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dev | 001-4817 | ENG | ITA | ADMISSIBILITY | 1,999 | ERIKSON v. ITALY | 3 | Inadmissible | Elisabeth Palm | The applicant is a British national, born in 1945 and living in Rome. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's mother, born in 1906, used to live in Antella, near Florence, assisted on a daily basis at her domicile by R.O. On an unspecified date near the end of September 1989 the applicant's mother telephoned to the public care doctor, Mr. G.T., requesting his assistance because her lower abdomen was painful and swelling. The doctor, allegedly without visiting her, wrote a medical prescription recommending x-rays of the applicant's abdomen; he left the prescription with the local pharmacy, where R.O. went to fetch it on behalf of the applicant’s mother. On 28 September 1989 the applicant's mother went to the local public hospital Santa Maria dell'Annunziata to have x-rays of her abdomen; she was accompanied by R.O. She was made to drink barium before undergoing the examination; X-rays were taken of her stomach. She collapsed during the examination; however, despite her serious health condition, she was subsequently discharged from hospital and sent back home in a wheel-chair. The x-ray plates bear the stamp of the Radiology Department but were not signed by the radiologist who carried out the examination, nor was his name indicated. The next morning, on 29 September 1989, the applicant's mother was seized by extremely severe pain. She was taken by ambulance to the above hospital at 13h10, where she died at 14h00 of an intestinal occlusion. The applicant learned about his mother's death on that same day. In February 1992 the applicant happened to discuss the circumstances of his mother's death in detail with a doctor friend of his, who requested to examine the x-ray plates taken of the applicant's mother on 28 September 1989. The applicant obtained from the hospital copy of his mother's medical file including the x-ray plates and subsequently submitted them to the doctor, who on 25 September 1992 drafted a medical report according to which the x-ray plates clearly showed that the applicant's mother had an intestinal occlusion. Such report also stated that a dose of barium on top of an intestinal occlusion is likely to be very dangerous. The applicant obtained a second medical report from another doctor, dated 31 October 1992 and supporting the findings of the first. A third medical report was drafted by a third specialist on 11 January 1993. On 23 January 1993 the applicant filed a criminal complaint with the Magistrate's Court of Florence, claiming that Mr. G.T., the public care doctor who had recommended an x-ray examination of the applicant's mother without examining her beforehand, was to be held responsible for her death and seeking that the identity of any other person responsible for his mother's death be established and that they all be prosecuted for manslaughter. Investigations were opened against G.T. and other unidentified persons under file no. 4800/93. On 7 June 1993 the Florence Public Prosecutor interrogated G.T. in the presence of his counsel. He claimed that he had visited the applicant's mother before recommending x-rays of her abdomen and that he had left the prescription with her. He said he had suspected a tumour but not an intestinal occlusion. He further stated that, after being informed of the applicant's mother's death, he had learned that she had collapsed during the x-ray examination but had not been kept in hospital, which he had found unreasonable on the part of the hospital. He stated that he did not know the identity of the radiologist who had carried out the examination. On 27 June 1994 the Florence Public Prosecutor heard R.O. as a witness; she described the circumstances of the applicant's mother's death and claimed that the applicant's mother had not been visited by the doctor G.T. on the day at issue and that she herself had gone to the pharmacy to fetch the prescription for the X-rays. F.P., a doctor who was on duty at the hospital on 29 September 1989, was also heard as a witness on an unspecified date. On 10 October 1994 the Public Prosecutor requested that the investigations be discontinued on the ground that the elements gathered in the course of the investigations were insufficient and inappropriate to support an accusation in court ("gli elementi raccolti non sono sufficienti ed idonei a sostenere l'accusa in giudizio"). On 3 February 1995 the applicant filed an objection to the request to discontinue the investigations (opposizione alla richiesta di archiviazione). He underlined that the Public Prosecutor had not sought to establish the identity of the radiologist who had carried out the x-ray examination of his mother and requested that L.T., the director of the Radiology Department of the hospital, be heard in order to ascertain which radiologists had been on duty on 28 September 1989. He further pointed out significative inconsistencies in the testimony of G.T. By a decision of 7 April 1995 the Florence Judge for the Preliminary Investigation ruled that the investigation be discontinued on the ground that, in the light of the investigations carried out, the elements of the alleged negligence of G.T. and of the unidentified radiologist were insufficient to support an accusation in court. On 3 July 1995 the applicant requested the Florence Judge for the Preliminary Investigation to reopen the investigations. This request was granted on 6 October 1995 in respect of the unidentified radiologist. On 6 November 1995 the Florence Public Prosecutor requested the police to take evidence from all employees of the Radiology Department of the hospital who had been present on 28 September 1989, with a view to identifying the author of the medical report which was drawn up after the x-rays had been taken, and establishing which typing machine had been used. Four of the hospital employees - T.B., F.N., R.C., M.M. - were heard by the police on 27 November 1995. They explained inter alia that in the hospital there was one computer which was used as a typing machine and an ordinary typing machine. Urgent medical reports were written by hand by the doctors immediately after the examination, whereas non-urgent ones were dictated by doctors and only subsequently typed by an employee, M.T.. Doctors would sometimes type their reports themselves, in particular the Director of the Department. The witnesses were shown the medical report on the condition of the applicant's mother, drafted on 28 September 1989, and found it unusual; they declared that that kind of x-ray examination was always carried out by a doctor assisted by a technician. They noticed that the report lacked the indication of the name of the doctor and stated that it should not have been stamped with the name of the Department. Some of them thought that it had been typed on the ordinary typing machine and not on the computer. M.T., the employee who used to type non-urgent medical reports, was interrogated by the police on 28 November 1995. She explained that the ordinary typing machine was kept in the doctors' room. She further explained that she used to type the medical reports on behalf of the doctors, who would sign them at the end of the day; the reports would not be stamped with the Department's name. She was shown the report drafted on 28 September 1989 and declared that she had not typed it and that she thought it had not been typed by any of the administrative personnel because it did not bear the name of the responsible doctor. On 1 February 1996 M.C., a radiologist, was examined by the police. He confirmed that non-urgent reports would be dictated by the responsible doctors and typed by the administrative personnel whereas urgent reports would be immediately drafted by hand by the responsible doctors; only the Director of the Department used to type his reports himself. He was shown the report drafted on 28 September 1989 and confirmed that such kind of examination would be carried out by a doctor assisted by a technician, but could not remember whether he had carried it out himself although he thought he had not, as the report did not have the same characteristics as his usual ones. He noticed that the report did not bear the indication of the name of the responsible doctor and was not signed, and that it had been stamped with the name of the Department, which was unusual. He further said that if he had been aware of a situation similar to that described in the medical report at issue, he would have tried to contact the patient's family or family doctor to point out the gravity of the situation. On 15 January 1996 L.T., the Director of the Radiology Department, was interrogated by the police. He stated that he had been informed of the case of the applicant's mother only in 1992, when the applicant had requested certain information from him which he could not provide. He explained that in September 1989 radiologists and technicians were organised in shifts; the shift tables used to be thrown away after the end of the relevant week, as they were used only for the purpose of internal organisation. He examined the report of 28 September 1989 and noticed the absence of the responsible doctor's name and signature; he stated that doctors did not type medical reports themselves, but wrote them by hand in urgent cases. On 12 March 1996 the Public Prosecutor requested that the investigations be discontinued on the ground that the elements gathered in the course of the "extremely accurate" investigations carried out by the police had not led to the precise but only to the "probable" identification of the radiologist who had carried out the examination of the applicant's mother without realising her serious medical condition. The Public Prosecutor considered, however, that the gathered elements, although credible, were insufficient to support an accusation in court which could only be based on logical deductions not supported by precise documentary evidence. On the other hand, the Public Prosecutor considered that the testimonies did not entirely support the deductions of the police. On 9 April 1996 the applicant filed an objection to the request to discontinue the investigations. He requested in the first place that further investigations be carried out in respect of G.T. He further underlined certain inconsistencies in the testimony of L.T. He requested that investigations be carried out about who was in possession of the stamp which had been put on the report at issue, given that it was obviously unusual to stamp medical reports with the name of the Department and about the characteristics of the reports drafted by L.T. He finally requested that further investigations be carried out with a view to establishing whether the report had been drafted by a technician instead of a doctor. By a decision dated 17 October 1996, the Florence Judge for the Preliminary Investigations ruled that the investigations against unknown persons for the manslaughter of the applicant's mother be discontinued. The judge pointed out in the first place that, by decision of 6 October 1995, the investigations had been reopened only in respect of unknown persons and not also in respect of G.T.. The judge further held that the elements gathered in the course of the investigations were insufficient to support an accusation in court and that the further investigations requested by the applicant would not have helped establish the truth. The applicant appealed to the Court of Cassation against this decision. By a decision dated 24 December 1996, the Court of Cassation rejected the request on the ground that it was not within its competence to review a matter pertaining to the competent Public Prosecutor's margin of appreciation. | 0 |
dev | 001-89307 | ENG | LTU | CHAMBER | 2,008 | CASE OF BALSYTĖ-LIDEIKIENĖ v. LITHUANIA | 3 | Violation of Art. 6-1;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan;Josep Casadevall | 7. The applicant, Mrs Danutė Balsytė-Lideikienė, is a Lithuanian national, who was born in 1947. At present she lives in Lithuania. 8. The applicant is the founder and owner of a publishing company “Metskaitliai”. Since 1995 the company has published “Lithuanian calendar” (Lietuvio kalendorius), a yearly calendar with notes by the applicant and other contributors describing various historic dates from the perspective of its authors. The calendar could be purchased in bookstores. It was distributed in Lithuania and among Lithuanian immigrants living abroad. 9. On 4 January 2000 a Member of the Lithuanian Parliament (Seimas) distributed a public announcement, stating that the texts published in “Lithuanian calendar 2000” insulted persons of Polish, Russian and Jewish origin. The relevant parts of “Lithuanian calendar” read as follows: [First page of the calendar]: “Lietuva – the land of the Lithuanians, as each footprint here bears traces of our Nation's blood” 15 February: “In 1998, on the eve of the 80th anniversary of the restoration of the independence of Lithuania, a Pole insidiously killed nine Lithuanians living in Širvintų district's Draučių village – all the inhabitants of the village were shot. (...) The Nation was informed about the tragedy after thirty six hours – during this time Lithuanian [high society] were celebrating and enjoying themselves, hugged the Polish president, put flowers [on the monuments] to Pilsudski's army, drank and danced their ghastly dance on the freshly spilled blood of Lithuanians whose whole village had been murdered.” 17 March: “The new Lithuanian government (...) puts on trial the Lithuanian nation for the extermination of the Jews (...) but is not interested in the genocide of the Lithuanians and dances Jewish foxtrots to the music of the Wiesenthals and Zurroffs.” 26 April: “In 1944 in the vicinity of Rodūnia the Polish Krajova Army killed 12 Lithuanians for the sole reason that they were Lithuanians.” 15 June: “The soviet occupying power, with the help of the communist collaborators, among whom, in particular, were many Jews, for half a century ferociously carried out the genocide and colonisation of the Lithuanian nation.” 23 June: “In 1944 in Dubingiai and its surrounding area the Polish Krajova Army brutally killed more than a hundred Lithuanians (...) among whom were women, little children, even babies and old people. This was the way the Poles, in war conditions, carried out ethnic cleansing. In the whole territory of Lithuania [the members of the Krajova Army] killed about 1 000, and in the ethnic Lithuanian lands about 3 000 more innocent people, for the sole reason that they were Lithuanians. The Dubingiai events should be regarded as the genocide of the Lithuanian nation. But the Lithuanian authorities [who associate themselves with the Poles] ignore obvious facts and do not even attempt to evaluate these war crimes.” 15 July: “Through the blood of our ancestors to the worldwide community of the Jews” 18 July: “In 1999 the monument to the victims of the Polish Krajova Army was put up and consecrated in Dubingiai. (...) In 1944 in the environs of Dubingiai the Polish Krajova Army plundered and killed innocent people solely because they were Lithuanians. The killings of 8 March and 23 June 1944 are horrible [acts of] ethnic cleansing and cruel war crimes that cannot be solved by simply constructing a monument to the victims. There is no statutory time-limit on prosecution of war crimes, the war criminals should be identified and tried. (...)” 31 August: “occupying Russian army”, “Russian occupants” 10 September: “The March of the Beggars. In 1997 (...) about fifty Lithuanian beggars demonstrated in front of the Parliament. They were joined by a few thousand Vilnius residents. The purpose of this act was to attract the Parliament's and the Government's attention to poverty (...) in Lithuania. Unfortunately, the public gathering of the beggars did not receive any attention from the heads of the Lithuanian State. At the same time a banquet for the Jews took place in Vilnius. The banquet cost Lithuania a million litas. A feast during the plague. (...) The Jews were managing the Parliament; from the tribune of the Parliament the Jews were insulting and scolding the Lithuanian nation, asking for Lithuanian blood and Lithuanian property. The majority of the ruling Conservative party (...) greeted the swearing Jews with standing ovations.” 24 November: “The Lithuanian nation will only survive by being a nationalist nation – no other way exists!” 5 December: “In 1991 the Supreme Council (Parliament) of the Republic of Lithuania (...) adopted the “zero” citizenship law, proposed by V. Landsbergis. The law illegally gave citizenship to occupants and colonists and the Lithuanians became worthless.” 22 December: “The politicians adopted legislation demonstrating their anti-Lithuanian attitude. This way, the conservative neo-Bolsheviks took their revenge on the Lithuanian nation, executing the will of the Jewish extremists. ” 24 December: “21 Lithuanians were brutally killed during the Christmas of 1944. Half a century passed and on Christmas Eve the Pharisees (...) who took power started new executions against the Lithuanians and the Lithuanian nation, carrying out pro-Jewish politics.” 10. The back cover of “Lithuanian calendar 2000” contained a map of the Republic of Lithuania. The neighbouring territories of the Republic of Poland, the Russian Federation and the Republic of Belarus were marked as “ethnic Lithuanian lands under temporary occupation”. 11. On 10 January 2000 a Seimas committee requested the Office of the Prosecutor General to investigate whether the publication was compatible with the Lithuanian Constitution and other legal acts. 12. On 12 January 2000 the Prime Minister wrote a letter to the State Security Department, requesting it to examine whether “the contents of 'Lithuanian calendar 2000' contained the elements of violations of ethnic and racial equality”. 13. On the same date the Lithuanian Foreign Ministry also received a note from the Russian Embassy, expressing its dissatisfaction with the publication's map describing certain territories of the Russian Federation as “ethnic Lithuanian lands under temporary occupation”. 14. On 13 January 2000 a similar note was received from the Embassy of Belarus. 15. On 14 January 2000 the State Security Department requested Vilnius University to submit an experts' opinion as to whether “Lithuanian calendar 2000” promoted ethnic, racial or religious hostility. In this regard the security intelligence authorities requested the experts to examine whether “Lithuanian calendar 2000” contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups. 16. On 20 January 2000 two experts, history and political science professors at Vilnius University, found that “Lithuanian calendar 2000” could be characterised as promoting the radical ideology of nationalism, which rejected the idea of the integration of civil society, incited ethnocentrism, contained xenophobic and offensive statements, in particular with regard to the Jewish and Polish populations, and promoted territorial claims and national superiority vis-à-vis other ethnic groups. The experts nonetheless noted that the calendar did not directly incite violence against the Jewish population, nor did it advocate implementing discriminatory policy against this ethnic group. 17. At the end of January 2000 the security intelligence authorities seized a number of copies of “Lithuanian calendar 2000” in various bookstores in Lithuania. The distribution of the publication was stopped. 18. By a letter of 31 January 2000 the Prosecutor General informed the Prime Minister that, following the examination of the content of “Lithuanian calendar 2000”, no elements of a criminal offence (instigation of ethnic or racial hatred) had been found in the applicant's releasing of the publication. However, the Prosecutor General held that in this respect the applicant should have been punished by way of the administrative procedure under Article 21412 of the Code on Administrative Law Offences (Production, storage and distribution of information materials promoting ethnic, racial or religious hatred). He stated that the security intelligence authorities had applied to an administrative court for a penalty to be imposed on the applicant under the domestic provision. The Prosecutor General also informed the Prime Minister that the distribution of the calendar had been suspended pending the determination of the case by a court. 19. On 14 February 2000 the officers of the State Security Department held that the applicant should be punished by the administrative procedure provided by Article 21412 of the Code on Administrative Law Offences. 20. On 28 June 2000 the Vilnius City Second District Court found that the applicant had produced 3,000 copies of “Lithuanian calendar 2000”, 588 of which had been sold. By reference mostly to the experts' conclusion of 20 January 2000, the court held that the applicant thereby intended to distribute material promoting ethnic hatred in breach of Article 21412 of the Code of Administrative Law Offences. The Court imposed an administrative fine in the amount of 1,000 Lithuanian litai (LTL) on the applicant and ordered confiscation of all copies of “Lithuanian calendar 2000” seized in the bookstores. 21. The court examined the case in the absence of the applicant or her lawyer. It was noted however that she had been duly informed of the date and place of the hearing, but that she had not submitted a request to postpone the examination or an explanation of the reasons for her absence. Therefore the court had concluded that the case could be examined without the applicant being present. 22. The applicant appealed, claiming in particular a violation of Article 10 of the Convention. She also argued that she had been tried in absentia. 23. On 16 August 2000 the Vilnius Regional Court quashed the first-instance judgment on the ground that the applicant had been in hospital from 27 June to 3 July 2000 and could not take part in the first-instance hearing. The case was remitted for a fresh examination at first instance. 24. On 28 September 2000 a judge of the Vilnius City Second District Court ordered another expert examination to be carried out. The court requested Vilnius University to form a group of experts representing various fields of social science in order to produce a conclusion on whether “Lithuanian calendar 2000” promoted ethnic, racial or religious hatred, whether it contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups. 25. In reply to the court's decision, four separate expert opinions were produced, reflecting the point of view of Vilnius University professors specialising in the following fields: history, psychology, political science and library science. 26. On 12 March 2001 the applicant submitted a written request, received by the Vilnius City Second District Court the following day, by which she asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row. The applicant also asked the court to determine the reasons behind the experts' absence and to sanction them. The court did not grant the applicant's requests. 27. On 13 March 2001 the Vilnius City Second District Court found that by publishing and distributing “Lithuanian calendar 2000” the applicant had breached Article 21412 of the Code on Administrative Offences. The court imposed an administrative penalty in the form of a warning on her, while the unsold copies of the calendar and the means to produce it were confiscated. 28. By reference to the conclusions of the experts in the field of political science the court stated that a one-sided portrayal of relations among nations obstructed the consolidation of civil society and promoted ethnic hatred. The court also noted that “Lithuanian calendar 2000” had caused negative reactions from part of society as well as from the diplomatic representations of some neighbouring States, including Poland, Belarus and Russia, who had expressed their concerns about the map denoting some of the territories of those countries as “ethnic Lithuanian lands under temporary occupation”. Relying on the conclusion of the bibliographic expert report the Vilnius City Second District Court noted that the publication did not meet the prescribed standards because, among other things, the calendar contained no indication of the sources and literature that had been used, and the name of the author of each statement in the calendar was not provided. The court concluded that the applicant had prepared, published and distributed the calendar and was therefore responsible for its content. 29. By reference to the conclusions of the experts in the fields of history and psychology the court held that the applicant's actions had not been deliberate, but reckless. The court relied on the psychological experts' report that “Lithuanian calendar 2000” represented the personal character, values and emotions of the applicant. The court noted the conclusion of the experts in psychology that the publication did not contain expressions of hatred against the Polish population, the superiority of the Lithuanians over other nationals was not emphasised, and the negative statements about the Jewish population were not to be seen as anti-Semitic. However the Vilnius City Second District Court concluded that the psychology experts' conclusion did not refute the other evidence collected and the remaining evidence confirmed that there had been a violation of administrative law. 30. The court emphasised that the breach of the administrative law committed by the applicant was not serious, and that it had not caused significant harm to society's interests. The court also noted the applicant's disability and absence of previous convictions. 31. In view of those circumstances and given the negligent nature of the offence, the court decided to impose an administrative warning under Article 301 of the Code on Administrative Law Offences, which was a milder administrative penalty than the fine of between LTL 1,000 and LTL 10,000 prescribed by Article 21412. 32. The case was examined in the presence of the applicant and a representative of the security intelligence authorities. The applicant left the hearing in the course thereof. At the hearing she was not represented by a lawyer. 33. The applicant appealed, claiming in particular that Article 10 of the Convention had been violated. She also complained that the first-instance court had not called the experts to the hearing, thereby violating her defence rights. 34. On 4 May 2001 the Supreme Administrative Court reviewed the case under written procedure. The applicant relied on the conclusion of the psychological experts' report, arguing that “Lithuanian calendar 2000” did not promote hatred against the Poles, Jews or Russians, nor did it claim the superiority of the Lithuanians over other nations. According to the appellate court, these were the conclusions of experts in one field only, whereas the rest of the evidence, namely the political science and bibliographical experts' reports, attested that the comments in the calendar were based on the ideology of extreme nationalism, which rejected the idea of civil society's integration and endorsed xenophobia, national hatred and territorial claims. 35. The court disagreed with the applicant's argument that her defence rights had been violated because the first-instance court had failed to call the experts to have them challenged at the hearing. The Supreme Administrative Court stated: “The [applicant's] argument that the [first-instance] court violated procedural legal norms because the experts were not present at the court hearing, is not valid. The first- instance court, relying on its inner belief, evaluated the experts' conclusions both as to their reasonableness and as to their comprehensiveness. Article 277 § 1 of the Code on Administrative Law Offences provides for a possibility to summon the experts if there is a need to explain the conclusions the latter had presented. The fact, that this possibility had not been used, cannot be regarded as a violation of procedural legal norms.” Relying on the above arguments, the Supreme Administrative Court dismissed the appeal. 36. On an unspecified date the applicant left Lithuania. She applied for political asylum in Switzerland. Later the applicant returned to Lithuania. She lives in Vilnius. 37. The Constitution of the Republic of Lithuania, as relevant in this case, provides as follows: “Everyone shall have the right to hold opinions and freely express them. No one may be prevented from seeking, receiving and imparting information and ideas. Freedom of expression, freedom to receive and impart information may not be restricted in any way other than by law and when it is necessary for the protection of health, dignity, private life, and morals, or for the defence of the constitutional order. Freedom of expression and freedom to impart information shall be incompatible with criminal actions - incitement of national, racial, religious, or social hatred, violence or discrimination, slander or disinformation.” 38. The Code on Administrative Law Offences (“the Code”) punishes with administrative penalties various minor offences which are not provided for in the domestic substantive criminal law. Article 1 of the Code provides that all citizens must ensure respect for legal rules and the rights of other citizens. Article 9 of the Code defines an administrative offence as a wrongful act which causes danger to public order, citizens' rights or the established order of administration. Article 20 of the Code provides that administrative punishment is a form of establishing responsibility that has the aim of punishing offenders, educating them to observe the law and preventing them reoffending. An administrative warning is a penalty under Article 301 and it can be used to replace a harsher penalty the Code prescribes for a particular offence; the administrative warning is also intended to serve as a preventive measure, in the same way as a suspended sentence in criminal law. Article 21412 of the Code punishes the production, storage and distribution of information material promoting national, racial or religious hatred by a fine of between LTL 1,000 and LTL 10,000 with the confiscation of the material, with or without confiscation of its main means of production. Article 256 provides that an expert's conclusion can be considered as evidence. Pursuant to Article 277, an expert can be appointed when special knowledge is required for solving the case. Under Article 272 of the Code, a person who is liable for an administrative sanction has the right to familiarise himself with the material of the case and to submit explanations and evidence, as well as to lodge requests. Article 314 of the Code stipulates that if a fine has been imposed on a person and the latter does not possess the means to pay it, a court can substitute the fine with administrative arrest of up to 30 days. 39. Article 53 of the Law on Administrative Proceedings (LAP), as in force at the material time, provided that, among other procedural rights, the parties were entitled to question other participants in the process, including witnesses and experts, to take part in the examination of evidence and to present explanations. Under Article 130 of the LAP, parties had the right to bring an appeal against a decision of a first-instance court. The appeal should indicate, among other things, evidence to support its grounds. Article 144 of the LAP stipulated that appeal proceedings against a decision or ruling in cases relating to administrative law offences were conducted in writing. Upon the decision of the chamber of judges, an oral hearing of a specific case could be held. 40. Article 20 § 2 of the International Covenant on Civil and Political Rights, in force in the Republic of Lithuania since 20 February 1992, provides: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. 41. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the Republic of Lithuania on 9 January 1999, provides, insofar as relevant, as follows: “1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on ... national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” “1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means ... of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: ... (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization ...” “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” “States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ...” 42. According to Article 6 § 2 of the Framework Convention for the Protection of National Minorities, signed within the framework of the Council of Europe and in force in the Republic of Lithuania since 1 July 2000: “The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.” 43. The European Commission against Racism and Intolerance General Policy, in its Recommendation no. 1: Combating racism, xenophobia, anti-Semitism and intolerance, recommends that the Governments of the member States, insofar as relevant, “ensure that national criminal, civil and administrative law expressly and specifically counter racism, xenophobia, anti-Semitism and intolerance”. 44. Appendix to Recommendation no. R (97) 20 of the Committee of Ministers to Member States on “Hate speech”, drafted within the framework of the Council of Europe, provides, insofar as relevant, as follows: “The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media. For the purposes of the application of these principles, the term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” “The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.” “The governments of the member states should ensure that ... interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover ... any limitation of or interference with freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.” “National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.” “National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect's right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.” | 1 |
dev | 001-80213 | ENG | FIN | CHAMBER | 2,007 | CASE OF W v. FINLAND | 3 | Violation of Art. 6-1+6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings | Nicolas Bratza | 6. On 7 August 2000 a mother contacted the police on account of a suspicion that her children, a girl born in 1991 and a boy born in 1993, had been sexually abused by a neighbour, the applicant. On 10 August and 2 September 2000 the siblings were interviewed by a police officer experienced in investigating sexual abuse of children. The applicant was also suspected of having abused two other girls, both friends of the siblings and born in 1991. The girls were interviewed by the police on 11 August and 18 August respectively and again on 3 September 2000. All the interviews were recorded on videotape. 7. At the time of the first interviews, i.e. on the morning of 10 August 2000, the applicant had not been informed of the suspicions against him and no defence counsel had yet been appointed for him. Neither the applicant nor his counsel was present during the later interviews. The siblings and one of the other girls underwent a psychological examination in the Family Advice Centre with a view to assessing whether their testimonies during the pre-trial investigation were reliable. 8. Meanwhile, on the afternoon of 10 August 2000 the applicant was questioned by the police. Before the questioning he was notified of the suspicions against him and it appears that he did not exercise his right to have his counsel present. The applicant was in detention from that day until 7 September 2000 when travel restrictions were imposed on him. He was accompanied by counsel when questioned again on 17, 18, 19 and 23 August and 6 September 2000. He was questioned alone on 12 January 2001. 9. Prior to the close of the pre-trial investigation, in his closing statement the applicant requested, on 7 December 2000, having watched the above-mentioned video recordings, that the siblings be questioned again and that his questions be put to them about how and where they had learnt about the sexual things they had mentioned to him and, in particular, if they had been subjected to sexual acts at a place other than the applicant's home. His request was however refused on 21 January 2001. According to the Government, this was because their mother had refused to allow any further questioning of the children, now aged 7 and 9. 10. The applicant was charged before the District Court (käräjäoikeus, tingsrätten) with having sexually abused the four children during the summer of 2000. He denied the charges. He however admitted having tapped two of the girls on their buttocks. 11. In February 2001 the District Court held an oral hearing during which the applicant, the parents of the siblings and the mothers of the other two girls gave evidence. The children were not heard in person. The videotaped interviews with the children were shown during the hearing. The court also heard evidence from a psychologist on the reliability of the statements of the siblings and of one of the other girls. The applicant did not request that the children give evidence at the hearing. 12. The mother of the siblings testified that they had told her about the improper touching in the same manner as they had done on the videotape. When the touching had become known, on 1 August 2000, her son had reacted intensely by crying and slamming doors. He had also suffered from sleeping problems and her daughter had suffered from headaches. Neither of these ailments had occurred before. According to two written opinions of the Family Advice Centre, the siblings' accounts of the events were considered credible given their detailed and precise nature. There was nothing to suggest that they were the siblings' own inventions. The mothers of the two other girls testified that they had told them about the improper touching in the same manner as they had done on the videotape. 13. In its judgment of 28 February 2001 the District Court observed that the evidence was mainly of an indirect nature and that the sole direct evidence was the testimony of a psychologist, who had testified as to the children's credibility. 14. The court noted that the applicant had argued that the main evidence in the case was flawed due to the fact that he had not been afforded an opportunity to put questions to the children and that the authorities had put leading questions to them. He had also argued that there were shortcomings insofar as the psychological examinations carried out by the Family Advice Centre were concerned. The court however found no such flaws as would significantly have reduced the evidentiary value of the examinations. 15. The court then stated that the case turned on an assessment of the credibility of the children's statements. While it was true that the pre-trial statements' probative value was weakened by the fact that the applicant had not been able to put questions to the children, these statements were nonetheless reliable as the children had provided details about the events and as their young age gave no reason to believe that they would have sought to lie about the events. Although some leading questions may have been put to the children, there was nothing to suggest that they would have sought to please the interviewer and adapted their replies accordingly. This being so, the court found that questioning the children in court would not have added anything significant to the case. Having regard to their best interests, the questioning of children of such a young age before a court could not be considered justifiable. The court found that the testimonies of the psychologist and the parents supported the credibility of the children's accounts. 16. It convicted the applicant of having sexually abused the four children and sentenced him to two years and three months' imprisonment. 17. The applicant appealed, alleging inter alia a breach of Article 6 § 3 (d) of the Convention in that he had not been afforded an opportunity to put questions to the children. 18. The Court of Appeal (hovioikeus, hovrätten) held an oral hearing and was presented with the same evidence as had been before the District Court. The parties agreed that it was in the best interests of the children that they should not be heard before the court. The applicant however rejected the admission of the children's pre-trial statements as evidence since he had not been afforded an opportunity to put questions to them. 19. In its judgment of 6 November 2001 the Court of Appeal noted that the children had been interviewed twice during the pre-trial investigation and all but one of the girls had been examined in the Family Advice Centre using tests and interviews. As the questioning of the children, now aged 8 to 10, before the court would probably have caused them suffering, it was possible to use in evidence their pre-trial statements, although the applicant's minimum rights under, inter alia, Article 6 § 3 (d) of the Convention would thereby be violated. In evaluating the weight to be attached to the children's statements, the court found that it had to take into account the discrepancies pointed out by the applicant and the fact that the police had not put to the children the questions proposed by him in his pre-trial closing statement. 20. In its assessment of the evidence the appellate court reached the same conclusions as the lower court and upheld the conviction. It however reduced the sentence to one year and eight months' imprisonment, which it considered fair, having regard to the fact that the applicant had not forced the children into doing anything, the relevant sentencing practice and the fact that the applicant had no previous convictions. 21. The applicant requested leave to appeal, maintaining, inter alia, that there had been a breach of Article 6 § 3 (d) of the Convention. He did not submit any request for the children to be heard. 22. On 28 February 2002 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 23. The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act no. 575/1988) provides that when questioned during a pre-trial investigation the child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11). 24. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987) provides that questioning and other investigation measures requested by a party must be carried out, if that party shows that there is a possibility that these measures could have an effect on the case, provided that the expenses so incurred are not disproportionate to the nature of the case (section 12). The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre-trial investigation and with the public prosecutor after the case has been transferred to him or her (section 15(3), Act no. 692/1997). A pre-trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience. Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation (section 8). 25. The investigator may permit a party and his counsel to be present during the questioning of another party or witness, provided this does not hinder the investigation of the offence (section 32(1), Act no. 692/1997). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her. Also, the prosecutor may put questions to the person being questioned. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also (section 34, Act no. 692/1997). 26. Before the closing of the criminal investigation, the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation, if this is conducive to hastening or facilitating the hearing of the case in court. The statement is to be appended to the investigation record (section 42). 27. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony. 28. A statement in a pre-trial investigation record or another document may as a rule not be admitted as evidence in court. The court may exceptionally admit such a statement as evidence, if the witness in question cannot be questioned before the court (chapter 17, Article 11; Act no. 690/1997). A witness must give testimony orally before the court and must not refer to a written testimony. Oral evidence given during a pre-trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court (chapter 17, Article 32; Act no. 571/1948). 29. If a person called as a witness is less than 15 years of age, is mentally ill or mentally retarded, or his or her mental capacities have otherwise been impaired, the court shall, taking into consideration the circumstances, assess whether or not he or she may be heard as a witness (Chapter 17, Article 21). Although the hearing of evidence from children falls within the court's discretion, there has been a long-standing practice not to hear evidence in court from children under the age of ten. 30. At the time of the proceedings in question, there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre-trial investigation. There was however a practice to admit such recordings as evidence. 31. The Code of Judicial Procedure was amended with effect from 1 October 2003 to the effect that the testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or videotape during a pre-trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (chapter 17, Article 11(2); Act no. 360/2003). According to the explanatory report to the relevant Government Bill (no. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence. 32. Chapter 17, Article 21 (as amended by Act no. 360/2003) of the Code of Judicial Procedure reads with effect from 1 October 2003 as follows: “(1) A person who has not attained the age of fifteen or whose mental capacities have been impaired, may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and: (i) if the hearing in person is of significant relevance for the establishment of the facts of the case; and (ii) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development. (2) Where necessary, the court shall designate a support person for the person to be heard, pursuant to the provisions of chapter 2 of the Criminal Procedure Code (Act no. 689/1997). (3) The person to be heard shall be questioned by the court, unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of section 33. The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or, if the court finds it appropriate, directly to the person concerned. Where necessary, the hearing may take place on premises other than the court room.” 33. In 2003, the Criminal Investigations Act was supplemented with a new section 39a (Act no. 645/2003) that entered into force on 1 January 2004 and reads as follows: “The questioning of a victim or a witness must be recorded on videotape, or by using other comparable audio-visual means of recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the victim or the witness in person, due to his or her young age or mental disturbance, without causing likely harm to him or her. The special requirements set by the level of maturity of the questioned person for the methods used, for the number of participating persons, and for other conditions, must be taken into account in the questioning. The person in charge of the criminal investigation may decide that authorities other than the investigators may, under the supervision of the investigator, put the questions to the person being interviewed. The suspect must be provided with an opportunity to put questions to the questioned person. On the request of the suspect, he or she may also put the questions through a legal counsel or other representative. However, the investigator may order that the questions be put through his or her intermediary.” | 1 |
dev | 001-61958 | ENG | DEU | CHAMBER | 2,004 | CASE OF CEVIZOVIC v. GERMANY | 3 | Preliminary objection rejected (estoppel);Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Ireneu Cabral Barreto | 9. The applicant, Zvonko Čevizović, is a Croatian national born in 1966. When lodging his application, he was detained in Oldenburg, Germany. He is presently living in Rogaška Slatina, Slovenia. 10. On 17 June 1996 the applicant was arrested in Wilhelmshaven. On 18 June 1996 the Wilhelmshaven District Court issued a warrant of arrest against the applicant on the ground that he was strongly suspected of having committed, with others, robbery connected with attempted murder. 11. On 4 November 1996 the Oldenburg Public Prosecutor’s Office charged the applicant with attempted murder, aggravated robbery, grievous physical injury and unauthorised carrying of weapons. 12. On 18 February 1997 the Oldenburg Regional Court admitted the indictment without modifications and decided to open the trial against the applicant and two other accused. The trial started on 14 March 1997 and took place on fifty-six days with an average duration of ninety minutes. On 22 May 1998 a lay assessor fell ill. As the additional lay assessor who was supposed to replace her had also fallen sick earlier on, the trial had to begin anew. 13. On 28 May 1998 the Oldenburg Regional Court upheld the arrest warrant against the applicant. It found that irrespective of the delay occasioned by the assessors’ illness, the applicant’s continued detention was proportionate given the serious nature of the crimes he was accused of. 14. On 2 June 1998 the trial reopened with two additional lay assessors. 15. On 22 June 1998 the Oldenburg Court of Appeal rejected the applicant’s appeal against the Oldenburg Regional Court’s decision to uphold the arrest warrant. 16. On 25 March 1999 the Oldenburg Regional Court dismissed the applicant’s renewed request to suspend the warrant of arrest of 18 June 1996 on the ground that the applicant remained under strong suspicion of having committed the crimes that he was accused of. On 7 May 1999 the Oldenburg Regional Court, upon the applicant’s appeal, reconsidered and confirmed its decision of 25 March 1999. It held that the delay in the trial had been caused by exceptional circumstances such as the difficulty in taking evidence, which required further investigations during the trial, and the illness of a lay assessor as well as the temporary illness of the presiding judge. The strong suspicion that the applicant had committed the serious crimes he was accused of had not been invalidated during the trial. As the applicant’s partner and son lived in Slovenia, the applicant was also likely to abscond if released. 17. On 1 June 1999 the Oldenburg Court of Appeal confirmed the decision of the lower court, stating that although the applicant had at that point already been in custody for nearly three years, this did not justify his release. 18. On 9 July 1999 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. 19. On 14 June 2000 the Oldenburg Regional Court dismissed the applicant’s new request to suspend the warrant of arrest of 18 June 1996 on the ground that the allegedly new evidence submitted by the applicant did not justify such a suspension. It found that if released, the applicant was very likely to abscond, given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged. The Regional Court noted that the applicant was residing illegally in Germany and that an expulsion order had been issued against him. The length of the applicant’s detention on remand did not compare to the risk mentioned above. The Regional Court included a detailed account of the trial, explaining the continued conduct of the proceedings, which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify. Furthermore, the applicant and his co-accused had, often later than necessary, filed numerous motions for evidence to be taken. It observed that at the present time, it was not possible to disjoin the applicant’s case from those of the other accused, as they were accused of committing the offences jointly. 20. On 21 June 2000, following the applicant’s appeal, the Oldenburg Regional Court confirmed its original decision. It pointed out that the prolonged investigations by way of letters rogatory in Macedonia and the summoning of witnesses from abroad, which were necessitated by the belated alibi produced by one of the applicant’s co-accused, did not warrant the applicant’s release. 21. On 27 June 2000 the Oldenburg Court of Appeal confirmed this decision. 22. On 10 August 2000 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. 23. On 26 September 2000 the Oldenburg Regional Court dismissed the applicant’s further request to suspend the arrest warrant on the grounds that contrary to his allegations, the suspicion persisted that he had committed the crimes he was accused of and was still likely to abscond if released, especially considering the high prison sentence he risked incurring if found guilty according to the indictment. 24. On 20 March 2001 the Oldenburg Regional Court pronounced its judgment after having held an average of less than four hearings per month with an average duration of less than two and a half hours each. It convicted the applicant of attempted murder, aggravated robbery and grievous physical injury as well as of unauthorised carrying of weapons and sentenced him to ten years and six months’ imprisonment. In fixing the length of the applicant’s sentence, the Regional Court took into consideration the inordinate length of his detention and of the criminal proceedings, in particular the delay occasioned by the sickness of the lay assessor and the ensuing suspension of proceedings. 25. On 21 March 2001, the applicant appealed against the Regional Court’s judgment. In the negotiations that followed between the applicant’s legal counsel and the Prosecutor’s Office, the latter eventually consented to the applicant’s expulsion to his country of origin in lieu of serving his prison sentence in Germany. In exchange for this, and due to the increasing length of his detention on remand, which would have continued during the appeal proceedings, the applicant agreed to withdraw his appeal. 26. On 4 April 2001, the applicant withdrew his appeal. On 5 April 2001 the Oldenburg Regional Court made an order for costs following the applicant’s withdrawal of the appeal. On 28 May 2001, the Prosecutor’s Office suspended the further execution of the applicant’s prison sentence and agreed to his expulsion to Croatia. A new arrest warrant was issued to the effect that, upon returning to Germany before the year 2026, the applicant would be arrested and imprisoned instantly in order to complete his prison sentence. On 25 July 2001, the applicant was expelled to Croatia. | 1 |
dev | 001-113111 | ENG | AUT | ADMISSIBILITY | 2,012 | SAHIN v. AUSTRIA | 4 | Inadmissible | Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 1. The applicant, Ms Zybeyde Sahin, is an Austrian national who was born in 1974 and lives in Innsbruck. She is represented before the Court by Mr L. Szabo, a lawyer practising in Innsbruck. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant and her husband had two children: a daughter D, born in 1997, and a son S, born in 1999. Following allegations against the applicant’s husband of violence against the children and sexual abuse of D, the Innsbruck Youth Welfare Office (Jugendwohlfahrtsträger) removed both children from their home and placed them in a children’s home as a provisional measure on 20 December 2005, having found the children to be in imminent danger as required by Article 215 § 1 of the Civil Code. 4. In compliance with the time-limit set out in Article 215 § 1 of the Civil Code, the Youth Welfare Office thereafter, on 27 December 2005, applied to the Innsbruck District Court (Bezirksgericht Innsbruck) seeking to be awarded custody of the children for the purposes of their care and education and to have their placement in a children’s home approved. 5. The applicant and her husband denied the allegations of domestic violence or sexual abuse and requested the court to dismiss the authority’s application for custody. 6. The District Court promptly heard the applicant and her husband, the children’s teachers, other witnesses and commissioned an expert opinion. Following its investigation, on 24 February 2006 the Innsbruck District Court dismissed the Youth Welfare Office’s custody application, but ordered the parents to attend weekly psychotherapy sessions offered by a specialised association and to allow the children to receive psychological counselling if recommended by the association. 7. The children were returned to their parents on 3 March 2006. 8. The Youth Welfare Office appealed against the District Court’s decision, but on 5 May 2006 the Innsbruck Regional Court (Landesgericht Innsbruck) dismissed the appeal. 9. In addition to the above civil proceedings, the applicant applied on 29 January 2006 to the Tyrol Independent Administrative Panel (Unabhängiger Verwaltungssenat Tirol) and contested the measures taken by the Youth Welfare Office. She requested it to rule that the Youth Welfare Office had violated her rights by removing the children on 20 December 2005, complaining that the children had been taken away without the applicant having first given evidence, and arguing that until the court had issued a decision their placement in a children’s home had been without any legal basis. She also argued that the provisional removal of the children from their home on the basis of suspicions of domestic violence had been disproportionate. 10. On 29 March 2006 the Independent Administrative Panel rejected the application. It found that the measures were based on the provisions of the Civil Code and not on the administrative law. Thus, only the civil courts were competent to decide on the lawfulness of the measure. 11. The applicant lodged a complaint with the Constitutional Court against that decision under Article 144 of the Federal Constitution. 12. On 20 June 2007 the Constitutional Court dismissed the complaint confirming its case-law whereby a provisional measure implemented by the Youth Welfare Office pursuant to Article 215 § 1 of the Civil Code was a measure under civil law. Accordingly, the administrative authorities had no jurisdiction to decide on the applicant’s application. 13. The Constitutional Court’s judgment was served on the applicant’s counsel on 12 July 2007. 14. Under Article 215 § 1 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), the competent Youth Welfare Office must apply for court orders regarding custody measures which are necessary in order to ensure a child’s well-being. Where a child is in imminent danger, the Youth Welfare Office must also make the necessary provisional arrangements concerning care and custody until the competent court has given a decision. Such provisional arrangements have to be notified to the competent District Court immediately, at the latest within eight days. 15. Article 138 of the Federal Constitution (Bundesverfassungsgesetz) provides that the Constitutional Court decides on conflicts of jurisdiction between the courts and the administrative authorities. Under Article 144 of the Federal Constitution, an application can be lodged with the Constitutional Court alleging a violation of a constitutional right as the result of a decision of the administrative authorities, including the Independent Administrative Panels. 16. Pursuant to section 1 of the Official Liability Act (Amtshaftungsgesetz), the Federation, the Länder, districts, municipalities, other bodies of public law and the institutions of social insurance (hereinafter named “legal entities”; Rechtsträger) are liable pursuant to the relevant civil law for any damages caused deliberately or negligently by unlawful acts carried out by their officials in the execution and enforcement of the law. Sections 8 and 9 of the Official Liability Act provide that, as a first step, an injured party shall demand a written statement of the legal entity, against which a claim of damages is to be raised, indicating whether the legal entity at issue accepts or rejects the claim for damages. Such a statement shall be rendered within three months. After expiration of the delay of three months and in the event the legal entity does not accept the claim (in full), the injured party can lodge an action for damages with the competent Regional Civil Court. | 0 |
dev | 001-88790 | ENG | RUS | CHAMBER | 2,008 | CASE OF ITSLAYEV v. RUSSIA | 3 | Remainder inadmissible;No violation of Art. 6-1 | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 5. The applicant was born in 1959. Formerly a resident of the village of Goyskoye of the Urus-Martan District in the Chechen Republic, he is currently living in the town of Nazran in Ingushetiya. He is a lawyer at the Memorial Human Rights Centre. 6. In April 1996 the applicant was appointed head of the administration of Goyskoye. In June 1996 the district administration stopped paying his salary because of lack of funds. 7. In August 1996 Chechen rebel fighters took power in Grozny, the capital of the Chechen Republic. 8. In December 1999 the Russian federal government regained control over the Urus-Martan District. In spring 2000 the district administration was re-established and the applicant applied for payment of his salary. He states that the administration promised to pay his salary as soon as the money arrived from the federal budget. 9. In December 2000 the Urus-Martan Town Court (“the Town Court”) started functioning, but it was located in Gudermes, the administrative centre of the Gudermes District of Chechnya, about 80 km from Goyskoye. The applicant submitted that he could not go to Gudermes to lodge his claim because of the poor overall security situation and a curfew imposed by the military. Moreover, he had no money for travel and accommodation there. 10. On 25 June 2001 the applicant again applied to the district administration for payment of his salary. On 15 July 2001 he received a reply from the head of the administration dated 4 July 2001 in which the latter informed him that the salary would be paid as soon as funds were available. 11. Sometime after July 2001 the Town Court moved from Gudermes to Urus-Martan. 12. On 9 October 2001 the applicant brought a court action with the Town Court against the district administration for payment of salary arrears over the period between June 1996 and April 1997. 13. On the same date he lodged a formal request for reinstatement of time-limits for lodging his claim. It read as follows: “Courts started functioning in the Chechen Republic in December 2000. Therefore, I could lodge a claim against the administration of the Urus-Martan District for salary arrears due for my work as head of administration of Goyskoye in 1996 only from that moment. However, in the beginning the court was located in Gudermes and it was difficult to go there because of numerous checkpoints, curfew and lack of money for travel. Furthermore, on numerous occasions I have applied to the administration of the Urus-Martan District with requests to pay me the salary arrears, considering that my claims were lawful. On 4 July 2001 I received a letter signed by the head of the administration of the Urus-Martan District, from which it emerged that the payment of salary arrears had again been postponed. Until the last moment I hoped that the salary arrears would be paid to me voluntarily, as it was an obligation of any state authority. For the above reasons I missed the time-limits for lodging a claim against the administration of Urus-Martan for salary arrears. Taking into consideration the above statements and in accordance with Article 105 of the Code of Civil Procedure of RSFSR I request [the Town Court] to restore the procedural time-limit for lodging a claim for salary arrears.” 14. On 16 October 2001 the Town Court held a hearing in the applicant’s case. According to the record of the hearing, the applicant gave the following explanation as regards his failure to comply with the timelimits: “I applied to a court only on 9 October 2001 as I did not know that law established the time-limits for applying to a court. I request the court to reinstate the time-limits for applying to a court and to recover salary arrears ...” The defendant accepted the applicant’s salary claims only for the period between June and August 1996 and submitted that the applicant would receive the arrears as soon as funds were available. On the same date the Town Court adopted a judgment in the case, which in its relevant part provided as follows: “... [Mr Itslayev] applied to the court only on 9 October 2001 because he did not know that law established the time-limits for applying to a court and he requests the court to reinstate the time-limit for applying to the court and to recover salary arrears ... The defendant’s representative submitted that ... the Administration of the UrusMartan District agreed to pay the applicant salary arrears for the period between June and August 1996 as soon as the funds were available. Having regard to the parties’ submissions and having read the materials of the case, the court comes to the following conclusion: ... According to Article 211 of the Labour Code of the Russian Federation an application concerning the settlement of a labour dispute is to be lodged with a district court within three months of the date when an employee knew or should have known about the violation of his right. In violation of this statutory provision, the applicant did not apply to a court between December 2000, when the courts started functioning in Chechnya, and 9 October 2001. The court considers that the applicant’s arguments that he had missed the time-limits because the head of administration of the UrusMartan District had promised to pay him salary and that he was not aware of time-limits are unsubstantiated. Therefore the court comes to a conclusion that the applicant missed the time-limit without any valid reason and that there are no grounds to restore it.” 15. The applicant alleged that the presiding judge had relied on an order from “higher” authorities not to accept claims similar to that of the applicant’s for examination on the merits and that he had to seek advice from judge B. of the Supreme Court of the Chechen Republic (“the Supreme Court”). The applicant also indicated that the presiding judge had been appointed for a period of one year and therefore he could not be considered independent. 16. The applicant provided the Court with a copy of the decision delivered by the Town Court on 17 October 2001 in a case of a certain M., who had claimed from the district administration salary arrears due to his wife. He submitted that his wife had been killed in April 2001 and that he was in a very difficult financial situation because he had borrowed money to bury her. The Town Court restored the time-limit for lodging his claim and examined it on the merits. It held as follows: “... the court finds that the plaintiff missed the time-limit for a valid reason, because no courts were functioning in Chechnya between August 1996 and December 2000, and between January and July 2001 the court was based in Gudermes and he could not have applied there for lack of funds ...” 17. On 6 November 2001 the applicant lodged an appeal with the Supreme Court against the judgment of 16 October 2001. In so far as he contested the application of time-limits in his case, the applicant made two arguments. In the first place he submitted that he had applied for the reinstatement of time-limits because the Town Court requested him to do so. However, Article 211 of the Labour Code could not be applied in his case, as the antiterrorist operation was still going on in the Chechen Republic. On 15 July 2001 he had received a letter from the head of the district administration by which he was informed that his salary arrears would be paid as soon as funds were available. Therefore his right had been infringed at the end of July. The three-month time-limit had started to run from the end of July and he had applied to the court in due time. Secondly, assuming that he had missed the time-limit, the Town Court could and should in accordance with Article 105 of the Code of Civil Procedure accept that he had missed the time-limit for valid reasons which were as follows: “(a) I was appointed head of a rural administration in April 1996 and worked in this position in very difficult conditions, sometimes at risk to my life. (b) I think that it is a matter of honour for the Russian state to pay at least salary arrears to heads of administrations of communities which were appointed in that period and who had worked with federal authorities. (c) On numerous occasions I have applied orally to the Administration of UrusMartan. And when I was told that there were no funds, that I would have to wait and that I would be paid, I continued to wait, believing the authorities and understanding the situation which existed in the Republic. (d) The Town Court should not have punished me, as it did, and taken the side of those who in that period killed and continue to kill people who work for the state. As a matter of fact, the Urus-Martan Town Court have now punished me for my work for the state in 1996. (e) There existed no legal conditions in the Chechen Republic to apply Article 211 of the Labour Code in labour disputes involving state authorities because of the circumstances which existed in previous years.” The applicant requested the appeal court to take into account the above circumstances, to quash the judgment of 16 October 2001 and deliver a new decision in his case. 18. On 26 February 2002 the Supreme Court, comprising judges B. and A. and presided over by Judge S., upheld the judgment of 16 October 2001. It held as follows: “... Having regard to the materials of the case and to the submissions by the plaintiff, the Civil Chamber finds that the judgment is lawful and reasoned. According to Article 211 of the Labour Code of the Russian Federation an application concerning the settlement of a labour dispute is to be lodged with a court within three months of the date when an employee knew or should have known about the violation of his right. However, since December 2000 the plaintiff has not made such an application to a court. The [Town] court has thoroughly examined the submitted evidence and reasonably found that the reasons advances by the plaintiff for missing the time-limit were not valid and refused to restore the time-limit.” The applicant was present at the hearing. He alleged that Judge B., to whom, the Town Court judge had allegedly referred, was a member of the court. Furthermore, according to the applicant, his appeal was not examined in a public hearing, but took place in one of the rooms in the Supreme Court building. 19. Article 211 of the Russian Labour Code of 1971 (in force at the material time) provided in its relevant part that an application concerning the settlement of a labour dispute had to be lodged with a district court within three months of the date when an employee knew or should have known about the violation of his right. In instances where the periods established in that Article lapsed for justifiable reasons, they could be reinstated by a court. 20. Article 105 of the Russian Civil Procedure Code of 1964 (in force at the material time) provided in its relevant parts that in cases where individuals missed the statutory time-limits for reasons which the court considered valid, the time-limits could be restored by a court. An application for reinstatement of time-limits had to be lodged with a court with jurisdiction to take a procedural decision on the matter, and had to be examined in a hearing. A claim in respect of which the time-limits had expired had to be lodged together with the application for reinstatement of the time-limits. 21. Ruling of the plenary session of the Supreme Court of the Russian Federation of 22 December 1992 No. 16 (applied until 17 March 2004) “On Some Issues related to the Application by Courts of the Russian Federation of Legislation when resolving Labour Disputes” provided in relevant parts of paragraph 8 that a judge could not refuse to accept a claim for consideration on the ground of expiration of time-limits, as Article 211 of the Labour Code did not provide for such a possibility. Where a court considered that the time-limits had not been respected for valid reasons, it had to restore them. In cases where a court, after having thoroughly examined the materials of the case, established that the time-limits had not been complied with for a non-valid reason, it had to dismiss the claim. | 0 |
dev | 001-4832 | ENG | NLD | ADMISSIBILITY | 1,999 | BAKKER v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm | The applicant is a Dutch national, born in 1948, and resident in Enkhuizen. He is represented before the Court by Ms Y.E.J. Geradts, a lawyer practising in Amsterdam. a. Particular circumstances of the present case The applicant had, until mid 1991, a shop in Amsterdam where he sold telecommunication equipment. In 1989 and 1990, he traded in illegal cordless telephones, i.e. cordless telephones which were not allowed to be used in the Netherlands and other Member States of the European Union given the frequencies used by these telephones. The telephones were sold by a Belgian Company M.D.B. to a Dutch company C.C. The latter company’s director, B.B., made invoices in respect of these telephones to a fictitious person at a fictitious address in the Netherlands Antilles. In fact the telephones were not shipped to the Antilles but were directly delivered by M.D.B. to the applicant, who subsequently sold them. After a certain time, the telephones were no longer sold via C.C., but through the C.T.C. company of which B.B. was also director. On 28 August 1990, the Fiscal Intelligence and Investigation Department (Fiscale Inlichtingen en Opsporingsdienst; "FIOD") conducted a search at the C.C. company and, on the same day, went to the applicant’s shop for an inspection of the shop’s business administration. The applicant was absent that day and could not be reached. With the consent of the shop’s bookkeeper, the FIOD took away documentation concerning part of the shop’s business administration for verification purposes. On 12 June 1991, pursuant to Article 81 of the General Act on State Taxes (Algemene Wet inzake Rijksbelastingen) which authorises seizure of items for the purpose of investigation of fiscal criminal offences, the FIOD seized the entire business records of the applicant’s shop for the years 1987, 1988, 1989 and 1990. On 16 September 1991, on his own initiative, the applicant went to the FIOD in order to give a statement about his involvement in the cordless telephone trade. On the same day, he was taken into custody (inverzekeringstelling) and was subsequently held for questioning for the next three days. He was released on 19 September 1991. In the course of this investigation the applicant was questioned for the last time on 28 January 1992. On 10 January 1994 the prosecution authorities issued a summons, ordering the applicant to appear on 2 February 1994 before the Regional Court (Arrondissementsrechtbank) of Alkmaar on the charges of, inter alia, forgery, committed either alone or in association with others in respect of three invoices for telephones or, alternatively, to have been an accessory to the commission of forgery in respect of these invoices. Further charges of forgery were brought against the applicant in relation to the importation by the C.C. company for B.B. of a boat the latter had bought in Spain and the exportation of a boat by B.B. to Spain. Insofar as relevant, the charges contained in the summons read as follows: <Translation> "that he, the suspect, at various points in time in or about the period between 1 January 1989 and 10 May 1990 in the Municipality of Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise to a disadvantage, the cited false making or falsifying of this/these invoice(s) consisting in that he, the suspect, together and in association with his fellow perpetrators, at least alone, falsely and/or contrary to the truth 1. has made or had made an invoice numbered 890120, dated 04-08-89 and addressed to Tony Bosch in Aruba, concerning (the delivery of) 1020 telephones (file Case 1, see 1/D/143), and/or 2. has made or had made an invoice numbered 890215, dated 30-11-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1098 telephones (file Case 1, see 1/D/146), and/or 3. has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135); Alternatively, in case the above under 1. would not or could not lead to a conviction: Trading company C.C. B.V., at various points in time in or about the period between 1 January 1989 and 10 May 1990 in Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise (each time) to a disadvantage, the cited false making or falsifying of this/these invoice(s) consisting in that above cited company together and in association with its fellow perpetrators, at least alone, falsely and/or contrary to the truth 1. has made or had made an invoice numbered 890120, dated 04-08-89 and addressed to Tony Bosch in Aruba, concerning (the delivery of) 1020 telephones (file Case 1, see 1/D/143), and/or 2. has made or had made an invoice numbered 890215, dated 30-11-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1098 telephones (file Case 1, see 1/D/146), and/or 3. has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135), to which and/or the commission of which offences he, the suspect, in or about the period between the month January 1989 and the month May 1990, in the Municipality of Hoorn, in any case in the Netherlands, has intentionally provided the opportunity, means and/or information and/or has intentionally provided assistance by dictating, or providing, the information contained in the above cited invoice(s) to the cited company, or to one or more of its staff members; ... ." By judgment of 13 April 1994, following adversarial proceedings, the Regional Court convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to twelve months’ imprisonment, suspended pending a probation period of two years, and payment of a fine of NLG. 200,000 from which fine NLG. 50 was to be deducted for each day the applicant had spent in pre-trial detention. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. In its judgment of 15 March 1996, following adversarial proceedings, the Court of Appeal quashed the judgment of 13 April 1994, convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to six months’ imprisonment, with deduction of the time spent in pre-trial detention, suspended pending a probation period of two years, and payment of a fine of NLG. 50,000. The Court of Appeal rejected the applicant’s argument that the summons should be declared null and void in that the charges brought against him, as stated in the summons, were phrased in terms so vague that was not clear what exactly the prosecution considered the applicant had in fact done in relation to the facts at issue. The Court of Appeal held that the summons was in conformity with the relevant requirements under Article 261 of the Code of Criminal Procedure (Wetboek van Strafvordering) and that, given the text and structure of the charges, there could be no misunderstanding that it concerned the commission of forgery in different factual forms. It further found that the summons were sufficiently clear for the applicant to understand what was held against him and against what he should defend himself. Moreover, during the applicant’s trial, it had not appeared that there existed any misunderstanding on the part of the applicant as to what was held against him. As to the applicant’s argument that the prosecution should be declared inadmissible for failure to respect the reasonable time requirement under Article 6 § 1 of the Convention, the Court of Appeal held that the proceedings at issue had started on 16 September 1991 when the applicant was arrested and detained on remand. It agreed that the applicant’s case had not been dealt with within a reasonable time within the meaning of Article 6 § 1 of the convention. After having weighed the applicant’s interest in obtaining a determination of his case within a reasonable time against the interest of the prosecution, the court decided that it would accept the applicant’s prosecution but that it would take this finding into consideration in the determination of the applicant’s sentence. In the determination of the applicant’s sentence, the Court of Appeal considered that the applicant’s actions had deprived the community of an estimated amount of NLG. 900,000 in taxes, this in a large part to the applicant’s personal benefit, and that a prison sentence of six months and payment of a fine of NLG. 150,000 would be an appropriate sentence. However, on the basis of the finding that the proceedings against the applicant had exceeded a reasonable time, the Court of Appeal decided to mitigate the prison sentence by rendering it conditional and to mitigate the fine by reducing it to NLG. 50.000. The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 15 April 1997. The applicant’s complaints about the rejection by the Court of Appeal of his arguments in relation to the manner in which the charges against him had been phrased and the length of the proceedings were rejected by the Supreme Court under Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) as not prompting a determination of legal issues in the interests of legal unity and legal development. b. Relevant domestic law Article 261 of the Code of Criminal Procedure, insofar as relevant, reads as follows: <Translation> “1. On penalty of nullity, the summons shall contain a description of the fact [with which the defendant is] charged, including the approximate time and location where it has allegedly been committed. 2. The summons shall further set out the circumstances under which the fact has allegedly been committed. 3. ... “. Article 225 of the Netherlands Criminal Code, as in force at the relevant time, provides as follows <Translation> “1. Any person who counterfeits or falsifies a document from which any right or obligation may arise or which may result in any discharge of a debt, or which is to be used as evidence of any fact, such with the aim of using it or enabling others to use it as if it were genuine and unfalsified, shall, if any damage could arise from such use, be guilty of forgery and liable to a term of imprisonment not exceeding six years and a fifthcategory fine or either one of these penalties. 2. Any person who intentionally uses such a forged or falsified document as if it were genuine and unfalsified, shall, if any damage could arise from such use, be liable to the same penalty.” | 0 |
dev | 001-105318 | ENG | EST | ADMISSIBILITY | 2,011 | METSAVEER v. ESTONIA | 4 | Inadmissible | Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | The applicant, Mr Ülari Metsaveer, is an Estonian national who was born in 1973 and lives in Vantaa, Finland. He was represented before the Court by Ms B. Mõttus, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was tried by a criminal court, apparently having been charged with theft. On 1 February 2003, before the judgment in the criminal case had been delivered, a newspaper, Pärnu Postimees, published an article entitled ‘Gang of Thieves on Trial’ (Vargajõuk kohtu all). According to the applicant the article gave the impression that the accused were guilty although they had not yet been convicted. The applicant brought a civil suit against Pärnu Postimees AS, the public limited company that published the newspaper. He claimed 300,000 kroons (EEK) (approximately 19,170 euros (EUR)). On 30 September 2005 the Pärnu County Court dismissed his claim. An appeal was dismissed by the Tallinn Court of Appeal by a judgment of 25 November 2005. The applicant received the judgment on 3 December 2005. An appeal to the Supreme Court could be filed within thirty days of the receipt of the judgment, that is, by 2 January 2006 at the latest. On 13 December 2005 the Court of Appeal received a request from the applicant for an extension of the time-limit for appeal, together with a request for legal aid. On 21 December 2005 the Court of Appeal granted the applicant legal aid for lodging an appeal with the Supreme Court. The Court of Appeal’s decision was sent to the applicant and to the Estonian Bar Association (Eesti Advokatuur) so that the latter could appoint a lawyer for him. The applicant’s address was given in the decision. It was explained in the decision that it was not possible to extend the time-limit for filing the appeal but it was possible to request the restoration of the time-limit after its expiry if good reason existed for the failure to comply with it. By a letter of 27 December 2005 the Board of the Bar Association (Advokatuuri juhatus) sent the Court of Appeal’s decision to the law office of the advocate who had been appointed, R., who received the letter on 30 December 2005. The applicant was not informed that the advocate had been appointed for him. R. neither contacted the applicant nor filed an appeal with the Supreme Court. According to different documents in the case file, the applicant became aware of the name and contact details of the appointed lawyer, R., either at the end of January 2006 when he telephoned the Court of Appeal, or on 9 February 2006 when he telephoned the Bar Association. On 9 February 2006 the applicant also telephoned R. According to the applicant, R. said that the time-limit for an appeal to the Supreme Court had already passed and she was no longer dealing with the case. The applicant himself should have sought to contact her. She had no time to meet the applicant on 9 or 10 February 2006. According to R. she had been unable to take any steps to lodge an appeal against the Court of Appeal’s judgment without having met the applicant. She proposed a meeting for 13 February 2006 but this was not suitable for the applicant, who said that he had to leave for Finland to start a new job on that date. On 9 February 2006 the applicant made a complaint to the Court of Honour (aukohus) of the Bar Association against R. R. was contacted by the Bar Association on the same date and was advised to file a request with the Supreme Court for the restoration of the time-limit for appeal. She filed the request, sent a copy to the applicant and requested the latter to contact her and pay the security for appeal. On 12 February 2006 the applicant requested that the Court of Honour suspend the proceedings as R. had filed a request for restoration of the time-limit with the Supreme Court. On 1 March 2006 the Supreme Court sent a letter to R. noting that according to Article 68 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) the appeal itself had to be lodged together with the request for restoration of the time-limit. Moreover, security had to be paid. On that basis the Supreme Court returned the application to R. The applicant was not informed thereof. It appears that in April 2006 the applicant, having telephoned the offices of different courts, learned of the Supreme Court’s letter and the fact that the case file had been sent back to the first-instance court as no appeal had been lodged and no security had been paid. On 19 April 2006 the applicant asked the Court of Honour to resume the examination of his complaint against R. He also requested that a new lawyer be appointed for him. The Court of Honour examined the matter on 8 June 2006. It considered that a decision to grant legal aid had to be communicated to the applicant as well as to the lawyer who had been appointed. However, such an obligation could not be placed on the lawyer; nor was a lawyer responsible for paying the security for appeal. The Court of Honour found that R. had not committed a disciplinary offence and decided not to initiate proceedings in respect of her. It informed the applicant that it was not within its powers to appoint a new lawyer for him and that he could still turn to R. for legal assistance. It also informed the Board of the Bar Association of the circumstances relating to the informing of an applicant about the appointment of a legal-aid lawyer. According to the applicant he attempted to contact R. by telephone and by letter; this having proved unsuccessful, on 26 September 2006 he requested the Supreme Court to appoint another lawyer and to extend the time-limit for lodging an appeal. On 27 September 2006 the Supreme Court refused the applicant’s requests. It noted that a request for legal aid had already been granted by the Tallinn Court of Appeal on 21 December 2005, that a lawyer to provide him with legal assistance had already been appointed and that there were no grounds for replacing that lawyer as provided for in subsections 2 and 3 of section 20 of the State Legal Aid Act. The Supreme Court further noted that the applicant’s lawyer had requested that the time-limit for lodging an appeal be restored but her application had been dismissed and returned to her because she had failed to lodge the corresponding appeal and to pay the security. Finally, the Supreme Court pointed out that the appeal had not been attached to the applicant’s application and that he had also failed to comply with the requirement under Article 218 § 3 of the Code of Civil Procedure according to which submissions to the Supreme Court could only be made through a lawyer. Accordingly, it returned the application to the applicant. Section 18(2) of the State Legal Aid Act (Riigi õigusabi seadus), as in force at the material time, stipulated that if a legal-aid lawyer was not appointed on the basis of a mutual agreement between him or herself and the claimant the court had to appoint a lawyer who consented thereto, or a lawyer named by the Bar Association, as the provider of State legal assistance. It was not specified how the claimant was to be informed thereof. Section 19 of the State Legal Aid Act provided that a lawyer was not allowed to refuse to provide State legal assistance to a person or terminate the provision of legal services to a person before the final adjudication of the matter unless there was a conflict of interests (section 44(4) of the Bar Association Act (Advokatuuriseadus)) or if the client’s claims were unlawful or contrary to the lawyer’s professional ethics, or the lawyer became aware that a criminal offence was being planned (sections 44(5) and 45(5) of the Bar Association Act). According to section 20 of the State Legal Aid Act the legal-aid lawyer could be replaced by another lawyer upon the latter’s consent and the mutual agreement of the original lawyer and the beneficiary of legal aid (subsection 1). If, arising from law, a lawyer was unable to continue to provide legal services to a beneficiary of State legal aid, he or she had to submit to a court an application for the appointment of a new legal-aid lawyer (subsection 2). Upon the exclusion of such a lawyer from the Bar Association or his or her disbarment, or upon the suspension of the professional activities or the death of the lawyer, a court had to appoint a new lawyer (subsection 3). Where a lawyer was replaced, the new lawyer had to continue providing legal services to the recipient from the point where the former lawyer had finished (subsection 4). Article 341 § 2 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), as in force until 31 December 2005, provided that an appeal against a judgment of an appeal court could be filed within thirty days of the judgment being made public, or within thirty days of receipt of a copy of the judgment if the judgment was given in written proceedings. On 1 January 2006 a new Code of Civil Procedure (2006 Code) entered into force. Article 670 § 1 of the 2006 Code provided that an appeal in cassation was to be submitted within thirty days of the date on which the judgment was served on the appellant in cassation. Article 218 § 3 of the 2006 Code provided that a party to litigation could perform procedural acts and submit requests and applications to the Supreme Court only through a lawyer (advokaat). Article 68 § 2 of the 2006 Code provided that when a request was made for the restoration of a time-limit, the procedural act for which the restoration was requested had to be performed at the same time. Article 67 § 2 of the 2006 Code provided that a request for restoration of a time-limit could be filed within fourteen days of the date on which the impediment which had hindered the participant to the proceedings in the performance of the procedural act ceased to exist, but not later than six months after the expiry of the time-limit. | 0 |
dev | 001-85467 | ENG | TUR | CHAMBER | 2,008 | CASE OF GÜMÜŞOĞLU v. TURKEY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property | Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria | 4. The applicants were born in 1955, 1935 and 1950 respectively and live in Hatay. 5. On various dates, the applicants bought plots of land (nos. 1233, 1230 and 1162 respectively) near the coast in Hatay. They each built a house there. 6. In 1995 the Treasury filed an action before the Samandağ Court of First Instance, requesting the annulment of the applicants’ title deeds to the land on the ground that they were located within the coastline. 7. On 16 December 1999 (nos. 40/02 and 41/02) and 9 December 1999 (42/02), the Samandağ Court of First Instance, relying, particularly, on expert reports, upheld the request of the Treasury and annulled the title deeds of the applicants to the plots of land. In its decisions, the court held that, pursuant to domestic law, coasts could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the site. 8. On various dates the applicants appealed. In their petitions they submitted, inter alia, that the right to property - a human rights norm - was protected under the constitution and the domestic law, and that the domestic courts had deprived them of their property rights without proper examination and without a payment of compensation. On 3 October 2000 their appeals were dismissed by the Court of Cassation. 9. On various dates the applicants requested the Court of Cassation to rectify its decision. The Court of Cassation dismissed the applicants’ requests on 2 May 2001 (nos. 40/02 and 42/02) and 19 April 2001 (no. 41/02). These decisions were served on the applicants on 6 June 2001 (nos. 40/02 and 42/02) and 23 May 2001 (no. 41/02). 10. The relevant domestic law and practice in force at the material time are outlined in the Doğrusöz and Aslan v. Turkey judgment (no. 1262/02, § 16, 30 May 2006). | 1 |
dev | 001-104907 | ENG | DEU | CHAMBER | 2,011 | CASE OF MORK v. GERMANY | 3 | Remainder inadmissible;No violation of Art. 5-1 | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre | 5. The applicant was born in 1955 and is currently detained in Aachen Prison. 6. Between 1978 and 1981 the applicant was convicted, among other offences, of numerous counts of joint burglary committed in companies and shops and was imprisoned from March 1980 until February 1985. 7. In 1986 the Dortmund Regional Court convicted the applicant of trafficking in drugs (hashish and cocaine) and sentenced him to eight years’ imprisonment. The applicant was in pre-trial detention and served his sentence from August 1985 until June 1993. 8. In December 1996 the applicant was arrested and placed in pre-trial detention on suspicion of drug trafficking; he has remained in prison since then. 9. In a judgment dated 9 February 1998 the Aachen Regional Court convicted the applicant of unauthorised importing of drugs and of drug trafficking committed in 1996 and involving some 280 kilos of hashish. It sentenced him to eight years and six months’ imprisonment. It decided not to order the applicant’s preventive detention under Article 66 of the Criminal Code (see paragraphs 22-23 below) as it was not convinced that the applicant was dangerous to the public owing to a disposition to commit serious offences. In this assessment, the court took into consideration that the applicant had not attempted to avert his punishment by lodging numerous procedural motions and had agreed to the forfeiture of money stemming from drug trafficking. The applicant claimed that he had struck a deal with the Regional Court on the latter’s proposal that the court would impose a sentence of less than ten years and would not order his preventive detention if he ceased to contest the court’s finding of fact. The Government submitted that there was no indication in the case-file that such an agreement had been made. 10. In a judgment dated 7 April 1999 the Federal Court of Justice dismissed an appeal by the applicant on points of law. It allowed an appeal by the prosecution regarding the Regional Court’s decision not to order the applicant’s preventive detention and quashed the judgment in this respect as the Regional Court had not given valid reasons for considering the applicant not to be dangerous to the public. 11. In a judgment dated 14 November 2001 a different chamber of the Aachen Regional Court ordered the applicant’s (first) indefinite preventive detention pursuant to Article 66 § 1 of the Criminal Code. Having consulted a psychiatric expert and having regard to the applicant’s personality and his previous convictions, the court considered that the applicant had a disposition to commit serious offences, was likely to commit further serious drug offences and was thus dangerous to the public. 12. In a decision dated 31 May 2002 the Federal Court of Justice dismissed as ill-founded an appeal by the applicant on points of law, in which the latter had complained that provisions of substantive law had not been complied with (allgemeine Sachrüge). 13. On 24 June 2002 the applicant, without being represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the two judgments of the Regional Court and the judgment and the decision of the Federal Court of Justice. He complained, in particular, that preventive detention was incompatible with his right to liberty under Article 5 § 1 of the Convention, which did not cover such a preventive measure. It further violated the prohibition of retrospective punishment under the Basic Law and Article 7 of the Convention because it was incompatible with the principle of legal certainty and because his preventive detention had been ordered without a maximum duration of ten years, which had been the maximum penalty at the time he committed his offences. Furthermore, his right to a fair trial had been breached in that the domestic courts had not subsequently respected the deal struck with the Regional Court that he would not further contest the court’s finding of facts in exchange for the court not ordering his preventive detention. 14. On 11 March 2004 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1046/02). The Federal Constitutional Court found that in so far as the applicant complained about the judgment of the Regional Court of 9 February 1998 and that of the Federal Court of Justice of 7 April 1999, he had lodged his constitutional complaint out of time. In so far as the applicant complained that the Regional Court’s order for his preventive detention in its judgment of 14 November 2001 lacked a valid legal basis and was arbitrary, his complaint was inadmissible for non-exhaustion of domestic remedies. The court found that the applicant had failed to submit his statement of the grounds of his appeal on points of law nor had he claimed before it that he had complained about the unconstitutionality of the amended provisions on preventive detention and about their application by the Regional Court to him before the Federal Court of Justice, at least by complaining that provisions of substantive law had not been complied with. 15. On 13 July 2007 the Bochum Regional Court, acting as the court dealing with the execution of sentences, having heard the applicant in person, ordered the applicant’s placement in preventive detention as of 25 July 2007 (Article 67c § 1 of the Criminal Code; see paragraph 24 below), that is, as from the day on which the applicant would have served his full prison sentence. The court fully agreed with the findings of a psychiatric and psychotherapeutic expert it had consulted on the applicant’s dangerousness. In his report dated 7 May 2007 the expert, having examined the applicant, had considered that, if released, the applicant was very likely to commit further serious offences similar to those he had previously committed. He was still dangerous to the public as he had to date failed to reflect sufficiently on his numerous offences. Even assuming that the security measures taken against him by the prison authorities had not been justified, this did not alter the fact that there had not been a consistent treatment limiting the risk that he would reoffend after his release. 16. On 6 September 2007 the Hamm Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 17. On 24 January 2008 the Hamm Court of Appeal rejected an objection (Gegenvorstellung) by the applicant. 18. On 17 October 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the Regional Court’s decision of 13 July 2007 and the Court of Appeal’s decision of 6 September 2007. By submissions dated 3 March 2008 he extended his complaint to the Hamm Court of Appeal’s decision of 24 January 2008. He claimed, in particular, that the order to place him in preventive detention disproportionately interfered with his right to liberty. He argued that the expert report on which the courts dealing with the execution of sentences had relied had not been drawn up in due form, that the courts had failed to give convincing reasons, in view of his mostly less serious previous convictions, why he was likely to commit further serious offences if released and that he had been refused relaxations in the conditions of his detention without convincing reasons. 19. On 14 July 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2356/07). It found, in particular, that the decisions of the courts dealing with the execution of sentences to order the applicant’s placement in preventive detention had not violated the applicant’s right to liberty. The Federal Constitutional Court found that the Regional Court’s assessment that the applicant had repeatedly committed serious offences was not arbitrary as the latter had been sentenced to one term of eight years’ imprisonment and another of eight years and six months. The expert report, which was of recent date, was sufficiently substantiated. In so far as the applicant had been refused relaxations in the conditions of his detention, the Constitutional Court noted that the courts dealing with the execution of sentences had not based their decision to order preventive detention globally on the fact that the applicant had failed to prove that he was no longer dangerous in the course of such relaxations. If the prison authorities refused to grant the applicant relaxations in the conditions of his detention in the future, the applicant had to raise this issue with the competent lower courts first. In view of the courts’ assessment that the applicant was likely to commit further serious offences if released, their finding that the interest in public safety prevailed over the applicant’s right to liberty had been proportionate. 20. On 12 August 2009 the Aachen Regional Court, acting as the court dealing with the execution of sentences, refused to suspend the execution of the preventive detention order against the applicant on probation. That decision was confirmed on appeal. 21. 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: 22. The sentencing court may, at the time of the offender’s conviction, order his preventive detention, a socalled measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code). 23. 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). 24. Article 67c § 1 of the Criminal Code provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person’s conduct commences with suspension. 25. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first placement in preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3). 26. 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, provided 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 conduct of the offender. 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. 27. Under the well-established case-law of the Federal Constitutional Court, a complainant is obliged to submit to that court, within the onemonth time-limit running from the notification of the impugned court decision, either a copy of the impugned decisions and of all documents necessary for their understanding or at least to set out their content in a manner allowing for a control of their constitutionality (see, inter alia, the decisions of the Federal Constitutional Court of 16 December 1992, file no. 1 BvR 167/87, Collection of the decisions of the Federal Constitutional Court (BVerfGE), vol. 88 (1993), pp. 40 ss., 45; of 10 October 1995, file nos. 1 BvR 1476, 1980/91 and 102, 221/92, Collection of the decisions of the Federal Constitutional Court, vol. 93 (1996), pp. 266 ss., 288; confirmed, for instance, by a decision of 18 March 2009, file no. 2 BvR 1350/08). No distinction was made in these decisions between complainants who were and those who were not represented by counsel. 28. 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 (compare the provisions in paragraphs 25-26 above) 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. 29. 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 because 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. 30. 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 most. 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. 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. 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. 31. 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). 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). | 0 |
dev | 001-61059 | ENG | UKR | CHAMBER | 2,003 | CASE OF POLTORATSKIY v. UKRAINE | 1 | No violation of Art. 3 with regard to alleged ill-treatment;Violation of Art. 3 with regard to lack of effective investigation;Violation of Art. 3 with regard to conditions of detention;Violation of Art. 8;Violation of Art. 9;Non-pecuniary damage - financial award;Costs and expenses partial award | Nicolas Bratza | 9. On 12 December 1995 the Ivano-Frankivsk Regional Court (oблacний суд) convicted the applicant of the murder of four persons, sentenced him to death and ordered the confiscation of his personal property. 10. On 22 February 1996 the Supreme Court (Верхoвний суд) upheld the judgment of the first-instance court. The applicant was transferred by the authorities responsible for the isolation block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior (Адміністрація слідчого ізолятору Управління міністерства внутрішніх справ) to one of the cells intended for persons awaiting execution of the death sentence. 11. A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11pп/99 of 29 December 1999, the Constitutional Court of Ukraine held that the provisions of the Criminal Code concerning the death penalty were contrary to the Ukrainian Constitution. As a result, death sentences were commuted to life imprisonment by Law no. 1483-III of 22 February 2000. 12. On 2 June 2000 the Ivano-Frankivsk Regional Court commuted the applicant’s death sentence to life imprisonment. 13. The facts of the case concerning the conditions of the applicant’s detention in Ivano-Frankivsk Prison and the events during his time there are disputed. 14. The facts as presented by the applicant are set out in paragraphs 17 to 23 below. The facts as presented by the Government are set out in paragraphs 24 to 30. 15. A description of the material submitted to the Commission and to the Court will be found in paragraphs 31 to 58 below. 16. The Commission, in order to establish the facts in the light of the dispute over the conditions of the applicant’s detention and the events which occurred in Ivano-Frankivsk Prison, conducted its own investigation pursuant to former Article 28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence from witnesses at a hearing conducted at the Ministry of Justice in Kyiv on 23 and 26 November 1998, and in Ivano-Frankivsk on 24 and 25 November 1998. The Commission’s assessment of the evidence and its findings of fact are summarised in paragraphs 59 to 75 below. 17. On 12 December 1995 the Ivano-Frankivsk Regional Court convicted the applicant of the murder of four persons, sentenced him to death and ordered the confiscation of his personal property. After the first-instance judgment, he was placed in a separate cell. He was not allowed to write to his family, nor could he be visited by his lawyer. He applied several times for permission to meet his lawyer. 18. On 22 February 1996 the Supreme Court upheld the judgment of the first-instance court. On a decision of the authorities responsible for the isolation block of the Ministry of the Interior, the applicant was transferred to a cell intended for prisoners awaiting execution of the death sentence. On 30 March 1996 the applicant’s lawyer applied to see the applicant in order to give him the Supreme Court’s decision in the case. The prison governor did not grant him permission to do so. 19. Conditions of detention of persons sentenced to death were governed by the Pre-Trial Detention Act 1993 (“the Act”) and by an instruction of 20 April 1998 (“the Instruction”), whose content remained top secret. Under the terms of the Instruction, exercise in the open air, watching television, buying newspapers and receiving food parcels from relatives were prohibited. The Instruction therefore prevented the applicant from enjoying the rights guaranteed by the Act. 20. In a reply by the deputy head of the Ivano-Frankivsk Directorate of the Ministry of the Interior to a complaint by the applicant’s father concerning the conditions of the applicant’s detention, reference was made to the Instruction. Moreover, according to information received by the applicant’s father from the deputy governor of the prison, it appeared that the Act did not apply to him. Had the Act been applicable to the applicant, he would have been entitled under sections 9(1) and 13 to take daily exercise in the open air, to receive parcels twice a month and to watch television. However, this was strictly prohibited between 1995 and 1998. Up to September 1997 the applicant was also prohibited from sending and receiving letters. It was only then that the deputy governor of the prison orally informed the applicant’s mother that he could send and receive letters. Moreover, his father was refused permission to visit him on 29 May 1995 and 10 June and 31 July 1996 without any explanation from the prison authorities. From July 1996 onwards, instead of monthly visits which would last up to two hours, the applicant’s father had been allowed to visit the applicant only once every three months for not more than one hour. 21. As regards visits from a priest, the applicant’s father and members of the clergy repeatedly but unsuccessfully applied to the prison authorities and those responsible for the isolation block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for the applicant to be allowed to receive a visit from a priest. 22. The applicant finally stated that he had complained several times about the conditions in which he was being held. He had also unsuccessfully applied to the prison authorities for permission to lodge an application with the European Commission of Human Rights. 23. In a letter to the Commission of 6 March 1998, the applicant’s father stated that on 4 March 1998 he had seen his son, who had told him about a check-up carried out by a commission from the Ministry of the Interior in mid-February 1998. After the commission had left, the applicant had been transferred to a cell that was worse equipped and dirty. The window in the cell had been fully shuttered. The bucket for flushing the toilet had been taken away and the toilet could not therefore be cleaned properly, which had caused an unbearable smell. Moreover, the applicant had been given only 25 cl of hot water to prepare tea and milk. All his dishes had been removed. His Bible had been taken away. He had not been allowed to read periodicals and his notebook and calendar had been confiscated. 24. The Government stated that the legal status and conditions of detention of persons sentenced to death were governed by the Act and the Code of Criminal Procedure. Pursuant to section 8 of the Act, a person sentenced to death was kept in custody away from other prisoners. The cell to which the applicant had been transferred after his sentence had become final complied with the sanitary and hygiene rules laid down in section 11 of the Act: the cell measured 9 sq. m and had a bed, a table, a radio, sufficient natural and electric light, heating, running water and a toilet. 25. The applicant was provided with three meals a day, standard clothing and footwear as well as other articles of everyday use. Medical assistance, treatment, prophylactic and anti-epidemic measures were arranged and implemented in accordance with the legislation on health protection. 26. According to section 12 of the Act, prior to the sentence being carried out, prisoners sentenced to death were, as a rule, allowed visits from relatives and other persons not more than once a month, by written permission of the court within whose jurisdiction the case fell. The length of a visit was two hours maximum. After a case had been dealt with by an appellate court, visits by lawyers and legal assistants could be allowed by the head of the Central Directorate of the Ministry of the Interior, the head of the Regional Directorate of the Ministry of the Interior or his deputy responsible for the isolation block. According to section 12 of the Act, visits by defence counsel were allowed without any limits as to their number and length. 27. On 13 December 1995, after the first-instance judgment, the applicant’s parents and lawyer received permission to visit him. The parents visited the applicant on 15 December 1995 and in January 1996. The applicant’s lawyer visited him on 21 December 1995 and on 7 January 1996. During the period from 22 February 1996 to 29 December 1997, the parents applied to the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for permission to visit the applicant on 24 February, 4 March, 5 April, 4 May, 2 July, 1 October, 18 November and 25 December 1996, and on 3 and 20 June and 19 September 1997. They were granted permission for visits on 24 February, 5 March, 5 April, 4 May, 2 July, 4 October and 4 December 1996, and on 4 March, 4 June, 4 September and 4 December 1997. 28. The applicant’s lawyer applied for permission to visit the applicant on 25 April, 11 November, and 18 and 19 December 1996. Permission was granted for a first visit on 7 May 1996 and on the other occasions as requested. 29. Persons sentenced to death were allowed to send an unlimited number of letters. During the period 1995-98 the applicant sent thirty-one letters: twenty-four letters related to his criminal case and seven letters were to his relatives. The applicant applied for the first time to the Regional Directorate of the Ministry of the Interior for permission to send letters to his relatives on 17 September 1997. Thereafter he sent letters to his parents on 19 and 26 November and 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He received letters from his parents on 18 and 29 September, 19 October, 20 November and 24 December 1997, and on 16 and 26 January, 6, 10 and 23 February, 14 and 16 March, 17 April, 14 May, 1 and 8 June, 1 and 30 July, 20 August, 29 September, 10, 22 and 27 October, 4, 20, 26 and 30 November and 4, 17 and 21 December 1998. 30. The Government further submitted that the Prosecutor-General had conducted a thorough investigation into the applicant’s and his parents’ complaints concerning the application of illegal methods of investigation in the applicant’s case, namely torture and brutal and inhuman treatment. The allegations had not been proved and had been found unsubstantiated. In fact, complaints by the applicant, his parents, his representative and his defence counsel were received on 11 March, 8 April, 13, 14 and 29 May, 24 July, 11 September and 25 October 1996, and on 5 and 17 March, 19 May and 25 July 1997, and answered on 20 and 23 March, 23 and 24 April, 23 May, 27 June, 1 August, 30 September and 14 November 1996, and on 28 and 31 March and 20 May 1997. On 31 July 1997 the exchange of letters and the proceedings concerning the complaints filed by the applicant and his parents were terminated pursuant to section 12 of the Act. 31. In a letter of 26 May 1998 the prison governor replied to a complaint lodged by the applicant’s father on 10 May 1998 informing him that persons sentenced to death were allowed to send twelve letters a year. He also stated that the applicant was aware of his rights and obligations. 32. In a letter of 10 August 1998 the Ivano-Frankivsk regional prosecutor informed the applicant’s father that visits and correspondence of persons sentenced to death were governed by the Instruction and not by the Act to which the applicant’s father had referred in his complaint. 33. In a written complaint of 4 September 1998 addressed to the regional prosecutor the applicant’s parents stated, inter alia, that they had not seen the applicant for three months, that since 5 July 1998 they had not received any letters from him, that on 2 September 1998 they had become aware that the applicant had been beaten and humiliated, that Mr Ivashko, the deputy governor of the prison, had intervened during their visit on 2 September 1998 when the applicant had spoken about his conditions of detention, and that, for a period of one year and six months, the applicant had been denied the possibility of a visit from a priest, despite his requests. 34. In a letter of 10 September 1998 the regional prosecutor informed the applicant’s father that the applicant’s visits and correspondence were governed by the national legislation and that the prison administration had acted within the limits of this legislation. 35. On 10 September 1998 the Ivano-Frankivsk deputy regional prosecutor sent a report to the Prosecutor-General. The report concerned the findings of the investigation carried out following the complaint by the applicant’s father about allegedly unlawful acts by the prison authorities in respect of the applicant’s correspondence and visits. The report concluded that the investigation had not established any violation of the applicant’s rights by the prison authorities. 36. On 11 September 1998 the applicant’s father sent a complaint to Mr Shtanko, the head of the State Department for the Execution of Sentences, to which the latter replied on 12 October 1998. The allegations he raised were similar to those in his complaint to the regional prosecutor of 4 September 1998. Mr Shtanko replied that the applicant had been placed in solitary confinement because he had broken the rules. Furthermore, an investigation had not established that any physical force had been used against the applicant or that the prison authorities had humiliated him or restricted his rights, as was confirmed by the applicant himself. The applicant’s father was also informed that visits, including visits by a priest, could be allowed by the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior. 37. On 23 October 1998 the applicant’s parents submitted a request to the regional prosecutor, the Regional Directorate of the Ministry of the Interior and the prison governor that a commission of independent doctors be set up in order to examine the applicant’s state of health. They alleged that the inmates of the prison had been tortured, which resulted in a suicide attempt by one of them or an attempt on his life. On 3 November 1998 the applicant’s parents were informed by the prison governor that their request had been refused on the grounds that there had been no sign of torture or of the use of any other physical violence against the applicant and that his state of health was satisfactory. 38. On 23 and 24 October 1998 the applicant’s parents sent a letter to Mrs Leni Fischer, then President of the Parliamentary Assembly of the Council of Europe. They complained of torture inflicted on the applicant and one of his fellow inmates, Mr Kuznetsov, which had resulted in a suicide attempt by the latter, and alleged that they had been taken to hospital and that Mr Kuznetsov had been paralysed. The parents further complained that they had been prevented from seeing the applicant. 39. In a letter of 26 October 1998 the applicant’s parents informed the Commission that “in establishment BI 304/199 in Ivano-Frankivsk there [had] been an attempt to execute the unjustly condemned M. Kuznetsov and B. Poltoratskiy illegally, and [that] the Government [had] tried to conceal the fact”. 40. A handwritten medical report issued on 28 October 1998 was signed by the applicant. The report stated that the applicant did not show any signs of having been beaten and that his state of health was satisfactory. 41. In a handwritten statement of 28 October 1998 the applicant said that he had been treated properly by the prison authorities, that no physical violence had been employed, that all disciplinary measures imposed on him had been justified and that his parents’ complaints had not been substantiated. 42. The Regional Directorate for the Execution of Sentences of the Ministry of the Interior issued a report on 29 October 1998 in response to the applicant’s father’s complaint about alleged torture and his request for a commission of independent doctors to examine the applicant’s state of health. The report stated that on 28 October 1998 the applicant had been examined by the prison doctors who had found no signs of physical injury. It also stated that the applicant denied that he had been tortured. 43. In a letter of 30 October 1998 the deputy head of the Regional Directorate of the Ministry of the Interior informed the applicant’s mother that her complaint concerning torture to which the applicant had allegedly been subjected had been examined and found to be unsubstantiated. A medical examination of the applicant had not shown any signs of torture. Accordingly, there was no reason to set up a medical commission to investigate the allegations. 44. A letter of 2 November 1998 from the deputy regional prosecutor to the Prosecutor-General reported on the findings of the investigation carried out in connection with the applicant’s father’s complaint about restrictions on the applicant’s correspondence and visits, the interference by the prison authorities during the applicant’s parents’ visit on 2 September 1998 and the physical torture inflicted on the applicant. The letter said that, as regards the restriction on the applicant’s correspondence and visits, the father had wrongly relied on the Act, which did not apply to that category of prisoners, that the interference by a prison official had been justified, and that on 25 September 1998 the applicant had undergone a thorough medical examination which had not established any physical injuries. Finally, it explained that the applicant had been placed in solitary confinement on 26 August 1998 because he had broken the prison rules by refusing to let himself be examined by a prison warder upon his return from a daily walk outside the cell. 45. In a letter of 20 November 1998 the deputy regional prosecutor replied to the applicant’s mother’s complaint about the physical torture allegedly inflicted on the applicant and to her request for a medical examination of the applicant. He stated that on 28 October 1998 the applicant had undergone a medical examination which had established that the allegations were unsubstantiated. The medical report had been confirmed and signed by the applicant. 46. In a letter of 23 November 1998 the regional prosecutor informed the applicant’s father that his allegations about illegal acts on the part of the prison authorities had been found to be unsubstantiated. 47. In a letter of 30 November 1998 the deputy head of the Regional Directorate of the Ministry of the Interior informed the applicant’s representative, Mr Voskoboynikov, that he could not be granted permission to visit the applicant as the latter had already had a visit from his relatives that month. 48. In a letter of 8 December 1998 from the State Department for the Execution of Sentences the applicant’s father was informed that a thorough investigation had proved that his complaint about an illegal attempt to execute his son was unsubstantiated and that his son’s state of health was satisfactory. 49. On 22 December 1998 the applicant requested permission from the head of the Regional Directorate of the Ministry of the Interior to see a priest. His request was granted and he saw a priest on 26 December 1998. 50. In a letter of 15 February 1999 the prison governor informed the applicant’s father that his complaint of 22 January 1999 had been examined. He stated that persons sentenced to death were allowed to receive two parcels a year but no food parcels. 51. In a decision of 5 March 1999 the Senior Prosecutor rejected a criminal complaint by the applicant’s parents against the deputy regional prosecutor. He refused to institute criminal proceedings against the latter on the ground that there was no evidence of his having committed an offence. He stated, inter alia, that the Act did not apply to the conditions of detention of death-row prisoners. These were governed by the Instruction, which was covered by the rules on State secrecy. 52. According to the prison records, the applicant’s parents applied to visit the applicant on 19 September 1997, and on 4 March, 8 April, 19 June, 22 July, 2 November and 1 December 1998. Permission was given on 7 October 1997, and on 4 March, 22 April, 20 August, 17 November and 11 December 1998 for visits which took place on 4 December 1997 and 4 March, 12 June, 2 September and 26 November 1998 and on 4 January 1999. The request of 19 June 1998 was not granted. 53. According to the prison records, the applicant sent letters to his parents on 17 September, 19 and 26 November, and 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He received letters from them and other persons on 18 and 29 September, 19 October, 20 November and 24 December 1997, and on 16 and 26 January (two letters), 6, 10, 17 and 23 February, 6, 14 and 16 March, 6, 17, 20, 27 and 29 April, 14 May, 1, 8 and 30 June, 1, 20 and 30 July, 20 August (two letters), 29 September, 10, 22 (two letters) and 27 October, 4, 13, 20, 26 and 30 November, 4, 17 and 21 December 1998. 54. In an undated document Mr Y.M. Pavlyuk, the deputy head of the isolation block, declared that during the period between 11 September 1997 and 18 December 1998, neither the applicant nor his parents had asked for permission for the applicant to see a priest. He further declared that during the said period no member of the clergy had asked for such permission. He signed the declaration. 55. According to the applicant’s medical card, the applicant was X-rayed and blood-tested on 23 April 1998. On 25 September, 1 and 28 October, 9, 19 and 27 November, 3, 10, 17 and 24 December 1998 the applicant was seen by a prison psychiatrist. 56. In a written request of 2 May 2000 to the head of the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior, Mr Boyko, the applicant’s father, in his capacity as his legal representative, asked for a confidential meeting with the applicant in order to discuss issues concerning his application pending before the European Court of Human Rights. On 23 May 2000, following a further request lodged on 15 May 2000, he was granted permission for a normal visit on 5 June 2000. 57. On 16 May 2000 the applicant’s father complained to the Deputy Minister of the Interior that his request of 2 May 2000 for a confidential meeting had remained unanswered. 58. In a letter of 14 July 2000 the deputy head of the State Department for the Execution of Sentences, Mr V.A. Lyovochkin, replied that Mr Boyko had given the applicant’s father permission to visit the applicant on 5 June 2000 and that the visit had taken place as scheduled. He added that in accordance with Article 40 of the Correctional Labour Code, a lawyer could be given permission for a confidential meeting with his client on presentation of his licence and identity card. 59. Since the facts of the case were disputed, the Commission conducted an investigation, with the assistance of the parties, and took oral evidence from the following witnesses: the applicant; the applicant’s parents; Mr Bronislav S. Stichinskiy, Deputy Minister of Justice; Mr Drishchenko, Deputy Prosecutor-General; Mr Ivan V. Shtanko, Deputy Minister of the Interior; Mr Petro A. Yaremkiv, the governor of Ivano-Frankivsk Prison; Mr Bogdan V. Kachur, prison doctor; Mr Stanislav V. Prokhnitskiy, medical assistant; Mr Yuriy M. Pindus, assistant to the prison governor, who was on duty on 3 September 1998; Mr Fedir O. Savchuk, assistant to the prison governor, who was on duty during the night of 2 to 3 September 1998; Mr Igor P. Ivashko, the deputy governor of the prison; Mr Yaroslav M. Pavlyuk, the deputy head of the isolation block; Mr Valentin M. Nabiulin, the head of the Department for Supervision of Isolation Blocks and Prisons of the Directorate for the Execution of Sentences; Mr Oleksand V. Kmyta, the deputy head of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior; and Mr Anatoliy O. Boyko, the head of the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior. The Commission’s findings may be summarised as follows. 60. The applicant gave evidence before the delegates that he had been beaten on 2 September 1998 after the visit from his parents on the same day. During that visit, he had said to his parents that he had been beaten and called a beast. The applicant’s parents stated before the delegates that they had been told by their son on 2 September 1998 that he had been beaten and humiliated. The Commission observed, however, that the applicant denied before the delegates that he had been beaten before 2 September 1998. It considered, therefore, that it had not been established that the applicant had been beaten before 2 September 1998. 61. As to the events on 2 September 1998, the applicant stated before the delegates that, after the visit from his parents on that date, he had been taken to the “cinema room” where four persons, including Mr Pavlyuk, the deputy head of the isolation block on duty, were waiting for him with clubs. He had been asked three times to tell everything, but had refused and had been struck on his legs, hips, back and chest. He had returned to his cell and had written until the morning on four sheets of paper which had been included in a file. 62. The applicant further stated that he had been beaten on 10, 14 and 22 September 1998. One day, during a technical search of his cell, he had been taken out and ordered to get undressed so that his clothes could be checked. When he was naked, he had been beaten. He had been ordered to lie down on the floor with his face to the ground and his hands behind his head. He mentioned the name of K.Y. Hrevnin to the delegates. 63. The Commission considered that the applicant’s account contained a number of details and elements which it would not have expected to find in a fabricated story. It noted, however, that there was no record of any occurrence connected to the ill-treatment described by the applicant. The Commission accepted that the applicant may have been afraid to complain or to write to anyone, as he said. However, it accepted this argument with difficulty, having regard to the fact that he had not been scared when he had told his parents on 2 September 1998 that he had been beaten. Moreover, the prison psychiatrist saw him on 25 September 1998 and had not recorded any problems regarding his state of health or any injuries. The Commission added that the medical report of 28 October 1998, which the applicant had signed, concluded that he did not show any signs of having been beaten and that his state of health was satisfactory. 64. The Commission further noted that the applicant had signed a written statement on 28 October 1998 to the effect that he had been treated properly by the prison authorities, that no physical violence had been used against him, that all disciplinary measures imposed on him had been justified and that his parents’ complaints had not been substantiated. It took into account the fact that, before the delegates, the applicant had denied the contents of his statement, and pointed out that the practice of the prison authorities to require an inmate to confirm in writing that he had been treated properly by prison officers gave rise to suspicion. 65. As to the applicant’s parents’ submission before the delegates that, after the alleged beatings and torture on 2 September 1998, he had been transferred to Chukopovskiy Psycho-Neurological Hospital early in the morning of 3 September 1998 and had been placed in the intensive care unit where he had been given a blood transfusion, the Commission observed that, although the applicant had maintained that he had been beaten after his parents’ visit on 2 September 1998, he had denied that he had been transferred to hospital. This was corroborated by the statements of the prison doctor, the medical assistant, the governor’s assistant on duty at the time and the deputy governor, all of whom had been heard by the delegates. In addition, there was no documentary evidence proving that the applicant had been taken to hospital on the aforesaid date. The Commission did not consider the parents’ evidence on this point convincing or reliable. 66. The Commission found that there was no medical or other material evidence establishing that the applicant had sustained injury as a result of ill-treatment by prison officers in Ivano-Frankivsk Prison, as he had alleged. It had regard to the fact that the applicant had denied that he had been beaten before 2 September 1998 and had been transferred to hospital after that date, and that the absence of any use of force by prison officers on 2, 10, 14 and 22 September 1998 had been supported by the oral statements of the witnesses heard by its delegates. The Commission therefore found it impossible to establish, beyond reasonable doubt, that the applicant had been subjected to ill-treatment in prison as he had alleged. 67. The applicant’s parents sent a complaint to the regional prosecutor on 4 September 1998, claiming, inter alia, that they had become aware that the applicant had been beaten and humiliated by prison officers. They made similar allegations to the head of the State Department for the Execution of Sentences on 11 September 1998. On 12 October 1998 the latter informed the applicant’s father that the investigation had not established that any physical force had been used against his son or that the prison authorities had humiliated him or restricted his rights. He also stated that this finding had been confirmed in writing by the applicant himself. 68. On 23 October 1998 the applicant’s parents requested the regional prosecutor, the Regional Directorate of the Ministry of the Interior and the prison governor to set up an independent medical commission in order to examine the applicant’s state of health. They alleged that the prison’s inmates had been tortured, resulting in a suicide attempt by one of them, Mr Kuznetsov, or in an attempt on his life. On 30 October 1998 the applicant’s mother was informed by the deputy head of the Regional Directorate of the Ministry of the Interior that her complaint concerning the alleged torture of the applicant had been examined and found to be unsubstantiated and a medical examination of the applicant had not revealed any signs of torture. There was, accordingly, no reason to set up a medical commission to investigate her allegations. On 3 November 1998 the prison governor informed the applicant’s parents that their request had been refused on the grounds that there was no sign of torture or the use of any other form of physical violence against the applicant and that his state of health was satisfactory. In a letter of 20 November 1998 to the applicant’s parents, the deputy regional prosecutor confirmed that on 28 October 1998 the applicant had undergone a medical examination which had established that the parents’ allegations were unsubstantiated. Moreover, on 2 November 1998 the deputy regional prosecutor sent a letter to the Prosecutor-General which reported on the results of the investigation carried out in connection with, inter alia, the allegations that the applicant had been physically tortured. The letter confirmed that on 25 September 1998 the applicant had undergone a thorough medical examination which had not revealed any physical injury. 69. The Commission noted that on 8 December 1998 the applicant’s father had received a letter from the State Department for the Execution of Sentences stating that a thorough investigation had proved that his complaint about an attempt to execute his son was unsubstantiated and that the latter’s state of health was satisfactory. The domestic investigation had then ended on 5 March 1999 with a decision by the Senior Prosecutor on the applicant’s parents’ criminal complaint against the regional prosecutor. The Senior Prosecutor had refused to institute criminal proceedings on the ground that no criminal offence had been established. 70. The Commission found that there were no contemporaneous records giving details of any investigation which the domestic authorities had carried out into the applicant’s parents’ allegations of the events in September 1998. It had not seen a single document proving that an investigation had been carried out by any domestic authorities other than those directly involved in the facts of which the applicant’s parents complained. Moreover, the medical report of 28 October 1998 had been drafted almost two months after the applicant’s alleged ill-treatment and the applicant had not been seen by the prison doctor or prison psychiatrist between 23 April and 25 September 1998. 71. The Commission found that the eight death-row inmates at Ivano-Frankivsk Prison, including the applicant, were being kept in single cells without the opportunity to communicate with other inmates. The applicant’s cell measured 2 x 5 x 3 m. There was an open toilet, a washbasin with a cold-water tap, two beds, a table and a little bench, both fixed to the floor, central heating and a window with bars. The applicant had some books, newspapers, a chess set, a stock of soap and toilet paper, some fruit and other food. During the delegates’ visit on 24 and 25 November 1998, the cell had been overheated, particularly in comparison with other rooms in the prison. The light was on twenty-four hours a day and the central radio was switched off at night. The inmates were frequently observed by prison warders through a spy hole in the door of the cell, which deprived them of any kind of privacy. The cell was freshly painted, from which the inference might be drawn that conditions had been worse prior to the delegates’ visit. The Commission accepted the applicant’s evidence that between 24 February and 24 March 1998 there had been no tap or washbasin in his cell, but only a small pipe on the wall near the toilet, that the water supply could only be turned on from the corridor, that the walls were covered with faeces and that the bucket for flushing the toilet had been taken away. The Commission found the applicant’s evidence – which was not contested by the Government – persuasive. 72. The Commission also accepted the applicant’s evidence that, until May 1998, the window in his cell had been shuttered and that he had not been allowed to take daily outdoor walks. 73. Concerning the applicant’s parents’ requests to visit him, the Commission found that, apart from the parents’ request of 19 June 1998, all had been granted. The parents had applied to visit their son on 19 September 1997 and on 4 March, 8 April, 22 July, 2 November and 1 December 1998. Permission had been given on 7 October 1997 and on 4 March, 22 April, 20 August, 17 November and 11 December 1998 for visits which had taken place on 4 December 1997 and 4 March, 12 June, 2 September and 26 November 1998 and 4 January 1999. The Commission noted that the parents’ requests to visit the applicant had mostly been granted for a date two or three months after the request had been made. Moreover, two warders had been present during the visits, who were authorised to interrupt the conversation if they considered that the parents or the applicant had said anything “untrue”. 74. Regarding the applicant’s correspondence, the Commission noted that the applicant had applied for the first time to the Regional Directorate of the Ministry of the Interior for permission to send a letter to his relatives on 17 September 1997. Thereafter he had sent letters to his parents on 19 and 26 November 1997, 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He had received letters from his parents on 18 and 29 September, 19 October, 20 November and 24 December 1997, and on 16 and 26 January, 6, 10 and 23 February, 14 and 16 March, 17 April, 14 May, 1 and 8 June, 1 and 30 July, 20 August, 29 September, 10, 22 and 27 October, 4, 20, 26 and 30 November and 4, 17 and 21 December 1998. 75. The Commission could not establish with sufficient clarity whether the applicant or his parents had asked for permission for a priest to come to see the applicant. It nevertheless found that while the applicant had seen a priest on 26 December 1998 following his request of 22 December 1998, there had been no regular visits to inmates by any chaplain. 76. Under Article 8 §§ 2 and 3, the Constitution is directly applicable. There is a guaranteed right to bring an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of the Constitution. 77. Article 9 § 1 provides that international treaties, which are in force and agreed on as binding by the Verkhovna Rada (parliament) of Ukraine, are part of the national legislation. 78. Article 15 § 3 prohibits censorship. 79. Under Article 19 the legal order in Ukraine is based on the principle that no one may be forced to do what is not provided by law. State authorities and local self-government bodies and their officials are required to act exclusively in accordance with this principle, within the limits of their authority, and in the manner provided by the Constitution and the laws of Ukraine. 80. Article 22 provides that human and citizens’ rights and freedoms are guaranteed and may not be reduced by the adoption of new laws or the amendment of those that exist. 81. Under Article 29 §§ 2 and 4 no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law. Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention, apprised of his rights and, from the moment of detention, must be given the opportunity to defend himself in person or to have the assistance of a lawyer. 82. Under Article 55 §§ 2 and 4, everyone is guaranteed the right to challenge the decisions, actions or omissions of State authorities, local self-government bodies and officials and officers of courts of law. After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which Ukraine is a member or participant. 83. Under Article 59 everyone has the right to legal assistance. Such assistance is provided free of charge in cases provided by law. Everyone is free to choose who is to defend his rights. In Ukraine, the Bar (адвокатура) ensures the right to a defence against charges and the provision of legal assistance before the courts and other State authorities. 84. Article 63 § 3 provides that a convicted person enjoys all human and citizens’ rights, subject only to restrictions provided by law and determined by a court ruling. 85. According to Article 64, human and citizens’ rights and freedoms guaranteed by the Constitution may not be restricted, except in cases provided by the Constitution. 86. Conditions on death row in the Ukrainian prison system were governed successively by the Instruction of 20 April 1998 on conditions of detention of persons sentenced to capital punishment (“the Instruction”) and by the Temporary Provisions of 25 June 1999 on the conditions of detention of persons sentenced to capital punishment in the isolation blocks (“the Temporary Provisions”). 87. The Instruction provided that after the sentence had become final persons sentenced to death were to be kept in isolation from other prisoners in specially designed cells. Save in exceptional cases, there were to be no more than two such prisoners in one cell. The cell area allocated to one prisoner in a single cell had to be not less than 4 sq. m and in a double cell not less than 3 sq. m. Prisoners were provided with an individual sleeping place and with bed linen. They had to wear a uniform reserved for especially dangerous reoffenders. Reference was also made to their legal status and obligations. The Instruction determined the frequency of visits from relatives and the number of letters they could send and receive: they were allowed one visit per month and could send one letter per month. There was no limitation on the correspondence they could receive. They could receive two small packets a year. They were allowed a daily one-hour walk in the fresh air. Outside their cells, they were handcuffed. They were not allowed to work. 88. Prisoners were also allowed to read books, magazines and newspapers borrowed from the prison library and/or bought through the prison distribution network; they could receive money transfers; they could keep personal objects and food in their cells, and buy food and toiletries in the prison shop twice a month (up to the value of the statutory minimum wage), and play board games. They could meet their lawyers in accordance with the national legislation. Medical treatment was provided also in accordance with the national legislation. 89. Prisoners could lodge complaints with the State authorities. Such complaints had to be dispatched within three days. Complaints addressed to the public prosecutor were not censored. 90. The Temporary Provisions extended the rights of persons sentenced to death compared with the Instruction. In particular, prisoners were allowed to have eight hours’ sleep during the night; they could receive six parcels and three small packets per year, buy food and toiletries in the prison shop (up to the value of 70% of the statutory minimum wage), pray, read religious literature and have visits from priests, and address written complaints to the State authorities. They were allowed to send and receive letters without any limitation and to have monthly visits of up to two hours from their relatives. A prison official had to be present during those visits. Meetings with lawyers in order to provide prisoners with legal aid were organised in accordance with the correctional-labour legislation. 91. According to the Code of Criminal Procedure, pre-trial detention is a preventive measure applicable to an accused, a defendant, a person suspected of having committed a crime punishable with imprisonment or a convicted person whose sentence has not yet been enforced. 92. Under section 8(4) of the Act, persons sentenced to death, but whose sentence had not become final, were to be held separately from all other prisoners. 93. Section 9(1) of the Act provides, inter alia, that detainees have the right (a) to be defended in accordance with the rules of criminal law; (b) to be acquainted with the rules of detention; (c) to take a one-hour daily walk; (d) to receive twice a month a parcel weighing up to 8 kg and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery; (e) to buy food and toiletries to the value of one month’s statutory minimum wage (to be paid for by written order), as well as unlimited amounts of stationery, newspapers and books in prison shops; (f) to use their own clothing and footwear and to have with them documents and notes related to their criminal case; (g) to use television sets received from relatives or other persons and board games, newspapers and books borrowed from the library in their previous place of detention or bought from shops; (h) individually to perform religious rites and use religious literature and objects made of semi-precious materials pertaining to their beliefs, provided that this does not lead to a breach of the rules applicable to places of pre-trial detention or restrict the rights of others; (i) to sleep eight hours a night, during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency; and (j) to lodge complaints and petitions and send letters to the State authorities and officials in accordance with the procedure prescribed by section 13 of the Act. 94. Under section 11, detainees are required to be provided with everyday conditions that meet sanitary and hygiene standards. The cell area for one person may not be less than 2.5 sq. m. Detainees are to be supplied with meals, an individual sleeping place, bedclothes and other types of material and everyday provisions free of charge and according to the norms laid down by the government. In case of need, they are to be supplied with clothes and footwear of a standard quality. 95. Under section 12(1), permission for relatives or other persons to visit a detainee (in principle, once a month for one to two hours) can be given by the administrative authorities of the place of detention, but only with the written approval of an investigator, an investigative authority or a court dealing with the case. Under subsection (4), detainees have the right to be visited by defence counsel, whom they may see alone with no restrictions on the number of visits or their length, from the moment the lawyer in question is authorised to act on their behalf, such authorisation being confirmed in writing by the person or body dealing with the case. 96. Under section 13(1), detainees may exchange letters with their relatives and other persons and companies, establishments and organisations with the written permission of an authority dealing with the case. Once a sentence starts to run, correspondence is no longer subject to any limitation. 97. According to Article 28 (Main features of the regime in penal institutions) of the Code, the principal characteristics of the regime in penal institutions are: the compulsory isolation and permanent supervision of sentenced persons, so as to exclude any possibility of crimes or other acts against public order being committed by them; strict and continuous observance of obligations by these persons; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person. Sentenced persons must wear a uniform. They must be searched; body searches must be conducted by persons of the same sex as the person searched. Correspondence is subject to censorship, and parcels and packages are subject to opening and checking. A strict internal routine and strict rules must be established in correctional labour establishments. Sentenced persons are prohibited from keeping money and valuables, or other specified objects, in correctional labour establishments. Any money and valuables found are to be confiscated and, as a rule, transferred to the State in accordance with a reasoned decision of the governor of the establishment, sanctioned by a prosecutor. A list of objects which sentenced persons are allowed to possess, giving the number or quantity of each item and the procedure for confiscating objects whose use is prohibited in correctional labour establishments, must be established by the internal regulations of such establishments. Under the provisions of the Code, sentenced persons are allowed to buy food and toiletries (to be paid for by written order), to have visits, to receive parcels, packages, postal packages and money by remittance, to correspond and to send money to relatives by remittance. 98. Article 37 § 1 (Purchase of food and toiletries by sentenced persons) provides that sentenced persons are allowed to buy food and toiletries, to be paid for by written order from the money received by remittance. 99. Article 40 provides, inter alia, that a lawyer may be given permission to see his client on presentation of his licence and identity card. Visits are not limited as to their number and length and, at the lawyer’s request, may be carried out without a prison warder being present. 100. Under Article 41 (Receipt of parcels and small packets by persons sentenced to imprisonment) sentenced persons held in correctional labour colonies (виправнo-тpудова колонія) are allowed to receive, per year: seven parcels in colonies subject to the general regime (колонія загального режиму), six parcels in colonies subject to the restricted regime (колонія посиленого режиму) and five parcels in colonies subject to the strict special regime (колонія суворого режиму). Sentenced persons held in educational labour colonies (колонія виховно-трудова) are allowed to receive per year: ten parcels in colonies subject to the general regime and nine parcels in colonies subject to the restricted regime. Convicted offenders serving their sentence in a prison are not allowed to receive parcels. Irrespective of the type of regime under which they are held, sentenced persons are allowed to receive not more than two small packets per year, and to buy reading matter through the sales distribution network without any restrictions. The quantity of parcels and small packets of all types is not restricted for sentenced persons held in correctional labour colony camps (виправнo-тpудова колонія-поселення). A list of foodstuffs and toiletries which sentenced persons are allowed to receive in parcels and small packets, as well as the procedure for their receipt and delivery to the sentenced persons, is to be established in the internal regulations of correctional labour establishments. 101. Under Article 42 (Receipt and sending of money by sentenced persons by remittance) sentenced persons are allowed to receive unlimited amounts of money by remittance, as well as to send money to their relatives and, if this is permitted by the authorities of the correctional labour establishments, to other persons. The money received by remittance is transferred to the personal account of the sentenced person. 102. Article 43 § 2 (Correspondence of persons sentenced to imprisonment) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows: one letter per month for those held under the general regime and one letter every two months for those held under the strengthened regime. 103. According to section 12(1) of the Public Prosecutor’s Office Act, the public prosecutor shall deal with petitions and complaints concerning breaches of the rights of citizens and legal entities, except complaints that are within the jurisdiction of the courts. Subsection (4) provides that an appeal lies from the prosecutor’s decision to the supervising prosecutor and, in certain cases, to the court. Subsection (5) provides that the decision of the Prosecutor-General is final. 104. Under section 38 the prosecutor or his deputy has the power to make a request to a court for any materials in a case where a judgment or another decision has come into force. If there are any grounds for reopening the proceedings, the prosecutor may challenge the court judgment or any other decision. 105. Under section 44(1) the matters subject to the public prosecutor’s supervision are: adherence to the legal rules on pre-trial detention and correctional labour or other establishments for the execution of sentences or coercive measures ordered by a court; adherence to the procedures and conditions for holding or punishing persons in such establishments; the rights of such persons; the manner in which the relevant authorities carry out their duties under the criminal law; and legislation on the enforcement of sentences. The public prosecutor may at any time visit places of pre-trial detention, establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform, in order to conduct interviews or consult documents on the basis of which persons have been detained, arrested or sentenced or subjected to compulsory measures; he may also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such establishments, terminate the implementation of such acts, appeal against them or cancel them where they do not comply with the law, and request officials to give explanations concerning breaches which have occurred. 106. In its resolution, the Assembly deplored the executions which, reportedly, had been carried out recently in Latvia, Lithuania and Ukraine. In particular, it condemned Ukraine for apparently violating its commitment to introduce a moratorium on executions of the death penalty upon its accession to the Council of Europe. It called upon this country to honour its commitments regarding the introduction of a moratorium on executions and the immediate abolition of capital punishment, warning it that further violation of its commitments, especially the carrying out of executions, would have consequences under Order no. 508 (1995). 107. The Assembly confirmed in this resolution that it had received official information that, in the first half of 1996, eighty-nine executions had been carried out in Ukraine, and regretted that the Ukrainian authorities had failed to inform it of the number of executions carried out in the second half of that year. The Assembly was particularly shocked to learn that executions in Ukraine had been shrouded in secrecy, with apparently not even the families of the prisoners having been informed, and that the executed prisoners had reportedly been buried in unmarked graves. It condemned Ukraine for having violated its commitment to put into place a moratorium on executions, deplored the executions that had taken place, and demanded that Ukraine immediately honour its commitments and halt any executions still pending. 108. In these texts, the Assembly noted that Ukraine had clearly failed to honour its commitments (212 persons had been executed between 9 November 1995 and 11 March 1997, according to official sources). At the same time, it noted that since 11 March 1997 a de facto moratorium on executions had been in effect in Ukraine. The Assembly insisted that the moratorium be reconfirmed de jure and that the Verkhovna Rada ratify Protocol No. 6 to the Convention. It stressed the importance of the de facto moratorium on executions and firmly declared that, if any further executions took place, the credentials of the Ukrainian parliamentary delegation would be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure. 109. Delegates of the CPT visited places of detention in Ukraine in 1998, 1999 and 2000. Reports on each of the visits were published on 9 October 2002, together with the responses of the Ukrainian government. 110. The visit of the delegation, which took place from 8 to 24 February 1998, was the CPT’s first periodic visit to Ukraine. In the course of the visit the delegation inspected, inter alia, Pre-Trial Prison (SIZO – “investigation isolation establishment”) no. 313/203 in Kharkiv. On the ground floor of building no. 2 were housed at the time of the visit fifteen prisoners who had been sentenced to death, although as was recorded in a footnote to the report, the delegation had received assurances that since 11 March 1997 a de facto moratorium on executions had been observed. 111. In its report (§ 131), the CPT expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them. It was noted that prisoners sentenced to death were usually accommodated two to a cell, the cell measuring 6.5 to 7 sq. m. The cells had no access to natural light, the windows being obscured by metal plates. The artificial lighting, which was permanently on, was not always sufficiently strong with the result that some cells were dim. To ventilate the cells, prisoners could pull a cord that opened a flap. Despite this, the cells were very damp and quite cold (§ 132). The equipment in the cells was described in the report as being rudimentary, consisting of a metal bed and/or sleeping platform (fitted with a thin mattress, sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold), a shelf and two narrow stools. Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell, but the delegation had been told that the radio only functioned sporadically (ibid.). All the cells had non-partitioned toilets which faced the living area; as a result, a prisoner using the toilet had to do so in full view of his cellmate. As regards toiletries, prisoners sentenced to death were in a situation as difficult as that of many of the other inmates; items such as soap and toothpaste were scarce (ibid.). It was further recorded that prisoners sentenced to death had no form of activity outside their cells, not even an hour of outdoor exercise. At best they could leave their cells once a week to use the shower in the cell-block, and for an hour once a month if they were authorised to receive family visits. In-cell activities consisted of reading and listening to the radio when it worked. Apart from the monthly visits which some inmates received, human contact was limited essentially to the occasional visit by an Orthodox priest or a member of the health-care staff, who spoke to the prisoners through a grille in the cell door (§ 133). 112. The CPT summarised its findings as follows (§ 134): “In short, prisoners sentenced to death were locked up for 24 hours a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting, with virtually no activities to occupy their time and very little opportunity for human contact. Most of them had been kept in such deleterious conditions for considerable periods of time (ranging from 10 months to over two years). Such a situation may be fully consistent with the legal provisions in force in Ukraine concerning the treatment of prisoners sentenced to death. However, this does not alter the fact that, in the CPT’s opinion, it amounts to inhuman and degrading treatment.” It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation (the progress of their cases, follow-up to applications for cases to be reviewed, examination of their complaints, etc.) (§ 138). 113. In its response to the 1998 report, the Ukrainian government recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the CPT. In particular, the Temporary Provisions had been introduced to guarantee to prisoners sentenced to death the right to be visited once a month by relatives, to be visited by a lawyer to get legal assistance, to be visited by a priest and to receive and send correspondence without limitation. It was further noted (i) that prisoners sentenced to death would have daily walks in the open air and that for this purpose 196 yards of pre-trial prisons had been rebuilt or re-equipped; (ii) that, in order to improve the natural lighting and air of all cells, the blinds and metal plates over cell windows had been removed; and (iii) that, for the purposes of informing inmates sentenced to death of their rights and legal status, extracts from the Temporary Provisions had been posted on the walls of each cell. 114. A CPT delegation visited Ukraine from 15 to 23 July 1999, on which occasion it again inspected SIZO no. 313/203 in Kharkiv where, at that time, twenty-three prisoners who had been sentenced to death were being detained. The report noted that certain changes had occurred since the previous visit. In particular, the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air, although it was observed that there was insufficient space for real physical exercise (§§ 34-35). The report further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond (§ 36). However, the CPT noted certain unacceptable conditions of detention, including the fact that prisoners continued to spend twenty-three out of twenty-four hours a day in their cells and that opportunities for human contact remained very limited (§ 37). 115. A third visit to Ukraine took place from 10 to 21 September 2000, in the course of which the delegation inspected, inter alia, Pre-Trial Prison (SIZO) no. 15 in Simferopol. The CPT welcomed the decision of the Ukrainian authorities to abolish the death penalty and noted that most of the approximately 500 prisoners subject to the death sentence had had their sentences commuted to life imprisonment. 116. Despite these welcome developments, the CPT declared that the treatment of this category of prisoner was a major source of concern (§ 67). It was noted that, further to a provisional instruction issued in July 2000 and pending the establishment of two high-security units specifically intended for life prisoners, such prisoners were subjected to a strict confinement regime (§ 68). While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited, there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation (§ 69). Moreover, life prisoners were confined in their cells for twenty-three and a half hours a day with no form of organised activities and, by way of activities outside their cells, were entitled to only half an hour of outdoor exercise, which took place in unacceptable conditions. There was virtually no human contact: since the entry into force of the July 2000 instruction, visits from relatives had been forbidden and prisoners were only allowed to send one letter every two months, although there were no restrictions on receiving letters (§ 70). 117. In their response to the report, the Ukrainian government noted further legal amendments which ensured that life prisoners had one hour of exercise per day and two family visits of up to four hours per month. Further, to ensure adequate access to light, the metal blinds had been removed from the windows of all cells. | 1 |
dev | 001-97655 | ENG | TUR | ADMISSIBILITY | 2,010 | TASDEMIR v. TURKEY | 4 | Inadmissible | Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | The applicant, Mr Resul Taşdemir, is a Turkish national who was born in 1979. He was serving a sentence in the Erzurum Prison when the application was lodged. On 6 September 2005, to celebrate World Peace day, the applicant participated in a demonstration in the district of Doğubeyazıt in the Ağrı Province, outside the building that housed the DEHAP (the Democratic People's Party). During the demonstration someone read out a press statement and the crowd, including the applicant, shouted slogans. Subsequently, criminal proceedings were initiated against the applicant and five other accused persons, pursuant to Article 215 of the Criminal Code, for praising a criminal and a crime. In the indictment, the prosecution stated that the applicant had shouted “Biji Serok Apo, HPG cepheye misillemeye” (Long live Apo! HPG (the armed wing of the PKK) to the front line in retaliation!). During the proceedings, the court took into consideration the defence statements of the accused, as well as CD recordings and photographs taken during the demonstration. Before the court, the applicant accepted that he was the person in the CD recording and the photograph. He further stated he had shouted slogans in support of peace. In a final decision dated 13 April 2007, the Erzurum Assize Court convicted the applicant as charged and sentenced him to twenty-five days' imprisonment. The court then commuted the prison sentence to a fine of 500 Turkish liras (TRY) (equivalent to 270 euros). As the applicant failed to pay the fine, he served his sentence of imprisonment. | 0 |
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This is the ECHR dataset, a collection of 11.5K court cases extracted from the public database of the European Court of Human Rights and further annotated by human experts. The dataset was published along with this paper (pleae cite it accordingly!) and can be donwloaded in its original form from this website.
Each instance in this dataset is a court case. Each court case is annotated with the following properties (the columns of the dataframe):
partition: a label indicating dataset partition this court case belongs to ("train", "dev", or "test")itemid: a code which uniquely identifies this court caselanguageisocode: an ISO code describing the language in which the case is reportedrespondent: the ISO code of the party being sued or tried (respondents are nation states)branch: the branch of the Court dealing with the case, indicating at which stage of the trial a judgement was made (it can be one out of "ADMISSIBILITY", "CHAMBER", "GRANDCHAMBER", "COMMITTEE")date: the date of the judgementdocname: the title of the court case (for example, "ERIKSON v. ITALY")importance: an "importance score" from 1 (key case) to 4 (unimportant), denoting a case's contribution in the development of case-lawconclusion: a short summary of the case conclusion (for example, "Inadmissible" or "Violation of Art. 6-1; No violation of Art. 10"judges: the name of the judgestext: the facts brought to the attention of the Courtbinary_judgement: a binary label indicating whether an article or protocol was (1) or wasn't (0) violated
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