İbrahim Kıraç, Hamit Kaçar, Abdurrahman Bengi and Mahmut Bayı described the bombing of their village of Koçağılı by aircraft, and added that they did not know what type of airplanes they had been. They told the prosecutor that, after the bombing, their houses had become uninhabitable and they had had to leave their village. The applicant Mahmut Erdin added in his petition of 26 April 2005 that his wife Lali Erdin had suffered a head injury and continued to suffer complications because of this injury. In his statement of 26 April 2005 Mustafa Bengi also informed the prosecutor of the injury to his wife Adile Bengi. 53. On 15 June 2005 the Şırnak prosecutor stated in a decision of non-jurisdiction that, in light of the documents in the file, in particular the statements taken from the applicants and the eyewitnesses according to whom the bombings had been carried out by planes and helicopters, military prosecutors had jurisdiction to carry out the investigation. He thus forwarded the case files to the military prosecutor’s office at the 2nd Air Force Command in Diyarbakır. 54. On 13 February 2006 the military prosecutor asked the 2nd Air Force Command in Diyarbakır whether any flights had been conducted over the applicants’ two villages between 10.00 a.m. and midday on 26 March 1994. 55. On 17 February 2006 the 2nd Air Force Command in Diyarbakır informed the military prosecutor in a letter that “no planes or helicopters from our Command conducted flights in the Şırnak region between 10.00 a.m. and midday or at any other time on 26 March 1994”. 56. After having received the response from the 2nd Air Force Command in Diyarbakır, the military prosecutor concluded on 28 February 2006 that there was no evidence to support the applicants’ allegations that their villages had been bombed by military aircraft. He thus decided that he also lacked jurisdiction to investigate the killings, and returned the case files to the Şırnak prosecutor’s office. In support of his decision the military prosecutor also referred to the statements taken from some of the applicants by the Şırnak prosecutor, in which those applicants had stated that they did not know what type of aircraft had bombed their villages (see paragraph 52 above). 57. The military prosecutor also rejected the applicants’ requests for copies of all the documents from his investigation file to be handed over to their lawyer. When challenged by the applicants’ lawyer before a military court, the military court agreed with the military prosecutor that the applicants should not be given the entire file. Eventually, the only documents given to the applicants were “those which supported the military prosecutor’s decision of non-jurisdiction” but the disclosure of which to the applicants would not, in the opinion of the military authorities, “jeopardise the investigation”. 58. On 17 May 2006 the applicants lodged an objection with a military court against the military prosecutor’s decision of non-jurisdiction, and drew that court’s attention to the military prosecutor’s alleged failure to carry out a proper investigation. They argued, in particular, that the military prosecutor had not examined the witness statements but had been content with the response he had received from the 2nd Air Force Command. They also pointed to the possibility that the aircraft could have taken off from other airbases located nearby, such as Malatya or Batman. 59. The applicants also argued that the military prosecutor, by referring to some of the applicants’ inability to identify the aircraft as belonging to the Turkish military (see paragraphs 52 and 56 above), had unjustly implied that the bombing could have been carried out by foreign aircraft. The applicants also noted that the military prosecutor’s implications had been shared by the then Prime Minister of Turkey, Ms Tansu Çiller. The applicants questioned the logic behind those implications, and argued that explanations were needed as to how a number of aircraft belonging to another State would be able to penetrate Turkish airspace, bomb villages, and then leave Turkish airspace undetected. 60. Another military prosecutor, who forwarded to the military court his opinion on the objection lodged by the applicants, noted that the villages had never been visited by any civilian investigating authority to verify the applicants’ allegations or to search for evidence. The military prosecutor considered that the military investigating authorities could carry out an investigation in the villages before making a decision on the issue of jurisdiction. 61. On 29 May 2006 the military court rejected the applicants’ objection and the military prosecutor’s suggestion to carry out further investigative steps. It held that there was no evidence implicating any personnel “within the jurisdiction of the 2nd Air Force Command’s military prosecutor” in the incident. 62. The investigation files were then returned to the Şırnak prosecutor’s office where another statement was taken from the headman of Koçağılı village, Halil Seyrek, on 17 November 2006. Mr Seyrek repeated the contents of his earlier statements. In response to a question from the prosecutor, Mr Seyrek stated that he had never heard of Provide Comfort (Çekiç Güç), a joint US, British and French military task force deployed to Incirlik Military Airbase in southern Turkey in 1991 during the first Iraq war. Mr Seyrek told the prosecutor that the only military force he had been aware of in the region was the Turkish military. 63. On 16 March 2007, in response to a query from the Şırnak prosecutor, the Şırnak gendarmerie informed that prosecutor that “the flight plans for aircraft movements between 10.00 a.m. and midday on 26 March 1994” were not in their archives. 64. The Şırnak prosecutor sent a letter to the prosecutor’s office in Diyarbakır on 24 October 2007, and stated that the allegations of the villagers concerning an aerial bombardment of their villages showed that the incident, “even if it was caused by another State or by illegal organisations”, was not an ordinary incident. In the opinion of the Şırnak prosecutor the Diyarbakır prosecutor had jurisdiction to continue the investigation, and he sent him the case files. 65. On 5 December 2007 the Diyarbakır prosecutor opened a new investigation file (no. 2007/1934) and sent a letter to the Şırnak prosecutor. In his letter the Diyarbakır prosecutor stated that the investigation file only contained Zahide Kıraç’s post-mortem report and that there were no documents in it to show that the villages had been visited by an investigative body. He asked the Şırnak prosecutor to send him, inter alia, all post-mortem reports, information pertaining to any visits to the applicants’ villages by the investigating authorities, and any evidence collected in the villages by those authorities. When the Şırnak prosecutor continued to fail to respond, the Diyarbakır prosecutor sent him reminders on 11 March 2008 and then on 3 June 2008. In his letter of 3 June 2008 the Diyarbakır prosecutor informed the Şırnak prosecutor that in response to his request of 5 December 2007 he had received some information from the gendarmerie but that that information was incomplete. He urged the Şırnak prosecutor to collect the required evidence himself and not to leave it to the gendarmerie. On account of the Şırnak prosecutor’s continued failure to cooperate in the investigation the Diyarbakır prosecutor sent him another reminder on 28 July 2008. 66. Between 18 January 2008 and 28 April 2008 gendarmes took statements from ten villagers. Seven of them, who had been living in villages other than Koçağılı and Kuşkonar at the time of the incident, stated that they had not witnessed the incident but that they had heard that PKK members had raided the villages on 26 March 1994 and killed the applicants’ relatives. They also stated that, according to rumours, a lawyer had located the relatives of the deceased villagers one year ago, and told them that if they alleged that their villages had been bombed by aircraft, he would seek and obtain compensation for them. In the opinion of these seven villagers, the applicants were making these allegations in order to taint the reputation of the Turkish military forces. 67. The headman of Koçağılı village, Halil Seyrek, was among the villagers questioned by the gendarmes. In his statement of 11 April 2008 he was quoted as having stated that he had not been in the village at the time of the events but that his fellow villagers had informed him that members of the PKK had carried out the attacks. In Mr Seyrek’s opinion, the whole thing was a provocation orchestrated by persons with “legal knowledge” with the aim of tainting the good name of the State. 68. In a statement dated 17 April 2008 another one of the questioned villagers, Mehmet Belçi, who was employed by the State as a village guard, was quoted as having stated that he had been in the Koçağılı village on the date of the incident when PKK members had come to the village and fired rocket-propelled grenades and opened fire on the villagers. In the opinion of this village guard, civilian wings of the PKK had been fabricating the allegations of an aerial bombardment. 69. In his statement of 24 April 2008 Mehmet Bengi, a villager from Koçağılı village, was quoted as having stated that he had been in the village on 26 March 1994 and that two aircraft had bombed the village, killing, among others, his mother and nieces. 70. On 24 April 2008 the applicant Kasım Kiraç told the same gendarmes that he had already made statements and that he had nothing to add to those statements. 71. In the meantime the applicants, with the assistance of their lawyer, submitted a detailed letter to the Diyarbakır prosecutor and maintained their complaints and requests for further investigative steps to be taken. They informed the prosecutor, in particular, that the questioning of witnesses by gendarmes and police officers, rather than directly by civilian prosecutors, was not satisfactory because such persons could not be expected to be impartial and independent in an investigation into allegations of killings perpetrated by the military. 72. In their letter the applicants also challenged the testimonies, summarised in the preceding paragraphs, given to gendarmes by villagers between 18 January 2008 and 28 April 2008. The applicants informed the prosecutor that the persons who were putting the blame for the attacks on their villages on the PKK were employed by the State as village guards, had personal vendettas with the PKK, and, in any event, had not been in the villages at the time of the events. They gave the prosecutor the names of the persons who had witnessed the bombing of their villages first hand, and asked the prosecutor to question those persons. 73. On 17 April 2008 and 12 May 2008, a number of soldiers, acting on a request from the Diyarbakır prosecutor, visited the applicants’ two villages to search for evidence. According to the reports prepared by the soldiers after their visits, “as 14 years have passed since the incident, and a number of clashes between the security forces and PKK members had taken place in the area, the villages were completely destroyed and there was therefore no evidence left to be collected”. 74. On 3 June 2008 the Diyarbakır prosecutor sent letters to the Air Force Base in Malatya (Erhaç) and the 2nd Air Force Command in Diyarbakır, and asked for details of all flights conducted by them on 26 March 1994 and the names of the crews. When the two military authorities failed to reply, the Diyarbakır prosecutor sent them reminders on 29 July 2008. 75. The headman Halil Seyrek was questioned again, this time by a prosecutor, on 5 September 2008. Mr Seyrek stated that he had not been in the village at the time of the incident but that his fellow villagers had informed him the same day that the PKK had raided the village. He had then requested the authorities to visit the village but they had not been able to do so for reasons of safety. He had also heard about the lawyer who had convinced the applicants to make the allegations. Mr Seyrek also told the prosecutor that he “stood by the contents of his previous statements”. 76. On 8 September 2008 two more villagers were questioned by the prosecutor. They told the prosecutor that they had not been in either of the applicants’ two villages on the day of the incident but had been told subsequently that members of the PKK had attacked the villages. 77. On 12 September 2008 the applicant Kasım Kiraç repeated his version of events to a prosecutor, and maintained that the village had been bombed by aircraft. During the bombing his wife and daughter had been killed. 78. The Şırnak prosecutor sent a letter to the Şırnak Gendarmerie Command on 18 September 2008, and asked whether the military could take the necessary safety measures if the judicial authorities were to visit the applicants’ two villages. On 8 October 2008 the Gendarmerie Command informed the Şırnak prosecutor that the villages were located in an area frequently used by members of the PKK in the past, that it was thus not safe to visit them, and that the gendarmes would not be able to provide security to any judicial authority. 79. On 5 November 2008 the commanding officer of the 2nd Air Force Command in Diyarbakır replied to the Diyarbakır prosecutor’s letters, and stated that “no records had been found to show that any flights concerning national security had been conducted on 26 March 1994 from the air bases under their command.” 80. After having received a second reminder from the Diyarbakır prosecutor, the base commander of the Malatya Erhaç Airbase also replied on 11 November 2008 and stated that “no records had been found to show that any flying activity had taken place at their base on 26 March 1994.” 81. On 24 February 2009 the Diyarbakır prosecutor sent the Dicle University Hospital in Diyarbakır a list of the deceased and injured villagers, and asked whether any of them had been treated at the hospital between March and June 1994. 82. On 25 March 2009 the Dicle University Hospital replied to the Diyarbakır prosecutor’s letter, and informed him that there were no records to show that any of the persons named in his letter had been treated at the hospital between March and June 1994. 83. On 27 June 2012 the applicants’ lawyer sent to the Court a photocopy of a flight log of a number of fighter jets belonging to the Turkish Air Force, and a copy of the letter accompanying the flight log drawn up by the Civil Aviation Directorate of the Ministry of Transport on 13 February 2012. In this letter, addressed to the Diyarbakır public prosecutor, the Director of the Civil Aviation Directorate stated that the Directorate had no information to show that any military or civilian flights had been carried out over the city of Şırnak on 26 March 1994. However, two flying missions had been carried out on the day in question by the Turkish Air Force to locations ten nautical miles to the west and north-west of Şırnak. 84. According to the flight log, 2 F-4 fighter jets with the call-sign “Panzer 60” and armed with two MK83 bombs, had taken off at 10.24 a.m. on 26 March 1994. Their time over their target had been 11.00 a.m. and they had landed at 11.54 a.m. Two F-16 fighter jets, with the call-sign “Kaplan 05” and armed with four MK82 bombs, had taken off at 11.00 a.m. the same day, had been over their target at 11.20 a.m., and had landed at exactly midday. According to the entry in the flight log, all aircraft had achieved their missions. The flight log does not mention the names of the air bases where the aircraft had taken off and landed and the targets are referred to as “A” and “B”. 85. On 23 July 2012 the applicants sent a letter to the Diyarbakır prosecutor. It appears from the applicants’ letter that at their request the Diyarbakır prosecutor had requested the Civil Aviation Directorate to provide information on the flying activity in the region, and that that Directorate had sent the prosecutor the above-mentioned flight log in reply to that request. 86. In their letter addressed to the prosecutor the applicants submitted that the information in the flight log had confirmed the accuracy of the allegations which they had been bringing to the attention of the investigating authorities since 1994, and they reminded the prosecutor that the military authorities had been denying that they had bombed their villages. The applicants asked the prosecutor to identify the crew of the fighter jets which had bombed their villages, as well as their superiors who had given the orders to bomb the villages, and to question them. 87. No information has been submitted to the Court by the parties to show that any steps were taken by the prosecutors further to the applicants’ requests of 23 July 2012. 88. According to section 448 of the Criminal Code which was in force at the time of the events, any person who intentionally killed another was liable to be sentenced to a term of imprisonment of from twenty-four to thirty years. According to section 450, the death penalty could be imposed in cases of, inter alia, multiple murder. 89. Common Article 3 of the 1949 Geneva Conventions, ratified by Turkey in 1954, governs non-international armed conflicts. The relevant provisions state: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities ... shall in all circumstances be treated humanely ... To this end the following acts are and shall be prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; ... (c) outrages upon personal dignity, in particular humiliating and degrading treatment; ... (2) The wounded and sick shall be collected and cared for.” 90. Relevant paragraphs of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 112 (1990)) provide as follows: “1. Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review. ... 6. Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with principle 22. 7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law. 8. Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles. 9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. ...”

train

001-93874

ENG

RUS

CHAMBER

CASE OF PITALEV v. RUSSIA

Preliminary objections dismissed (non-exhaustion of domestic remedies, six-month period);Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award

Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

6. The applicant was born in 1970. He is currently serving his sentence in penitentiary institution УЩ349/2 in Yekaterinburg. 7. On 28 April 2001 the applicant was arrested and remanded in custody on suspicion of inflicting grievous bodily harm resulting in the death of the victim. On 27 June 2002 the Podolskiy Town Court convicted the applicant of inflicting grievous bodily harm resulting in death and sentenced him to eight years’ imprisonment. On 14 October 2002 the Moscow Regional Court upheld the judgment. The applicant was held in a pre-trial detention facility till 3 December 2002. 8. Between 3 December 2002 and 9 June 2005, excluding three periods from 4 July to 12 September 2003, from 22 June to 9 July 2004 and from 19 November to 10 December 2004, the applicant served his sentence in correctional colony IK-3, Ryazan Region (ИК-3 Рязанской области, учреждение ЯМ 401/3). 9. The applicant was kept in units (отряды) nos. 3 and 5. The parties’ descriptions of conditions in IK-3 differ in a number of respects. 10. The applicant submitted that in unit no. 5 there were approximately another seventy detainees and in unit no. 3 around fourteen detainees. He had an individual sleeping place for the whole period of detention; however, the sanitary conditions in the colony were inadequate. The central heating in their dormitory was insufficient, and during the winter the convicts slept fully clothed. In summer it was very hot in the cell, and due to its overcrowding the air was stale and musty. The toilet was situated in a separate unheated area, and it was extremely cold there in winter. No hygiene facilities were provided. Food was of a very poor quality, the usual ration included white bread, barley porridge and semi-sweet tea in the morning, barley soup and porridge at lunch time, and mashed potatoes made from powder in the evening. While a supplementary diet was prescribed for him by the doctor, the applicant claimed that he had only received milk before November 2003 and after March 2004; butter and eggs were provided as of September 2004. 11. Furthermore, there was not enough light and heating in the sewing workshop where the applicant and other prisoners worked. There was not sufficient light in the bedroom either, because the windows were obstructed by bunk beds. 12. Unit no. 5 measured 240 sq. m., and its bedroom measured 150 sq. m. The unit housed approximately 70 inmates. After he was diagnosed with tuberculosis in June 2003, the applicant was transferred to unit no. 3 to a dormitory which measured 42 square meters and housed fifteen inmates. The applicant was at all times provided with an individual bed, bedding and clothes – a cotton suit, cap, cold-weather cap, sweater and boots. The relevant records were submitted to the Court. 13. The Government, relying on the certificates provided by the Federal Service for the Execution of Sentences, further submitted that the cells were ventilated both naturally through the windows and by a ventilation shaft, which was mandatory. The windows in the cells were double glazed and allowed sufficient natural light through. The cells were also equipped with satisfactory artificial lighting. 14. The units were equipped with a central heating system; bedrooms had a seven-unit heating device which provided an average temperature of 18 degrees Celsius in winter, also in the toilets. The lighting in the sewing workshop was sufficiently provided by luminescent lamps in accordance with the relevant regulations. The applicant was provided with three special diet meals a day appropriate to his health condition. 15. From 4 July to 12 September 2003, from 22 June to 9 July 2004 and from 19 November to 10 December 2004 the applicant was held in a medico-prophylactic penitentiary institution (ЯМ-401/Б УИН МЮ РФ по Рязанской области, hereinafter – “the prison hospital”), where he was placed in the “enhanced regime” cell (палата усиленного контроля) of the tuberculosis department. The parties’ descriptions of the conditions in the prison hospital differ substantially. 16. The applicant submitted that one of his inmates in the prison hospital had had tuberculosis, and another one had had suspected tuberculosis. In the prison hospital the applicant was kept in two cells in similar conditions. In the corner of one of the cells there was a pail covered with a polyethylene lid which served as a toilet. The applicant asserted that the pail was not separated from the living area, was emptied once a day (around 11.30 a.m.) and that the stench from it was unbearable. The window was covered with a metal shutter. 17. The artificial light was never switched off, disturbing the applicant’s sleep. There was no water in the cell; the wash stand was situated in the hospital’s basement and inmates were taken there once a day. No laundry facilities were available. Detainees were allowed to take a shower once a week, but between July and September 2003 they had had to wash in cold water. 18. Only one hour’s exercise was available every day, and for the rest of the day inmates remained in their cells. Detainees repeatedly complained about the inadequate conditions to a commission from the local administration, the Federal Service for the Execution of Sentences and the Prosecutor’s Office, which visited the hospital every Wednesday, but were told that there were no financial resources available to improve their situation. 19. From 4 July to 12 September 2003 the applicant was kept in the prison hospital in cell no. 4, which measured 7.7 sq. m. From 3 July to 22 July there were four inmates; from 22 July to 19 August, three inmates; from 19 to 26 August 2003 two inmates; and from 26 August to 12 September 2003 three inmates. From 22 June to 9 July 2004 and from 19 November to 10 December 2004 the applicant was held in cell no. 3, which also measured 7.7 sq. m., with three other inmates during the former period and two other inmates during the latter one. 20. The cells had been ventilated naturally through the windows; both cells were also equipped with the mandatory ventilation system. The cells had natural and artificial light. The partition around the toilet offered sufficient privacy and there was a dining table for four persons. Once a week the detainees had the opportunity to take a shower and to change their bedding. Laundry facilities were available, and the hot water had never been cut off. Access to water was unrestricted. 21. On 24 and 25 June 2003 the applicant underwent a medical examination and was diagnosed with suspected tuberculosis. On 4 July 2003 he was transferred to the prison hospital, where he underwent a further X-ray examination on 9 July 2003. In the course of a check-up, tuberculosis in the right lung was detected. 22. After initial treatment with further prescriptions, on 12 September 2003 the applicant was transferred back to the IK-3 of the Ryazan Region despite having alleged that he felt unwell. An X-ray examination conducted on 22 October 2003 showed that the applicant’s tuberculosis was advancing. In the hospital the applicant was treated with ethambutol, isoniazid and rifampicin. In the IK-3 he was given a stronger analogue of rifampicin – myrin-p. According to the applicant, no liver-protective medication, which should normally accompany such a strong anti-tuberculosis treatment, was offered. Additionally, an inguinal hernia was detected, but the required operation was never conducted. This lack of necessary treatment led to a skin disease and poor eyesight. 23. The Government submitted the applicant’s medical records from IK-3 and the prison hospital, which confirmed that since the applicant had been diagnosed with tuberculosis he had been regularly examined and all the necessary medication for his condition had been provided. The list of tests submitted by the Government included regular x-rays, advanced blood tests, further clinical tests and examinations by a number of specialists, including a tuberculosis specialist, an ophthalmologist, a surgeon, and a dermatologist, who prescribed necessary treatment. Two x-rays conducted in June and November 2004 showed a “positive dynamic of the tuberculosis process and dispersion of niduses of tuberculosis”. On 25 June 2004 the applicant was discharged from the hospital with a final diagnosis of infiltrative tuberculosis of the upper lobe of the right lung in the phase of dispersion. As concerns the inguinal hernia which the applicant had been suffering from since 1976, an operation was recommended after a full recovery from tuberculosis had been made. 24. Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space per male convict in correctional colonies and five square meters in medico-prophylactic penitentiary institutions. 25. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in penitentiary institutions reads as follows: 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system.... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding... Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2)... 46. In the course of the 2001 visit, the CPT’s delegation also noted that the regular supply of anti-tuberculosis drugs in sufficient quantities was ensured in the regions visited. This is another important achievement... 92. ...Hardly any complaints were heard about the quality and quantity of the food served. Prisoners with tuberculosis and HIV positive prisoners benefited from a special diet which entitled them to milk and margarine. However, a verification of the food stocks by a medical member of the delegation revealed that prisoners rarely consumed meat. Further, the level of proteins in the prisoners’ diet was rather low... The CPT recommends that: - efforts be made to decrease occupancy levels in the dormitories with the most cramped conditions ..., inter alia through a more even allocation of prisoners between the units; as already indicated (cf. paragraph 53 of the report on the 1999 periodic visit, document CPT (2000) 7), the aim should be to provide in due course a minimum living space of 4 m² per prisoner...

train

001-75826

ENG

LVA

CHAMBER

CASE OF SHEVANOVA v. LATVIA

Preliminary objection rejected (victim);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

Christos Rozakis

11. The applicant is a Russian national who was born in Russia in 1948 and lives in Riga (Latvia). 12. In 1970, at the age of twenty-two, the applicant settled in Latvian territory for work-related reasons. Between 1973 and 1980, the year of her divorce, she was married to a man resident in Latvia. In 1973 she gave birth to a son, Jevgeņijs Ševanovs, who has lived with her until the present day. In 1981, having lost the Soviet passport issued to her in 1978, the applicant obtained a new passport. In 1989 she found the lost passport, but did not return it to the relevant authorities. 13. In August 1991 Latvia regained full independence. In December 1991 the Soviet Union, the State of which the applicant had hitherto been a national, broke up. The applicant therefore became stateless. In August 1992 her name was entered in the register of residents (Iedzīvotāju reģistrs) as a permanent resident. Her son was subsequently granted the status of “permanently resident non-citizen” of Latvia. 14. In 1994 a Latvian bridgebuilding firm offered the applicant a job as a crane operator in Dagestan and Ingushetia, regions of the Caucasus bordering on Chechnya and belonging to the Russian Federation. In view of the difficulties caused by tighter supervision in these regions by the Russian authorities on account of the troubles in Chechnya, the firm advised her to obtain Russian nationality and a formal registration of residence in Russia before signing the employment contract. In May 1994 the applicant consulted a broker who put a false stamp in her first Soviet passport, the one which had been found but not disclosed to the authorities, stating that the registration of her residence in Latvia had been cancelled (pieraksts, or dzīvesvietas reģistrācija in Latvian). 15. In June 1994 the applicant was registered as being resident in Shumanovo in the Kursk region of Russia, at her brother’s address. In August 1994 she obtained Russian nationality. In 1995 and 1996 she travelled to Russia, working there for two periods of 100 and 120 days respectively. 16. In March 1998 the applicant applied to the Interior Ministry’s Nationality and Migration Directorate (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde – “the Directorate”) for a passport based on the status of “permanently resident non-citizen”. In accordance with the regulations in force, she submitted alongside the application the second Soviet passport issued to her in 1981. On examining the file, the Directorate discovered that she had registered a second residence in Russia and had completed certain formalities on the basis of the old passport which had been mislaid and found again. Accordingly, by decision of 9 April 1998, the Directorate removed the applicant’s name from the register of residents. On the same day the head of the Directorate issued an order for the applicant’s deportation (izbraukšanas rīkojums), requesting her to leave Latvia for Russia by 19 June 1998. The deportation order was accompanied by a prohibition on re-entering Latvia for five years. It was served on the applicant on 11 June 1998. 17. After appealing unsuccessfully against the deportation order to the head of the Directorate, the applicant lodged an application with the Riga City Central District Court seeking to have the order set aside. In her memorial she submitted that, as the false stamp in her passport had been put there without her knowledge and she had therefore been unaware of it, she should not have to bear the consequences. In addition, since the registration of her residence in Russia had been merely temporary, it could not affect her existing registration in Latvia. She further argued that there were no legislative or regulatory provisions in force prohibiting her from having addresses in two different countries. Accordingly, the applicant requested the court to set aside the order for her deportation and to instruct the Directorate to issue her with a permanent residence permit. 18. In a judgment delivered on 3 December 1998 following adversarial proceedings, the court rejected the request, finding that the deportation order had been lawful and well founded. As to the applicant’s request that she be issued with a residence permit, the court declared that part of the application inadmissible on the ground that she had not applied for a permit to the relevant authorities, nor had she lodged an administrative appeal before applying to the courts, as required by section 34 of the Aliens and Stateless Persons (Entry and Residence) Act (“the Aliens Act”). 19. On 13 July 1999 the Russian authorities cancelled the applicant’s residence registration in Russia, at her request. 20. The applicant lodged an appeal with the Riga Regional Court against the judgment of 3 December 1998. In a judgment delivered on 29 September 1999 following adversarial proceedings, the Regional Court dismissed the appeal on the ground that, as the applicant had been illegally resident in Latvia since her return from Russia, her deportation was in accordance with section 38 of the Aliens Act. The Regional Court also upheld the District Court’s findings as to the inadmissibility of the request for a residence permit. 21. In a judgment of 28 December 1999 the Senate of the Supreme Court dismissed an appeal by the applicant on points of law, finding that the interference complained of had been lawful and proportionate. In particular, the Senate observed that, in the instant case, the applicant’s right to have two addresses or places of residence in two different countries had not been in dispute; the order for her deportation had been based solely on the fact that she had been resident in Latvia without a residence permit. 22. With the delivery of the Senate’s judgment the order for the applicant’s deportation became enforceable. 23. In two letters sent on 21 January and 3 February 2000, the applicant and her son requested the head of the Directorate to rescind the deportation order and to issue the applicant with a permanent residence permit. In support of their request, they argued that they did not have family ties in any country other than Latvia and that the expulsion of the applicant from Latvian territory, where they had lived together for twenty-six years, would constitute a serious infringement of their right to respect for their family life. They made explicit reference in that regard to Article 8 § 1 of the Convention and to similar provisions of the Latvian Constitution. 24. By letters dated 28 January and 15 February 2000 respectively, the head of the Directorate refused this request and reminded the applicant that she was required to leave Latvia immediately or be forcibly expelled. 25. After attempting without success to challenge this refusal by means of an administrative appeal to the Interior Minister, Mrs Shevanova and her son lodged a fresh application with the Riga City Central District Court to have the deportation order set aside. By order of 3 March 2000 the court declared the application inadmissible. On 24 May 2000 the Riga Regional Court upheld the order. An appeal on points of law by the applicant and her son was dismissed by an order of the Senate of the Supreme Court dated 29 November 2000. 26. On 12 February 2001 the applicant was arrested by the immigration police (Imigrācijas policija) and placed in a detention centre for illegal immigrants. On 21 February 2001 officials of the Directorate served a forcible expulsion decision on her (lēmums par piespiedu izraidīšanu no valsts). 27. On 26 February 2001 the applicant was admitted to hospital with acute hypertension. Consequently, on 28 February 2001, the head of the Directorate stayed execution of the forcible expulsion decision and requested the immigration police to formally order the applicant’s release from the detention centre. The deportation order of 9 April 1998 was also suspended at the same time. 28. As execution of the forcible expulsion decision had been stayed indefinitely, the applicant continued to reside illegally in Latvia. 29. On 7 January 2005 the head of the Directorate wrote a letter to the Government’s Agent in the following terms: “... [T]he ... Directorate ... has received your letter concerning the application lodged by Nina Shevanova with the European Court of Human Rights ... and requesting [us] to consider the possibility of issuing her with a permanent residence permit ... under section 24(2) of the Immigration Act. The reason you cite for your request is the existence of a real risk that a violation of Article 8 of the Convention might be found in this case. However, if Nina Shevanova were to be granted a sufficiently secure legal status in Latvia, the Latvian Government would be justified in requesting the European Court to dismiss the application. ... I would like first of all to draw your attention to the fact that section 24(3) of the Immigration Act does not apply to the circumstances of the Shevanova case. The Directorate has therefore explored other possible solutions. ... Regard being had ... to the relevant circumstances of the Shevanova case, and in particular the fact that Mrs Shevanova has lived and worked within Latvian territory for a long time – a fact which undoubtedly testifies to the existence of sufficiently strong private and social ties ... – the Directorate is prepared, once it has obtained the necessary documentation from Mrs Shevanova ..., to address an opinion to the Minister of the Interior proposing that she be issued with a temporary residence permit valid for five years, in accordance with section 23(3) of the Immigration Act... ... Under the terms of Council [of the European Union] Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, Member States are required to grant long-term resident status to third-country nationals who have resided legally and continuously within their territory for five years immediately prior to submission of the relevant application. Accordingly, on expiry of the period of validity of her temporary residence permit, Nina Shevanova would be entitled to apply for and obtain the status of permanent resident and to be issued with an EC residence permit. Remedying Mrs Shevanova’s situation in this way would be sufficient to put an end to any possible violation of her rights under Article 8 of the Convention. With this aim in mind, the Directorate has already drawn up a letter inviting Mrs Shevanova to submit to it the documents required in order to apply for a residence permit. This letter will be sent to her in the next few days. It should be pointed out that, in accordance with section 61 of Regulation no. 213 ... on residence permits, [the person concerned] in such cases must submit a letter from a legal entity attesting to the necessity ... of his or her remaining in the Republic of Latvia. The Directorate notes in that connection that Mrs Shevanova will in all likelihood be unable to produce such a document. In any event, a positive ... outcome to the case can be achieved only if Mrs Shevanova herself displays an interest in such a solution. Should Mrs Shevanova herself fail to take steps towards implementing the solution proposed by the Latvian Government, [it should be borne in mind that] the European Court of Human Rights has already acknowledged that, where applicants knowingly decline to take the appropriate measures suggested by the authorities ..., they cannot claim to be victims of a violation of their right to respect for their private and family life... The reference to Article 8 of the Convention ..., made in Mrs Shevanova’s request, would therefore be without foundation.” 30. By Decree no. 75 of 2 February 2005, the Cabinet of Ministers instructed the Minister of the Interior to issue the applicant with a permanent residence permit “once the documents required to make such an application have been received” (Article 1 of the decree). 31. By letter of 24 February 2005 the Directorate explained to the applicant how she could regularise her stay by obtaining a permanent residence permit, and invited her to submit the documents required for that purpose under the relevant regulations. It is clear from the case file, however, that the applicant has to date not taken the steps indicated by the Directorate. 32. Latvian legislation on nationality and immigration distinguishes several categories of persons, each with a specific status. (a) Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act (Pilsonības likums); (b) “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the break-up of the USSR in 1991, but have not subsequently obtained any other nationality – who are governed by the NonCitizens Act (see paragraph 33 below); (c) asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums); (d) “stateless persons” (bezvalstnieki) in the narrow and specific sense of the term. Prior to 2 March 2004 their status was governed by the Status of Stateless Persons Act, read in conjunction with the Aliens Act (see paragraph 34 below) and, after 1 May 2003, with the Immigration Act (see paragraph 36 below). Since 2 March 2004 their status has been governed by the new Stateless Persons Act, also read in conjunction with the Immigration Act; (e) “aliens” in the broad sense of the term (ārzemnieki), a category which includes foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens Act (before 1 May 2003), and the Immigration Act (since that date). 33. Section 1(1) of the Act on the Status of Former USSR Citizens without Latvian or other Citizenship ((Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības) reads as follows: [Version in force before 25 September 1998]: “This Act governs citizens of the former USSR resident in Latvia ..., who were resident within Latvian territory prior to 1 July 1992 and whose place of residence is registered there, regardless of the status of their housing, and who are not citizens of Latvia or any other State; it also governs the minor children of such persons who are not citizens of Latvia or any other State.” [Version in force since 25 September 1998]: “The persons governed by this Act – ‘non-citizens’ – shall be those citizens of the former USSR, and their children, who are resident in Latvia ... and who satisfy all the following criteria: (1) on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence by 1 July 1992 was in the Republic of Latvia; or a court has established that before the above-mentioned date they had been resident within Latvian territory for not less than ten years; (2) they do not have Latvian citizenship; (3) they are not and have not been citizens of any other State. ...” ... 34. The relevant provisions of the Aliens and Stateless Persons (Entry and Residence) Act (Likums “Par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), in force prior to 1 May 2003, read as follows: “Any foreigner or stateless person shall be entitled to stay in the Republic of Latvia for more than three months [version in force since 25 May 1999: ‘more than ninety days in the course of one half of a calendar year’], provided that he or she has obtained a residence permit in accordance with the provisions of this Act. ...” “Aliens or stateless persons may be issued with... (1) a temporary residence permit; (2) a permanent residence permit. ...” “Permanent residence permits may be obtained by aliens who, on 1 July 1992, were officially registered as being resident for an indefinite period within the Republic of Latvia if, at the time of applying for a permanent residence permit, they are officially registered as being resident within the Republic of Latvia and are entered in the register of residents. Citizens of the former USSR who acquired the citizenship of another State before 1 September 1996 must apply for a permanent residence permit by 31 March 1997. Citizens of the former USSR who acquired the citizenship of another State after 1 September 1996 must apply within six months of the date on which they acquired the citizenship of that State. ...” “The person concerned may, within one month of notification of the decision to refuse a residence permit, appeal against the decision to the head of the Directorate, who shall examine the appeal within one month. The Minister of the Interior may, by decree, set aside an unlawful decision by the Directorate or the head of the Directorate ordering a residence permit to be issued or refused. An appeal may be lodged with the courts against the above-mentioned decision or decree by (1) the person concerned if he or she is legally resident within the territory of the Republic of Latvia; (2) the person resident in Latvia who invited the alien ... whose application for a residence permit has been refused, where the invitation was in connection with family reunification. ...” “No residence permit shall be issued to a person who ... (5) was deported from Latvia during the five years preceding the application; (6) has knowingly supplied false information in order to obtain such a permit; (7) is in possession of false or invalid identity or immigration documents; ...” “The head of the Directorate or of the regional office of the Directorate shall issue a deportation order... ... (2) if the alien ... is in the country without a valid visa or residence permit; ...” “The individual concerned shall leave the territory of Latvia within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in accordance with this section. Persons in respect of whom a deportation order is issued may appeal against it within seven days to the head of the Directorate, who shall extend the residence permit pending consideration of the appeal. An appeal against the decision of the head of the Directorate shall lie to the court within whose territorial jurisdiction the Directorate’s headquarters are situated, within seven days after the decision has been served.” 35. At the material time the practical arrangements concerning registration of residence were governed by Regulation no. 76 of 12 February 1993 on registration of residence for residents of the Republic of Latvia and cancellation thereof (Iedzīvotāju pierakstīšanas un izrakstīšanas noteikumi Latvijas Republikā). Section 4 required any existing registration of residence to be cancelled in order to obtain a new registration in Latvia. 36. Since 1 May 2003 the Aliens Act cited above is no longer in force; it was repealed and replaced by the Immigration Act (Imigrācijas likums) of 31 October 2002. The relevant provisions of the new Act read as follows: “The present Act uses the following definitions: 1. an alien [ārzemnieks] – a person who is neither a Latvian citizen nor a “[permanently resident] non-citizen” of Latvia; ...” “In cases not covered by the present Act, the temporary residence permit shall be granted by the Minister of the Interior, where the relevant decision accords with the provisions of international law or the interests of the Latvian State, or on humanitarian grounds.” “In cases not covered by the present Act, the permanent residence permit shall be granted by the Minister of the Interior, where it accords with the interests of the State.” “... When the time-limit set down [for submitting an application for a residence permit] has passed, the head of the Directorate may authorise [the person concerned] to submit the [relevant] documents, where such authorisation accords with the interests of the Latvian State, or on grounds of force majeure or humanitarian grounds.” “1. Within ten days of establishment of the facts detailed in the first and second subparagraphs of the present paragraph, the [relevant] official of the Directorate shall take a forcible expulsion decision ..., where: (1) the alien has not left the Republic of Latvia within seven days of receiving the deportation order ..., and has not appealed against the order to the head of the Directorate..., or the head of the Directorate has dismissed the appeal; ... 2. In the cases referred to in the first subparagraph of paragraph 1 of this section, no appeal shall lie against the forcible expulsion decision... ... 4. In the event of a change of circumstances, the head of the Directorate may set aside a forcible expulsion decision.” 37. Section 360(4) of the Administrative Procedure Act (Administratīvā procesa likums), in force since 1 February 2004, provides: “An administrative act may not be enforced if more than three years have elapsed since it became enforceable. In calculating the limitation period, any period during which implementation of the administrative act was suspended shall be deducted.” 38. At the time of the facts reported by the applicant, the relevant provisions of the Regulatory Offences Code (Administratīvo pārkāpumu kodekss) read as follows: “... Use of a passport which has been replaced by a new passport shall be punishable by a fine of up to 100 lati [approximately 150 euros].” “Failure to provide the offices of the Latvian Nationality and Immigration Department ... with the information to be entered in the register of residents within the time allowed shall be punishable by a fine of between 10 and 25 lati [approximately 38 euros].”

train

001-67192

ENG

TUR

CHAMBER

CASE OF CACAN v. TURKEY

No violation of Art. 3;No violation of Art. 5;Not necessary to examine Art. 6;No violation of Art. 8;No violation of Art. 13;No violation of Art. 14;No violation of P1-1

9. The applicant was born in 1952 and lives in Switzerland. Until December 1993 she lived in the Düzcealan village, attached to the Tatvan District in the province of Bitlis. She left and has never returned to the village after the events alleged below. 10. The facts surrounding the destruction of the applicant's house and property are in dispute between the parties. 11. Before the alleged incident, the village of Düzcealan had been subjected to attacks by the security forces, who had forced the villagers to become village guards. 12. On 27 December 1993 PKK members attacked and burned a bus on the Tatvan-Van highway, about one kilometre from the Düzcealan village. 13. On the same day at about 3 p.m. security forces, led by Gendarme Brigade Commander Korkmaz Tağma, entered the village and surrounded it with armoured military vehicles and unmarked cars. Thereafter, soldiers using G3 weapons and other fire arms opened fire on the village and destroyed some of the houses with mortar shells. This attack lasted about four hours. 14. At about 9 p.m. three masked men with white oil drums began burning the houses in the village. The applicant's house and possessions were also burned during the incident. All the villagers were gathered in the village square and beaten by the soldiers. Necmi Çaçan, the applicant's brother-in-law, was killed during the incident. 15. After the incident, the applicant left Düzcealan and moved to Izmir and subsequently to Istanbul. On 5 September 1996 she filed a complaint with the Istanbul public prosecutor for the attention of the Tatvan public prosecutor's office. She alleged that on 27 December 1993 security forces had raided the village of Düzcealan and burned down her house and belongings. 16. While she was living in Istanbul, on 27 May 1997 the applicant's house was raided by the police. As a result of the intimidation to which she was subjected in Turkey, the applicant had to move to Switzerland. 17. The Government submitted in the first place that the village of Düzcealan had been under constant threat from PKK members, who forced the villagers to provide them with food and supplies. Young villagers were also forced to join the PKK. However, the villagers resisted the pressures brought to bear on them. 18. In their observations, the Government disputed the facts as submitted by the applicant. They stated that no military operation had been conducted in the village of Düzcealan. In this connection, they maintained that on 29 December 1993, at about 3 p.m., a bus and a truck had been attacked and burned by the PKK on the Tatvan-Van highway, about one kilometre from the Düzcealan village. After this attack, PKK members escaped and entered the applicant's village. The terrorists raided the village, killed Necmi Çaçan, and burned down some of the houses. This attack lasted until the morning of the following day. 19. On the morning of 30 December 1993, an on-site investigation was conducted in the village by the non-commissioned gendarme officer, Yavuz Gürbüz. In his incident report, Mr Gürbüz noted that the houses of Hikmet Küçükarslan, Mehmet İşbulan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Küçükarslan and Mehmet Şirin Çaçan, and the harvest of Sait Adar, Abdülmecit Çaçan, Mehmet İşbulan, Bedrettin Çaçan, Necmi Çaçan and Hikmet Kılıçarslan had been burned by the PKK. The report further noted that Necmi Çaçan had been shot dead by members of this illegal group. The security forces found one cartridge and 94 empty cartridges, 4 of which were near Necmi Çaçan's body. The non-commissioned officer further drew a sketch of the houses which had been burned down the day before. The Government emphasised that the applicant's house was not among the houses which had been burned down on 29 December 1993. 20. Further to this incident, the Tatvan public prosecutor commenced an investigation into the destruction of the six houses and the killing of Necmi Çaçan. On 4 January 1994 the Tatvan public prosecutor delivered a decision of non-jurisdiction and transferred the file to the Diyarbakır State Security Court Public Prosecutor. On 12 December 1995 Mehmet Durman, Mehmet Şirin Mete, Alattin Çaçan and Mehmet Sait Adar, who used to reside in the Düzcealan village before April 1994, gave statements to the gendarme. They said that they had left the village in April 1994 due to pressure from the terrorist organisation. The proceedings are still pending before the Diyarbakır State Security Court as the perpetrators of the crime remain unknown. 21. When the applicant filed a complaint concerning the destruction of her house and possessions by the security forces on 5 September 1996, the authorities undertook a further investigation into her allegations. On 9 October 1996 the Tatvan public prosecutor declared that he was not competent for reasons of jurisdiction and transferred the file to the Diyarbakır public prosecutor's office at the State Security Court. On 30 October 1996 the Diyarbakır State Security Court Public Prosecutor declined jurisdiction and sent the file back to the Tatvan public prosecutor. On 14 November 1996 the Tatvan public prosecutor delivered another non-jurisdiction decision and transmitted the case file to the Bitlis Governor's office, pursuant to the Law on the Prosecution of Civil Servants. 22. Upon receipt of the file, the Bitlis Provincial Administrative Council immediately commenced an investigation and appointed Mr Sabri Dikici, a gendarme officer, to investigate the allegations against the security forces. 23. Mr Dikici took fifteen statements from nine different persons, namely Alaattin Çaçan (mayor of the Düzcealan village), Şemsettin Demir (mayor of the Kolbaşı village), Servet İlhan, İbrahim Çaçan, Yavuz Gürbüz (gendarme officers), Ismail Çaçan, Mehmet Durman, Sait Adar and Mehmet İşbulan (villagers from Düzcealan). The applicant's statement was also taken by the police. In her statement she mainly reiterated her complaint lodged with the public prosecutor. 24. On 13 February 1997 the investigator conducted an on-site inspection in Düzcealan together with the village mayor. The village mayor informed him that the applicant had already left the village when her house was burned by the PKK in April 1994. In his report, the investigator indicated that there were no signs of mortar or gunfire on the remains of the houses. He concluded that the houses had been burned down by the PKK to punish the villagers for abandoning the village in April 1994. Some of the houses were further damaged on account of bad weather. 25. The investigator inquired from the relevant military commanders whether a military operation had been conducted in the Düzcealan village on 27 December 1993. On 24 December 1997 the Bitlis Gendarme Commander informed the Tatvan District Gendarme Commander that no military operation had been conducted in the village on 29 December 1993. However, he indicated that a bus had been burned near the Düzcealan village on that day. He further maintained that as the accused gendarme commander, Korkmaz Tağma, had retired from the military, his address could not be established and it was therefore impossible to take his statement. The Bitlis Security Directorate and Tatvan District Security Directorate further stated, on 8 and 10 January 1997 respectively, that they had not been involved in an operation in the Düzcealan village on 27 December 1993. 26. In the light of the evidence before him, the investigator concluded that the applicant's house had not been burned down by the security forces as alleged, but by the PKK after the villagers had evacuated the village in April 1994. In a report dated 14 May 1997, he advised the Bitlis Provincial Administrative Council to discontinue the proceedings against the security forces. On 20 May 1997 the Governor of Bitlis approved the conclusion of the investigator and ordered that the procedure against the security forces be terminated. 27. The Government finally submitted that the applicant's husband owned three plots of land totalling 14,245 square metres in the Düzcealan village. They further contended that the applicant had only one cow, which she had sold to Ramazan Gökçe, a villager from a neighbouring village, before she left Düzcealan. 28. In her petition, the applicant complained of the killing of her brother-in-law, Necmi Çaçan, and the destruction of her house and possessions by the security forces. 29. According to the copies of the title deeds, submitted to the Court, the applicant's husband, Hakim Çaçan, owns three plots of land in the village of Düzcealan. 30. On 4 January 1993 the Tatvan public prosecutor delivered a non-jurisdiction decision and sent the case file on the killing of Necmi Çaçan and the burning of six houses in the village of Düzcealan to the office of the chief public prosecutor attached to the Diyarbakır State Security Court. In the decision, it was stated that on the night of 29 December 1993 unidentified PKK terrorists had attacked the Düzcealan village, killed Necmi Çaçan and burned down the houses and harvest of Hikmet Kılıçarslan, Mehmet İşbulan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan, Mehmet Şirin Çaçan, Mehmet Sait Adar, Abdülmecit Çaçan and Bedrettin Çaçan. 31. On 9 October 1996 the Tatvan public prosecutor took a decision not to prosecute and transferred the case file to the office of the public prosecutor attached to the Diyarbakır State Security Court, as the complaint fell within the jurisdiction of that court, pursuant to Laws No. 2845 and 3713. 32. On 30 October 1996 the Diyarbakır State Security Court public prosecutor remitted the case to the Tatvan public prosecutor on the ground that he lacked jurisdiction to examine this complaint. 33. On 14 November 1996 the Tatvan public prosecutor delivered a non-jurisdiction decision and sent the file to the Bitlis Governor's office pursuant to the Law on the Prosecution of Civil Servants. 34. On 22 November 1996 a gendarme officer, Sabri Dikici, was appointed as investigator by the Bitlis Provincial Administrative Council. 35. In his statement the witness explained that he had lived in the Düzcealan village until April 1994 and had been the village mayor for three years. According to the witness, PKK members had been coming to Düzcealan to spread propaganda and ask for food, clothes and shelter. They also tried to persuade the young villagers to join the PKK. The witness recalled that the terrorists had conducted a raid in Düzcealan on the night of 29 December 1993, killed Necmi Çaçan and burned down the houses and harvest of the villagers. He emphasised, however, that the applicant's house had not been burned down on that day. It was burned down by the terrorists after the villagers had abandoned the village. The villagers left Düzcealan of their own free will. The security forces never forced the villagers to abandon their homes. The village was therefore empty when Zahide Çaçan's house was burned down. 36. In his statements the witness reiterated that he had been the mayor of the Kolbaşı village, a neighbouring village of Düzcealan. He recalled that following the incidents that took place on 30 December 1993, he heard that Necmi Çaçan from the Düzcealan village had been killed and that the houses of Mehmet İşbulan, Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan, Mehmet Şirin Çaçan, and the harvest of Said Adar, Abdülmecit Çaçan, Mehmet İşbulan, Necmi Çaçan and Hikmet Kılıçarslan had been burned down by the terrorists. Due to PKK pressure, the villagers decided to evacuate the village in April 1994. Before leaving, they sold their animals in neighbouring villages. The applicant's husband sold his cow to Ramazan Gökçe from the Kolbaşı village. When the villagers left, PKK members burned down the remaining houses, including the applicant's. The witness concluded that Zahide Çaçan's house was burned down in April 1994 by the PKK after the village had already been evacuated. 37. The witness is a gendarme officer, who used to live in the Düzcealan village until 1991. After his family left Düzcealan, the witness never returned to the village and stated that he had no knowledge of the alleged incidents. 38. The witness was the gendarmerie commander in Yelkenli attached to Tatvan in the Bitlis province between 1991 and 1994. The Düzcealan village was among the fifteen villages in the region that were attached to his command. He stated that he did not remember the exact date of the incident. On the day of the incident, terrorists attacked a bus on the Tatvan-Van road, which is about one kilometre from the Düzcealan village. The terrorists burned the bus and tried to escape through the Düzcealan village, setting fire to five or six places in the village. The next day, at about 6 a.m., the witness went to the scene of the incident with a security team, and drafted a sketch of the bus and of the houses. Korkmaz Tağma was the Bitlis Provincial Security Commander at the time of the events. He was informed about the events via wireless. The villagers in Düzcealan abandoned their village of their own free will due to pressure from the terrorists. 39. In a letter dated 8 January 1997, the Bitlis Security Directorate indicated that their Directorate had not been involved in any operation in the Düzcealan village on 27 December 1993. 40. The Tatvan Security Directorate concluded that their Directorate had not been involved in an operation in the Düzcealan village on 27 December 1993. 41. In this letter, the Bitlis Gendarme Commander informed the Bitlis Governor that no military operation had been conducted in the Düzcealan village on 27 December 1993. 42. In a letter dated 24 December 1997 the Bitlis Gendarme Commander informed the Tatvan District Commander that on 27 December 1993 a bus had been burned by the PKK. He indicated that there were no military records indicating that a possible military operation had been conducted in the village of Düzcealan on the same date. 43. On 13 February 1997 the investigator Sabri Dikici conducted an on-site visit to the village of Düzcealan together with the mayor of Alaattin Çaçan. In his report, he concluded that there were 35 households in the village and that the village had been completely evacuated. The houses, which were made of concrete, had been badly damaged or were in ruin due to disuse and the effect of bad weather. There were no signs of a mortar attack. 44. Referring to the statements of the villagers, gendarme officers, the relevant military reports and documents, the investigator concluded that the applicant'He found that the village was in fact raided by the PKK on the night of 29 December 1993. However, it was clear from the testimonies of the villagers that the applicant's house was not destroyed that day. From the evidence before him, the investigator found that the applicant had in fact stayed in the village until April 1994, when the villagers evacuated Düzcealan to escape the pressure from PKK members. The applicant sold her cow to a certain Ramazan Gökçe from the Kolbaşı village and moved out before her house was burned down by the PKK. When the village was evacuated, they burned down all the houses. There was no pressure from the security forces to evacuate the village. 45. Referring to the investigation report prepared by gendarme officer Sabri Dikici, the Head of the Bitlis Administrative Council recommended the Governor to discontinue the proceedings against the security forces. 46. On 20 May 1997 the Bitlis Governor decided that the proceedings against the security forces should be dismissed. 47. In his statement, the witness explained that he had been living in Çamaltı hamlet of the Düzcealan village until April 1994. He stated that the village of Düzcealan and its hamlets had been evacuated by the villagers of their own free will as they wanted to escape from the pressure exerted on them by the PKK. After the village was evacuated, the PKK burned down all the houses. 48. In the sketch, drafted by the gendarme officer Yavuz Gürbüz, the locations of the six houses which had been burned down on 29 December 1993 were indicated. 49. In the report, prepared by gendarme officer Yavuz Gürbüz, it was noted that on 29 December 1993, at about 3.45 p.m., a bus with the registration number 34 JYL 13 was burned by PKK terrorists. The terrorists then escaped to the Düzcealan village and burned down the houses of Mehmet İşbulan, Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan and Mehmet Şirin Çaçan, and the harvest of Said Adar, Abdülmecit Çaçan, Mehmet İşbulan, Necmi Çaçan and Hikmet Kılıçarslan. They also killed Necmi Çaçan. 50. In this report, it was noted that a bus had been burned on 29 December 1993. This was followed by the killing of Necmi Çaçan and the burning down of some houses in the Düzcealan village. It was, however, established that no military records existed indicating that a military operation had been conducted in Düzcealan on that day. The Commander further noted that as Korkmaz Tağma, the accused gendarme commander, had retired from military forces, his address could not be established, with the result that no statement could be taken from him. 51. In his statement, the witness deposed that he used to reside in Çamaltı hamlet attached to the Düzcealan village. He explained that all the villagers evacuated the village and the hamlet in April 1994 due to the activities of the PKK. PKK members had been asking the villagers to supply them with food, clothes and weapons. They also wanted to persuade the children to go to the mountains. According to the witness, the security forces never forced the villagers to abandon the village. The villagers left of their own motion due to PKK pressure. The houses were burned down subsequently by PKK members after the village had been evacuated. 52. The witness used to live in the Düzcealan village until April 1994. He recalled that, on the night of 29 December 1993, PKK members raided the village, burning down the houses of Mehmet İşbulan, Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan and Mehmet Şirin Çaçan, and the harvest of Said Adar, Abdülmecit Çaçan, Mehmet İşbulan, Necmi Çaçan and Hikmet Kılıçarslan. Necmi Çaçan, a villager, was also killed by PKK members. The PKK pressurised the villagers and demanded logistic support. In order to escape this intimidation, the witness left the village in April 1994, together with all the villagers of Düzcealan. He explained that Zahide Çaçan had also lived in the village until April 1994. He recalled that, before leaving, she had sold her cow to Ramazan Gökçe from the Kolbaşı village. 53. In her statement, dated 30 January 1997, the applicant mainly reiterated the complaints she had made to the public prosecutor. 54. The witness used to reside in the village of Düzcealan. Following the burning of a bus on the Tatvan-Van highway, a clash broke out between the security forces and PKK terrorists. The terrorists entered the Düzcealan village. They killed Necmi Çaçan, burned down the houses of Mehmet İşbulan, Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan and Mehmet Şirin Çaçan, and the harvest of Abdülmecit Çaçan, Mehmet İşbulan, Necmi Çaçan and Hikmet Kılıçarslan. The witness stated that his crops were burned down by PKK members. 55. The witness, who used to live in the Düzcealan village, stated that on 29 December 1993 at about 4 p.m. a bus had been burned by the PKK on the Tatvan-Van highway. Subsequently a clash broke out between the security forces and PKK members. The PKK members escaped to the village of Düzcealan. When they arrived in the village, they burned and destroyed his house and harvest. The houses of Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan and Mehmet Şirin Çaçan, and the harvest of Said Adar, Abdülmecit Çaçan, Necmi Çaçan and Hikmet Kılıçarslan were also destroyed. Moreover, they killed Necmi Çaçan. 56. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003) and Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002).

train

001-23354

ENG

GBR

ADMISSIBILITY

LEE v. THE UNITED KINGDOM

Inadmissible

Matti Pellonpää;Nicolas Bratza

The applicant, Mr Stephen Lee, is a United Kingdom national, who was born in 1970 and he lives in Windsor. He is represented before the Court by Mr J. Mackenzie, a solicitor practising in Henley-on-Thames. The facts of the case, as submitted by the parties, may be summarised as follows. At the relevant time, the applicant was a Lance Corporal in the British Army. On 31 May 1998 he was arrested by the civilian police who alleged that he had been drunk and disorderly. He was taken by the police to his army barracks and handed over to the military authorities. On 10 June 1998 he appeared before his commanding officer and was charged with drunkenness pursuant to section 43(1) of the Army Act 1955 (an offence which carried a maximum potential sentence of two years’ imprisonment). He subsequently appeared before that officer on 28 and 30 July 1998 and, on the latter date, he elected to be tried by court-martial as opposed to summary trial by his commanding officer. The commanding officer had the power to award a maximum of 28 days’ imprisonment on summary trial, although the Government submit that the commanding officer’s sentence following a conviction for drunkenness would generally have been limited to a fine, a reprimand, “a minor punishment” or a reduction to the ranks. Having opted for trial by court-martial, on 30 July 1998 the applicant’s case was referred to a higher authority and, in turn, on 5 August 1998 to the Army Prosecuting Authority. On 20 August 1998 this authority directed the applicant’s trial by district court-martial. In October 1998 the district court-martial was fixed to begin in January 1999. This trial date was postponed pending the outcome of an application by the applicant for leave to take judicial review proceedings concerning his legal aid. The judicial review application was heard in March 1999 and the court-martial was fixed for 26 July 1999, later moved to 28 July 1999 at the applicant’s request. The court-martial hearing was again re-fixed (to allow a full week for the hearing) for 23 August 1999. The applicant was legally represented. On that date and at the outset of the proceedings, the applicant applied for a stay of the proceedings claiming that the conduct of the prosecuting authorities amounted to an abuse of process. Having heard evidence over 3 days, on 25 August 1999 the Judge Advocate stayed the proceedings as an abuse of process. As to the meaning of abuse of process, he stated that: “It is now clear law that the courts have a power to stay proceedings where the continuance of those proceedings against a defendant constitutes an abuse of the court’s powers... Put shortly, the court has a general and inherent power to protect its process from abuse. This power must include a power to safeguard an accused person from oppression or prejudice ...The power to stay proceedings for an abuse of process has been said to include a power to safeguard an accused person from oppression or prejudice (Connelly v. DPP), and has been described as a formidable safeguard, developed by the common law, to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so (Attorney-General of Trinidad and Tobago v. Phillip [1995] 1 A.C. 396, PC). An abuse of process has been defined as “something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding” (Hui Chi-Ming v. R. [1992] 1 A.C. 34, PC).” The Judge Advocate found, in the first place, that the failure to disclose to the applicant video evidence of the incident leading to the applicant’s arrest, when he appeared before his commanding officer on 28 July 1999, was a breach of the applicable rules of procedure of such magnitude as to render the proceedings void. Secondly, he found that, on the evidence, the applicant’s election to be tried by court-martial had not been a free and valid one. As regards these two matters the Judge Advocate concluded: “True, there has been no illegality in the sense of a breach of the law, but there has been a very fundamental breach of the principles under which criminal justice is dispensed. True, [the applicant] has not had any other or more serious charge preferred against him, but he has had a long and no doubt anxious wait, undoubted expense and, more significantly, I could not guarantee that the court which has been ordered to try him would not punish him more severely than the [commanding officer] would have done if he was convicted. Furthermore, I cannot ignore the collected impact of the conduct of [the commanding and other officers], wittingly or unwittingly, in pressurising [the applicant] to accept the [commanding officer’s] award and by inference his guilt. For many years now the courts have fought strenuously to safeguard accused persons from being pressurised into pleading guilty and have rigorously excluded evidence obtained as a result of such pressure. These courts should not countenance service personnel being sent for trial as a result of such pressure. To do so would be to allow their process to be abused. It is for these reasons that I hold that the continuance of the proceedings against [the applicant] would be an abuse of process.” Thirdly, the Judge Advocate found, as regards the fact that the prosecution had taken and served on the defence a statement from the applicant’s defending officer: “I accept that ... what happened in this case was no breach of legal privilege, if indeed, legal privilege attaches to a defending officer... I accept that there was no substantial prejudice to the defence case. I accept that no one in the Army Prosecuting Authority proper knew that [he] was the defending officer until much later... I accept that identity would not have been an issue in the case. None of these things can have lessened the perception of [the applicant] as to the chances of justice from the military system when he became aware that his defending officer was to be called as a prosecution witness against him. It was an irregularity of such magnitude that in itself it justifies me in holding that the continuation of these proceedings would be an abuse of the process of this court.” The Judge Advocate went on to recommend that the applicant’s legal aid contributions and any other costs associated with the proceedings should be reimbursed to him. On 13 December 1999 the applicant instituted proceedings claiming damages against the civilian police and the Ministry of Defence for matters arising out of his arrest by the police and the conduct of the proceedings against him by the military authorities. The respective defences were filed in January and February 2000. The proceedings against the police were later settled by the payment to the applicant of GBP 7,500 in damages and costs. The current position as regards the proceedings against the Ministry of Defence is not known. All criminal courts, including courts-martial, have a wide common law jurisdiction to stay proceedings on the grounds of abuse of process. The application to stay proceedings is in the nature of a “plea in bar”, the more conventional “pleas in bar” being autrefois convict or autrefois acquit. A “plea in bar” operates to prevent a case proceeding to trial and, if raised, is ordinarily dealt with before the accused enters a plea to the charge. The ability of a trial judge to stay a criminal prosecution was first confirmed by the House of Lords in the case of Connelly v. Director of Public Prosecutions [1964] A.C. 1254. Lord Reid acknowledged the ability of a criminal court “to prevent a trial from taking place” in the exercise of its “residual discretion to prevent anything which savours of abuse of process” (at p. 1296). In the case of Director of Public Prosecutions v. Humphreys [1977] A.C. 1, Lord Salmon considered this discretion to be of “great constitutional importance” and a power which “should be jealously preserved”. Lord Woolf defined the discretion to stay proceedings as an abuse of process, in the case of Attorney-General of Trinidad and Tobago v. Phillip [1995] 1 A.C. 396, as: “... a formidable safeguard to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so”. In Hui Chi-Ming v. R [1992] 1 A.C. 34, Lord Lowry described an abuse of process as: “... something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding”. The broad basis of this jurisdiction was confirmed by the House of Lords in R v. Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 A.C. 42, where it was held that proceedings may be stayed not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. The case law was summarised by the Court of Appeal in R. v. Beckford [1996] 1 Cr.App.R. 94 (see Lord Justice Neill, at p. 100G-101A): “The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities: (a) cases where the court concludes that the defendant cannot receive a fair trial; (b) cases where the court concludes that it would be unfair for the defendant to be tried”. Matters considered to constitute an abuse of process include: – unjustifiable delay which results in the defendant suffering serious prejudice to the extent that no fair trial can be held; – the trial of a defendant after extensive and prejudicial pre-trial publicity; – the trial of a defendant after the loss or destruction of relevant material by the prosecution; – where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place because the prosecution have been guilty of investigative impropriety; and – where the prosecution have otherwise been guilty of manipulation or misuse of the process of the court. There is no right for the prosecution to appeal against an order for a stay of a Crown Court trial or court-martial proceedings on the ground of abuse of process. The intention behind such a stay is that there should not be a trial in the future. There is no possibility of lifting a stay where the stay has been granted on the grounds that, due to the unconscionable conduct of the prosecuting authorities and even though the accused could receive a fair trial, it would nonetheless be unfair for the accused to be tried. Such a case could not be re-opened since it would always be an abuse of process to try the accused. The applicant does not dispute the Government’s submission that there are no known cases where a stay made on the grounds of abuse of process has been lifted to allow a prosecution to continue or where the prosecution has even applied for such a stay to be lifted. In R. v. Central Criminal Court ex p. Randle [1991] 1 WLR 1087, Lord Justice Watkins commented that a decision on an application to stay on grounds of abuse of process determines: “... whether there ever should be a trial ... [A] stay on grounds of abuse of process contemplates that there never will be a trial ... It matters not that there are circumstances in which a stay on grounds of abuse of process might be revoked or lifted: the crucial point is that such a stay -- a direction that there shall be no trial -- is intended to be final.”

train

001-109893

ENG

ROU

ADMISSIBILITY

ZARAFIM v. ROMANIA

Inadmissible

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

1. The applicant, Mr Gheorghe Moşoi Zarafim, is a Romanian national who was born in 1970 and before his arrest lived in Craiova. He was represented before the Court by Ms Andreea Livia Troanţă-Rebeleş Turculeanu, a lawyer practising in Craiova. The Romanian Government (“the Government”) were represented by their Agent, Ms Irina Cambrea, of the Ministry of Foreign Affaires. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 22 February 1999 the applicant was apprehended by police on suspicion of having committed several violent crimes. On the same date he was placed in pre-trial detention by order of the prosecutor. 4. During the early stages of the proceedings, the applicant lodged several complaints with the prosecutor concerning ill-treatment by the investigators. His complaints were dismissed as illfounded or vexatious. In particular the prosecutor considered that the evidence in the file did not support the applicant’s claims. The applicant was informed about the prosecutor’s decisions in letters of 5 October 1999, 24 November 1999, 4 and 29 December 1999. 5. The proceedings were held before the Olt County Court. The applicant was represented at all hearings by a court-appointed lawyer. On 4 December 2001 the County Court convicted the applicant and sentenced him to twenty-five years’ imprisonment for crimes of aggravated murder, attempted aggravated murder, causing bodily harm, and trespassing. The judge who delivered the judgment had not heard the applicant and the witnesses at a previous hearing. 6. Both the applicant and the prosecutor appealed against the judgment. The applicant complained of breaches of his procedural rights by the firstinstance court and about the outcome of the proceedings. The prosecutor contested the court’s legal classification of some of the crimes. 7. The Court of Appeal quashed the judgment of 4 December 2001 and decided to re-examine the case on the merits. It did not hear new evidence from the applicant or witnesses. In a decision of 4 July 2002 it changed the legal classification of the crimes committed by the applicant. The sentence remained unchanged. The court further dismissed the applicant’s appeal as ill-founded without giving any reasons. 8. Both the applicant and the prosecutor submitted appeals on points of law (recurs) against the judgment. The applicant pleaded his innocence and requested a less severe sentence. In a final decision of 8 May 2003 the Supreme Court of Justice upheld the previous decision. It dismissed the applicant’s appeal as it considered that the sentence handed down had been appropriate, taking into account his previous criminal activity and his inferior intellect. 9. The applicant has been incarcerated continuously from 22 February 1999, initially in pre-trail detention and subsequently while serving his sentence. He is currently held in Craiova Prison. 10. During his detention, the applicant has been transferred twenty-three times between the prisons in Iaşi, Bucharest, Jilava and Craiova. The Government submitted a detailed prison record describing the conditions of the applicant’s detention to date. 11. The applicant has been reprimanded on several occasions for breaches of the prison rules (making or retaining prohibited objects or substances, maintaining an illegal alcohol processing device in the cell, insulting magistrates dealing with his case, violence towards prison personnel or inmates, and destroying prison property). The applicant exercised his right to appeal against the reprimands and his complaints were examined on the merits and rejected by the courts or the prosecutor. 12. The applicant was recorded as “clinically healthy” in the prison medical chart drafted upon his arrest. On 7 May 1999 he was admitted to the Jilava Prison Hospital for a psychiatric examination. He was diagnosed with a personality disorder and exhibiting antisocial behaviour. 13. According to the prison medical record, the applicant was admitted on several occasions to prison hospitals, underwent expert examinations, was taken regularly for medical check-ups and received treatment. He was diagnosed with arterial hypertension, gallbladder dyskinesia, a duodenal ulcer and a fungal infection of the nail, type two obesity, an old fracture of the collarbone, superior brachial plexus paresis, a urinary infection, and respiratory diseases. According to the prison medical chart, he received treatment for his conditions. It also appears that on several occasions in April 2005 the applicant refused to be examined by the prison doctors. 14. The applicant alleges that his health problems were caused and subsequently aggravated by inhuman detention conditions and lack of adequate medical treatment at the Iaşi, Jilava and Craiova prisons. In 2005 and 2006 the applicant filed numerous complaints in that connection, with the National Administration of Prisons and other authorities. On 27 December 2005 and 8 February 2006 the National Administration of Prisons replied that, according to his prison medical file, the applicant was receiving adequate medical treatment and therefore his complaints were not supported by evidence. 15. In 2006 the applicant also filed a criminal complaint for illtreatment and abuse against O.C. and B.A., doctors at the Iaşi Prison. On 1 September 2006 the Prosecutor’s Office of the Iaşi Court of Appeal rejected the complaint on the ground that there was no evidence of a crime. It appears from the file that the applicant did not appeal against that decision. 16. The applicant repeatedly got into fights with other inmates or the prison personnel. Each such incident was reported and investigated and the applicant was taken to the prison infirmary and to prison or civilian hospitals for further examinations and/or treatment. Expert reports were drafted concerning any injuries suffered and the number of days needed for recovery. On at least on one occasion the prison doctors informed the authorities of such an incident. 17. The applicant also complained once under Law no. 275/2006 on the execution of sentences (“Law no. 275”) that he had been the victim of an attack by inmates and guards and the prison doctors had refused to give him medical assistance. On 8 April 2008 the judge responsible for the execution of sentences dismissed that complaint. He found that the applicant had been taken to the infirmary and given assistance and from there had been taken to a civilian hospital for further tests. The prison infirmary had subsequently given him the treatment prescribed by the civilian doctors. Furthermore, the prison doctors had informed the applicant that he could request a further medical examination in a civilian hospital. 18. On several occasions the applicant requested envelopes and stamps to send letters, as well as photocopies of documents from his prison file. In most of the cases his requests were met by the prison authorities. When such requests were refused, the applicant filed complaints with the judge responsible for the execution of sentences and with the courts under Law no. 275. His actions were examined on the merits and dismissed, with the exception of a complaint that an envelope addressed to him had been opened by the director of Iaşi Prison, which led a to a decision of 25 January 2008 acknowledging a violation of his right to correspondence. On 3 July 2007, while he was incarcerated in Iaşi Prison, the applicant submitted a formal request to be given an envelope in order to send documents asked for by the Court. He alleged that this request had been denied with no reasons being given. 19. The domestic legislation on the execution of sentences, in particular Law no. 23/1969, Emergency Ordinance no. 56/2003 (“Ordinance no. 56”), and Law no. 275/2006 on the execution of sentences, is described in Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008.

train

001-91098

ENG

ALB

CHAMBER

CASE OF NURI v. ALBANIA

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

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

6. The applicant was born in 1948 and lives in Tirana. 7. On an unspecified date the applicant lodged an application with the Lushnja Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”), seeking to have the property of her deceased relative, confiscated in 1949, returned to her. 8. On 22 April 1994 the Commission upheld the application and recognised the applicant’s property rights over two villas and a three-storey building measuring 1,380 sq. m and a plot of land measuring 540 sq. m. 9. As regards the three-storey building and one of the villas, the Commission decided to return the property to the applicant. As regards the other villa, the Commission recognised the applicant’s co-ownership with its existing occupier. However, as it was impossible to allocate the original plot of land measuring 540 sq. m to the applicant, the Commission ordered the payment of compensation in State bonds equivalent to the value of the plot. Lastly, the Commission ordered the authorities to enforce the decision. 10. On an unspecified date the applicant lodged a civil action with the Lushnjë District Court challenging the part of the Commission’s decision that recognised one of the villas as being jointly owned and claiming full ownership thereof. Notice of the proceedings was given to the existing occupier and the Commission. 11. On 23 January 1996 the court upheld the applicant’s civil claim and granted her full ownership of the villa. The court did not rule on the part of the Commission’s decision relating to the compensation issue. 12. On 10 May 1996, following an appeal by the defendant party, the Tirana Court of Appeal upheld the District Court’s decision. As no appeal was lodged with the Supreme Court, that decision became final and binding. 13. On an unspecified date, following the enforcement of the court’s decision, the applicant took possession of the properties allocated to her, that is to say, the two villas and the three-storey building. 14. In 2004, as no State bonds had been issued, the applicant wrote a letter to the Commission seeking a solution to the compensation issue in respect of his plot of land measuring 540 sq. m. She did not receive a reply to her letter. 15. To date, the authorities have not provided compensation in respect of the plot of land measuring 540 sq. m, in spite of the Commission’s decision. 16. The relevant domestic law has been described in detail in Driza v. Albania (no. 33771/02, §§ 33-44, ECHR 2007... (extracts)) and Ramadhi and Others v. Albania (no. 38222/02, §§ 22-30, 13 November 2007).

train

001-113877

ENG

POL

ADMISSIBILITY

OGÓREK v. POLAND

Inadmissible

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

1. The applicants, Mr Krzysztof Ogórek and Mr Karol Ogórek (the applicants”), are Polish nationals, who were born in 1929 and 1928 respectively and live in Tarnów Opolski. They were represented before the Court by Mr J. Forystek, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Before the Second World War the applicants’ father, Paweł Ogórek, owned a limestone plant which operated under the name “Limestone Plant Ogórek and Co.” (Zakłady Wapienne Ogórek i Spółka). The company also had a German name “Kalwerke Ogórek et Co.” It was run by the applicants’ father before and during the war, until 1945. In 1945 the plant consisted of two furnaces, one limestone plant, a smithy, an outhouse, office premises and 32 hectares of land, which included limestone deposits. 4. On 14 June 1948 the plant was nationalised by virtue of the Minister of Industry and Commerce’s (Minister Przemysłu i Handlu) decision (“the 1948 decision”) issued pursuant to section 3(1) and (5) of the Law of 3 January 1946 on the nationalisation of basic branches of the State economy (Ustawa o przejęciu na własność Państwa podstawowych gałęzi gospodarki narodowej) (“the 1946 Act”). The decision was published in the Cabinet’s Official Gazette (Monitor Polski) no. 58 of 26 June 1948 and took effect on that date. It was issued together with an annex listing companies, including the one belonging to the applicants’ father, which were subject to nationalisation and stipulated that “... enterprises listed in the annex thereto shall be taken over by the State in return for compensation”. 5. On 30 December 1990 the applicants asked the Minister for Economy (Minister Gospodarki) to declare the 1948 decision null and void. 9. On 30 July 2007 the Minister for Economy declared null and void the 1948 decision, finding that it had been issued in flagrant beach of the law since at the material time there had been no legal basis for the nationalisation of the applicants’ property. In the course of the proceedings, the authorities obtained expert reports determining the enterprise’s potential employment capacity on one shift vis-à-vis the technical equipment and its condition at the material time, bearing in mind war damage. It emerged from those reports that the plant had been partly destroyed and its potential production capacity had been severely limited due to the lack of electricity. This, in turn, justified the conclusion that its real employment capacity at the material time had been not more that 42 people on one shift, not from 70 to 213 as estimated for the purposes of the 1948 decision. Consequently, nationalisation of the plant had been unlawful as, pursuant to section 3(1) B of the 1946 Act, it could only be effected in respect of enterprises employing a minimum of 50 persons on one shift. 10. On 6 August 2007, relying on the above decision, the applicants asked the Minister for Infrastructure to annul the decision validating the acceptance protocol on taking over the nationalised property (orzeczenie o zatwierdzeniu protokołu zdawczo-odbiorczego), issued by the Minister for Construction and Building Materials Industry (Minister Budownictwa i Przemysłu Materiałów Budowlanych) on 29 November 1961. 11. Since no action had been taken for some 17 months, on 21 January 2009 the applicants lodged a complaint with the Warsaw Regional Administrative Court, alleging inactivity on the part of the Minister for Infrastructure. 12. On 23 February 2009 the Minister for Infrastructure declared the contested decision null and void, concluding that it had been issued in flagrant breach of the law because it had been based on the 1948 decision found to have been ab initio unlawful. 13. On 11 February 2003 the applicants issued the Prime Minister a legal notice, summoning him to “remove the state of infringement of a law” (wezwanie do usunięcia naruszenia prawa) by enacting the Cabinet’s ordinance ensuring the proper implementation of the 1946 Act within 30 days from the date of service of that notice. The applicants relied on section 7 of the 1946 Act, by virtue of which a Cabinet’s ordinance was to be issued in order to determine the rules governing the calculation and means of payment of compensation for nationalised property (see also paragraphs 39-40 below). They stressed that, despite the fact that although by that stage 57 years had elapsed from the date of entry into force of the 1946 Act and despite the State’s legal duty to implement fully its provisions, the Cabinet had not yet enacted the ordinance, thus making it impossible for the former owners to receive the promised compensation. They further maintained that the State authorities’ failure to act amounted to a constitutional tort (delikt konstutucyjny) in the form of a legislative omission (zaniechanie legislacyjne) – for which both the former Prime Ministers of Poland and the current one had been responsible. Simultaneously, the applicants summoned the Prime Minister to pay them compensation in an amount of 30,000,000 Polish zlotys (PLN) for the nationalised plant, together with statutory interest from 1 July 1949 (one year after the 1948 decision had taken effect) until the date of settlement. 14. On 26 February 2003 the Prime Minister’s Chancellery, in its reply to the applicants’ notice, stated, among other things, the following: “In connection with [your legal notice] and acting on the Prime Minister’s instruction, I should inform you that there is no legal basis for the issuance of the ordinances referred to in sections 6 and 7 of the 1946 Act by the Cabinet. ... The statutory authorisation (upoważnienie ustawowe) to issue ordinances referred to in section 7(4) and (6) [of the 1946 Act] sets out a range of matters for regulation. These are: the composition of the [compensation] commission, the rules for the appointment of its members, the quorum, the rules of procedure before the commission, the rules for appeals against its decisions, the assessment of circumstances relevant for compensation, the means of payment of compensation and determination of the amortisation of securities. It must be noted that the enactment of ordinances governing most of the above matters would be incompatible with the laws applicable at present. ... The matters regulated by [the 1946 Act] and [to be regulated] by the prospective ordinances relate to the constitutional right of property, a matter which is particularly designated for regulation in the form of a statute. It is therefore doubtful that any statutory authorisation to issue an ordinance could transfer [to the Cabinet] the entirety of the matters included in the authorisation, the more so as there are already in place and in force statutory provisions enacted after the entry into force of [the 1946 Act]. Issuing today, on the basis of this Act, ordinances under its section 7(4) and (6) could lead to the incompatibility of statutory solutions (subsequent to the Act) with ordinances. ... [P]ursuant to Article 92 § 1 of the Polish Constitution, ... the enactment of an ordinance is admissible only on the basis of a detailed authorisation included in a statute and in order to implement that statute. This authorisation must be of a detailed nature in terms of the subject (must state an authority competent to issue an ordinance), the object (must state the range of matters delegated for regulation) and its content (must state the directions as to the content of an [ordinance]).... Pursuant to the Constitutional Court’s case-law, the absence of directions is sufficient to consider the authorisation unconstitutional, even if the remaining requirements are met. ... First of all, the matters delegated in the [relevant] authorisation should have been addressed in [the 1946 Act] itself. The matter left by the legislature for regulation by ordinances (e.g. the procedure for the appointment of members of the commission, the procedure for appeals, the amortisation of securities, questions of compensation) are of such importance for an individual and his or her constitutional rights and guarantees that they cannot be regulated by any means other than a statute. ... Moreover, the statutory authorisation in [the 1946 Act] does not contain directions. In sum, it should be concluded that in the light of the above arguments, it would not be legally admissible to issue the Cabinet’s ordinances on the basis of section 7(4) and (6) of [the 1946 Act].” 15. On 11 March 2003 the applicants lodged a complaint under the provisions of the law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) (ustawa o Naczelnym Sądzie Administracyjnym), alleging inactivity on the part of the Prime Minister in that the Cabinet had failed to issue an ordinance enabling the full implementation of the 1946 Act. This, in their submission, was in breach of several provisions of the Constitution. 16. On 21 May 2003 the Supreme Administrative Court rejected the complaint as being inadmissible in law. It stated that under the applicable laws its scope of jurisdiction over the State authorities’ actions or inactions was limited to their duties with respect to public administration and did not encompass any control of their competence in the sphere of the issuing of normative acts. 17. On 27 June 2003 the applicant’s lodged a constitutional complaint against the Supreme Administrative Court’s decision of 21 May 2003. They challenged the constitutionality of section 16(1) (1)-(4) of the 1995 Act in so far as this provision denied them access to a court to seek compensation granted under the 1946 Act, in particular as it excluded the possibility of lodging a complaint about the inactivity of the Prime Minister, i.e. the legislative omission consisting in the failure to enact the relevant ordinance, as required by the 1946 Act. They further asked the Constitutional Court to declare unconstitutional section 7(1) (6) of the 1946 Act, in so far as it left to the Cabinet full discretion as to the date of payment and detailed procedure for compensation and thereby deprived them of access to a court in order to seek compensation for their nationalised property. Alternatively, they asked the court to declare that 7(1) (6) of the 1946 Act was an illusory provision and as such could not be considered part of the legal order and, on the basis of this declaration, to discontinue the proceedings in this part. They invoked, in particular, Article 2 (rule of law), Article 21 (protection of ownership), Article 45 (right of fair trial), Article 64 (right of ownership) and Article 77 (right to compensation for unlawful action of public authority) of the Constitution and Article § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. 18. On 8 September 2004 the Constitutional Court discontinued the proceedings. As regards the first limb of the complaint, it ruled so on account of the fact that section 16(1) (1)-(4) of the 1995 Act had lost its binding force. As regards section 7(1) (6) of the 1946 Act, it discontinued the proceedings holding that ruling on the merits of this part of the complaint was inadmissible in law. In particular, it held that it could not review the constitutionality of section 7(1) (6) of the 1946 Act since, pursuant to Article 79 § 1 of the Constitution, a constitutional complaint could only be directed against provisions on the basis of which the courts or administrative authorities gave a final decision on rights, freedoms or obligations of the complainant. The contested provision was not a legal basis for the final decision examined by the Constitutional Court. Accordingly, it was prevented from dealing with the merits of this part of the complaint. 19. On 20 October 2004 the applicants asked the Prime Minister to ensure the enactment of an ordinance for the proper implementation of the 1946 Act by the Cabinet or, alternatively, in case of his refusal to do so, to issue an individual, appealable administrative decision refusing to see to the enactment of that ordinance. 20. On 20 November 2004 the Prime Minister gave a decision discontinuing the proceedings, relying on section 105 § 1 of the Code of Administrative Procedure (Kodeks postępowania administracyjnego) by virtue of which an administrative authority should discontinue proceedings if, for any reason, they had become devoid of purpose. In essence, the reasoning was two-fold. First, the Prime Minister found that it was inadmissible in law to regulate the public authorities’ normative activity by means of administrative decisions. Such decisions could be given only in the context of the application of the law, whereas normative acts were created in the completely distinct sphere of lawmaking. Secondly, the public authorities’ normative activity was their exclusive and, at the same time, sovereign competence and there were no grounds for interfering with this activity because, in his view, it would infringe the fundamental constitutional principles of the division of powers and the rule of law, as well as the competences of the constitutional authorities of Poland, namely the Cabinet. 21. The applicants asked for the matter to be reconsidered. On 11 January 2005 the Prime Minister upheld the contested decision, reiterating that the issues raised by the applicants could not be addressed by an individual administrative decision. 22. The applicants appealed to the Warsaw Regional Administrative Court. 23. On 12 August 2005 the court heard, and dismissed, the appeal. It upheld the grounds given in the previous decisions, holding that an administrative decision could be issued only in an individual case concerning a specific person and his or her concrete rights or obligations but not to compel an authority to enact a normative act, which in a general and abstract way regulates the legal situation of an unqualified number of persons. It also held the following: “It should be stressed that the Supreme Court’s case-law underlines that the Cabinet’s failure to discharge its duty arising from its competence to enact an ordinance ensuring the proper implementation of a statute infringes the constitutional principles of the functioning of a democratic state ruled by law (Articles 2 and 7 of the Constitution) and, accordingly, may constitute a constitutional tort. ... This court is of the opinion that the proper judicial protection of the applicants’ interests is secured in the provisions of the Civil Code. Article 4171 of the Code invoked in the appeal makes it possible [for them] to seek damages caused by the legislative omission of the State Treasury.” 24. The applicants lodged a cassation appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny), alleging a number of procedural shortcomings on the part of the first-instance court and the Prime Minister and a breach of Article 77 of the Constitution in that the contested decisions had prevented them from pursuing their claim for damages arising from the state authorities’ unlawful acts – most notably their failure to enact the ordinance implementing fully the 1946 Act. On 8 November 2006 the Supreme Administrative Court dismissed the appeal as lacking any legal basis. 25. On 8 September 2003 the applicants sued the State Treasury, statio fisci the Prime Minister, before the Warsaw Regional Court (Sąd Okręgowy) for unpaid compensation for the nationalised company. They sought PLN 30,000,000 in damages, with statutory interest from 1 July 1949 until settlement, and PLN 24,000 by way of costs and expenses. They relied on Article 77 of the Constitution and Article 417 of the Civil Code as applicable on that date (see paragraphs 41-44 below). 26. On 8 June 2004 the court gave judgment in default and granted the applicants’ claims in their entirety. 27. Following the defendant’s opposition, the case was reconsidered by the Regional Court. The defendant asked the court to quash the judgment in default and to dismiss the applicants’ claims. 28. On 9 December 2004 the applicants modified their claim for payment of statutory interest, seeking payment only from 1 September 2004 until the date of settlement. 29. On 21 February 2005 the court summoned the Minister for the Treasury to take part in the proceedings as the second defendant. 30. In their pleading of 2 March 2006 the applicants altered the legal basis for their claims, stating that as those claims were based on a legislative omission on the part of the authorities consisting in their failure to enact an ordinance pursuant to section 7(4) and (6) of the 1946 Act, they should be based on Article 4171 § 4 of the Civil Code, which entered into force on 1 September 2004 (see paragraphs 42-43 below). 31. On 14 March 2006 the Regional Court quashed the judgment in default. It dismissed the applicants’ claims for PLN 30,000,000 in damages and for costs and discontinued the proceedings in respect of their claim for payment of statutory interest. The reasoning for the judgment was in essence based on the Supreme Court’s resolution of 24 November 2005 (cited below, see paragraphs 45-47 below). It read, in so far as relevant, as follows: “There is no dispute [between the parties] over the facts of the case ... The dispute is limited solely to [the question] whether the claims brought in this case are wellfounded in the light of the factual and legal bases relied on by the plaintiffs and to the amount of [compensation]. ... Considering the legal and factual basis invoked by the plaintiffs, their claims should be dismissed. Section 7 of the 1946 Act, on which they rely, in its original version provided that an owner of an enterprise taken over by the State would receive compensation from the State Treasury within 1 year from the date on which a notice of final determination of the amount of compensation due had been served on him. Such compensation was to be paid in securities, although in exceptional circumstances also in cash or other values, and its amount was to be determined by special commissions. ... Pursuant to section 7(4) and (6) the composition of the commissions, the rules for the appointment of their members, the quorum, the rules of procedure and rules for appeals against their decisions and the detailed rules for the calculation of compensation and means of its payment and depreciation of securities were to be determined by the Cabinet’s ordinance. Despite [this] statutory authorisation, the above-mentioned ordinance (the failure to enact it, which was to be the cause of the loss sustained by the plaintiffs) has never been enacted which, in consequence, made it impossible [for the authorities] to establish the relevant commissions and to set up the procedure for the determination of the amount of compensation and its payment. Accordingly, this legislative omission, which has been relied on by the plaintiffs as the cause of their loss, occurred in 1946 or, at the latest in 1947, assuming that in general the absence of any time-limit for the enactment (a specific action) is tantamount to a duty to enact an act implementing the law without undue delay. This opinion is supported by [the fact] that at the material time the Cabinet issued ordinances implementing other provisions of the 1946 Act. The same point of view was expressed by the Supreme Court in a resolution of 24 November 2005 ...[;] this court shares this point of view, and the applicants, when justifying their claims, have so far done the same. The provisions of the civil law as applicable at the material time, preceding the entry into force of the Civil Code, did not provide for the State Treasury’s liability for legislative activity [or inactivity] of its agents. This situation did not change after the entry into force of the Civil Code on 1 January 1965, providing, in its Articles 417 and 418, for the State Treasury’s [tortious] liability, the scope of which did not encompass the State authorities’ legislative activity. ... By the same token, it cannot be assumed that the defendant’s civil liability for the consequences of the so-called legislative omission is based on Article 417, which, in contrast to what the plaintiffs tried to plead, does not embody the State’s legislative activity. This situation did not change radically on 17 October 1997, the date of entry into force of the new Constitution which, in Article 77 § 1, proclaimed the right to compensation for any harm caused by an act of a public authority in breach of the law and the possibility of its direct application. While the above-mentioned provision of the Constitution undoubtedly refers to civil liability including the State authorities’ normative activity ..., this liability cannot be taken in the abstract from regulations concerning civil claims laid down in the Civil Code and specific statutes and, accordingly, cannot be an autonomous legal basis for this kind of claims. ... In view of the foregoing, the plaintiffs’ claims cannot be justified under Article 77 § 1 of the Constitution. ... Article 4171 of the Civil Code, introduced ... on 1 September 2004 and invoked by the plaintiffs could be a legal basis for their claim. This provision includes the defendant’s civil liability for the consequences of the socalled legislative omission in case of a failure to enact a normative act, where there is a statutory duty to do so. However, pursuant to section 5 of [the relevant law amending the Civil Code], setting out the temporal scope of the operation of [Article 4171], excludes the possibility of its application to events and situations that occurred before the date of its entry into force, requiring [the courts] to apply in that regard the hitherto applicable provisions, including Article 417, which was repealed by that law. It should therefore be concluded that both Article 417 and Article 4171 of the Civil Code read in conjunction with Article 77 § 1 of the Constitution cannot be legal bases for granting the plaintiffs’ claims. ...” 32. The applicants appealed to the Warsaw Court of Appeal (Sąd Apelacyjny). On 5 December 2006 the appeal was dismissed. 33. On 8 April 2009 the applicants sued the State Treasury staciones fisci the Minister for Economy and the Minister for Infrastructure before the Warsaw Regional Court, seeking damages arising from the nationalisation of the limestone plant. They sought 26,000,000 Polish zlotys (PLN) each and the costs of the proceedings. Later, they limited the claim to PLN 16,756,228.50, an amount corresponding to the damage as determined by experts appointed by the court. This sum included PLN 12,634,426.05 for damage caused by exploitation of the limestone deposits by the State and PLN 3,895,607.25 for damage caused by nationalisation of the enterprise’s buildings, machines and technical equipment. 34. On 20 June 2011 the Regional Court, relying on Article 160 §§ 1 and 2 of the CAP granted the applicants’ claim in its entirety. It awarded each applicant PLN 8,378,114.25 (i.e. the whole amount jointly claimed) with interest from 21 June 2011 and PLN 2,228 for the costs incurred. The court held that there was no doubt that the applicants had sustained loss that should be compensated by the State. That loss consisted in the value of the plant on the date of its nationalisation, the value of the limestone deposits exploited by the State and the costs involved in the rehabilitation of the nationalised land. 35. The State Treasury appealed against the judgment 36. The case was heard by the Warsaw Court of Appeal on 28 February 2012. The court fully upheld the Regional Court’s findings of fact and law and its assessment of evidence. It gave partial judgment. It rejected the defendant’s appeal in so far as it concerned compensation for the value of the enterprise’s buildings, machines and technical equipment and upheld the award in this respect, granting each applicant PLN 1,947,803.62 (i.e. a total sum of PLN 3,895,607.24). This ruling is final. The Court of Appeal postponed the examination of the remainder of the claim (compensation amounting to PLN 12,634,426.05 for damage caused by exploitation of the limestone deposits by the State). In that respect, it decided to obtain a fresh expert report in order to determine the value of the loss actually sustained. The expert was appointed on 12 July 2012. The proceedings are pending. 37. Following the establishment of the communist regime in Poland nearly all branches of industry, as well as banking, insurance, transport and commercial companies were taken over by the State under the 1946 Act which, in its section 1, stated the purposes of nationalisation as follows: “ In order to ensure the planned rebuilding of the state economy, the economic sovereignty of the State and to foster the general well-being, the State shall take over ownership of enterprises on the conditions laid down in this law.” Pursuant to section 2(1), only those industrial, mining, transport, banking, insurance and commercial enterprises that belonged to the Third Reich and the former Free City of Gdańsk, their citizens (except for those of Polish or other nationality who had been persecuted by the Germans), German and Gdańsk legal persons (except for those set up under public law), companies controlled by German or Gdańsk citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the State without payment of compensation. 38. Section 3(1) of the 1946 Act (as amended) states that the owners of the remaining enterprises were to be compensated for their nationalised property. That provision reads, in so far as relevant, as follows: “1. The State shall compensate [the owners] for taking over ownership of the following: A. Mining and industrial enterprises in the following sectors of State economy: 1) mines and mining leases subject to mining law; 2) oil and gas industry, including mines, refineries, gasoline production and other processing plants, gas pipes and synthetic fuel industry; 3) companies that generate, process, transmit or distribute electricity ...; 4) companies that generate, process, transmit or distribute gas ...; 5) water supply companies serving more than one municipality ...; 6) steelworks and non-ferrous metals smelting plants; 7) armaments, aviation and explosives industry; 8) coking plants; 9) sugar factories and refineries; 10) industrial distilleries, spirit refineries and vodka production plants; 11) breweries with an annual output exceeding 15,000 hectolitres; 12) yeast production plants; 13) grain plants with a daily output exceeding 15 tons of grain ...; 14) oil plants with an annual output exceeding 500 tons and all refineries of edible fats; 15) cold stores; 16) large and medium textile industry; 17) printing industry and printing houses; ... B. Industrial enterprises not listed in subsection “A” if they are capable of employing in the production more than 50 persons on one shift. ... C. 1) Transport enterprises (standard gauge and narrow-gauge railways, electric railways and aviation transport enterprises); 2) communication enterprises (telephone, telegraph and radio enterprises). 39. Section 7 lays down general principles for compensation to be paid for nationalised property. It states, in so far as relevant, as follows: “1. The owner of an enterprise whose ownership has been taken over by the State (section 3) shall receive compensation from the State Treasury within one year from the date on which a notice of final determination of the amount of compensation due has been served on him. 2. Such compensation shall in principle be paid in securities; however, in exceptional and economically justified cases it may also be paid in cash or other values. 3. The amount of compensation due shall be determined by special commissions. The persons concerned shall have the right to participate in proceedings before those commissions. If need be and in any case if so requested by the persons concerned, the commission shall appoint appropriate experts. 4. The composition of the commissions, the rules for the appointment of their members, the quorum, the rules of procedure before the commissions and rules for appeals against their decisions shall be determined by an ordinance issued by the Cabinet. 5. The following factors shall be taken into account in determining compensation: a) general deterioration of the value of State property; b) net value of the corporate property on the date of nationalisation; c) deterioration of the value of the enterprise cause by war losses or losses incurred by the enterprise in connection with the war, occupation in the period from 1 September 1939 to the date of nationalisation; d) value of expenditures made after 1 September 1939; e) special circumstances affecting the value of the enterprise (concession terms, licenses etc.). 6. A Cabinet’s ordinance shall determine detailed rules governing the calculation of compensation, assessment of the circumstances listed in subsection 5 and means of payment of compensation (subsection 2) and depreciation of securities.” 40. Pursuant to section 10, the Cabinet and the relevant Ministers shall be entrusted with the implementation of the 1946 Act. However, since 5 February 1946, the date of entry into force of the 1946 Act, until the present day the Cabinet has not yet issued an ordinance on the organisation of the compensation commissions and determination of compensation referred to in section 7(4) and (6). 41. 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 performance of the duties entrusted to him.” 42. 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. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability in tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision being made for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne). 43. Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows: “4. If damage has been caused by failure to enact a law [akt normatywny] where there is a statutory duty to do so, the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages.” However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date. 44. The concept of the State’s civil liability for a constitutional tort was introduced into the Polish legal order on 17 October 1997, the date of entry into force of the 1997 Polish Constitution. Article 77 § 1 of the Constitution states, in so far as relevant, as follows: “Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law.” 45. In its resolution of 24 November 2005 (“the 2005 Resolution”), the Supreme Court (Sąd Najwyższy), sitting as a bench of three judges, dealt with the following legal questions submitted to it by the Warsaw Court of Appeal (Sąd Apelacyjny): “ Is the State Treasury liable for damage caused by failure to enact a law [akt normatywny] if the duty to enact that law, laid down in section 7(4) and (6) of [the 1946 Act] was not fulfilled until the date of entry into force of [the 2004 Amendment], and, if so, When this duty should have been performed and whether damages for failure to enact the above law corresponds to unreceived compensation for the enterprise nationalised by the State, determined in accordance with the principles laid down in section 7(2) and (5) of [the 1946 Act]?”. The question arose in the context of a case brought by a certain E.K., who sought damages for the nationalisation of her family’s printing house and, as one of the basis for her claim, invoked Article 4171 of the Civil Code, relying on the State’s legislative omission consisting in its failure to issue the relevant ordinance. 46. The Supreme Court’s answer in the operative part of the resolution reads: “Until the date of entry into force of [the 2004 Amendment] the Cabinet’s failure to issue an ordinance foreseen in section 7(4) and (6) of [the 1946 Act] did not constitute a basis for a claim by an owner of the nationalised enterprise for damages arising from [nationalisation].” 47. The resolution contains extensive reasoning, the main thrust of which reads as follows: “[As regards the time-frame for the issue of the ordinance]. The determination of the beginning of that situation carries with it a certain element of arbitrariness since [the 1946 Act] does not lay down any term within which the ordinance referred to in section [7] (4) and (6) should be issued. Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay, it can be considered that the discharge of the statutory authorisation, assuming the existence of willingness of the authorised body (the Cabinet) should have taken place in 1946 or in 1947 at the latest. This is supported by the fact that the Cabinet issued ordinances implementing other provisions (including section 2(7) of the Act, a fundamental provision for the interest of the State). [As regards the State’s civil liability for legislative omission], ... it should be concluded that before the entry into force of the 1997 Constitution the State had not been liable under civil law for the consequences of its legislative inactivity. ... 17 October 1997, marking the entry into force of the Constitution is the relevant date as its constitutes the beginning of the existence in the legal order of, inter alia, Article 77 § 1 of the Constitution, proclaiming the right of “everyone” to compensation for any harm done to him by any act of a public authority in breach of the law .... Assuming that Article 77 § 1 does not contain a provision making it possible to draw from it a direct basis for a claim for damages for the legislature’s inactivity, it must be said that the rules for the State’s liability in the sphere of law-making should be established by means of an ordinary statute, determining in a more detailed manner than Article 77 §1 premises for an effective claim. ... Article 4171 § 4 of the Civil Code, as introduced by [the 2004 Amendment] satisfies the requirement of detailed premises. The relevant temporal consequences have been clearly set out in its section 5, evidently indicating the prospective operation of Article 4171 § 4 of the Civil Code. A formulation laying down a non-retroactive character of the provision is telling in that it refers to “events and legal situation that subsisted before its entry into force” ... In consequence, the assessment of the effects of legislative omission subsisting before 1 September 2004 was governed by [earlier provisions]. The relevant Article 417, in its version before the amendment, did not include legislative omission as it was based on a completely different premise, namely, the absence of the State’s civil liability for the legislature’s acts. ... “ 48. On 5 December 2007 the Supreme Court, sitting as a bench of three judges, dealt with a cassation appeal (kasacja) lodged by Lubelska Fabryka Maszyn i Narzędzi Rolniczych “Plon”, a limited liability company which was at that time subject to a winding-up procedure. The appellant contested the judgment of the Warsaw Court of Appeal of 2 February 2007, rejecting its appeal (apelacja) against the judgment of the Warsaw Regional Court of 30 May 2006 whereby its claim for damages arising from the State’s failure to issue the relevant ordinance, pursuant to section 7(2) and (5) of the 1946 Act, had been dismissed. The claim was based on Article 77 of the Constitution and Articles 417 and 4171 § 4 of the Civil Code. In dismissing the cassation appeal, the Supreme Court essentially reiterated the grounds stated in the 2005 Resolution (see paragraph 25 above), stressing that the impugned legislative omission occurred in 1946 or, at the latest in 1947 and since then had continued. However, Article 77 § 1 of the Constitution could not be considered a legal basis for a claim deriving from an “omission” by public authorities since that provision clearly covered only their “acts”. The provision of Article 4171, enabling a plaintiff to seek damages for legislative omission, had been introduced only on 1 September 2004 by virtue of the 2004 Amendment. The terms of section 5 of the Amendment 2004 were unambiguous: Article 4171 of the Civil Code did not apply to events and situations that had subsisted before its entry into force. Consequently, its operation was excluded in respect of legislative omissions that originated in facts that had occurred earlier, even if this state of affairs continually existed until the present day. 49. On 13 June 2011 the Constitutional Court (Trybunał Konstytucyjny) heard a constitutional complaint lodged by a company Elektrownia w Kielcach spółka akcyjna, challenging the constitutionality of section 5 of the 2004 Amendment in so far as it excluded the application of Article 4171 of the Civil Code to situations that had subsisted before the entry into force of that Amendment, i.e. 1 September 2004 (see also paragraphs 20-26 above). The claimant invoked, in particular, Article 77 § 1 of (right to compensation for unlawful action of public authority) read in conjunction with Article 2 (rule of law), Article 64 §§ 1 and 2 (right of ownership) read in conjunction with Article 21 §§ 1 and 2 (protection of ownership) and Article 32 § 1 (equality before the law) and Article 45 § 1 (right of fair trial) of the Constitution. Before lodging the complaint, the company, which had been nationalised under the 1946 Act, unsuccessfully sought compensation for the Prime Minister’s legislative inactivity in that he had failed to enact an ordinance on rules for compensation as required by the 1946 Act. On 4 April 2008 the claim was finally rejected by the Warsaw Court of Appeal on the grounds stated in the 2005 Resolution (see paragraphs 23-25 above). The Constitutional Court’s decision (no. SK 26/09), in its relevant part, reads as follows: “4.7. ... Consequently, in the light of the provisions of the Constitution it is difficult to assume that non-fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [the 1946 Act] amounted to “[an] act of a public authority in breach of the law” linked with the State’s liability for [constitutional] tort under the Constitution. Even assuming that the state of legislative omission still persists, it should at the same time be concluded that the duty is non-enforceable. Thus, it is evident that on the basis of the applicable laws only a statute could regulate compensation for the claimant’s nationalised property. ... Accordingly, the Constitutional Court considers that the assumption that a legislative omission “in breach of the law” still continues is unwarranted, in particular after the entry into force of the Constitution, in the light of its standards. ... In the light of the constitutional standards as applicable at present it is difficult to accept that there is any legal force attached to the duty imposed on the Cabinet by section 7 of the 1946 Act. 50. Article 156 § 1 of the Code of Administrative Procedure (“the CAP”) (Kodeks postępowania administracyjnego), which sets out grounds on which a final administrative decision is subject to annulment, states: “1. A public administration authority shall declare a decision null and void if: 1) it has been issued in breach of the rules governing competence; 2) it has been issued without a legal basis or in flagrant breach of the law; 3) concerns a case already decided by means of another final decision; 4) it has been addressed to a person who is not a party to the case; 5) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature; 6) it would give rise to a punishable offence in the event that it has been enforced; 7) it has a flaw making it null and void by the force of law. There is no time-limit for a party’s request to have an administrative decision declared null and void under Article 156 § 1. However, there are situations where, even if certain grounds listed in Article 156 § 1 exist, the lapse of time or irreversible effects of the contested decision have consequences for the formula used in a decision given in the annulment procedure. Article 156 § 2 provides for the following exceptions: “ A decision shall not be declared null and void on the grounds listed in paragraph 1 (1), (3), (4) and (7) if 10 years have expired from the date of its service or promulgation, as well as if the decision has produced irreversible legal effects.” Article 158 reads as follows: “1. A ruling on annulment of a decision shall be given by means of a decision. 2. If it is impossible to declare a decision null and void because of the circumstances referred to in Article 156 § 2, a public administration authority shall only declare that the contested decision has been issued contrary to the law and indicate circumstances because of which it has not declared the decision null and void.” For the purposes of compensation, the effects of declaring the original administrative decision “null and void” or “issued contrary to the law” are the same. 51. Article 160 set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article 156 § 1. This provision was repealed by the 2004 Amendment with effect from 1 September 2004 (see also paragraphs 42-43 above) and replaced by new Article 4171 § 2 of the Civil Code. However, under section 5 of the 2004 Amendment, which sets out transitional rules, Article 160, in the version applicable on the repeal date, still applies to “events and legal situations” that subsisted before the entry into force of the 2004 Amendment. Article 160, in the version applicable on the relevant date, read as follows: “1. A party who has suffered a loss on account of the issuance of a decision in breach of Article 156 § 1 or on account of annulment of such a decision shall have a claim for compensation for actual damage, unless he has culpably caused the circumstances mentioned in this provision. 2. The provisions of the Civil Code, except for Article 418 [provision repealed], shall apply to [such] compensation. 3. Compensation is due from an authority that issued a decision in breach of Article 156 § 1, unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision; in the latter case a claim for compensation shall be directed against the culpable party. 4. A public administration authority that has declared a decision null and void or declared, pursuant to Article 158 § 2, that it has been issued contrary to the law shall rule on compensation due from the authority referred to in § 1. The vindication of compensation from a person who has culpably caused the circumstances mentioned in Article 156 §1, shall be effected before a court of law. 5. A party who is not satisfied with compensation granted by a public administration authority referred to in § 4, may lodge a claim with a court of law within 30 days from the date of service of a decision given on that matter. 6. A claim for compensation shall be time-barred after 3 years from the date on which has become final the decision declaring null and void the decision issued in breach of Article 156 § 1 or decision whereby an authority has declared, pursuant to Article 158 § 2, that the contested decision has been issued in breach of Article 156 § 1.” 52. On 30 March 2011 the Civil Chamber of the Supreme Court, sitting in plenary, gave a resolution (no. III CZP 112/10) on the application of Article 160 of the CAP and rules regarding compensation. The resolution was given in response to legal questions submitted by the First President of the Supreme Court in connection with certain problems and divergences arising in judicial practice, in particular in respect of the temporal effects of Article 160 as determined in section 5 of the 2004 Amendment, the application of Article 4171 § 2 of the Civil Code which replaced Article 160 (see paragraphs 42-43 and 51 above) and rules for adjudicating compensation. The resolution contains an extensive reasoning which, in so far as relevant, may be summarised as follows: 1) Article 160 §§ 1,2,3 and 6 of the CAP applies to all claims for damages arising from an issuance of a final administrative decision given before 1 September 2004, which has been declared null and void or has been declared as being issued in breach of Article 156 § 1 of the CAP. In contrast, paragraphs 4 and 5 of Article 160, setting out the procedure for vindicating such claims, should be considered as no longer applicable. Consequently, a party seeking compensation under this provision should file an action directly with a civil court. 2) Where an annulled administrative decision has been given before the entry into force of the Constitution (17 October 1997), compensation defined in Article 160 of the CAP shall not include loss of profits sustained in consequence of its issuance, even if such loss has occurred after this date. 53. In the years 1990-2005 Parliament dealt with 11 bills on reprivatisation, restitution and compensation for property taken over by the communist authorities under nationalisation laws passed in 19441962. None of them was successfully enacted mostly because fresh elections were called and the work on them had to be discontinued. In the case of the 1999 bill on the restitution of immovable property and certain kinds of movable property taken from natural persons by the State or by the Warsaw Municipality, and on compensation (Projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości osób fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach – “the Restitution Bill 1999”) the relevant Act of Parliament never entered into force because it had been vetoed by the President of Poland. Each of those bills, although they differed in specific modalities, contained provisions for compensation for nationalisation of property under the 1946 Act. 54. In 2007 the Polish Parliament started the first reading of the Government’s bill on compensation for property or other assets taken over by the State (projekt ustawy o rekompensatach za przejęte przez państwo nieruchomosci oraz inne składniki mienia) (“the 2006 Compensation Bill”). In general, compensation claims were to be subject to a statutory ceiling of 15% of the value of the original property taken over by the State. The claims of the owners of property nationalised under the provisions of the 1946 Act were included in the list of claimants entitled to compensation. The work on the 2006 Compensation Bill was discontinued in September 2007 since snap parliamentary elections were called following the collapse of the government coalition. 55. In 2008 the new Government started preparatory work on fresh restitution legislation, i.e. the “Bill on pecuniary benefits to be granted to some persons who were subject to nationalisation procedures” (projekt ustawy o świadczeniach pieniężnych przyznawanych niektórym osobom, których dotyczyły procesy nacjonalizacji) (“the 2008 Compensation Bill”). 56. The 2008 Compensation Bill provided for no restitution of nationalised properties and was based on the principle of limited compensation, corresponding to a certain – not stipulated in the bill but to be determined in the Minister for Treasury’s future ordinance – percentage of the value of the property in question on the date of its nationalisation. 57. In the Minster for Finance’s report on the assessment of the budgetary impact of the implementation of the 2008 Compensation Bill (drawn up in 2008) the total value of the claims to be covered by the 2008 Compensation Bill was estimated at PLN 100,000,000,000. It was expected that some 80,000 applications for compensation will be submitted under the provisions of the new legislation. The process of the realisation of cash payments was to be spread over the period of 15 years and instalments were to be indexed each year in accordance with the consumer price index. The entry into force of the bill was tentatively foreseen for 2012. 58. In February 2010 the Minister for Finance was asked to make an analysis of the consequences of the implementation of the 2008 Compensation Bill. 59. On 5 March 2010 the Minister for Finance submitted a report stating that if the bill entered into force in 2012, there would be an abrupt increase in the public debt by PLN 18,000,000,000 which would correspond to 1.001.10% of the Gross National Product (GNP). In the circumstances, the allocation of PLN 20,000,000,000 for securing nationalisation claims might result in Poland’s exceeding the permissible limits of the national debt in relation to GNP as set by the European Union. 60. In March 2011 the Minister for Treasury issued a press release on the Ministry’s website, informing the public that the Government had decided not to submit the 2008 Compensation Bill to Parliament. That statement gives the following explanation: “In view of the considerable savings that have been made in recent years, connected with the global financial crisis in many sectors of our social and economic life and the large financial burden resulting from the planned legislation, in the present economic situation, [the 2008 Compensation Bill] cannot be enacted.”

train

001-86065

ENG

FRA

ADMISSIBILITY

TAMBURINI v. FRANCE

Inadmissible

David Thór Björgvinsson

The applicant, Mr Claude Tamburini, is a French national who was born in 1959 and lives in Metz. By an order of 28 May 2002, an investigating judge of the Metz tribunal de grande instance indicted the applicant and committed him for trial in the Moselle Assize Court, for having “in Metz, from 1994 to 17 July 1997, committed acts of sexual penetration, by violence, constraint, threat or surprise, on the person of [Samia D.], with the aggravating circumstances that [Samia D.] was under fifteen years of age, having been born on 13 August 1983, and that he had authority over her as the husband of her mother, with whom he lived.” In a judgment of 18 December 2003 the Moselle Assize Court sentenced the applicant to twenty years’ imprisonment for aggravated rape of a person under 15 by a person in a position of authority, and suspended his civic, civil and family rights for ten years. By a judgment of 27 May 2005 the Meurthe-et-Moselle Assize Court of Appeal sitting in Nancy, having heard the parties and their representatives in private, upheld the earlier judgment in full. It also found that the delivery into custody order issued against the applicant on 28 May 2002 was equivalent to a detention order, but nevertheless issued a detention order against the applicant that same day. Appealing on points of law, the applicant complained in particular that the proceedings before the Assize Court of Appeal had been held in private at the victim’s request, in conformity with Article 306 of the Code of Criminal Procedure, whereas he had not freely and expressly waived his entitlement to public proceedings; he also submitted that there had been no separate decision or mention in the record of the proceedings concerning his placement in detention following the delivery of the judgment. By a judgment of 18 January 2006 the Court of Cassation dismissed the applicant’s appeal. On the matter of the private hearing, it explained its decision in the following terms: “Article 6 § 1 of the Convention ... provides for the possibility of excluding the press and the public from all or part of the trial ... where ... the protection of the private life of the parties so require[s]. In allowing the party claiming damages, a rape victim, to decide whether the protection of her private life requires all or part of the trial not to be public, Article 306 § 3 of the Code of Criminal Procedure simply establishes a principle in keeping with the provisions of [Article 6 § 1 of the Convention].” On the subject of the applicant’s committal to prison, the Court of Cassation held: “The claim cannot be allowed in so far as the court’s decision to commit the accused to prison, taken by the court alone following the vote on the sentence and in the secrecy of the deliberations, does not require an interlocutory decision or any special mention in the record of the proceedings”. Article 306 of the Code of Criminal Procedure stipulates, concerning proceedings before the Assize Court: “The hearing shall be public unless publicity would be dangerous for order or morality. In such a case, the court shall so declare by a ruling made in open court. The president may nevertheless prohibit access to the courtroom for minors, or for certain minors. In the case of a prosecution for the offences of rape or torture and acts of barbarity accompanied by sexual aggression, a hearing in camera is granted as of right where the civil party victim or one of the civil party victims so requests; in other cases a hearing in camera may be ordered only where the civil party victim or one of the civil party victims does not oppose it. Where a hearing in camera has been ordered, this applies to the reading of any judgments that may be made in respect of any procedural objections … The judgment on the merits must always be read in open court. ...”

train

001-85161

ENG

CZE

ADMISSIBILITY

KLICPEROVA v. THE CZECH REPUBLIC

Inadmissible

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant, Ms Oldřiška Klicperová, is a Czech national who was born in 1931 and lives in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 July 1995 the applicant brought an action for damages against an agricultural cooperative before the Plzeň-Sever District Court (okresní soud), relying on the Land Ownership Act. In a judgment of 24 November 1999 the District Court partly granted the applicant’s claims. On 18 January 2001 the Plzeň Regional Court (krajský soud) partly quashed and partly upheld this judgment. The relevant part case was remitted to the District Court which, on 11 June 2001, dismissed the remaining claims of the applicant’s action. On 30 January 2002 the Regional Court quashed the first instance judgment and sent the case back to the District Court which, by a judgment of 24 November 2004, partly granted the outstanding part of the applicant’s action for damages. In the mean-time, on 28 May 2003, the District Court had granted the defendant’s request for re-opening of proceedings in respect of the valid part of the judgment of 24 November 1999. On 12 May 2005 the defendant went bankrupt. The proceedings for damages were therefore interrupted pending the outcome of the bankruptcy proceedings. The applicant submitted her creditor’s claims of 1 106 945 CZK 42 336 (EUR) which were partly granted on 11 January 2006. It appears that the bankruptcy proceedings are still pending. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).

train

001-78291

ENG

TUR

CHAMBER

CASE OF NAMLI AND OTHERS v. TURKEY

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

Nicolas Bratza

4. The applicants were born in 1958, 1923, 1949, 1961, 1955 and 1950 respectively and live in Tokat. 5. On 21 November 1957 the Koruluk village administration, the Ministry of Treasury and the Forest Directorate requested the annulment of the record in the title deed registry of the applicants’ father’s and other persons’ (hereinafter “the defendants”) ownership of four plots of land (nos. 49, 50, 51 and 52) situated in the village of Koruluk. 6. On 4 November 1971, 2 December 1975 and 16 March 1989 the Bafra Cadastre Court gave a decision on the merits of the case. Each of these decisions was in turn quashed by the Court of Cassation. 7. In the course of the proceedings several defendants including Mr Esat Namlı, who was the husband of the second applicant and the father of the remaining applicants, died. Shortly thereafter, in 1990, the applicants became parties to the proceedings. 8. On 28 November 1996 the Bafra Cadastre Court decided to annul the record in the title deed registry except for a part of plot no. 49 which remained under the name of the defendants. 9. On 10 March 1998 the Court of Cassation upheld the judgment of the first-instance court. 10. On 18 December 1998 the Court of Cassation dismissed the applicants’ request for rectification of its decision. This decision was not served on the applicants. However, it was sent to the registry of the Bafra Cadastre Court on 4 January 1999.

train

001-98329

ENG

RUS

CHAMBER

CASE OF BIK v. RUSSIA

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

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

6. The applicant was born in 1972 and lives in Moscow. 7. On 27 May 2002 the applicant's mother requested Psychiatric Outpatient Clinic No. 21 (Психоневрологический диспансер N 21) (the “Clinic”) to examine her son, expressing concern about a change in his behaviour. He was afraid to leave the flat where he lived, had cut out all social contacts and was frightened by noises or the sound of the telephone ringing. 8. The applicant refused to be examined by the doctors at the Clinic and on 29 May 2002 Dr N., a psychiatrist from the Clinic, applied for a court order authorising the applicant's psychiatric assessment without his consent. She noted, on the basis of the information submitted by the applicant's mother, that the applicant might be suffering from a severe mental disorder that impaired his ability to meet the ordinary demands of life, and that his condition might deteriorate should he be left without psychiatric treatment. 9. On 31 May 2002 the Cheremushkinskiy District Court of Moscow authorised the psychiatric assessment. According to the applicant, he was informed of that decision at a later date. 10. On 5 June 2002 Dr N. examined the applicant at his home. The applicant's mother was present. The applicant was agitated, he shouted at the doctor and his mother and threatened them. He refused to talk and made them both leave. Dr N. concluded that the applicant suffered from paranoid schizophrenia and that his condition warranted committal to a psychiatric hospital for further assessment and treatment. At 7.20 p.m. the applicant was admitted to Psychiatric Hospital No. 15 (Психиатрическая клиническая больница N 15) (the “Hospital”). According to the applicant, he was first taken to a police station and then to the hospital. 11. On 7 June 2002 the applicant consented to treatment in the Hospital until 14 June 2002. 12. On Friday 14 June 2002 the applicant refused to stay in hospital any longer. At noon he was examined by three psychiatrists who provisionally diagnosed him as suffering from depressive syndrome and schizophrenia. They noted that the applicant was solitary and antisocial; he was unaware of his condition and expressed delusional ideas about his mother trying to manipulate him. They concluded that his mental disorder was serious enough to require inpatient treatment. 13. On Monday 17 June 2002 the Hospital administration applied to the court seeking an extension of the applicant's stay there. According to the medical report submitted, the applicant was suffering from a severe mental disorder and might cause serious harm to himself or others. On the same day the Nagatinskiy District Court of Moscow provisionally authorised the applicant's further hospitalisation pending consideration of the case. The court stated no reasons in its decision. 14. On 21 June 2002 the Nagatinskiy District Court of Moscow authorised the extension of the applicant's stay in the Hospital. The hearing was held on the Hospital's premises. The applicant attended the hearing but was not represented. In particular, the court noted: “After having heard [the applicant], the hospital's representative..., and the prosecutor who considered that the [hospital's] request should be granted, and after having studied the materials [in its possession], the court considers that the [hospital's] request to commit the applicant to the [hospital] against his will is well-substantiated and should be granted.” 15. On 27 June 2002 the applicant consented in writing to further treatment in hospital. 16. Once the applicant's condition improved, he was discharged from hospital on 4 July 2002. 17. On 23 January 2003 the applicant lodged an appeal against the decision of 21 June 2002. He submitted, in particular, that the court had failed to verify the lawfulness of his committal to hospital 18. On 20 March 2003 the Moscow City Court upheld the decision of 21 June 2002. Both the applicant and his lawyer attended the hearing. The court noted that the applicant's hospitalisation had been in accordance with the applicable laws. The court further indicated that the applicant's committal to hospital against his will had been necessary in view of his severe psychiatric disorder which made him dangerous to himself and others. Lastly, the court observed that it had been open to the applicant to ask for legal representation before the court at first level of jurisdiction. However, he had failed to do so and the decision of 21 June 2002 should not be quashed on that ground. 19. A person may be subject to an involuntary psychiatric assessment if his or her behaviour gives reasonable grounds to believe that he or she may be suffering from a serious mental disorder and, because of the mental disorder, he or she (a) is likely to cause serious harm to himself or herself or another person or (b) does not have the capacity to take basic care of himself or herself or (c) is likely to suffer serious physical impairment or mental deterioration in the absence of psychiatric treatment (Article 23 of the Act). 20. In the event of (b) or (c) above, a psychiatrist may decide to conduct psychiatric assessment without the person's consent, subject to prior judicial approval (Article 24 of the Act). 21. In the event of (a), (b), or (c) above, a person may be admitted to a hospital against his or her will if he or she is suffering from a severe mental disorder and requires psychiatric examination and treatment in a psychiatric hospital (Article 29 of the Act). 22. A person admitted against his or her will should be assessed within 48 hours by a psychiatric panel. Should the panel decide to keep the person in hospital, they should file a request to that effect with the judge within 24 hours, together with a supporting medical report (Article 32 of the Act). 23. The judge must then consider the request within 5 days (Article 34 § 1 of the Act). He or she must also authorise the person's continued hospitalisation pending the consideration of the matter by the court (Article 33 § 3 of the Act). 24. The old CCP did not set forth special rules governing committal to a psychiatric hospital. 25. A period of time expressed as a number of years shall expire on the relevant day and month of the last year of that period. A period of time expressed as a number of months shall expire on the relevant day of the last month of that period. If the last day of the period of time falls on a non-working day, the next closest working day shall be considered as the last day of that period (Article 101 of the old CCP and Article 108 §§ 1 and 2 of the new Code of Civil Procedure of 1 February 2003 as amended).

train

001-58160

ENG

FRA

CHAMBER

CASE OF DOUSTALY v. FRANCE

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

N. Valticos

7. Mr Michel Doustaly, who lives in Nîmes, was formerly in practice as an architect. 8. On 9 January 1984 Nîmes City Council awarded him a contract for work on the design and construction of a general-purpose senior high school to be built as part of the State school system. While the work was in hand he received advances on the agreed fees totalling 1,336,643.53 French francs (FRF) as stipulated in the contract. 9. In a letter of 12 April 1984 the Council asked the applicant to carry out a further study and prepare the plans for a building to be used as boarding accommodation that had not been included in the original invitation to tender. 10. When the work was completed the Council decided to reduce by half the amount of the agreed fees, alleging, among other matters, breaches by the applicant of his contractual obligations. It also refused to pay his fees for drawing up the plans for the boarding unit and, taking into account the official classification and the complexity of the work that had actually been done, asked him to repay FRF 494,370.06 of the interim payments he had received. 11. On 26 July 1985 Mr Doustaly lodged an application with the Montpellier Administrative Court, which registered it on 29 July 1985. He sought an order requiring Nîmes City Council to pay him FRF 669,100.39, and the interest to which he was legally entitled, as final settlement of the fees agreed in the contract. 12. The Council filed its defence on 30 September 1985. 13. On 21 January 1988 the applicant filed an additional pleading. On 24 February and again on 24 March 1988 he sent letters to the President of the Administrative Court requesting that a date be fixed for the hearing. On 29 February 1988 he filed further documents. 14. On 20 October 1988 the applicant again requested the President of the Administrative Court to fix a date for the case to be tried. 15. In an interlocutory decision of 19 December 1988 the Administrative Court ordered an expert opinion to establish whether the work had been correctly carried out by Mr Doustaly and gave the expert appointed four months in which to submit his report. 16. On 31 December 1988 Mr Doustaly permanently gave up his architect’s practice on account of financial difficulties. 17. On 21 May 1991 the expert filed his report, in which he assessed the balance of the fees owed at FRF 363,600, plus FRF 160,000 in fees for preparing the plans of the boarding unit. 18. On 4 September 1991 the applicant asked the court to order Nîmes City Council to pay him FRF 363,671.28 under the contract and FRF 160,000 in payment for the plans of the boarding unit, plus default interest on both sums from 5 November 1984. He further claimed FRF 760,000 in damages. 19. On 3 December 1991 the Administrative Court put the Council on notice to produce their pleading. 20. On 16 January 1992 the applicant filed a supplementary pleading in which he repeated his submissions of 4 September 1991 (see paragraph 18 above) and sought an order requiring the Council to pay FRF 867,350 in compensation for the extra costs of drawing up the plans. 21. In a letter of 27 January 1992 he pointed out to the President of the Administrative Court that the time-limit given to the Council on 3 December 1991 for the production of their pleading (see paragraph 19 above) had expired with no reply forthcoming. 22. On 11 February and 5 June 1992 Mr Doustaly filed further observations. 23. In letters of 17 July and 14 December 1992 to the President and the registry of the Administrative Court the applicant again asked for a date to be fixed for the hearing. This was held on 14 January 1993. 24. On 21 January 1993 the Administrative Court ordered Nîmes City Council to pay the applicant the sum of FRF 470,301.28, FRF 310,301.28 of which was to bear default interest as from 27 November 1984 and FRF 160,000 from 20 October 1991. A sum of FRF 53,370, which was to bear default interest as from 27 November 1984, had been deducted from the fees owed to the architect on account of the unsatisfactory quality of the work done by his sub-contractor. With regard to the damage to Mr Doustaly’s professional reputation, the judgment stated that he had not proved “that the fall in his practice’s turnover was the direct consequence of conduct imputable to Nîmes City Council…”. 25. On 17 May 1993 the applicant, considering that the sum awarded was insufficient, appealed to the Bordeaux Administrative Court of Appeal. 26. As the appeal did not have suspensive effect, Mr Doustaly applied on 16 July 1993 to the Report and Research Division of the Conseil d'Etat. However, after the Council had made a first payment the case was closed on 11 October 1993 on the ground that execution of the judgment was currently in progress. The Council’s two further payments were made in December 1993 and February 1994. 27. Nîmes City Council filed its defence on 28 September 1993. 28. On 4 July 1994 the Administrative Court of Appeal upheld the Administrative Court’s judgment regarding the capital sum but ordered the Council to pay interest on the interest awarded at first instance which had accrued since 17 May 1993. 29. In letters of 30 January, 3 May and 10 May 1995 the applicant applied to the prefect of the Gard département to secure compliance by the Council with the above judgment. The sum owed to the applicant, FRF 778,127.27, was paid on 18 May 1995. 30. In a judgment delivered by the Nîmes Court of Appeal on 22 May 1997 in connection with the litigation between the applicant and his sub-contractor, Mr Doustaly was awarded the sum of FRF 53,370, together with default interest calculated from 27 November 1984 and payable in the form of compound interest from 20 October 1993, that sum having been deducted from the outstanding fees he was owed by Nîmes City Council on account of the unsatisfactory quality of the work done by his sub-contractor (see paragraph 24 above).

train

001-58193

ENG

PRT

CHAMBER

CASE OF TEIXEIRA DE CASTRO v. PORTUGAL

Violation of Art. 6-1;Not necessary to examine Art. 3;Not necessary to examine Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

N. Valticos

8. Mr Francisco Teixeira de Castro, a Portuguese citizen, was born in 1955 and lives at Campelos (Guimarães). At the material time he worked in a textile factory. Since being released from prison he has not found employment. 9. In connection with an operation monitoring drug trafficking, two plain-clothes officers of the Public Security Police (PSP) from the Famalição police station approached an individual, V.S., on a number of occasions. He was suspected of petty drug trafficking in order to pay for drugs – mainly hashish – for his own consumption. They hoped that through V.S. they would be able to identify his supplier and offered to buy several kilograms of hashish from him. Unaware that they were police officers, V.S. agreed to find a supplier. However, despite being pressed by the two officers, he was unable to locate one. 10. Shortly before midnight on 30 December 1992 the two officers went to V.S.’s home saying that they were now interested in buying heroin. V.S. mentioned the name of Francisco Teixeira de Castro as being someone who might be able to find some; however, he did not know the latter’s address and had to obtain it from F.O. All four then went to the applicant’s home in the purported buyers’ car. The applicant came outside at F.O.’s request and got into the car where the two officers, accompanied by V.S., were waiting. The officers said that they wished to buy 20 grams of heroin for 200,000 escudos (PTE) and produced a roll of banknotes from the Bank of Portugal. 11. Mr Teixeira de Castro agreed to procure the heroin and, accompanied by F.O., went in his own car to the home of another person, J.P.O. The latter obtained three sachets of heroin, one weighing ten grams and the other two five grams each, from someone else and, on his return, handed them over to the applicant in exchange for a payment, which, though the precise figure is not known, exceeded PTE 100,000. 12. The applicant then took the drugs to V.S.’s home; V.S. had in the meantime returned there and the two police officers were waiting outside. The deal was to take place in the house. The officers went inside at V.S.’s invitation; the applicant then took one of the sachets out of his pocket, whereupon the two officers identified themselves and arrested the applicant, V.S. and F.O., shortly before 2 a.m. They searched all three and found the applicant to be in possession of another two sachets of heroin, PTE 43,000 in cash and a gold bracelet. 13. The applicant was brought before an investigating judge at the Famalição Criminal Court later that day and was detained pending trial. 14. On 29 January 1993 he applied for release. He argued that his detention was unlawful as it infringed Articles 3, 6 and 8 of the Convention. In his submission, he had been detained as a result of the immoral and unlawful conduct of the two police officers, since he had committed the offence solely and exclusively at their behest. They had acted as “agents provocateurs”, particularly as they had not been carrying out an anti-drug-trafficking operation pursuant to a court order. 15. The investigating judge dismissed that application in a decision of 16 February 1993 that was upheld on 21 April 1993 by the Oporto Court of Appeal (Tribunal da Relação). 16. The applicant lodged two applications for habeas corpus with the Supreme Court (Supremo Tribunal de Justiça), which were dismissed on 11 March and 13 May 1993. In its judgment of 13 May the Supreme Court held that although the two police officers had acted as “agents provocateurs” in the sale of the heroin the applicant’s detention was justified since he had been found in possession of the drug. 17. On 26 August 1993 the public prosecutor filed his submissions concerning the applicant and V.S. He did not proceed with the prosecution of the other two people charged, F.O. and J.P.O. 18. The case file was sent to the Santo Tirso Criminal Court (Tribunal de circulo). 19. A hearing was held on 25 November 1993 at which the court heard several witnesses, including the two police officers and F.O. 20. On 6 December 1993 the court convicted the applicant and sentenced him to six years’ imprisonment. It imposed a fine on V.S. equivalent to twenty days’ imprisonment. The court considered that the use of an “undercover” agent or even an “agent provocateur” did not appear to be prohibited under domestic legislation, provided that the sacrifice of the accused’s individual freedom was justified by the values that were being upheld. As the applicant had initially been approached by F.O. the conduct of the PSP officers had not been “decisive” in the commission of the offence. The court explained that it had reached its verdict on the basis of the statements of the witness, F.O., the co-defendant, V.S., the applicant himself and, “mainly”, of the two police officers. 21. On 14 December 1993 the applicant appealed against that decision to the Supreme Court. He complained of a breach of the right to a fair hearing and relied, inter alia, on Article 6 of the Convention. 22. In a judgment of 5 May 1994 the Supreme Court dismissed his appeal and upheld all the provisions of the judgment appealed against, holding that: “In the instant case it is indisputable that the PSP officers ... were extremely pressing until they were introduced to Francisco Teixeira de Castro. It was, however, only natural that that should have been the course adopted. The police officers knew that V.S. was a drug user and sought to unmask the person responsible for supplying him with drugs. No hashish being available, they tried to obtain heroin and met Francisco Teixeira de Castro, who agreed to their false proposals because he aimed to make a profit out of the deal, thereby exploiting one of the major scourges of our time... The PSP officers’ perseverance was thus rewarded since they arrested the applicant in possession of what was already a considerable quantity of the drug. Moreover, as officers in the Public Security Police based at the Famalição police station, the policemen ... were acting as criminal investigators (Article 1 of the Code of Criminal Procedure) under the powers vested in them by statute enabling them, without referring to higher authority, to obtain information about offences, identify offenders and take any steps that were necessary and urgent to preserve evidence (Article 55 § 2 of that Code). ... Police officers ... act in criminal proceedings as officers of the court, but that does not prevent them taking, in special statutorily defined circumstances, procedural steps in the exercise of their own undelegated powers. As the public prosecutor said in his submissions, the PSP officers acted within the law and their conduct did not render the evidence obtained inadmissible. In these circumstances, Francisco Teixeira de Castro’s appeal is wholly unfounded. In the light of these considerations the Supreme Court dismisses the appeal and upholds all the provisions of the judgment appealed against.” 23. The relevant provisions of Legislative Decree no. 430/83 of 13 December 1983 on the Prevention of Drug Trafficking, which was in force at the material time, read as follows: “Anyone who, without being lawfully authorised to do so, grows, produces, manufactures, extracts, offers to supply, puts on sale, sells, distributes, buys, assigns or, in any capacity, receives, procures from others, transports, imports, brings in and out of the country or illicitly has in his possession, other than for the reasons stated in Article 36, any of the substances or preparations referred to in tables I to III, shall on conviction be liable to between six and twelve years’ imprisonment and a fine of between 50,000 and 5,000,000 escudos.” “1. A criminal investigation agent who, in the course of preliminary inquiries and without revealing his identity, accepts either in person or through a third party an offer for narcotics or other psychotropic substances shall not be liable to prosecution in respect of such conduct. 2. A report on such action shall be added to the case file within a maximum of 24 hours.” 24. Drug trafficking is now covered by Legislative Decree no. 15/93 of 22 January 1993. Article 52 of Legislative Decree no. 430/83 is reproduced with no material change in Article 59 of the new decree. 25. The main provisions of the Code of Criminal Procedure referred to in the instant case are as follows: “1. Evidence obtained through torture, the use of force or any kind of physical or psychological duress shall be invalid and inadmissible. 2. Evidence obtained by any of the following means shall be deemed to have been obtained by physical or psychological duress even where the victim has consented thereto: (a) interference by ill-treatment, assault, any other method, hypnosis or the use of cruel or deceitful means with a person's freedom to exercise his will or make decisions; ... 4. Where evidence is obtained by means that constitute a serious criminal offence under this Article, it may be used only for the purpose of prosecuting those responsible for obtaining it in that way.” “The public prosecutor is apprised of the commission of an offence through his own investigations, by police officers responsible for investigating crime or if the offence is reported in accordance with the following provisions.” “Even if the offender’s identity is not known, an offence must be reported to the prosecuting authorities: (a) by the police in the event of any offence which comes to their attention; ...” 26. Subject to certain conditions, the Supreme Court accepts the use of “infiltrators” in the fight against drug-trafficking (judgments of 12 June 1990, BMJ no. 398, p. 282; 14 January 1993, Col. Jur. (STJ), 1993-I, p. 270; 5 May 1994, Col. Jur. (STJ), 1994-II, p. 215, delivered in the instant case; and the judgments of 22 June 1995, Col. Jur. (STJ), 1995-II, p. 238; 6 July 1995, Col. Jur. (STJ), 1995-II, p. 261; and 2 November 1995, Col. Jur. (STJ), 1995-III, p. 218). 27. Legal writers in Portugal (and in other European countries) draw a distinction, under the generic term of “infiltrators”, between an “undercover agent” and an “agent provocateur”. The former is someone who confines himself to gathering information, whereas the latter is someone who actually incites people to commit a criminal offence. In Portugal, under the law in force at the material time, legal experts regarded evidence obtained by “undercover agents” as admissible, but were more reserved about evidence obtained by “agents provocateurs” (see, for example, Costa Andrade, Sobre as proibições de prova em processo pènal, Coimbra, 1992, pp. 220 et seq., and A.G. Lourenço Martins, Droga. Prevenção e tratamento. Combate ao tráfico, Coimbra, 1984, pp. 154 et seq., and, more recently, “Droga e direito”, Aequitas, Editorial Noticias, 1994, pp. 278 et seq.).

train

001-97435

ENG

UKR

CHAMBER

CASE OF PUZAN v. UKRAINE

Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 34;Non-pecuniary damage - award

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

4. The applicant was born in 1980 and is currently detained in Simferopol pre-trial detention centre (the “Simferopol SIZO”) awaiting his extradition to Belarus. 5. The applicant has already been convicted twice in Belarus for drug-related offences. The second time, in 2004, he was sentenced to four years' and three months' imprisonment. After having served part of his sentence, he was granted early release. 6. On 1 April 2006 the Sovetskyy District Police Department of Minsk instituted criminal proceedings against the applicant on suspicion that he had illegally purchased a psychotropic substance (Section 328 § 1 of the Belarus Criminal Code). 7. On 12 June 2006 the Belarus authorities issued an international arrest warrant for the applicant. 8. On 29 September 2008 the Head of the Sovetskyy District Police Department of Minsk sent a request to the Crimea Police Department for the applicant to be arrested and detained pending extradition to Belarus. 9. On the same day the applicant was arrested by officers of the Zheleznodorozhnyy District Police Department of Simferopol. 10. On 30 September 2008 the Zheleznodorozhnyy District Court of Simferopol (the “District Court”) ordered the applicant's detention for forty days pending his extradition to Belarus. 11. On 17 October 2008 the Deputy General Prosecutor of Belarus requested the General Prosecutor's Office of Ukraine to extradite the applicant to Belarus. The request contained the following assurances: that the applicant would not be prosecuted for a crime committed prior to extradition without the consent of the General Prosecutor's Office of Ukraine; that he would not be removed to a third country without the consent of the General Prosecutor's Office of Ukraine; that he would not be subjected to torture, inhuman or degrading treatment or punishment; that after the termination of the criminal proceedings or after serving his sentence, if one was imposed, the applicant would be free to leave Belarus; and that the applicant would not be prosecuted for political, racial, religious or ethnic reasons. 12. On 26 October 2008, during a meeting with his lawyer, the applicant signed a power of attorney for the purpose of bringing his case to the Court. 13. On 28 October 2008 the applicant was questioned by the assistant prosecutor of the Zheleznodorozhnyy Prosecutor's Office as to whether he or his lawyers had made any claims or complaints to the State authorities or institutions alleging violation of his rights and freedoms. The applicant replied that his lawyer had told him to ask for an authority form and explained that he would be further defended by the Kharkiv group of lawyers, which intended to lodge a complaint with the “European Commission on Human Rights”. He said that he had signed no other documents and made no complaints or petitions to any other institutions. If his lawyers had done so, he would learn about it later. The minutes of this interview also mentioned that the applicant was informed of his right to remain silent under Article 63 of the Constitution. 14. On the same date, 28 October 2008, the President of the Chamber indicated to the Ukrainian Government, under Rule 39 of the Rules of Court, that they should not extradite the applicant to Belarus. 15. On 7 November 2008 the General Prosecutor's Office of Ukraine informed the Government's Agent that no decision on the applicant's extradition would be taken prior to the examination of his case by the Court. 16. The same day the District Court ordered the applicant to be detained pending his extradition to Belarus, without indicating any time-limit for such detention. 17. On 20 November the Crimea Court of Appeal upheld the decision of 7 November 2008, stating that the applicant had been lawfully detained pending his extradition. 18. On 26 December 2008 the District Court rejected the applicant's lawyer's request to change the preventive measure in respect of his client. The applicant appealed against this decision. By letter of 16 January 2009, the Deputy President of the Crimea Court of Appeal replied to the applicant that the appellate court had previously examined his appeal concerning lawfulness of detention and would not examine the same issue again. The applicant is still in detention. 19. The relevant international and domestic law and practice are summarised in the judgment in the case of Soldatenko v. Ukraine, no. 2440/07, §§ 21-31, 23 October 2008. 20. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2007, released on 11 March 2008, noted with respect to Belarus: “c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The law prohibits such practices; however, the Belarusian Committee for State Security (BKGB), the Special Purpose Detachment riot police (OMON), and other special forces on occasion beat detainees and demonstrators. Police also occasionally beat individuals during arrests and in detention for organizing or participating in demonstrations or other opposition activities. On January 12, police severely beat opposition youth activist Ales Kalita as he was arranging legal representation for a fellow youth activist, who had refused to act as a BKGB informant. Two days later, police kicked and hospitalized opposition activist Anastasiya Shashkova, a minor, after detaining her for participating in a protest against the country's fraudulent January 14 local elections. On March 23, Mogilyov police incarcerated activist Kristina Shatikova in a local psychiatric hospital as she was coordinating preparations for a major Freedom Day opposition demonstration. During her three-day detention, Shatikova reported that she was drugged and interrogated about her connections to political prisoners Dmitriy Dashkevich and Artur Finkevich. On August 16, police officers beat 18-year-old Tatyana Tyshkevich as she and other opposition youth activists gathered in Minsk to show solidarity with the jailed political prisoners. She was treated at a local hospital for head and stomach injuries. According to credible sources, a policeman visited Tyshkevich at the hospital and pressured her not to file a complaint against police. On December 12, after violently dispersing a peaceful opposition demonstration on Minsk's October Square, police severely beat opposition youth leader Dmitriy Fedaruk and abandoned him unconscious on a sidewalk. Fedaruk was hospitalized for eight days and treated for serious head trauma. Credible sources and eyewitnesses reported that, during demonstrations following the March 2006 presidential elections, OMON riot police and other special forces, such as the antiterrorist unit ALMAZ, beat demonstrators in custody and threatened others with death or rape. In March 2006 special forces and OMON riot police used truncheons and tear gas to break up a peaceful march to Okrestina prison to protest the detention of 250 demonstrators. Ministry of Interior Colonel Dmitriy Pavlichenko, who was implicated in the 1999 disappearances and presumed deaths of opposition activists, personally beat opposition presidential candidate Aleksandr Kozulin before he was tied up and transported by ALMAZ forces to a pretrial detention center. Kozulin suffered head and spine injuries from the beatings by Pavlichenko and ALMAZ officers. Neither Pavlichenko, ALMAZ officers, nor other special forces were punished for their actions. In July 2006 Kozulin was sentenced to five and one- half years in prison on politically motivated charges of alleged hooliganism and disturbing the public peace. He remained in prison at year's end. Hazing of new army recruits by beatings and other forms of physical and psychological abuse continued, according to official sources; however, the number of reported cases declined. Other parts of this report contain information related to this subsection; see subsections 1.d, 1.e, 2 and 2.b and section 3. Prison and Detention Center Conditions Prison conditions remained austere and were marked by occasional shortages of food and medicine and the spread of diseases such as tuberculosis and HIV/AIDS. In March Leila Zerrougui, chairperson of a UN working group on arbitrary detention, reported that conditions in detention centers were worse than those in prisons because of poor sanitary and living conditions and restrictions on visitation, phone, and mail privileges. According to domestic human rights monitors, prison conditions have somewhat improved over the past 10 years. However, these groups reported that prisoners did not receive adequate food or warm clothing and were often denied a bed, sheets, change of clothes, and restroom privileges. As a result, tuberculosis, pneumonia and other diseases remained widespread. Former prisoners reported that medical check-ups were rare and conducted by under-qualified medical personnel and that examination results were often fabricated. Dental services were even less available. The law permits family and friends to bring detainees food and hygiene products, but in many cases authorities did not respect this law. Overcrowding in prisons, detention centers, and in work release prisons, also known as "khimya," was a serious problem. Persons sentenced to khimya, which is a form of internal exile, live in prison barracks and are forced to work under conditions set by the government. According to the government, the total number of confined persons in the country was more than 38,000, which included 30,000 inmates in prisons and nearly 8,000 convicts in open-type correctional facilities. In addition an estimated 7,000 persons were awaiting trials in detention centers. Some former political prisoners reported that they were treated worse than murderers, subjected to psychological abuse and often had to share a cell with violent criminals. They also reported that their legal rights were neither explained nor protected. Prisoners who complained about abuse of their rights often were threatened with death, humiliation, or other forms of punishment. Credible reports indicated that police and prison officials continued to mistreat, torture, and blackmail prisoners. Numerous credible sources claimed that applications for parole frequently depended on bribing prison personnel. While standard bribes were generally between $200 to $300 (430,000 to 646,000 Belarusian rubles) high-profile prisoners were often asked to pay larger sums. For example, on June 5, the independent Belarusian Committee for Protection of Prisoner's Rights, Nad Baryerom, reported that a parole board denied Dmitriy Korolyov, a former intelligence officer, early release in March after Korolyov refused to pay $2,000 (4.3 million Belarusian rubles) to a fellow inmate who claimed to be demanding the bribe on behalf of prison officials. Authorities frequently kept persons arrested for political activities in the Okrestina jail or the Volodarskogo detention center in Minsk. Many former detainees described food and medical conditions in Volodarskogo as inadequate but better than those in Okrestina, where demonstrators were usually held for short-term, pretrial detention. There were reports that Aleksandr Kozulin's health seriously deteriorated in prison. Although his living conditions were said to be decent, associates claimed that he did not receive adequate medical attention after he was severely beaten by police during his March 2006 arrest and following a 53-day hunger strike to protest his jailing and the fraudulent results of the presidential election. Authorities denied Kozulin's wife and attorney visitation rights during the hunger strike. During the year there were no reported instances of the government permitting independent monitoring of prison conditions by local or international human rights groups, independent media, or the International Committee of the Red Cross. However, the government granted some international experts access to the general prison population. In September an official German delegation visited inmates in three correctional facilities in and around Minsk. On occasion, authorities granted foreign diplomats access to political prisoners in the presence of officials; however, most requests to visit political prisoners were denied.” 21. The relevant parts of the report read as follows: “IV. THE SITUATION OF THE BASIC FREEDOMS AND HUMAN RIGHTS A. Civil and political rights; mechanisms of protection 10. Systematic violations of civil and political rights and the deprivation of Belarusian citizens' right to effectively take part in the conduct of public affairs continue to be observed. Human rights protection mechanisms remain extremely weak, and there is no national human rights institution. The judicial system is still subservient to the executive branch and there is no genuine independent legislative branch... Administration of justice and law enforcement, the death penalty, disappearances and summary executions 13. Since his last report, the Special Rapporteur has remained concerned that Belarus is the last country in Europe to apply the death penalty. The situation in the country is still characterized by harsh conditions of pretrial detention, the practice of torture and other inhuman treatment, and excessive use of force by the police. 14. Furthermore, it is alleged that judges virtually never refer to the Constitution or international treaties when they hand down rulings and that the decisions of the Constitutional Court are often ignored. Trials are often held behind closed doors without adequate justification, and representatives of human rights organizations are denied access to courts to monitor hearings. Punishments are often totally disproportionate. The right to appeal is limited as the Supreme Court acts in many cases as the court of first instance, leaving no possibility for appeal. Before and after the presidential elections, over 150 people were reportedly summarily put on trial without access to a defence lawyer. Concerns were expressed regarding respect for their right to a fair trial.” 22. PACE Resolution No. 1671 reads insofar as relevant as follows: “1. The situation in Belarus has been the focus of close attention by the Parliamentary Assembly since 1992, when the Belarusian parliament was granted Special Guest status. Belarus' lack of progress in the field of democracy, human rights and the rule of law, however, led to the suspension of this status in 1997, and to the freezing of Belarus' membership application to the Council of Europe the following year. The Assembly continues to look forward to the time when Belarus meets the conditions to be a member of the Council of Europe and its authorities undertake a firm commitment to live up to the standards of the Organisation and embrace its values. 2. In recent months, important developments have taken place in Belarus: between January and August 2008, nine opposition figures considered as political prisoners were released, including former presidential candidate Alexander Kozulin. As a result, since then, in Belarus, there have been no internationally-recognised political prisoners. The Assembly welcomes this tangible progress and calls for it to be made irreversible. 3. The Assembly also welcomes the registration of the opposition movement For Freedom!, as well as the possibility for three independent media outlets – Narodnaya Volya, Nashe Niva and Uzgorak – to be published in Belarus and their inclusion in the state distribution network. However, media freedom is far from being respected in Belarus, especially with regard to broadcasting. 4. It also considers as a positive development the setting up of a number of Consultative Councils, under the aegis of the Presidential administration and other state bodies, as fora where the authorities can engage in a constructive dialogue with representatives of non-governmental organisations and civil society. The Assembly hopes that the outcome of the discussions taking place in the Consultative Councils will lead to inform legislative and policy measures. 5. Concerning the disappearance of four political opponents in 1999/2000, the Assembly notes with satisfaction that none of the senior officials named in Resolution 1371 (2004) as being strongly suspected of involvement either in the disappearances themselves or in their cover-up still occupies a position of responsibility. But it strongly regrets that the investigations into these crimes have still not been allowed to progress any further, despite the elements provided in the Assembly's report. 6. What adds to the importance of these developments is that they respond to precise demands coming from European organisations, and that they have been undertaken in the context of the resumption of political dialogue with the Belarusian leadership. 7. In effect, following the release of all political prisoners in Belarus, in October 2008 the European Union took the decision to resume contacts with the Belarusian leadership at the highest level and to suspend, even if partially and temporarily, the visa-ban against a number of high-ranking Belarusian officials, including President Lukashenko. This suspension was extended for an additional nine months in April 2009. The willingness of the European Union to normalise relations with Belarus was epitomised by the visit of the European Union High Representative for Common Foreign and Security Policy, Mr Javier Solana, to Minsk and his meeting with President Lukashenko on 19 February 2009. 8. Belarus is also one of the six countries that will participate in the Eastern Partnership, a new instrument designed to strengthen political and economic co-operation between the European Union and its Eastern and Caucasian neighbours, with a view to enhancing their stability and supporting democratic and market-oriented reforms. The level of Belarus' participation will depend on the overall development of its relations with the European Union. In this context, Belarus attended the Eastern Partnership summit in Prague, on 7 May 2009. The European Union also intends to establish a Human Rights Dialogue with Belarus. 9. The Council of Europe, for its part, has recently intensified its contacts with the Belarusian authorities: following a visit by a delegation of the Assembly's Political Affairs Committee in February 2009, Minister Miguel Angel Moratinos conducted an official visit to Minsk, in March 2009, in his capacity as Chair of the Committee of Ministers. A few weeks earlier, the Belarusian authorities had finally given their consent to the opening of an infopoint on the Council of Europe in Minsk, an idea initiated by the Assembly itself and developed by the Slovak Chairmanship of the Committee of Ministers. The opening ceremony of the Infopoint took place in June 2009. 10. Furthermore, in December 2008, the Congress of Local and Regional Authorities of the Council of Europe decided to grant observer status to the Council for Co-operation of Local Self-Government Bodies of the Council of the Republic of the National Assembly of the Republic of Belarus. 11. Despite recent positive developments, however, and the resumption of contacts with European organisations, the situation in Belarus continues to be a cause for concern. 12. Firstly, the parliamentary elections of September 2008 were a missed opportunity for a decisive change towards democracy, as they failed to meet European standards of freedom and fairness. As highlighted by the OSCE/ODIHR, serious shortcomings affected all stages of the electoral process, from the availability of pluralist information for voters to the lack of transparency of the vote count. These shortcomings inevitably cast a doubt over the representativeness of the present Parliament, where no single opposition candidate managed to gain a seat. It is, however, to be welcomed that, following the final OSCE/ODIHR assessment, the Belarusian authorities agreed to work with the OSCE/ODIHR on the reform of the country's electoral legal framework and practice, in order to align them with Belarus' OSCE commitments. 13. As regards respect for political freedoms, harassment and intimidation of opposition activists, in particular youth, continue to take place through various means, such as unwarranted searches of private houses, unlawful requisition of equipment, police brutality during demonstrations and forced conscription into the military service despite previous declarations of being unfit for service. In addition, a number of political activists are under house arrests and the criminal record of those political prisoners who were released has not been erased, with the result that they face limitations in the exercise of some rights, including the right to run for elections. 14. The Assembly also takes note of the fact that, as of today, three entrepreneurs, who are currently in detention, as well as other persons who are subjected to limitations of personal liberty, are considered by the Belarusian opposition as political prisoners or, at least, as victims of an abuse of the criminal justice system for political reasons. The Assembly calls for an independent investigation to be conducted into these cases, in order to clarify whether they are political prisoners and, if so, to secure their release. 15. The situation regarding freedom of association also gives rise to concerns: even if the political opposition movement For Freedom! was finally registered in December 2008, other opposition and human rights organisations continue to face obstacles in obtaining registration by the Ministry of Justice, the latest example being the human rights organisation Nasha Viasna, and its members risk prosecution for membership in a non-registered organisation, under Article 193,1 of the Criminal Code. 16. The Assembly regrets that, despite the inclusion of three independent publications in the state distribution network, the other independent media outlets cannot benefit from this scheme and cannot even be printed in Belarus. Absolute governmental control over the printing and the distribution of the press as well as over broadcasting is a flagrant violation of media freedom. Similarly, the Assembly expresses concern at the difficulties encountered by foreign journalists in obtaining press accreditation and by foreign media, such as the satellite channel Belsat, in obtaining registration by the Ministry of Foreign Affairs. It takes note, however, of the numerous statements emanating from the Belarusian leadership on their willingness to ensure that the new media law is not implemented in such a way as to restrict freedom of expression. The Assembly wishes that the same could be said for the implementation of the Law on counteraction against Extremism, which has recently led to the suspension of the publication of the magazine Arche, later withdrawn following international pressure. 17. It also regrets that capital executions can still be carried out in Belarus, despite the reduction of the categories of crimes for which they can be inflicted, a decrease in the number of death sentences handed down in such cases and the fact that no executions have been carried out since October 2008 according to official statements. The Assembly recalls that, in the current Constitution, the death penalty is considered as a transitional measure and that no legal impediment prevents either the President or the Parliament from introducing a moratorium on executions. While no public statistics are available, the Assembly also takes note of the information provided by the authorities that currently there are no capital sentences whose execution is pending. 18. Considering that, although Belarus is far from Council of Europe standards in the field of democracy, the rule of law and human rights, its authorities have recently taken important steps in the right direction, the Assembly resolves to encourage the continuation of this process by engaging in a political dialogue with the authorities, while at the same time continuing to support the strengthening of democratic forces and civil society in the country...” 23. “Amnesty International Concerns in 2006” in respect of Belarus noted, in particular, disregard for political freedoms, including police violence and arrest of political activists. 24. The International Helsinki Federation for Human Rights in its 2006 Report on Human Rights in the OSCE Region noted that the most frequent victims of ill-treatment were participants in peaceful demonstrations who were taken to police stations and placed in pre-trial custody. With respect to the judiciary, the Report said that “the judicial system remained dependent on the executive power and the courts acted as executors of state ideology...The political engagement of the judiciary was confirmed in their rulings on politically motivated cases.” As to prison conditions, the Report observed: “In many cases, conditions in pre-trial facilities ... were poor enough to amount to cruel, inhuman or degrading treatment. As a rule, the average floor area per inmate in pre-trial facilities and prisons was less than two square metres (including bed), in dirty, poorly ventilated cells without necessary hygiene facilities. It was reported that inmates sometimes had to sleep in turns, for lack of a bed for everyone. The inmates also lacked sufficient nutrition and were not always provided with the necessary medical care and medication.”

train

001-61105

ENG

POL

CHAMBER

CASE OF SKALKA v. POLAND

Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award

Georg Ress;Mark Villiger

9. The applicant was born in 1941. He is currently serving a prison sentence. 10. On 16 December 1993 the Nowy Targ District Court convicted the applicant of aggravated theft and sentenced him to imprisonment. While in prison, on unspecified dates the applicant wrote a letter to the Penitentiary Division of the Katowice Regional Court and he received a reply. Dissatisfied with that reply, on 15 November 1994 the applicant sent a letter to the President of the Katowice Regional Court, complaining about the judge who had replied to his letter. The relevant passages of the applicant's letter read: “(...) It cannot be excluded that further acts of that kind on the part of the Penitentiary Division of the Regional Court would make me complain to the judicial supervision about the irresponsible clowns placed in that Division. I will start by saying that any little cretin, whether he wears a gown or not, should vent his need to intimidate others by making allusions to legal responsibility [for their acts] on his mistress, if he has one, or on his dog, but not on me. I am not going to be afraid of any such clown who wants to intimidate me, but the truth is that my request of 18 August 1994 was addressed to the court, not to some fool. I expect that the President of the Katowice Regional Court will somehow convey my request to that bully and that he will, at the same time, read his reply to me (...) Not only does [the judge] write rubbish about my alleged request for a pardon, which my request was absolutely not, but he also intimidates me. If he is such a brilliant lawyer that he is able to reply to questions that were not asked – and his legal skills can be seen if the content of my letter is compared with his reply – he should find a relevant legal provision to use against me. It would not change the fact that such a limited individual, such a cretin should not take the post of a reliable lawyer who would know how to reply to a letter. A cretin he will remain and I see no reason to be afraid of any legal consequences. “You know, you understand, shut up” – that is all the education he has, as a fool does not need any better.” 11. Subsequently, on an unspecified date, the Sosnowiec District Prosecutor instituted criminal proceedings against the applicant. On 31 January 1994 the prosecuting authorities lodged a bill of indictment against the applicant with the Sosnowiec District Court. He was charged with proffering insults against a State authority at its headquarters or in public, an offence punishable under Article 237 of the Criminal Code 1969, committed by sending a letter to the President of the Katowice Regional Court. In this letter the applicant had insulted an unidentified judge of that court's Penitentiary Division and all judges of that court. The applicant had been questioned in connection with the offence. He had stated that he had not meant the court as a whole, but only one judge, and this in his personal, not professional, capacity. He maintained that the letter could only be regarded as an insult against a private person, but not a State institution. 12. On 6 September 1995 the Sosnowiec District Court convicted the applicant of insulting a State authority and sentenced him to eight months' imprisonment. The court found that on 15 November 1994 the applicant had sent a letter to the President of the Regional Court in which he referred to all judges of the Regional Court's Penitentiary Division in an insulting and abusive manner as “irresponsible clowns”. Moreover, further on in the same letter, he referred in a particularly insulting manner (“w sposób szczególnie obraźliwy”) to an unidentified judge of the same Division, to whom he had allegedly written certain letters, which remained unanswered. 13. The court had regard to the results of the applicant's examination by psychiatrists who found that he could be held criminally responsible. 14. The court considered that it was beyond any doubt that it was the applicant who had written the impugned letter. The analysis of its content and form led to the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a judicial authority. He had first addressed himself to the judges of that court as a group, and then focused on one unidentified judge. Accordingly, it had to be understood that the applicant had insulted the court as the State authority, and the unidentified judge could be regarded as a symbol of that court. The court further observed that the applicant, as a citizen, had a constitutional right to criticise the State authorities. However, the impugned letter had largely exceeded the limits of acceptable criticism and was directly aimed at lowering the court in the public esteem. The court further observed that the sentence was commensurate with the applicant's degree of guilt and with the seriousness of the offence. The assessment of the latter had been made having regard to the nature and importance of the interests protected by the criminal law provision applied in the case, i.e. by Article 237 of the Criminal Code. 15. The applicant and his officially assigned lawyer lodged appeals against this judgment. 16. On 19 June 1996 the Katowice Court of Appeal, following a request from all of the judges of the Katowice Regional Court to be allowed to step down, considered that, in view of fact that the offence had been directed against the judges of that court, it was in the interest of the good administration of justice and the impartiality of the court that the appeal be transferred to the Bielsko-Biała Regional Court. 17. On 10 September 1996 the Bielsko-Biała Regional Court upheld the contested judgment, having examined both the appeal lodged by the applicant himself and that of his lawyer. The court first noted that the first-instance court had accurately established the facts of the case. The court went on to state that it shared the conclusions of the first-instance court, namely that the content and form of the letter called for the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a State authority. The legal assessment of the facts of the case was correct, and the sentence imposed corresponded to the degree of the applicant's guilt. The applicant had a long criminal record, even though he had been assessed positively by the penitentiary services, and could be held criminally responsible. The applicant's lawyer had argued that the applicant had intended to insult a specific person, not an institution. However, in the light of the court's other findings, this analysis was rejected. 18. The applicant's lawyer lodged a cassation appeal with the Supreme Court. 19. On 2 June 1997 the Supreme Court dismissed the appeal and confirmed the contested judgment. The court referred to the grounds of appeal in which it had been argued that the conviction had been in flagrant breach of Article 237 of the Criminal Code in that the applicant's acts, in the light of his submissions as to his motives, did not amount to a punishable criminal offence. 20. The Supreme Court first noted that the grounds of the applicant's cassation appeal had been laconic and limited in their reasoning. Moreover, it clearly transpired therefrom that in fact the applicant's lawyer contested the assessment of evidence and the factual findings made by the lower courts, whereas the purpose of the cassation appeal was only to bring procedural complaints to the attention of the Supreme Court. This in itself constituted a sufficient basis for dismissing the appeal as not being in compliance with the requirements laid down by the applicable procedural provisions. 21. However, the court emphasised, it was worth noting that the Regional Court in its judgment had examined all complaints submitted in the appeal against the first-instance judgment, including those concerning the assessment of evidence and the factual findings of the first-instance court. No new arguments had been submitted to the Supreme Court to show that there had been any procedural shortcomings in the proceedings. Certainly the argument that the applicant's acts could not be regarded as a criminal offence could not be regarded as such a procedural complaint. 22. The Supreme Court went on to state that the applicant's abusive letter, referred to and quoted by the Regional Court, had clearly exceeded the limits of acceptable criticism. Even if it were acknowledged that in the second part of the letter the applicant had focused on one judge, it had to be recognised that at the beginning he had attacked all the judges of the Regional Court. The appellate court correctly had regard thereto. It had also indicated why it considered that the applicant's attitude could be qualified as an offence under Article 237 of the Criminal Code 1969. The Supreme Court therefore dismissed the cassation appeal as unfounded. 23. Article 237 of the Criminal Code 1969, applicable at the relevant time, read as follows: “Anyone who insults a State authority at the place where it carries out its duties or in public, is liable to up to two years' imprisonment, to a restriction of personal liberty or a fine.”

train

001-127613

ENG

TUR

CHAMBER

CASE OF MESUT DENİZ v. TURKEY

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 13 - Right to an effective remedy (Article 13 - Effective remedy)

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

4. The applicant was born in 1975 and is currently detained in Sincan prison. 5. On 5 October 1999 the applicant was arrested and taken into custody by police officers in Havza, a district of Samsun, in the course of a routine identity check. He was taken to the Havza police headquarters. According to the arrest and seizure report, the applicant was arrested at around 1.30 p.m., after he had tried to evade the police by jumping off the twometre high balcony of a café and was apprehended by the officers. According to the report, the applicant threw himself on the ground repeatedly and sustained various injuries. In particular, he had bruises and scratches on his back, on the left shoulder, on both arms and on the forehead. In the arrest and seizure report it was also noted that the applicant had false identity papers and, inter alia, a Kalashnikov rifle, bullets, night-vision binoculars and a walkie-talkie in his bag. 6. The applicant was subsequently taken to the Samsun police headquarters. 7. On the same day, at around 3.05 p.m., the applicant was examined by a doctor in Samsun who observed that the applicant was rather tired. He further observed the following injuries on the applicant’s person: ecchymoses on both the left and right sides of the forehead, on both the left and right scapulas and in the lumbar region; hyperaemic lesions on both the left and right sides of the neck, hyperaemia and ecchymoses on the left biceps, hyperaemia on the right biceps and ecchymoses on both calves. 8. On 6 October 1999, at around 9.25 a.m., the applicant was examined by a doctor at the Samsun Forensic Institute who noted that he was tired and weak and had bruises of various shapes and colours on his body. In addition to those noted in the medical report of 5 October 1999, the doctor observed the following injuries on the applicant’s body: ecchymoses, swellings and scratches of various sizes on the middle of the forehead, in the left zygomatic region, on his head, on the left clavicle, on the left side of the abdomen, on the left side of the crista iliaca region, on the outside of the left arm, on the inside of the left upper arm, on both thighs, on the right elbow and on both wrists. According to the report, there was also bleeding under both nipples, hyperaemia on the glans of the penis and three ecchymoses on the penis. 9. On 7 October 1999, at around 10.30 a.m., the applicant was examined by a doctor at the Samsun Forensic Institute who found no additional injuries on his body, apart from those recorded in the previous medical report of 6 October 1999. 10. On the same day, the applicant was transferred to the Ankara police headquarters. 11. On 12 October 1999 the applicant was examined by a doctor at the Ankara Forensic Institute who, in addition to the injuries noted in the previous reports, observed oedema on the palmar surface of the third finger and sensitivity on the first toe. The doctor asked for additional examinations to be carried out by the Department of Urology and Neurology at Ankara Hospital. 12. The applicant claimed that he had been subjected to various forms of ill-treatment during his arrest and subsequent detention at the Samsun police headquarters and the Ankara police headquarters. In respect of the treatment at the Samsun police headquarters, he claimed to have been beaten, given electric shocks, hung by his arms, hosed with cold water, had his genitals and fingers squeezed, been made to lie on an icy surface and been raped by one police officer with a hose. 13. Subsequent to his detention in police custody, the applicant was charged under the former Criminal Code with membership of an illegal organisation and attempting to undermine the constitutional order; he was remanded in custody. 14. On an unspecified date, the applicant’s lawyers lodged an official complaint with the Samsun public prosecutor’s office, claiming that the applicant had been subjected to various forms of ill-treatment while being held at Samsun police headquarters between 5 and 6 October 1999. They submitted that the applicant would be able to recognise the person who had given the orders, as well as some of the others involved. They said that the applicant had also been ill-treated in Ankara and that they would lodge a separate complaint to that effect. 15. On 9 June 2000 the applicant sent a handwritten letter to the public prosecutor claiming that he had been ill-treated during his arrest and subsequent detention at both the Samsun and Ankara police headquarters. He gave a detailed account of the treatment during his arrest, at the Havza police headquarters and at Samsun police headquarters. He again submitted that he would be able to recognise the person who had given the orders at Samsun police headquarters as well as some of the others involved. As regards his detention at the Ankara police headquarters, the applicant merely stated that he had been subjected to ill-treatment there also. 16. On 24 July 2000 a forensic medical expert, at the request of the applicant’s lawyer, lodged an opinion with the Ankara Medical Association on the basis of the medical reports issued in respect of the applicant. In that report he submitted that the injury details recorded in the arrest report had no medical significance since it had not been drafted by medically competent persons. He also criticised the fact that the applicant had not been transferred to the Department of Urology and Neurology at Ankara Hospital, as requested in the medical report of 12 October 1999. The medical expert concluded that it was not possible to determine the exact cause of the injuries noted in the medical reports. 17. On an unspecified date the applicant began a hunger strike in prison. In 2001 he began to suffer from a mental disorder. According to a report dated 19 April 2002 issued by the Medical Board of the Ankara Numune Hospital, the applicant presented psychotic symptoms. The experts could not determine whether these symptoms were due to the hunger strike (Wernicke-Korsakoff syndrome) or to schizophrenia. 18. On an unspecified date in 2000 the Samsun public prosecutor initiated an investigation into the applicant’s allegations. 19. On 14 November 2001 the Samsun public prosecutor filed a bill of indictment with the Samsun Criminal Court accusing a police officer, H.Ö., whom the applicant had identified through photographs, of ill-treatment under Article 245 of the former Criminal Code. 20. On 21 March 2002 the Samsun Criminal Court held the first hearing on the merits of the case. 21. On 17 July 2002 the first-instance court heard the accused police officer, who denied the allegations of ill-treatment. 22. On 28 February 2003 the applicant was brought before the Ankara Criminal Court in order to give evidence, acting on letters rogatory. However, he was not able make any statement, as he appeared to be suffering from a mental disorder. 23. On 16 April 2003 the Samsun Criminal Court convicted H.Ö. as charged and sentenced him to three months’ imprisonment and suspension from duty for a period of three months. The court then commuted the sentence to a fine and suspended its execution. 24. On 5 December 2005 the Court of Cassation quashed the judgment of 16 April 2003, holding that the police officer should have been charged with torture under Article 243 of the former Criminal Code and that therefore the case should have been heard by an assize court. 25. On 11 October 2006 the Samsun Criminal Court declined jurisdiction and transferred the case to the Samsun Assize Court. 26. On 22 November 2006 the Samsun Assize Court commenced the trial. 27. On 6 April 2007 H.Ö. made statements before the Assize Court and denied the charges against him. 28. On 30 July 2007 the applicant gave evidence before the Ankara Assize Court acting on letters rogatory. He waived his right to a lawyer. He reiterated that he had been ill-treated at the Samsun police headquarters and that, although he was not completely certain, the accused appeared to be one of the police officers who had ill-treated him. In this connection, the applicant claimed that about twelve police officers had illtreated him, but that at the time when he had been asked to identify the perpetrators he had been on hunger strike, depressed and suffering from health problems. He reiterated that he was not certain whether the accused was one of those who had ill-treated him and affirmed that he wanted those responsible to be prosecuted. In addition, he stated that he did not wish to join the proceedings as a civil party. 29. On 26 September 2007 the Samsun Assize Court acquitted H.Ö. of the charges against him. In its decision the court held that while the forensic medical reports established that the applicant had been illtreated between 5 and 6 October 1999, the applicant could not formally identify the accused as responsible and, as such, there was insufficient evidence to convict him. 30. On 7 January 2010 the applicant’s lawyer appealed against the firstinstance court’s decision. In particular, she maintained that since the applicant suffered from Wernicke-Korsakoff syndrome and schizophrenia he could not be deemed to have understood the consequences of waiving his right to a lawyer and not joining the proceedings as a civil party, and that therefore the court should have assigned him a lawyer. In addition, the lawyer submitted that the applicant and the accused should have been allowed to confront each other in order to give the former the opportunity to identify the latter. The applicant’s lawyer submitted a copy of the report dated 19 April 2002 issued by the Medical Board of the Ankara Numune Hospital in support of the appeal. 31. On 11 January 2010 the applicant’s lawyer applied to the Samsun Assize Court requesting it to annul its previous decision (eski hale getirme) to serve its judgment on the applicant, on the ground that it should have been served on his legal representative, and to disregard the applicant’s statement regarding his wish not to intervene in the proceedings as a civil party so as to enable him to lodge an appeal against the decision. In her application, the applicant’s lawyer also maintained that since the applicant suffered from Wernicke-Korsakoff syndrome, the rogatory court should have assigned him a lawyer, even if he had waived that right. 32. On 19 January 2010 the Samsun Assize Court held that the applicant could not lodge an appeal against the judgment of 26 September 2007 as he had not joined the proceedings as a civil party. 33. On 5 February 2010 the applicant’s lawyer lodged an appeal with the Court of Cassation against the Samsun Assize Court’s decision of 19 January 2010. 34. According to information obtained by the Registry from the website of the Court of Cassation, on 4 May 2012 the higher court dismissed the applicant’s appeal. 35. A description of the domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts).

train

001-59594

ENG

TUR

CHAMBER

CASE OF SADAK AND OTHERS v. TURKEY (No. 1)

Violation of Art. 6-1 concerning independence and impartiality;Violation of Art. 6-3-a;Violation of Art. 6-3-b;Violation of Art. 6-3-d;Not necessary to examine Art. 6-1 concerning the other complaints;Not necessary to examine Art. 10;Not necessary to examine Art. 11;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Elisabeth Palm

7. The applicants are former members of the Turkish National Assembly and of the Democracy Party (DEP), which was dissolved by the Constitutional Court on 16 June 1994. 8. The public prosecutor at the Ankara National Security Court accused them of having infringed Article 125 of the Turkish Criminal Code and made repeated applications – on 27 November 1991, 16 December 1992, 25 May 1993 and 2 July 1993 – for their parliamentary immunity to be lifted. On 2 March 1994 the National Assembly, having deliberated on the basis of the application of 16 December 1992, decided to lift the applicants’ parliamentary immunity under Article 83 of the Turkish Constitution. 9. On 2 March 1994 Mr Dicle and Mr Doğan were taken into police custody on the orders of the public prosecutor at the Ankara National Security Court. On 4 March 1994 Mrs Zana suffered the same fate. A few days later the public prosecutor at the Ankara National Security Court ordered the detention of those three applicants in police custody to be extended until 16 March 1994. 10. While in custody, the applicants made no statements to the police. 11. On 16 March 1994 they were brought before a judge of the Ankara National Security Court and placed in detention pending trial. 12. On 16 June 1994 the Constitutional Court dissolved the DEP and ordered the party’s MPs to vacate their parliamentary seats. 13. Mr Sadak was taken into police custody on 1 July 1994 and placed in detention pending trial on 12 July 1994. 14. In the meantime, on 21 June 1994 the public prosecutor at the Ankara National Security Court had filed a bill of indictment in which he accused the applicants of treason against the integrity of the State – a capital offence under Article 125 of the Criminal Code. The accusation was based firstly on the activities that the applicants were alleged to have engaged in on behalf of the Workers’ Party of Kurdistan (PKK) (harbouring militants and providing one of them with medical care, negotiating with local leaders or proffering threats against them to make them help the PKK establish itself in their regions) and secondly on the content of oral and written statements by the applicants expressing support for PKK activities. On the evening of 21 June 1994 the offences of which the applicants were accused were announced in the news bulletin of the publicly owned TRT 1 television channel. 15. On 8 December 1994, the date of the final hearing before the Ankara National Security Court, the applicants learned that the prosecution was proposing to alter the charge to belonging to an armed gang within the meaning of Article 168 of the Criminal Code. The National Security Court invited the applicants to submit their observations on this new characterisation of the offences. The applicants’ lawyers were not present at the hearing because they had decided to protest against the National Security Court’s refusal to adopt a procedural measure they had requested of it. 16. In a judgment of 8 December 1994 the Ankara National Security Court sentenced the four applicants to fifteen years’ imprisonment for belonging to an armed gang within the meaning of Article 168, paragraph 2, of the Turkish Criminal Code. It rejected the charge under Article 125 of the Criminal Code, which provided for the death penalty in the event of treason against the integrity of the State. 17. It found it established that the applicants had engaged in intensive “separatist” activity under instructions from leaders of the PKK, a separatist armed gang seeking to found a Kurdish State in south-eastern and eastern Turkey. In that context it noted the following points: in the run-up to the 1991 parliamentary election the applicants had given speeches under the PKK banner at meetings where slogans had been shouted such as “Long Live the PKK” and “Strike guerrillas strike, found Kurdistan”; the applicants had provoked unrest among the population and created an atmosphere that had undermined the authority of the State; they had worn PKK colours when they were sworn in as members of the National Assembly in November 1991; at the congresses of their political parties, the HADEP and the DEP, the PKK flag had been hoisted instead of the Turkish flag and the Turkish Republic had been described as an occupier and enemy; conversations recorded between three of the four applicants and heads of clans (aşiret reisi) in south-eastern and eastern Anatolia had revealed that the former had used threats to try to persuade the latter to join or support the PKK; one of the applicants had harboured a PKK militant in his official residence, had helped him to obtain medical treatment and had fraudulently induced the State to pay his hospital bills; another had harboured in his home PKK militants preparing to join those who were already involved in field operations in the region; and all the applicants had made statements on behalf of the PKK in foreign countries and spread lies about the Turkish State intended to uphold the PKK’s views. The National Security Court also rejected an application by a co-defendant for a public hearing of a witness for the prosecution owing to the danger that the witness might suffer reprisals at the hands of the PKK. 18. When classifying the facts found in the instant case as offences under Article 168 rather than Article 125 of the Criminal Code, the National Security Court referred to the case-law according to which Article 125 defined a crime in terms of the ends pursued and Article 168 in terms of the means deployed. Treason against the integrity of the State within the meaning of Article 125 was a crime which could only be made out if it was established that acts had been committed which were likely to pose a real threat to the State’s survival. Acts of violence and terrorism could fall within the scope of Article 125 if they were serious enough to pose such a threat. Article 168, paragraph 2, on the other hand, made it an offence merely to belong to an armed organisation which was already considered to be acting for a purpose contrary to Article 125. The material element of the offence lay in the fact that the persons in question belonged to an armed organisation of the aforementioned type complete with a system of disciplinary rules and a hierarchical structure. In that context, it was not necessary for the defendants themselves to have committed acts posing a threat to the State’s survival. However, Article 168 did require a specific mental element, namely that the offenders were aware that they belonged to the illegal organisation. 19. The applicants and the public prosecutor at the Ankara National Security Court appealed on points of law against the judgment of 8 December 1994. 20. The public prosecutor argued that the offences were indeed punishable under Article 125 of the Turkish Criminal Code. 21. The applicants submitted for their part that the criminal proceedings had been brought for a political purpose, namely to suppress the opinions of members of Parliament defending the Kurdish cause. They contended that the National Security Court by which they had been convicted was a special political court which could not be considered an independent and impartial tribunal. They also asserted that they had been denied a fair trial because, among other things, their equality of arms with the prosecution had not been respected. They complained in particular that they had been denied the assistance of a lawyer during their fifteen days in police custody; that their representatives had not had access to the documents on the case file during the preliminary investigation; that pressure had been brought to bear on their representatives by the government as their defence had been the subject of reports by the Turkish secret services and their access to the courtroom had sometimes been impeded; that the applications filed by their representatives had never been allowed by the National Security Court; that they had not been permitted to examine before that court the witnesses interviewed by the prosecution during the preliminary investigation or the experts appointed by the prosecution; that their applications for the examination of the sound and video recordings made by the prosecution had been rejected by the National Security Court for no valid reason; that the evidence on which their conviction had been based had not been read out at the hearing; and that their applications for further witnesses to be heard and second opinions to be sought had been dismissed by the National Security Court. The applicants also argued that the difficulties encountered by certain lawyers and foreign delegations when attempting to enter the courtroom had infringed the requirement of a public hearing. Lastly, they criticised the National Security Court for laying the activities of all pro-Kurdish organisations, whether legal or illegal, at their door and taking account of findings of a political nature having no probative value with regard to the accusations levelled against them. 22. In a judgment of 26 October 1995 the Court of Cassation upheld the decision at first instance as to the applicants’ guilt and the sentences imposed on them. 23. On the other hand it held that some of the reasons given by the Ankara National Security Court in its judgment of 8 December 1994 could not be permitted to stand. When the telephone conversations between the applicants and the head of the PKK had been recorded the statutory provisions intended to safeguard the freedom of communication had been infringed; the fact that the applicants’ diaries contained the names and addresses of PKK leaders did not prove the accusations; and the fact that some of the defendants (including two of the four applicants) had taken part in a press conference held by the head of the PKK could not in itself be regarded as an offence. 24. In assessing each of the applicants’ guilt, the Court of Cassation took account of various public communiqués that they had issued. In those documents they had described the parliamentary oath as racist on the ground that it omitted any reference to the Kurdish identity, and asserted that the Turkish government was waging war on the Kurdish population, that Kurdish uprisings had been suppressed using methods of genocide and that the national rights of the Kurdish people were denied by the Turkish State. 25. Regarding Leyla Zana, the Court of Cassation noted the following: she had undergone political training in a PKK camp in Bekaa (Syria); she had had four conversations with the head of a clan in south-eastern Turkey, advising him not to prevent the PKK from attacking State targets and encouraging him to telephone the head of the PKK, addressing him as “Mr Secretary General”; she had twice visited the head of another clan to encourage him to join the PKK to help found Kurdistan; she had handed over to the PKK one of its opponents who had been abducted by PKK militants; she had described slogans such as “Long Live Apo [Apo is a diminutive used to refer to Abdullah Öcalan, the head of the PKK]” or “Long Live Kurdistan”, shouted at a demonstration in Cizre, as “slogans of the Kurdish people”; she had declared on German television that she felt like a foreigner in Turkey and that the Turkish parliament, of which she was a member, was constantly taking decisions whose aim was to wipe out the Kurdish people; and she had taken part in a demonstration and a press conference held by the PKK in Brussels and had addressed the participants from a rostrum draped with the PKK flag. 26. Regarding Orhan Doğan, the Court of Cassation noted the following: he had knowingly harboured a PKK militant in his home owing to his organic links with the PKK; he had helped the militant in question to obtain medical treatment and had fraudulently had the costs reimbursed by the National Assembly; he had harboured four other PKK militants who were about to return to the organisation’s camps; he had made statements to foreign embassies to the effect that the villagers leaving Şirnak in August 1992 were actually fleeing the State forces; and he had stated at demonstrations that the Turkish State was repressing the Kurdish people in various ways, while describing the PKK as an army. 27. Regarding Hatip Dicle, the Court of Cassation noted the following: he had put pressure on the head of a clan in south-eastern Turkey to join the PKK, whose aims he had said were to found Kurdistan and destroy the enemy; he had asked the persons attending a public meeting in Diyarbakır to observe a minute’s silence in honour of the PKK’s dead, asserting that the Turkish army had come to the region to repress the Kurdish people; he had stated in an interview given to a Belgian daily newspaper that the Kurds’ ideal would be to found a Kurdish State and that they had been fighting for their freedom since the Treaty of Lausanne (1923); he had described the PKK as a movement with popular roots; he had stated that all those who were against the Kurds should be expelled from their territory even if that would cost them their lives; he had said that the Kurds were engaged in an armed resistance to ensure their survival and that the alleged fight against terrorism amounted to an attempt to crush the Kurds’ claims to nationhood; he had attempted to justify the terrorist attack on the cadets of the military college for infantry conscripts, in which four people were killed and twenty injured, by saying that everyone in uniform was a potential target by virtue of the international conventions on the laws of war; and he had stated at a meeting of his party that the State could not solve the Kurdish problem by banning the PKK. 28. Lastly, regarding Selim Sadak, the Court of Cassation found the following facts established: he had put pressure on the head of a clan in south-eastern Turkey to accept the authority of the PKK; he had asked the inhabitants of the village of Şenoba (in south-east Turkey) to relinquish their positions as village guards, explaining that they were in Kurdistan and that the Kurdish war of national liberation was soon to be launched against the fascist Turkish State; he had described police officers escorting persons in police custody on suspicion of having been active within the PKK as torturers, while stating that he would prevent the repression of the Kurds by the Turks and that the Kurds would demand some form of retribution; at a meeting held by the PKK in Neuchâtel (Switzerland), he had described the PKK as a guerrilla army fighting for the independence of Kurdistan and the Kurdish people; and in a communiqué sent to foreign embassies in Turkey he had declared that the villagers leaving Şirnak in August 1992 had in fact been fleeing the State forces. 29. Article 125 of the Turkish Criminal Code provides: “It shall be an offence punishable by death to commit any act aimed at subjecting the State or part of the State to domination by a foreign State, diminishing the State’s independence, breaking its unity or removing part of the national territory from the State’s control.” 30. Article 168 of the above Code provides: “Any person who, with the intention of committing the offences defined in Article 125 ..., forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

train

001-86621

ENG

TUR

ADMISSIBILITY

GÖZEN v. TURKEY

Inadmissible

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall

The applicant, Mr Beşir Gözen, is a Turkish national who was born in 1960 and lives in Istanbul. He was represented before the Court by Ms A. Bingöl, Ms G. Kartal and Mr A. Timur, lawyers practising in Istanbul. 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 August 1983 the applicant was arrested. On 16 September 1983 the Diyarbakır Martial Law Court remanded him in custody. On 19 October 1983 the public prosecutor attached to the Diyarbakır Martial Law Court filed a bill of indictment against the applicant, along with other persons, and charged him with membership of the PKK (Workers’ Party of Kurdistan) under Article 168 § 1 of the former Criminal Code. On 19 February 1985 the Diyarbakır Martial Law Court convicted the applicant as charged. On 10 April 1990 the Military Court of Cassation quashed the judgment of the first-instance court in respect of some of the accused, including the applicant, and remitted the case to the Diyarbakır Martial Law Court. Subsequent to the promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, in 1994 the Diyarbakır Assize Court acquired jurisdiction over the case. On 13 July 1998 the Diyarbakır Assize Court acquitted the applicant, holding that there was insufficient evidence to convict him. The applicant claimed that the judgment of 13 July 1998 was never served on him. According to the documents submitted by the respondent Government to the Court, on 31 July 1998 the authorities attempted to notify the applicant of the judgment of 13 July 1998. The applicant could not be found at the address he had given and the authorities were not able to locate his new address despite all efforts. On 13 September 2002 the applicant applied to the registry of the Diyarbakır Assize Court and obtained a copy of the judgment of 13 July 1998.

train

001-81805

ENG

RUS

CHAMBER

CASE OF KRASNOV AND SKURATOV v. RUSSIA

No violation of P1-3 in respect of Mr Krasnov;Violation of P1-3 in respect of Mr Skuratov;No separate issue under Art. 14;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

Christos Rozakis

7. The first applicant was born in 1956 and the second applicant in 1952. They both live in Moscow. 8. On 7 December 2003 the general elections to the State Duma of the Federal Assembly of the Russian Federation, the lower chamber of the Russian bicameral legislature, were held to elect 450 members for a term of four years. One half of the members (225 seats) were returned by a majority vote from single-mandate district constituencies. The other 225 seats were allocated on a proportional basis to candidates on federal rolls submitted by political parties or electoral blocs that gained more than five per cent of the valid votes cast in a single federal constituency ballot. 9. On 28 August 2001 Mr Krasnov was elected head of the district council of the Presnenskiy district of Moscow (глава районной управы Пресненского района г. Москвы). 10. On 6 November 2002 the Moscow City Duma enacted Law no. 56 “on the organisation of local self-government in the city of Moscow”. Section 10 of that law determined that the bodies of local self-government in Moscow would include a municipal assembly (муниципальное собрание) as the representative body and a municipality (муниципалитет) as the executive body. Pursuant to transitional provisions of the law (section 43 § 2), heads of district councils who had been appointed or elected to their position before the law was enacted were to remain in power until the appropriate body had been formed, and its officials appointed or elected, in accordance with the law. 11. On 29 May 2003 the municipal assembly of the Presnenskiy district passed a decision to rename the district council of the Presnenskiy district of Moscow as the “Presnenskiy” municipality (муниципальное учреждение – муниципалитет «Пресненский»). On the same day the assembly adopted the regulation on the “Presnenskiy” municipality and appointed Mr Klubkov as its director. 12. On 16 June 2003 the director of the “Presnenskiy” municipality ordered the dismissal of the first applicant on the ground that he had not been re-elected to his position. 13. On 24 September 2003 the first applicant submitted his self-nomination application, for the elections to the State Duma, to the District Election Commission (DEC) of central single-mandate constituency no. 202 (in Moscow). He indicated that he was employed as “the head of the district council of the Presnenskiy district of Moscow”. 14. On 9 October 2003 the District Election Commission registered the first applicant as a candidate for election. 15. On 31 October 2003 the District Election Commission examined materials concerning verification of the information submitted by the first applicant and decided to apply to the Moscow City Court with a request for the annulment of its own decision of 9 October 2003 in the light of newly discovered circumstances. 16. On 6 November 2003 the Moscow City Court granted the Commission's request and annulled the first applicant's registration as a candidate for the Duma elections. It established that the first applicant had submitted untrue information about his employment as head of the district council of the Presnenskiy district of Moscow. 17. On 21 November 2003 the Supreme Court of the Russian Federation dismissed the first applicant's appeal against the judgment of 6 November 2003, finding as follows: “The [first-instance] court correctly applied the substantive law ... [I]t determined that, once it had been established that the information submitted by a candidate about himself, including the place of his employment, was untrue and if such circumstance became known after the registration, a court ... could annul the decision on registration. Having examined the evidence obtained by the District Election Commission after the registration of Mr Krasnov, the court established that on 28 August 2001 Mr Krasnov had been elected as head of the Presnenskiy district council and that on the basis of a decision ... of 29 May 2003... the district council was renamed as the 'Presnenskiy' municipality and Mr [Klubkov?] was appointed its director, whereas Mr Krasnov was dismissed ... because he had not been re-elected ... It follows that at the time of self-nomination Mr Krasnov was not the head of the district council of the Presnenskiy district of Moscow. The arguments in the appeal to the effect that the re-organisation of the district council had been carried out in flagrant breach of the law and that Mr Krasnov's dismissal had been unlawful cannot be the grounds for quashing of the judgment and for declaring Mr Krasnov's registration valid, as the examination of these issues falls outside the scope of the present proceedings. Neither the re-organisation of the district council nor Mr Krasnov's dismissal were ... appealed against or annulled. Mr Krasnov's argument that his continued employment as head of the district council is confirmed by the entry in his employment record, has been examined and rejected by the court. It follows from the case-file that on 23 June 2003 a letter was sent to Mr Krasnov's address whereby he was invited to take cognisance of the dismissal order. The claimant did not make use of his procedural right to prove the circumstances on which his claims were based ... For instance, he did not produce a certificate from the human resources department about his position at the moment of self-nomination or any orders (regulations) that he may have adopted after June 2003 as head of the district council, or any other proof of his employment in that period.” 18. On 20 October 2003 the second applicant submitted the documents concerning his nomination by the Communist Party of the Russian Federation (“CPRF”) for the elections to the State Duma, to the District Election Commission of the Buryatskiy single-mandate constituency no. 9. According to the acknowledgement-of-receipt coupon signed by the secretary of the Commission, the second applicant enclosed an application form, copies of his passport, diplomas and employment record (see paragraph 33 below), tax and property declarations and a copy of a certificate attesting to the membership status of the Communist Party's candidates for election to the State Duma, signed by the Chairman of the Central Committee of the Communist Party and addressed to the Central Election Commission (CEC) (see paragraph 34 below). 19. On 27 October 2003 the District Election Commission refused registration of the second applicant, invoking the following three grounds: “In the application written by the candidate Skuratov himself, his position is indicated as 'acting head of the department of constitutional, administrative and international law of the Moscow State Social University'. However, according to the entries in the candidate's employment record, his appointment as acting head of the department ... occurred at the same time as his transfer to the position of professor in the same department ... In fact, Mr Skuratov simultaneously performs the duties of acting head of the department and those of a professor of [that] department, which does not correspond to the information that he provided about his employment. Having indicated his membership of the Communist Party of the Russian Federation, the candidate ... did not provide a document showing his membership of the CPRF and his status within the party addressed to the District Election Commission and endorsed by the standing management of the party. Instead he submitted a copy of a certificate concerning membership of candidates for the State Duma elections and their status within the party addressed to the Central Election Commission ...” 20. The third ground for the refusal was that the copies of the second applicant's diplomas had been certified by a non-governmental organisation rather than by the competent authority. 21. On 29 October 2003 the second applicant complained to the Central Election Commission. 22. On 4 November 2003 the Central Election Commission determined that the District Election Commission had no solid grounds to consider that the second applicant had submitted untrue information. The CEC requested the District Commission to reconsider the second applicant's registration immediately. 23. On 11 November 2003 the District Election Commission issued a new decision refusing the second applicant's registration. It modified the first two grounds for refusal and added a new one. As to the second applicant's employment, it stated that, according to a certificate of 29 October 2003 signed by the pro-rector of the Moscow State Social University and enclosed with the second applicant's complaint to the CEC, Mr Skuratov was a professor in the department. Since a copy of that certificate had not been made available to the District Election Commission, the second applicant was considered to be in breach of electoral law in that he had failed to inform it of a change in his employment. As to the second applicant's membership in the CPRF, the Commission noted that he had been in possession of an appropriate document and had enclosed it with his complaint to the CEC, but he had only done so on 29 October 2003, that is after the expiry of the registration period on 22 October 2003. As a new ground for refusal, the Commission found that the second applicant had printed certain campaign materials which had not been paid for from his election fund. 24. The second applicant complained once again to the Central Election Commission. On 20 November 2003 it rejected his complaint. It determined that the second applicant had omitted to state that he had also been a professor in the university and that a document showing his membership in the CPRF had been incorrectly addressed. 25. The second applicant contested these decisions before a court. On 25 November 2003 the Supreme Court of the Buryatiya Republic dismissed his claim, upholding the first two grounds for refusal relied upon by the District Election Commission. It found that the second applicant had failed to inform that Commission of his appointment to the position of professor and to submit an appropriate document confirming his party membership. 26. On 29 November 2003 the Supreme Court of the Russian Federation upheld, on the second applicant's appeal, the judgment of 25 November 2003. It found as follows: “It has been established that in the application form ... of 2 October 2003 the candidate ... Skuratov indicated his position as acting head of the department ... However, it transpires from a copy of Skuratov's employment record ... that he was appointed acting head of the department ... by the order ... of 30 May 2003. Pursuant to the order ... of 28 May 2001 Skuratov had been elected for three years as a professor of the department of constitutional law ... and, by an order ... of 30 May 2003, he was transferred to the position of professor of the department of constitutional, administrative and international law. Skuratov failed to submit information ... concerning his transfer to the position of professor of the department of constitutional, administrative and international law. The court cannot agree with his argument that he had no intention of misleading the election commission ... because he did not see any substantial discrepancy in the information submitted. The [first-instance] court correctly determined that he should have indicated, as his current position, that of professor ... Because it is precisely that position which defines, in the spirit of the labour law, the substance of the employment contract between [Skuratov] and the educational institution, which corresponds to its organisation chart and which determines the nature of his professional duties ... At the same time, the fact of acting in another position may only be of a temporary nature, that is until the person has been approved in that position or has been reassigned to his old one ... The Supreme Court also considers that, as the right of a candidate to indicate his party membership and status in his application form carries a corresponding obligation to submit a document confirming that information ... officially certified by the standing governing body of the political party, such document cannot be replaced by the list of that party's candidates in single-mandate constituencies signed and sealed by the Chairman of the party's central committee and addressed to the Central Election Commission ... Pursuant to section 47 § 8(3) of the Elections Act, a failure to submit documents required for registration of a candidate under that law is a ground to refuse registration of that candidate ...” 27. On 6 September 2003 the Communist Party of the Russian Federation submitted its federal roll of candidates to the State Duma elections. On 13 October 2003 the roll was registered by the Central Election Commission. The second applicant was candidate no. 5 in the Urals regional group. 28. On 25 November 2003 Mr K., Chairman of the general council of the electoral bloc “Russian Pensioners' Party and Party of Social Justice”, made an application to the Supreme Court of the Russian Federation, seeking exclusion of the second applicant from the federal roll of the Communist Party. Referring to the decisions of the District Election Commission of the Buryatskiy district, he claimed that the submission of untrue information by the second applicant had infringed the rights of other political parties and electoral blocs standing in the elections, including his bloc. 29. In its observations of 28 November 2003, the Central Election Commission objected to the granting of the application. In its view, the claimants had failed to show how the registration of the second applicant had impaired their rights. It submitted that at the time of registration of the federal roll, the CEC had had no doubts as to the accuracy and authenticity of the information submitted by the CPRF about its nominees and that the circumstances invoked by the claimants could not be a ground for curtailing the second applicant's right to stand for election. 30. On 28 November 2003 the Supreme Court of the Russian Federation granted the application by Mr K., finding that the personal information submitted by the second applicant had been untrue because the position of “acting head of a department” was not among those listed in the Russian Labour Code and in the Graduate and Post-graduate Professional Education Act. Both the second applicant and the CPRF appealed. 31. On 4 December 2003 the Appeals Division of the Supreme Court upheld the judgment of 28 November 2003, giving the following reasons: “Having indicated in his application form ... that his position was acting head of the department ... while he permanently held the position of professor in that department, Mr Skuratov thereby submitted inaccurate personal information, which was the ground ... to annul his registration ... [T]he first-instance court was also justified in referring to the fact that neither the Labour Code nor the Graduate and Post-graduate Professional Education Act provided that the office of acting head of a department was a permanent one ... As the Supreme Court correctly determined in its judgment, the right to apply to a court with an application for annulment of a candidate's registration ... is vested ... in political parties and electoral blocs ... (section 95 § 6 of the Elections Act, Article 260 § 1 of the Code of Civil Procedure). As to the specific electoral rights and interests of the claimant (who had also submitted and registered a federal roll of candidates to the State Duma), in the instant case they are affected by the inclusion of the candidate Skuratov in the federal roll of candidates of the CPRF because that candidate had not complied with the formal requirements that applied in an equal measure to all candidates, political parties and electoral blocs and made possible the exercise of the right to stand for election. Such interests of the claimant are envisaged in sections 1 and 3 of the Elections Act, according to which members of the State Duma of the Russian Federation are elected by citizens of the Russian Federation in general, equal and direct elections; political parties and electoral blocs stand for election to the State Duma members on equal grounds in accordance with the procedure established by the present federal law ...” (original emphasis) 32. The second applicant submitted a copy of his employment record (трудовая книжка) and a copy of the Communist Party's certificate. 33. The relevant entries in his employment record read as follows: “28. 24/10/1995. Started fulfilling duties of Prosecutor General of the Russian Federation... 29. 20/04/2000. Discharged from the prosecution bodies of his own initiative... ... 34. 31/12/2002. Appointed acting head of the department of constitutional and administrative law, order no. 3832-l of 31 December 2002. 35. 01/01/2003. Transferred to the position of professor of constitutional and administrative law, order no. 856-l of 17 April 2003. 36. 30/05/2003. Transferred to the position of professor of constitutional, administrative and international law, order no. 1171a-l of 30 May 2003. 37. 30/05/2003. Dismissed from the position of professor of constitutional and administrative law, order no. 1190a-l of 30 May 2003. 38. 01/06/2003. Appointed acting head of the department of constitutional, administrative and international law, order no. 1169a-l of 30 May 2003.” 34. The relevant parts of the certificate printed on the letterhead of the Communist Party of the Russian Federation read as follows: “To the Central Election Commission of the Russian Federation: Certificate concerning membership of candidates to the State Duma ... standing for election in single-mandate constituencies ... in the political party 'Communist Party of the Russian Federation' and their status in the party. ... 9. Buryatiya Republic, district no. 9 – Skuratov Yuriy Ilyich – CPRF member. ... Chairman of the [Central Committee] of the CPRF [signature, seal] G. Zyuganov” 35. The Election Act (Federal Law “On election of members of the State Duma of the Federal Assembly of the Russian Federation”, no.175-FZ of 20 December 2002, as amended on 23 June 2003) provides as follows. Pursuant to section 47 § 8 (6), a candidate may not be registered if he or she submitted untrue information in his or her application form. According to section 38 § 7 (1), the application form of a candidate who nominated himself or herself for the elections must indicate, in particular, his or her “education, principal place of work or service and the position held (if he has no principal place of work or service – profession)”. The same information is required from candidates nominated to federal rolls by political parties (section 41 § 4 (1)) who may, in addition and without being obliged to do so, indicate their membership and status in a political party on the condition that they submit a document confirming such information and officially certified by the standing governing body of that party. The same requirements apply to the candidates nominated by political parties for election in single-mandate constituencies (section 41 § 12). 36. On 27 January 2004 the Office for Democratic Institutions and Human Rights of the Organisation on Security and Cooperation in Europe (OSCE) released the final Election Observation Mission Report concerning the elections to the State Duma held on 7 December 2003. The relevant extracts read as follows: “There were relatively few complaints concerning registration of parties and candidates, and the CEC adjudicated most of these in a fair and open manner. However in a number of instances, courts and lower level election commissions disqualified candidates in a selective manner for trivial violations ... In a ruling which suggested an inconsistent and selective application of the registration rules, former Procurator General Yuriy Skuratov (DEC 9) was refused registration on the basis that he had failed to mention in his nomination papers that he had a second job of a professor at Moscow State Social University and had also failed to provide timely confirmation of his membership of the [Communist Party]. The DEC's decision was initially revoked by the CEC. However, when the matter was remitted to the DEC, it again refused to register Mr Skuratov, on the same grounds. On a second appeal to the CEC, Mr Skuratov's complaint was rejected on the grounds that the DEC had provided clearer reasons for its decision. Mr Skuratov's subsequent appeal to the Supreme Court was also rejected.”

train

001-5375

ENG

DEU

ADMISSIBILITY

DANKOVSKY v. GERMANY

Inadmissible

Antonio Pastor Ridruejo

The applicant, born in 1954, is a German national and resident in Saarbrücken. When lodging his application, he was serving a prison sentence in the Stuttgart-Stammheim Prison. In the proceedings before the Court, he is represented by Mr R. Neumann, a lawyer practising in Tübingen. The respondent Government are represented by Mr K. Stoltenberg, Ministerialdirigent. A. The facts of the case, as submitted by the parties, may be summarised as follows. In 1993 criminal proceedings were instituted against the applicant and others on the suspicion of inter alia theft. In these proceedings, the applicant was assisted by a court-appointed defence counsel. The trial against the applicant and the two co-accused, Mr C. and Mr S. opened before the Tübingen Regional Court (Landgericht) on 20 September 1994. In the course of the trial, the applicant repeatedly applied to the presiding judge to be allowed to put personally questions to the co-accused S. This was refused. The applicant’s defence counsel did not put the questions concerned. On 16 December 1994 the Tübingen Regional Court convicted the applicant of four counts of theft. Taking into account the applicant’s previous sentences imposed by the Zweibrücken District Court (Amtsgericht) in January 1992 and the Zweibrücken Regional Court in March 1992, respectively, the Regional Court fixed a cumulative sentence of four years’ imprisonment. Moreover, he was convicted of kidnapping (räuberischer Menschenraub) and extortion with violence (räuberische Erpressung) as well as of theft on twelve counts and, in respect of these offences, a cumulative sentence of ten years’ imprisonment was imposed. He was acquitted of the remainder of charges. The Regional Court convicted the co-accused Mr C. of kidnapping and extortion with violence and, taking into account his previous prison sentence, it fixed a cumulative sentence of ten years and six months’ imprisonment and confirmed his preventive detention. Mr S. was convicted of kidnapping and extortion with violence on two counts as well as of eight counts of theft, and he was sentenced to eight years’ imprisonment. In its judgment, insofar as it concerned offences involving the applicant, the Regional Court found that in March/April 1992 the applicant and Mr S. had committed several burglaries and, together with Mr C., they had taken part in a bank robbery. Moreover, between February and July 1993, the applicant, while serving an earlier prison sentence in an open prison, had committed further counts of burglaries with Mr S. and other persons, including Mr A., who had meanwhile been convicted. The Regional Court noted that the accused Mr S. had fully confessed his participation in the offences in question. The applicant had, to a large extent, confessed his participation in the burglaries. These statements were confirmed in particular by the statements made by the other participants in the offences in question as well as by the statements of the victims as to the stolen goods. As regards the offences of kidnapping and extortion with violence, the Regional Court found that the applicant had denied any participation in bank robberies, which had taken place on 8 and 16 April 1992, respectively. The Regional Court found that the statements made by the co-accused Mr S. on the bank robbery of 16 April 1992, including his indications as to the participation of the applicant and the co-accused Mr C., were credible. In this respect, the Regional Court considered that several witnesses had confirmed Mr S.’s account of details of the robbery. The Regional Court rejected the applicant’s and MrC.’s defence that Mr S. had made false statements about his and their participation in this offence. The Regional Court noted their allegation that Mr S. himself had intended to obtain a long term of imprisonment or that he had wanted to cause sensation and that he had wanted to revenge himself on them. The Regional Court considered that these arguments were far-fetched. In particular, Mr S.’s own participation in the offence was proven by his detailed knowledge about the robbery. Moreover, Mr S. had stated a valid reason for his confession, namely the intention to terminate his criminal activities and to start a new life following therapy in the course of his detention after conviction. From the angle of psychiatric evidence, the Regional Court found no indication that, due to mental reasons, Mr S. had wrongly accused himself and the co-accused. According to the Regional Court, Mr S.’s disappointment and annoyance about bad treatment and insufficient pay by the applicant might have contributed to his open confession. However, there was nothing to show that he had therefore wrongly accused the applicant of a serious criminal offence. Moreover, there was no explanation that, for such a reason, Mr S. would wrongly accuse himself and Mr C., who in the past had been his friend. In assessing the credibility of Mr C., the Regional Court had also regard to the general context of statements made in the course of the investigations against the persons involved in the offences in question. It noted that, following the full confession of Mr S. at an early stage, the applicant and the other accused, who had been prosecuted separately, had confessed their participation in the burglaries. Furthermore, an accomplice, who had been prosecuted separately, had stated that the applicant had told him in the course of a telephone conversation in May or June 1992 that he had robbed a bank. The Regional Court noted that the applicant had admitted the contents of this conversation, pretending that it had been a joke. Further statements made by a Mr M. on the weapon used in the course of the robbery as well as statements made by witnesses on the circumstances of the bank robbery confirmed Mr S.’s deposition. The applicant’s and Mr C.’s affirmations that they had been elsewhere at the relevant time were contradictory and inconclusive. The witnesses named by them had not confirmed their alleged alibi. The Regional Court dismissed the applicant’s request to hear Mr A., one of the accomplices having been convicted in separate proceedings, on the question that the applicant had never talked about having been with the other accused after the bank robbery. The Regional Court considered that this issue was irrelevant, as the circumstance that the applicant had not told others about his participation in the offence could not prove his innocence. As regards the second bank robbery of 8 April 1992, the Regional Court found that the statements of Mr S. were credible as far as his own participation in the offence was concerned. However, as regards his accusation of a participation of the applicant and Mr C., his statements, though plausible, were, unlike in the other case, not corroborated by any other evidence. The Regional Court therefore acquitted the applicant and Mr C. of the charges in respect of the bank robbery of 8 April 1992. On 30 January 1996 the Federal Court of Justice (Bundesgerichtshof), upon the applicant’s appeal on points of law (Revision), quashed the Regional Court’s judgment as far as the fixing of a cumulative sentence of ten years’ imprisonment was concerned, and referred this matter back to the Regional Court. The remainder of the appeal was dismissed. The Federal Court of Justice found in particular that the Regional Court had not been required to stay the criminal proceedings and to refer to the Federal Constitutional Court the question concerning the constitutionality of section 240(2), second sentence, of the German Code of Criminal Procedure (Strafprozessordnung), excluding the direct questioning (direkte Befragung) of an accused by a co-accused. According to the Federal Court of Justice, the decisions of the Presiding Judge on this matter could not be objected to from a procedural point of view. Moreover, in the circumstances of the present case, the applicant, as conceded by him, could have availed himself of the opportunity to have his questions to the co-accused Mr S. put by the Presiding Judge. Having regard to Article 6 § 3 (d) of the Convention, the Federal Court of Justice considered that the right to examine or have examined witnesses against him was a procedural right of the defence. However, it was the applicant’s own submission that his defence counsel had not wished to put questions to Mr S. As regards the fixing of the sentence of 10 years’ imprisonment, the Federal Court of Justice found that the Regional Court’s reasoning did not show that it had considered the cumulative effect of 14 years’ imprisonment appropriate. On 21 August 1996 the Federal Constitutional Court (Bundesverfassungs-gericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde) about his conviction by the Regional Court, as confirmed by the Federal Court of Justice. The Federal Constitutional Court considered that the complaint did not raise any fundamental questions of constitutional law and that the refusal of a decision on the merits did not cause the applicant any particularly serious disadvantage. As regards the main issue raised by the applicant, the Federal Constitutional Court found that section 240(2), second sentence, of the Code of Criminal Procedure was not unconstitutional. This provision did not affect the right of an accused to a fair trial. In this respect, the Federal Constitutional Court recalled that in a fair trial an accused should not be the object of proceedings, but be in a position actively to participate in the proceedings in order to safeguard his rights. Section 240(2), second sentence, did not limit the contents of the right of the defence to examine a co-accused. In the interest of the proper conduct of the trial, the right to put questions to a co-accused was merely limited to an indirect questioning, i.e. the right to have a co-accused examined by the defence counsel or by the presiding judge. In these circumstances, there was no indication of a breach of the right to a fair trial. The decision was served on 9 September 1996. B. Relevant domestic law Section 240 of the Code of Criminal Procedure provides as follows: “1. Upon request, the presiding judge shall permit the associate judges to address questions to the accused, to witnesses and to experts. 2. The presiding judge shall permit the public prosecutor’s office, the accused and the defence counsel, as well as the lay judges, to do the same. Direct questioning of an accused by a co-accused is not permitted.”

train

001-118035

ENG

ITA

ADMISSIBILITY

ADA ROSSI AND OTHERS v. ITALY

Inadmissible

Françoise Tulkens

The applicants, whose names appear in the appended list, are seven Italian associations and six Italian nationals. They were represented before the Court by Mr R. Elefante, Mr A. Granata and Mr R. Dolce, lawyers practising in Naples. The facts of the case, as submitted by the applicants, may be summarised as follows. The applications were lodged by the guardians of persons in a vegetative state, by associations whose membership consists of, inter alia, relatives of severely disabled people, doctors, psychologists, and lawyers assisting such persons and by Acmid-Donna Onlus, a human-rights defence organisation. In January 1992 E.E., a 20-year-old woman, was a victim of a road-traffic accident in which she suffered a head injury and a fractured vertebra and fell into a coma. She was subsequently diagnosed as being in a vegetative state with spastic tetraplegia and loss of all higher cognitive functions. In December 1996 E.E. was placed under the guardianship of her father. In January 1999 her father began court proceedings, seeking authorisation to discontinue his daughter’s artificial nutrition and hydration and alleging that this would have been his daughter’s wish given her personality and the ideas she had expressed about life and human dignity before her accident. The authorisation was refused twice at first instance and on appeal, in 1999 and 2003. In April 2005 the Court of Cassation quashed the first decision of the Milan Court of Appeal dismissing the appeal and remitted the case for fresh consideration, observing that E.E.’s father’s request could not be granted in the absence of specific evidence as to the wishes expressed by his daughter before the accident. On 16 October 2007 the Court of Cassation quashed the second decision of the Court of Appeal and, in its order remitting the case, stated that the judicial authority could authorise the discontinuation of artificial nutrition if the person concerned was in a persistent vegetative state and if there was evidence that such person would have opposed medical treatment if he or she had been in possession of all his or her faculties. In a decision of 25 June 2008 the Milan Court of Appeal, after rehearing the case, granted the authorisation requested by E.E.’s father on two grounds, namely, that E.E.’s vegetative state was irreversible and that there was clear, consistent and convincing evidence that the request accurately reflected the will of the represented person in so far as this could be inferred from her lifestyle, her beliefs and the views she had expressed on human dignity before becoming unconscious. On 8 October 2008 the Constitutional Court rejected applications lodged by Parliament in September 2008 alleging a conflict between the various branches of State power. It found that the judges who had examined the case had not issued a legislative precedent and had not therefore usurped the prerogatives of Parliament. Lastly, on 11 November 2008, the Court of Cassation dismissed an appeal on points of law by the Milan public prosecutor’s office against the Court of Appeal’s decision of 25 June 2008, on the ground that the public prosecutor did not have capacity to act in the proceedings. That decision rendered the contested judgment final.

train

001-87146

ENG

TUR

CHAMBER

CASE OF ISAAK v. TURKEY

Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Pecuniary damage - award;Non-pecuniary damage - award

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

7. The applicants were born in 1977, 1944, 1951, 1974 and 1979 respectively. The first applicant lives in Ayia Napa and the remaining applicants live in Paralimni. The first applicant is the widow, the second and third applicants are the parents and the fourth and fifth applicants are the sisters of Mr Anastasios (Tassos) Isaak, a Greek Cypriot, who died on 11 August 1996. 8. The deceased, Anastasios Isaak, participated in a demonstration organised by the Cyprus Motorcycle Federation (CMF) that took place on 11 August 1996 at several points of the United Nations (UN) buffer zone east of Nicosia, including the area of Dherynia. The demonstration, details of which are in dispute between the parties, was the subject of a report by the UN Forces in Cyprus (UNFICYP) (report of 15 August 1996) and by the UN Secretary General (report S/1196/1016 of 10 December 1996). 9. The demonstration was organised by the CMF and was aimed at protesting against the Turkish occupation of the northern part of Cyprus. On 2 August 1996 a group of over one hundred Cypriot and other European motorcyclists set off from Berlin and made their way through Europe to Cyprus. Tensions arose when the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) announced that in the event the demonstration took place, they would be organising “counter-rallies” with the participation of the Turkish extremist “Grey Wolves” group and that they would fire at Greek-Cypriot demonstrators. Throughout the relevant period the Government of Cyprus and the competent authorities monitored developments and were in constant consultation with the UN. On 11 August 1996, in the morning, following an urgent appeal by the UN Secretary General, a meeting was held under the Chairmanship of the President of the Republic and it was decided to cancel the final part of the rally. Consequently, the President of the Republic made a special plea to the motorcyclists to disperse peacefully. 10. Notwithstanding that plea, on 11 August 1996, a group of motorcyclists and other civilians acting spontaneously proceeded to various points along the UN buffer zone. In the meantime, the Cypriot police had taken tight security measures in order to prevent the motorcyclists from entering the buffer zone. 11. Anastasios Isaak was part of the above-mentioned group. He had joined the rally with a friend on his motorbike. 12. At about 2.30 p.m. the motorcyclists, including Anastasios Isaak, arrived at the Dherynia roadblock, where they left their motorcycles and proceeded to cross the National Guard ceasefire line on foot, after breaking through the police and UN cordon. The demonstrators, who were unarmed, entered the buffer zone. 13. Behind the ceasefire line of the Turkish forces, a mob gathered, comprised of Turkish-Cypriot and Turkish civilians, many of them carrying hunting rifles and air guns, iron bars, wooden sticks, batons, stones and catapults. There were also many Turkish soldiers and “TRNC” policemen armed with automatic and other military weapons. According to the report by UNFICYP, the Turkish forces allowed about 1,000 persons in buses to pass through their 3 km military zone and assemble there. Some of them belonged to the “Grey Wolves” organisation. 14. Between approximately 3 p.m. and 3.30 p.m. many stones were thrown on both sides. Shots were fired against the Greek-Cypriot demonstrators, some of whom suffered injuries as a result. 15. Between 3.30 and 4 p.m. the mob in the occupied area entered the buffer zone. They were armed with long sticks, batons and iron bars. At approximately 4.30 p.m. a group of the Turkish mob, together with uniformed policemen, managed to isolate several Greek-Cypriot demonstrators whom they started beating. A group of about 15-20 persons, including five uniformed policemen, surrounded Anastasios Isaak, who had been isolated in the buffer zone and was unarmed. Anastasios Isaak was thrown to the ground after having being chased. During a period of approximately five minutes he was kicked and beaten continuously on every part of his body and his head with metal and wooden batons. There were in total eight “TRNC” police officers in the vicinity. 16. When the UNFICYP police officer Frank Flood tried to intervene and started pushing some of the attackers away, Anastasios Isaak was already unconscious with blood coming out of his mouth and nose. Officer Flood was also attacked from behind. According to Officer Flood’s statement (see paragraph 29 below), there had been approximately twelve people surrounding Anastasios Isaak at that moment, including a number of uniformed policemen. When the attackers eventually moved away, Officer Flood tried to trace signs of life. As the officer stood up, one of the attackers threw a large stone at Anastasios Isaak’s head. This struck Anastasios Isaak on the right hand side of his head, causing him to jerk. The attacker then ran away. 17. UNFICYP officer Sergeant Lorraine Stack, who had been helping out another Greek-Cypriot demonstrator a few metres away, went to Officer Flood’s assistance. The two UNFICYP officers then dragged Anastasios Isaak’s body to the area controlled by the Cypriot Government. Greek-Cypriot demonstrators then took the body and put it in a car. The car was driven towards the guard room of the National Guard and Anastasios Isaak was transferred to Paralimni Hospital. On the way to hospital Anastasios Isaak had no pulse and was not breathing, despite the efforts of the medical staff in the ambulance. At the hospital the doctors’ efforts to revive him continued but to no avail. Anastasios Isaak was pronounced dead at the hospital. His body was then transferred on the same day to Larnaca General Hospital. 18. On 12 August 1996, members of the police, escorted by members of UNFICYP and State pathologists Mr P. Stavrianos and Mr S. Sophocleous, visited the scene of the incident and carried out an examination. During this examination several exhibits were photographed and recorded on video by the police. UNFICYP Sergeant Dale Roberts examined the scene of the incident and detected drops of blood stains on the ground and on a stone. Various objects were found such as glass marbles, metal bars, shotgun cartridges, wooden sticks, blood stains on a rusty metal can and plate fragments, which were all taken as exhibits. Soil stained with blood was also recovered for further examination. 19. On 13 August 1996 Professor Peter Vanezis, from the Department of Forensic Medicine and Science of Glasgow University, arrived in Cyprus to perform the post-mortem examination. On the same day and before the post mortem, Professor Vanezis visited the scene accompanied by State pathologists Mr P. Stavrianos and Mr S. Sophocleous and members of the police. The team was escorted by members of UNFICYP. During the examination further exhibits were found, such as blood stains, a bloodstained piece of wood and a piece of piping. All the exhibits were photographed and recorded on video by the Cyprus police. 20. On the same date a post-mortem examination was performed by Professor Vanezis, assisted by two State pathologists. Members of the police and UNFICYP were also present. The entire process of the examination was photographed and recorded on video. During the examination various exhibits were taken by Professor Vanezis, which were later delivered by the police to him in Glasgow for further laboratory analysis. 21. According to the post-mortem examination, the cause of death was multiple blunt trauma to the head. The same conclusion appeared in the preliminary post-mortem report issued by Dr M. Enk of UNIFCYP and also in Professor Vanezis’s final report issued on 17 September 1996. Furthermore, according to the report issued on 9 September 1996 by Dr John S. Oliver, Senior Lecturer in Forensic Medicine (Toxicology) in the Department of Forensic Medicine and Science of the University of Glasgow, the results of the analysis of the blood and urine samples of Anastasios Isaak for alcohol and drugs were negative. 22. The forensic examination carried out by UNFICYP found that the blood on the rusty can, on the stone, in the soil and on the shirt worn by Officer Frank Flood during the incidents belonged to the same blood group as that of Anastasios Isaak. 23. The demonstration was organised by Greek Cypriots as an alleged motorcycle rally and began on 1 August 1996 in Berlin. This rally was actively supported by the Greek-Cypriot authorities and had extensive media coverage. The aim of the rally was to forcibly enter the buffer zone, cross the ceasefire line and enter “TRNC” territory illegally in order to meet at the most northerly town of Kyrenia at all costs. As a result of the aggressive conduct of the organisers, tensions arose on both sides of the border. The Greek-Cypriot administration did nothing to prevent the rally in spite of appeals by the Turkish-Cypriot side and the UN Secretary-General. In view of this, the Turkish-Cypriot side announced that it would stop such provocative, hostile and aggressive action at its borders in order to prevent danger to the lives and properties of its citizens. 24. Upon representations from UNFICYP as to the possibility of such demonstrations having serious consequences, the President of the Republic of Cyprus issued a statement on 11 August 2006 declaring that the demonstrations had been prohibited and appealed to the demonstrators to disperse. Acting upon this, the Turkish-Cypriot demonstrators started to disperse peacefully. 25. Nonetheless, on 11 August 1996, Greek-Cypriot demonstrators were involved in violent incidents at various places along the ceasefire lines within the UN buffer zone. Over a thousand Greek-Cypriot motorcyclists and demonstrators arrived at Dherynia escorted by the Greek-Cypriot police. The latter allowed the demonstrators to advance and to enter the UN buffer zone up to the border with the “TRNC”. The UN personnel were unable to prevent the demonstrators’ unauthorised entry into the buffer zone and to keep them under control. The situation then got out of control as Greek-Cypriot demonstrators threw stones and missiles and fired towards the counter-demonstrators. Skirmishes took place between the Greek-Cypriot mob and a group of Turkish-Cypriot counter-demonstrators, when the former crossed into the buffer zone and consequently into the Turkish-Cypriot-controlled area. 26. As a result of the clashes both Turkish-Cypriot and Greek-Cypriot demonstrators were injured. Anastasios Isaak was the leader of the group of Greek Cypriots who had entered the UN buffer zone and approached the barbed-wire fence at the Turkish Cypriot ceasefire line at Dherynia shouting abuse and throwing stones from close range at a line of Turkish-Cypriot policemen on the other side of the fence. One of the stones hit a policeman who was wounded on the temple and fell to the ground, bleeding profusely. It had not been possible for the Turkish-Cypriot police to prevent Turkish-Cypriot groups of civilians from entering the buffer zone to pursue the Greek Cypriots. The Turkish-Cypriot policemen also entered the buffer zone to bring back the Turkish Cypriots who had already gone into that area. However, Anastasios Isaak, who was a strong and well-built man, continued his aggressive attitude against the Turkish-Cypriot group, including the police, throwing stones and hitting them with a stick. Skirmishes continued between the Greek-Cypriot and the Turkish-Cypriot demonstrators, resulting in the unfortunate death of Anastasios Isaak, who had become entangled and trapped in spiral barbed-wire barriers that had been put up temporarily by the UN force and had prevented his escape from that area. 27. In its report of 15 August 1996 UNFICYP set out the facts concerning the demonstrations held on 11 August 1996. The relevant extracts read as follows: “8. The most serious incident took place in Dherynia. On Sunday morning, a peaceful demonstration by some 250 Greek Cypriots took place. They entered the United Nations buffer zone and requested to deliver a petition to the Turkish-Cypriot checkpoint. When the latter refused to receive the petition, the demonstrators left the United Nations buffer zone, but remained in the area. At 14.30 hours, some 300 motorcyclists together with some 700 persons in vehicles escorted by Cypol [Cyprus police] arrived at the NG [National Guard] ceasefire line checkpoint in Dherynia. Cypol deployed along the NG ceasefire line but left the checkpoint unattended, thus enabling the demonstrators to enter the United Nations buffer zone unimpeded. 9. In the meantime, the Turkish forces had allowed some 1,000 persons in buses to pass through their 3 km deep military zone and to assemble along the TF [Turkish Forces] ceasefire line, including persons carrying the flag of the Grey Wolves who had come from Turkey. 10. The situation soon became violent, after Greek-Cypriot demonstrators entered the buffer zone and approached the TF ceasefire line to provoke the TF, the TCPE [Turkish-Cypriot Police Element] and demonstrators assembled there with verbal abuse and throwing stones. Cypol was not effective in controlling the Greek-Cypriot demonstrators. 11. At about 16.00 hours, the Turkish Forces allowed the Turkish-Cypriot demonstrators to enter the United Nations buffer zone armed with bats and iron bars. The Turkish-Cypriot demonstrators, joined by the Turkish-Cypriot Police, proceeded to pursue the Greek Cypriots and mercilessly beat all those who they were able to catch. At the same time, there was shooting, including by Turkish-Cypriot police, from behind the Turkish Forces ceasefire line towards the Greek-Cypriot demonstrators. 12. During this period, a Greek-Cypriot demonstrator, Anastasios Isaak, was beaten to death by a number of Turkish-Cypriot demonstrators, including three Turkish-Cypriot policemen. By 18.00 hours the situation began to calm down. In addition to the one dead, it was reported that some 54 Greek Cypriots and 17 Turkish Cypriots were injured. 12 UNFICYP personnel suffered injuries. 13. The UNFICYP investigation revealed conclusively that the killing of Anastasios Isaak had occurred some 50 metres from the scene shown on television in which three Greek Cypriots were being severely beaten by Turkish-Cypriot demonstrators while helplessly entangled in barbed wire. Two UNFICYP Irish Civilian Police had done their best in trying to rescue Anastasios Isaak at considerable personal risk. 14. The two United Nations Civilian Police had observed two Greek-Cypriot demonstrators being set upon by two groups of Turkish-Cypriot demonstrators who proceeded to beat them with brutal force. The two United Nations Police went to the assistance of one of the Greek Cypriots and managed to facilitate his escape. When they turned to the second Greek Cypriot (Isaak), and were finally able to push aside the Turkish Cypriots, including three Turkish-Cypriot policemen, who were still beating him, it was too late. The location of the killing inside the buffer zone was about 95 metres from the National Guard ceasefire line and about 32 metres from the Turkish Forces ceasefire line. 15. A video broadcast on ‘Euronews’ inter alia clearly shows the killing of Anastasios Isaak and the intervention of the two United Nations police. The autopsy, attended by UNFICYP, which was performed later in the afternoon of 13 August, revealed that Anastasios Isaak died of ‘multiple blunt trauma to the head’. UNFICYP has completed the collection of the evidence at the scene of the crime and is in the process of completing its investigation in cooperation with Cypol...” 28. Following the events, UNFICYP took statements from its officers who were on duty at the Dherynia checkpoint. 29. The witness was on duty at Dherynia checkpoint on 11 August 1996 between 3 p.m. and 8 p.m. In his statement of 13 August 1996 he reported, inter alia, the following: “... At approximately 4.30 p.m. I observed approximately 100 Turkish-Cypriot protesters enter the buffer zone. They ran towards the Greek-Cypriot side of the buffer zone. They were accompanied by a number of TCPE policemen and Turkish Military personnel in camouflage uniform. I observed a number of Greek-Cypriot men running from the Turkish-Cypriot crowd in the direction of UN OP143. The Turkish Cypriots were armed with sticks and large batons. I observed one man being caught and beaten to the ground by the Turkish-Cypriot crowd. This man was immediately surrounded and attacked while he was on the ground. I would describe this man as having long black hair tied into a pony tail. He was wearing a black sleeveless jacket and dark trousers. I rushed forward to attempt to assist him. As I went forward I was accompanied by Sergeant Carney and Sergeant Stack. I heard Sergeant Carney shout at a TCPE policeman to leave the buffer zone. This policeman was armed with a metre-long baton and a riot shield. He appeared to hesitate for a moment but then he moved towards the group of people who were attacking the man on the ground. I moved into this group, Sergeant Stack was beside me. We pushed a number of people away from the man on the ground. I was struck by the baton of a TCPE policeman on my right shoulder. I am unable to describe this policeman except that he was wearing uniform. Eventually we managed to clear a small space around the man on the ground and Sergeant Stack managed to get this man on his feet while I pushed the crowd back. I then observed another man being knocked to the ground approximately 10 metres away. I observed that he was being kicked, punched and struck by a number of people including TCPE policemen. Sergeant Stack was pushing the first man towards the Greek-Cypriot side of the buffer zone. I ran over to assist the second man. I would describe this man as wearing a white T-shirt and faded blue jeans. As I approached this man I observed that he appeared to be unconscious and there was blood coming from his nose and mouth. I pushed one man away from the man on the ground and shouted at the crowd ‘Stop. You’ll kill him.’ I was attacked from behind. There were approximately 10 or 12 people around the man on the ground at this stage including a number of TCPE policemen. I pushed some of these people away and eventually the attackers moved away. I briefly checked the man on the ground for signs of life. I observed no sign of life. I stood up and as I did so I observed a man who was wearing a grey sleeveless T-shirt, he had black hair and was approximately 5’5” in height, I would not be able to identify this man if I saw him again. This man had a large stone, held in both his hands, raised above his head. This man threw the stone at the man on the ground. The stone stuck the man on the ground on the right hand side of his head causing him to jerk. The man who threw the stone immediately turned and ran away. I observed that the crowd of attackers appeared to be returning. I lifted the man on the ground into a sitting position and dragged him a short distance. Sergeant Stack came to my assistance and assisted me in dragging the man towards the Greek side of the buffer zone. We had covered a distance of about 30 metres when I was attacked by a group of 5 or 6 Greek Cypriots. I was knocked to the ground and the man we were dragging was taken away from us. I moved back a short distance and I observed the injured man [being] taken towards the Greek-Cypriot side of the buffer zone...” 30. The witness was on duty at Dherynia checkpoint on 11 August 1996 from 8 a.m. In her statement of 13 August 1996 she reported, inter alia, the following: “...At approx. 03.30 hrs the people on the Turkish side of the CFL [Ceasefire Line] began to enter the BZ [Buffer Zone] in groups of 50 approx. I saw them charge at civilians who, after running towards the Turkish CFL, were running towards the NGCFL [National Guard ceasefire line] heaving stones and missiles. The people from the Turkish side had long sticks and batons and began savagely beating any civilian they could catch. I saw TCPE members enter the BZ with uniform and beat the civilians already in the BZ who were from the NG side. There was no difference between the behaviour of the Turkish civilians in the BZ and the TCPE there in uniform. They acted like a mob beating severely any person they could catch from the other side who was in the BZ. Again I ran to numerous incidents, however, these were spread over a large area of ground in the buffer zone. It was approx. 60 metres in depth and 200 metres in length. The attacks were sporadic again, the groups from the Turkish side would return to their CFL and regroup. These attacks were very violent. I was standing approx. 40 metres from the Turkish ceasefire line during these times changing position as the missiles were being aimed at the civilians close to me. Throughout these incidents I could hear shots being fired from the Turkish CFL, again not continuous but sporadic. This scene continued until approx. 17.00 hrs. At approx. 16.30 hrs I was standing approx. 40 metres from the Turkish ceasefire line in the Buffer Zone and approx. 40 metres from the road that links the Turkish Forces checkpoint with the National Guard check point at Dherynia. In front of me I saw a group of about 15 people chase a person (civilian) and begin to beat him with sticks and batons. I ran to his assistance. The group of approx. 15 were dressed in TCPE uniform and civilians from the Turkish side. The man beaten was from the NG side and he was attempting to get away. I saw him being beaten to the ground, he was kicked continuously and beaten savagely on the head and body. I got to him and saw Police Officer Flood to my left. I went over to him and pushed the attackers back. I was also assaulted by the attackers during this, however, the blows from the sticks that hit me on my arms and back, were not intended for UN personnel. I saw at least two TCPE in uniform there and when they desisted on seeing us the rest of the group began to move back. ... I pushed him towards the NGCFL and he then began running, ... As I turned to stop any more attackers I saw Police Officer Flood attempting to lift a person off the ground. It was a short distance forward towards the TCFL [Turkish-Cypriot Ceasefire Line] I went to his assistance. I looked at the man’s face and it was my opinion at the time that he was dead. I shouted (noise level) at PO Flood: ‘Give me half of him, we’ll drag him.’ At this time there were some people with batons in front of us. We dragged him back approx. 30 metres towards the NGCFL ensuring he was not beaten again. Approx. 30 metres back we were met by some civilians from the NG side. They verbally abused us and pushed us taking the body from us. Going to NGCFL we moved away slowly from them after letting go of the body. I would describe this man as follows: - 25 yrs of age approx., heavy built approx. five foot 10 inches. He had a stubbly face, he had long black hair and he was wearing jeans and a white t-shirt. He was very pale at the time and there was blood coming from his head, nose and mouth. There were no life signs during this removal. I went back to the scene of more incidents. ... The times I have written into this statement are approximations. At 7.10. pm I went to Paralimni Hospital and viewed a body there. I can identify this body as being the second man whose assistance I went to and carried back 30 metres in the direction of the NGCFL. I spoke with Supt. Anastassiou of CYPOL who gave me the deceased name as being Tassos Isaak from Costa Palma, Paralimni. I also identified this body to my Deputy Commander Superintendent Cosgrave as being the man I dragged out of the Buffer Zone, who was in my opinion dead. ...” 31. The witness was on duty at Dherynia checkpoint on 11 August 1996 from 8 a.m. In his statement he reported, inter alia, the following: “...At approximately 4.25 p.m. I observed a TCPE member who was armed with a baton assault a man who was dressed in blue jeans and a white t-shirt. I now know this man to be Anastasios Isaak. PO Frank Flood was near me at this moment. I ran towards the TCPE member and called out to him ‘You are a policeman, stop’. I shouted this at him several times. He then stopped. I was approx. 10 metres from this policeman, Anastasios Isaak ran to my right towards the road between OP 143 at the TKCYP [Turkish-Cypriot] checkpoint. He was being pursued by a number of TKCYP civilians armed with long sticks and other weapons including metal poles. I ran towards where Anastasios Isaak was when a person whom I presume was a TKCYP attempted to assault me with a metal pole. I swerved to avoid him. He ran off. I then observed the same TCPE member run towards where Anastasios Isaak was being pursued by other TKCYP civilians. He was being continually hit from behind on the head and on the back by these people with wooden and metal poles. I observed the TCPE member also strike Anastasios Isaak with his baton. I was running towards this mob when I was struck by several missiles on my left hand side. I was then hit from behind with a plastic bottle of water. Two GKCYP youths then came from my side and knocked me to the ground. They kicked me several times while I was on the ground. I managed to get to my feet. These youths were shouting at me ‘Why don’t you save this man, you mother-fucking UN bastard?’ They repeatedly kicked me and shouted abuse. Then a youth on a four wheel yellow motorcycle drove straight at me and struck me on my left-hand side. I was knocked to the ground. He turned his motorcycle and drove at me again. I got to my feet and he drove past me and went towards the GKCYP CFL. I looked towards where Anastasios Isaak was, he was surrounded by TKCYP civilians and the TCPE member who I had confronted a short while previously. There were other TCPE members and TF in military uniform. Anastasios Isaak was being repeatedly hit with batons and sticks by civilians and TCPE and TF. They also kicked him savagely on the ground. I saw PO Frank Flood go towards this mob. They began to disperse. I then was again confronted with several GKCYP youths who kicked and pushed me. They screamed abuse at me shouting ‘why do the UN not help the GKCyps?’. I then observed Sgt Stack and PO Flood drag Anastasios Isaak to safety. A mob then took him from Sgt Stack and PO Flood. All this time the noise level was intense, missiles were being continually thrown from both sides...” 32. The witness, the deputy commander of the Irish Civilian Police (IRCIVPOL), was on duty at Dherynia checkpoint on 11 August 1996 from 8 a.m. In his statement he reported, inter alia, the following: “...At about 4.20 p.m. I saw a man running along horizontally with the patrol track leading from UM OP 142. As he ran he was hit several times on the head by a group of four to five people who were running after him. He eventually fell to the ground and was kicked and beaten to the ground by the group who included at least one uniformed Turkish policeman. I was about 20 metres from this incident as it enfolded. There was continuous shouting and severe noise as both groups chased each other in the BZ. I moved towards the man on the ground in an effort to save his life. I also saw that Sgt Lorraine Stack was with this group and moved towards the injured man. As this stage Sgt Lorraine Stack and Garda Flood removed the injured man and he was taken away by his friends. I now know this man to be Anastasios Isaak, DOB [date of birth] 10/2/71 of Costa Palama 13, Paralimni. The Turkish police moved into the buffer zone and with the assistance of UN personnel the Turkish demonstrators were pushed out of the BZ and on to behind the CFL. At that stage the Greek demonstrators were moving back towards the Greek CFL with the assistance of UN personnel. ... I then identified the area where the injured person was attacked and sometime later I was informed that he had died. At 7.10 p.m. accompanied by Sgt Lorraine Stack and Sgt George Kulmer AUSCON [Austrian Contingent], photographer, I went to Paralimni Hospital where the body of Anastasios Isaak was lying. I met the State Pathologist, Dr Panicos Stavrianos and D/Supt. Th. Anastasiou CID Police Headquarters Nicosia. I directed the photographer George Kulmer to take photographs of the body, which he did. ...” 33. Furthermore, in his statement, Superintendent M. Cosgrave noted that the following day he had visited the scene of the incident at Dherynia checkpoint with State pathologists Dr Panicos Stavrianos and Dr Sophoclis Sophocleous and members of the Cyprus police squad. He pointed out that at that stage the scene had been preserved and had not been examined or interfered with. He also noted that he had measured the area where the body had been lying – it had been 32 metres from the Turkish ceasefire line, 41 metres from the track in front of UN OP 143 and 95 metres from the wire on the Greek ceasefire line. He stated that on 12 August 1996 Dale Roberts, a UN photographer, had examined the scene and had taken samples from the area and that on 13 August 1996 he had accompanied Dr P. Vanezis, the State pathologist and members of the police squad to the scene of the incident. He had then attended the post-mortem examination. 34. Between 11 and 29 August 1996 statements were taken by the Cyprus police at the Dherynia police station from ten persons who had been present at the Dherynia checkpoint during the incidents of 11 August 1996. These witnesses were Stelios Archimandritis, Antigonos Kaoulla, Panicos Christodoulou Tylliros, Georghios Aresti, Zenon Tavrou, Michalis Andrea Neocleous, Stephanos Stephanou, Floros Adamou Constanti, Zacharias Georghiou Sachariou, and Constantinos Kyriakides. 35. Furthermore, statements were taken from two Greek-Cypriot police officers concerning the investigation into the killing of Anastasios Isaak. 36. The witness is a photographer who was present at the Dherynia checkpoint on 11 August and had taken photographs of the incident. In his statement of 29 August 1996 he claimed, inter alia, the following: “...I then withdrew heading southwards towards our side and then saw the Turks from a distance of 40 metres chasing a Greek Cypriot wearing jean trousers and a white sweater. I approached within 20 metres and started to take photos of the incident. I approached within a distance of 20 metres because the lens I had on my camera at the moment could not take photographs from a long distance. I started taking photographs from the moment they chased him until the moment they stopped beating him and UN men took him away. I took 16 photographs and another 4 while he was being taken by the UN man to the place the Greek Cypriots were. From what I noticed, and this is shown also in the photographs I took, about 15 persons, most of whom wore civilian clothes and many wore the uniform of the pseudo-State, took part in the beating up and murder of the youth, who as I told you in my previous statement, was Tassos Isaak. They were armed with clubs, iron bars and water pipes and stones. At first they chased him and while they were chasing him in a big stride he lost his balance and fell down. In his effort to defend himself he caught a Turk by the leg. The Turk sat on the ground and seized Tassos by the hair, while they were on the ground several hit him with offensive objects they held. Among them there were some ‘policemen’ with their batons. At some moment I noticed that one of the Turks in civilian clothes held a stone in his right hand the size of an orange and was on the point of throwing it on the head of Tassos. I did not notice whether the Turk completed his effort. I was not able to photograph that scene. When Tassos was finally moved by the UN men and handed to the Greek Cypriots to be transported to the hospital, I left. ...” 37. The witness is a police inspector serving in the Central Information Service as second in command of Division A. On 9 December 1996 he gave a statement concerning the investigation into the killing of Anastasios Isaak as follows: “As part of my duties I received information from reliable sources according to which the following Turkish settlers and Turkish Cypriots are among the perpetrators of the murder of Tassos Isaak which was committed on 11.8.1996, at Dherynia: 1. Fikret Veli Koreli, Turkish Cypriot, Identity Card No. 421344 2. Hasim Yilmaz, Turkish settler 3. Neyfel Mustafa Ergun, Turkish settler 4. Polan Fikret Koreli, Turkish Cypriot 5. Mehmet Mustafa Arslan, Turkish settler 6. Erhan Arikli, Turkish settler. The above persons have been identified also from a comparison with photographs, an album of which I handed on 20.11.1996, together with a relevant explanatory memorandum, to the Police Division C Commander.” 38. An explanatory memorandum was attached to the statement containing additional information and documents about the persons identified. 39. The witness is a police superintendent and commander of Police Division C at the Police Headquarters. On 11 August 1996 at about 6.45 p.m. he visited the scene of the killing of Anastasios Isaak with a team of men from CID Headquarters and the Forensic Service. In his statement he noted that he had given instructions on the spot to the Acting Superintendent in charge of CID (E) Headquarters concerning the investigation of the killing, asking that the scene be photographed and video-recorded. He had also attended the post-mortem examination of the corpse of Anastasios Isaak at Larnaca Hospital. 40. In his statement the witness further noted, inter alia, that he had received copies of two VHS videotapes; one on 3 September 1996 from Worldwide Television News (WTN) of London and one on 25 November 1996 from Reuters of London. These contained scenes from the demonstration and the killing of Anastasios Isaak. 41. Professor Peter Vanezis, from the Department of Forensic Medicine and Science at Glasgow University, carried out a post-mortem examination at Larnaca General Hospital on 13 August 1996 on the body of Anastasios Isaak. In his report dated 17 September 1996, in which he summarised his findings, Dr Vanezis concluded the following: “1. The body was that of a well-nourished man with no natural disease that could have contributed to or caused death at the time. 2. He had suffered multiple blunt impacts to the body, predominantly the head and the trunk. 3. From the characteristic nature of the injuries, the instruments causing them were most likely cylindrical shaped sticks and/or metal piping. 4. There were also injuries which had characteristics indicative of them being caused by square metal objects as found at the scene. 5. The marks on the arms indicated that he had tried to defend himself. 6. The severity and multiplicity of the injuries to the head indicate that he would have lost consciousness at or within a very short time of the infliction and died soon afterwards. 7. The injury to the genital area is consistent with a kick or a blow from an object as described above, to that region. Cause of death 1a: Multiple Blunt Head Trauma.” 42. The applicants provided the Court with a sketch plan of the scene of the killing of Anastasios Isaak drawn up by the UN and a print of an aerial view of the location of the killing. 43. They also submitted a total of 37 photographs that had been taken by Mr Constantinos Kyriakides, a photographer, on 11 August 1996 during the events in Dherynia (see paragraph 36 above). Photographs numbered 18 to 37 depict the incident concerning Anastasios Isaak in chronological order. 44. In photograph 19 Anastasios Isaak is seen falling to the ground while civilian demonstrators are approaching him with batons and/or sticks. 45. Photographs 20 to 33 show Anastasios Isaak on the ground being beaten with batons, kicked on the head and other parts of his body, his hair being pulled and his head being banged on the ground. The photographs show “TRNC” policemen and members of the Turkish and/or TurkishCypriot police/military in camouflage uniform standing behind the Turkish ceasefire line. 46. In photograph 20 two UN officers can be seen helping a demonstrator lying on the ground, just a few metres from where Anastasios Isaak is being beaten. The photograph shows that four uniformed “TRNC” policemen and a Turkish or Turkish-Cypriot police/military officer in camouflage uniform were present in the vicinity. 47. In photograph 23 the above-mentioned police/military officer in camouflage uniform can be seen joining the civilian demonstrators that are beating Anastasios Isaak and appears to be passing his metal baton over to one of them. 48. In photograph 24 this civilian is holding the baton high up over Anastasios Isaak while the officer in camouflage uniform is standing next to him. The photograph shows five uniformed police officers in the vicinity, one of whom, with a baton, is making his way through the civilians surrounding Anastasios Isaak. 49. In photograph 25 the officer in camouflage uniform appears to have taken his baton back, whereas the police officer is beating Anastasios Isaak with his baton. 50. Photograph 26 shows the above-mentioned police officer beating Anastasios Isaak with his baton and the officer in camouflage uniform holding his baton over Anastasios Isaak. In photograph 27 the officer in camouflage uniform, the above-mentioned police-officer and a second police officer are beating Anastasios Isaak with their batons. In photograph 28 they are joined by a third police officer. In both photographs 27 and 28 these four officers are seen beating Anastasios Isaak with their batons together with the civilian demonstrators. Another four officers can be seen in the vicinity. 51. In photograph 29 the officer in camouflage uniform can be seen leaning over Anastasios Isaak with his baton. 52. In photographs 30 to 32 a civilian demonstrator in front of the officers is seen kicking Anastasios Isaak on the head. 53. In photographs 32 and 33 a UN officer can be seen intervening. This officer can also be seen in photographs 26 to 31 in which he is trying to make his way to Anastasios Isaak. Photograph 33 shows the UN officer taking hold of the arm of the officer in camouflage uniform holding the baton. 54. Photographs 34 and 35 show two UN officers dragging the body of Anastasios Isaak. 55. Photographs 36 and 37 show Greek-Cypriot demonstrators taking the body away. 56. The applicants submitted a videotape received from Reuters covering the incident. This video recording contains, inter alia, scenes from the incidents at Dherynia and part of the beating of Anastasios Isaak by civilian demonstrators, the “TRNC” police and the Turkish or Turkish-Cypriot police/military officer in camouflage uniform. Furthermore, the recording shows a UN officer intervening with the aid of two policemen, one of whom is holding a riot shield, pushing back the crowd around Anastasios Isaak. The crowd then disperses. While the UN officer is standing over Anastasios Isaak, two civilians approach. One is seen throwing a stone towards Anastasios Isaak’s head and one of them a stone/rock at his mid to lower body. 57. The Government provided a copy of the above report pertaining to the UN Operation in Cyprus. This included a map showing the deployment of UNFICYP in December 1975 and the Forward Defence lines of the Turkish Forces and the Cypriot National Guard. 58. In his report on the UN Operations in Cyprus for the period from 11 June to 10 December 1996, the UN Secretary-General stated, inter alia, the following: “1. ... Tension arose in early August 1996 in anticipation of a demonstration organised by the Cyprus Motorcycle Federation. First announced in January 1996, it was to take the form of a symbolic motorcycle ride, undertaken by Greek Cypriots and persons from other countries, originating in Berlin and ending in Kyrenia on 11 August. This meant that the demonstrators intended to cross the United Nations buffer zone as well as the Turkish forces ceasefire line, a course of action which was bound to cause the utmost provocation. During the period leading up to the demonstration, the media on both sides publicised a large number of increasingly acerbic statements by the demonstration’s organisers and by Greek-Cypriot political leaders, as well as counter statements by the Turkish-Cypriot side. 2. During this period, the United Nations was in frequent contact with the government authorities, including the Cyprus Police, urging them to prevent any violation of the ceasefire lines or of the United Nations buffer zone. On the eve of the demonstration, I appealed publicly to the Government of Cyprus to take effective measures in exercise of its responsibilities to prevent any unauthorised entry into the United Nations buffer zone. 3. On the morning of 11 August, however, the demonstrators proceeded from the stadium in Nicosia, where they had assembled, to points east of Nicosia. Cyprus police were on hand, but remained largely passive. In the meantime, a major counterdemonstration had begun in north Nicosia, including a significant number of members of the ‘Grey Wolves’, an ultranationalist Turkish organisation, who had arrived from Turkey. 4. The Greek-Cypriot demonstrators entered into the United Nations buffer zone at several points, approached the ceasefire line of the Turkish forces, and clashed with Turkish troops and Turkish-Cypriot police as well as with Turkish-Cypriot counterdemonstrators. The most serious clash occurred near Dherynia, where a large group of Greek Cypriots were allowed to cross the National Guard ceasefire line. In the meantime, the Turkish forces allowed counter-demonstrators and Turkish-Cypriot police to cross a restricted military area and to enter the United Nations buffer zone. They proceeded to beat the Greek Cypriots with batons and iron bars, killing one civilian. ...”

train

001-58142

ENG

BEL

CHAMBER

CASE OF CLOOTH v. BELGIUM (ARTICLE 50)

Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings

C. Russo

1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 12 October 1990, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 12718/87) against the Kingdom of Belgium lodged with the Commission under Article 25 by a Belgian national, Mr Serge Clooth, on 12 February 1987. 2. The facts of the case are to be found in the principal judgment delivered on 12 December 1991 (Series A no. 225, pp. 7–12, §§ 7–31). In that judgment the Court held that the length of the applicant’s detention on remand had exceeded the reasonable time referred to in Article 5 § 3 of the Convention. 3 4. The Court accordingly reserved the whole of the question and invited the Government and the applicant to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement they might reach (ibid., p. 17, §§ 50–52, and point 2 of the operative provisions). 5. Subsequently Mr R. Bernhardt, the Vice-President of the Court and substitute judge in the Chamber, replaced Mr R. Ryssdal, who was unable to take part in the further consideration of the case, as President of the Chamber, and Mr B. Walsh, substitute judge, replaced Mrs Palm, who was likewise unable to take part in the further consideration of the case (Rules 21 § 6, second sub-paragraph, and 22 § 1 of Rules of Court A). 6. After the failure of an attempt to reach a friendly settlement, the applicant and the Government brought Mr Clooth’s claim before the Brussels tribunal de première instance by means of an application to appear voluntarily that was filed on 8 April 1992. The applicant sought 1,758,000 Belgian francs (BEF) in respect of non-pecuniary damage, BEF 698,150 in respect of pecuniary damage and BEF 1,283,698 for the costs of his defence, plus compensatory interest. The Belgian State requested the court to declare that its offer to pay the applicant the sum of BEF 300,000, covering all heads of compensation, was “sufficient”. On 20 January 1995 the tribunal de première instance ordered the Belgian State to pay the applicant BEF 100,000 in respect of non-pecuniary damage and BEF 500,000 for the costs of his defence. 7. On 13 February 1995 Mr Clooth asked the Court to rule on the application of Article 50. On 24 March 1995 he lodged an appeal with the Brussels Court of Appeal against the judgment of 20 January 1995. On 31 March and 4 April 1995 respectively the Government and the Delegate of the Commission submitted observations. On 3 May 1995 the Court decided that as the case was still before the Belgian courts and that there was no reason to suppose that their final decision would be long in coming, it did not have to rule for the time being on the application of Article 50. 8. On 7 November 1997 the Brussels Court of Appeal delivered a judgment in which it increased the compensation for non-pecuniary damage to BEF 125,000, inclusive of compensatory interest, and upheld the judgment of 20 January 1995 as to the remainder. 9. In the light of that judgment, the Delegate of the Commission, the applicant and the Government submitted observations on the application of Article 50 on 12 and 13 February 1998.

train

001-71687

ENG

LTU

ADMISSIBILITY

VISOCKAS AND OTHERS v. LITHUANIA

Inadmissible

David Thór Björgvinsson

The applicants are 11,528 (eleven thousand five hundred twenty eight) Lithuanian farmers. They are represented by the first applicant, Mr Kazys Visockas, a Lithuanian national living in Biržai region. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are farmers who produce grain, milk and meat. They submit that during the year 1999 they were entitled to State subsidies the conditions of payment of which were provided for by the relevant orders of the Minister of Agriculture of 31 December 1998, 13 February and 18 June 1999 (see the ‘Relevant domestic law and practice part’ below). The applicants submit that subsidies for the year 1999 should have been calculated and paid by the Ministry of Agriculture every month of that year, upon presentation by a farmer of the evidence of his having sold grain, milk or meat to food-processing companies. The Government deny that the authorities had been required to examine and satisfy every application for subsidies for the year 1999 on a one-month or other basis, the impugned orders establishing no time-limits in this respect (see below). During the period of six months in 1999, regardless of the proof of the applicants’ selling their production, the Ministry of Agriculture did not examine their applications for subsidies. In December 1999 and January 2000 the applicants submit that they applied to courts, requesting the Ministry of Agriculture to calculate and pay monthly subsidies for the year 1999. The applicants have submitted no evidence as to how many of them did apply to the courts in this respect. They have presented one case, involving a group of 21 applicants, concerning the claim against the Ministry of Agriculture in this connection: On 9 March 2000 the Supreme Administrative Court rejected the claim of the 21 applicants, having found no fault in the actions of the Ministry of Agriculture. The court established that subsidies for the year 1999 were not calculated and paid by the Ministry of Agriculture during only a few months of that year. However, the court held that the Ministry of Agriculture was in no fault in this respect. It was established that as a result of the Governmental decree of 13 December 1999 the payment of subsidies for the year 1999 was postponed until 1 July 2000. On 2 May 2000 the Court of Appeal rejected the appeal submitted by FB, one person belonging to the group of the 21 applicants. The Court of Appeal held that in 1999 there had been no statute requiring the Ministry of Agriculture to calculate and pay subsidies every month, the authorities being free to delay the calculation and payment thereof. In July 2000 the Ministry of Finance paid 228 million Lithuanian litai (LTL) to satisfy the applications for subsidies submitted in 1999. According to the legal provisions applicable at the material time, subsidies for grain for 1999 were to be paid on the basis of the order made by the Minister of Agriculture of 18 June 1999. Subsidies for meat and milk were to be paid on the basis of his orders of 31 December 1998 and 13 February 1999. On 13 December 1999 the Government adopted a decree whereby it decided that all the remaining applications for subsidies for the year 1999 were to be examined until 1 July 2000.

train

001-75527

ENG

POL

CHAMBER

CASE OF BARSZCZ v. POLAND

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

Nicolas Bratza

4. On 13 December 1994, the applicant sold a horse to A.G. for PLN 2,500. Two days later the buyer returned the horse claiming that it was ill. The applicant was therefore forced to pay the costs of the horse’s upkeep during the following year. As A.G. constantly refused to take the horse back, the applicant sold it to another buyer, as he could not afford the costs of upkeep. 5. On 25 January 1995 A.G. lodged a suit against the applicant with the Tarnobrzeg District Court, claiming payment of the price. 6. On 14 March 1995 the applicant lodged a counter-claim for costs of the upkeep of the horse. 7. During the first hearing on 15 March 1995 the court admitted witness evidence and adjourned the case. 8. On 5 April 1995 the court heard witnesses and adjourned the case. 9. On 22 May 1995 the court admitted in evidence an opinion of a veterinary surgeon and adjourned the case. 10. On 25 July 1995 the expert submitted the opinion, stating that the horse was well and had never been ill. 11. On 6 September 1995 the court called an expert in agriculture, who estimated that the costs of upkeep of the horse had greatly exceeded its value. The court adjourned the case. 12. On 2 October 1995 the court heard the parties. 13. On 11 October 1995 the court delivered a judgment. Both parties appealed. 14. On 28 March 1996 the Tarnobrzeg Regional Court returned the case file to the District Court to have it completed. 15. On 5 September 1996 the Regional Court quashed the first-instance judgment and remitted the case for re-examination. 16. On 16 January 1997 the parties declared that they could not reach a friendly settlement. 17. On 9 October 1997 the court admitted the evidence of a witness and adjourned the case. 18. On 10 February 1997 a witness was heard and the case was adjourned. 19. On 9 April 1998 further witnesses were heard. 20. On 2 June 1998 the court admitted in evidence another expert’s opinion. 21. On 18 January 1999 the expert submitted the opinion. 22. On 31 March 1999 the court summoned the expert and adjourned the case. 23. On 5 May 1999 the court found that the plaintiff had not paid an advance for the expert’s opinion and adjourned the case until 2 June 1999. The expert failed to attend the hearing on that day and the case was adjourned until 25 June. 24. On 19 November 1999 the District Court delivered a judgment, ordering PLN 4,690 to be paid by the applicant with interest from 1995, and 903 PLN to be paid by A.G. to the applicant. 25. On 13 April 2000 the Tarnobrzeg Regional Court dismissed the appeals of both parties. 26. 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.” 27. Article 418 of the Civil Code, as applicable until 18 December 2001, provided for the following exception in cases where damage resulted from the issue of a decision or order: “1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person. 2. The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of the [statutory] exception to prosecution or disciplinary actions.” 28. 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. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – which included adding a new Article 4171 and the institution of the State’s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings. Following the 2004 Amendment, Article 4171, 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.” 29. However, under the transitional provisions of Article 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 shall apply to all events and legal situations that subsisted before that date. 30. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution. On the same day the Constitutional Court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the state official concerned, established in criminal or disciplinary proceedings. 31. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant: “The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other, not necessarily only those listed in the Civil Code, principles of the State liability laid down in specific statutes.” 32. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act. Article 2, in so far as relevant, reads as follows: Article 5 provides, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 33. Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 in the following terms: “A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.” 34. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.” 35. Article 18 of the 2004 Act 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.”